LLB

1SEMESTER
FAMILY LAW -1
Family law -1 lecture 07-Oct-2023 7:15AM

Hindu law:
Nature of the Hindu form of law has the longest history of the world. The Hindu rule has been
changed over the centuries and has still been in effect for the last 6000 years, it has always continued
to regulate the social and moral nature of Hindu culture by observing the various aspects of Hindu
intellectual history. I f any person follows the religion by practising it or by claiming it can be called as
a Hindu. It refers to the code of laws applied to Hindus, Buddhists, Jains and Sikhs in British India .

Sources of Hindu
Sources of Hindu law can be classified into ancient and modern sources .

The ancient sources include:

● Shruti

● Smriti

● Customs

● Digests and Commentaries

Shruti:
 Originated in the 12th century BCE.
 Composed by sages believed to have received direct divine communication.
 Commonly referred to as Vedas, with four main divisions:
1. Rig Veda (hymns on Nature)
2. Samaveda (hymns on Religious rituals and music)
3. Yajur Veda (hymns on Administration)
4. Atharva Veda (hymns on Black magic, spells, etc.)
 Includes six Vedangas (subsidiary texts): Kalpa, Vyakarna, Chanda, Shiksha, Jyotish, and
Nirukta.

Smriti:
 Developed later and provides a systematic exposition of laws and principles.
 Dharmasutras (500-300 BCE) are prose writings, covering topics like the role of the king,
laws, administration, rules, and regulations. Notable authors include Gautama, Apastamba,
Vasistha, Harita.
 Dharmashastras are written in verse with a rhyme scheme, mainly based on Kalpas, and are
divided into three parts:
1. Achara (rituals and customs)
 2. Vyavahara (civil laws)
3. Prayaschitta (penance and expiation)
 Prominent authors include Manu, Bhrahaspati, Kautilya.
 Yajnavalkya Smriti is significant, especially in the context of succession and inheritance laws.
 Manusmriti addresses various topics, such as laws of succession, the king's role as an
administrator, and categories of sins.

Commentaries and Digests:

 Commentaries (Tikkas) provide an understanding of existing laws.
 Digests (Nibandas) offer interpretations of the law made by humans.
 These writings draw from both Vedas and Vedangas.
 Various authors have written commentaries and digests, with a focus on prominent smritis
like Manusmriti and Yajnavalkya Smriti.

Customs:
 Customs bridge Acharas (rituals and customs) with Dharma (righteousness).
 In the colonial era, judicial decisions were often influenced by established customs.
 Valid customs must meet criteria such as being ancient, certain, unambiguous, accepted by
society, morally sound, reasonable, and consistent with existing laws.
 Customs can be categorized into three types: local customs, class customs, and family
customs.

Family law -1 lecture 09-Oct-2023 7:15AM

The modern sources include

● Precedents

● Legislations

● Justice, Equity and Good conscience

I. Precedents: Precedents have a lot of value in shaping the law. A previous case or legal decision
that may be or ( binding precedent ) must be followed in subsequent similar cases.

For example, the Maini Bibi v Chaudhry Vakil Ahmed, the inlaws wanted to throw out the widow.
Inlaws refused to pay the dower amount to the wife and therefore she retained the husband’s
property unless the dower was given.

ShahBanu’s case, Judgement in favour of women. Muslim woman’s protection act introduced. Law
of maintenance is not property provided under Islamic law.

Bai Tahira V Ali Hussain, Muslim women will be governed under 125 of the IPC for maintenance.

II. Legislations: Statutory law or statute law is the laws that are created for the legislation. A formal
act of legislation given in the written form is called a statute. While legislation definition is given
as a kind of assembly that has the power to amend, pass, and repeal laws.
III. Justice, Equity and good conscience: Includes the principles of natural justice. Has been present
in Hindu law for a long time.

Schools of Hindu Law

Schools of Hindu law emerged with the emergence of the era of Commentaries and Digests.
There are 2 main schools of Hindu law, they are as follows :
● Mitakshara School
● Dayabhaga School / Bengal School

Difference b/w Mitakshara school and Dayabhanga school

Mitakshara School Dayabhaga School

Right to property arises by birth Right to property arises after the death of the
last owner
Patriarchal Matriarchal
Father has restricted the power of alienation He has absolute power of alienation
Son can ask for partition Cannot demand partition
Property- survivorship By inheritance
Members cannot dispose of the shares while Members have a choice to give away their
undivided. rights

Family law -1 lecture 10-Oct-2023 7:15AM

Marriage under Hindu Law: in the ancient period

1. Bramha : daughter was given off to a man learned in Vedas. The groom must be a scholar and
must have brilliance and knowledge in Vedas. [APPROVED]
2. Daiva : Skills of the groom was taken into consideration. [APPROVED]
3. Arsha: anyone who gave cattle for the performance of religious practices then the bride is
offered as a token of appreciation. [APPROVED]
4. Prajapatya : Male and female consent to the wedding and take the blessings of the parents.
Debt paid by son in law so daughter was sent off as a token of appreciation. [APPROVED]
5. Asura : Women were purchased by men. [NOT APPROVED]
6. Gandharva: Modern-day concept of love marriage. Live-in relationship, but only after puberty.
Only the consent of the bride and the groom is required. [NOT APPROVED]
7. Rakshasa : The Kings who won battles would take over the kingdoms, riches and women. [NOT
APPROVED]
8. Pishacha : If a woman was raped and the rapist consents to make her his wife even if she is
not interested, she is forced. [NOT APPROVED]

Caste-based marriage after Vedic age

 1. Anuloma: A boy from upper class marries a girl from a lower class. Initially not accepted. it s
accepted only among the Brahmins, Kshatriyas and Vyshyas. This is considered as a reason for
the increase in polygamy.
2. Pratiloma: A lower caste Man marries an upper-caste girl. Prohibited for Shudras.

Ceremony
 Tilak ceremony - fixing the wedding
 Saptapadi - 7 holy rounds around the fire (viva Homa) bonds the relationship for all 7
lives.
 Kanyadan - father hands of the daughter to the groom. If no father then it is done by a
guardian. Guardian: MItakshara - Father> Grandfather > Father’s relative > mother
 Dhayabhaga - mother and her relatives.

Family law -1 lecture 11-Oct-2023 7:15AM

HINDU MARRIAGE ACT 1955 [ BIFURCATION OF HINDU CODE] –

 Uniform codified law
 Intercaste marriages were allowed
 Monogamy was made the rule
 Bigamy prohibited
 Sapinda relationships prohibited
 No child marriage, 18+
 Matrimonial reliefs provided
 Maintenance provided

SARLA MUDGAL CASE

Sarla Mudgal v. Union Of India[1] is a Supreme Court of India case. Its judgement in 1995 laid down the
principles against the practice of solemnizing second marriage by conversion to Islam, with first marriage
not being dissolved. The verdict discusses issue of bigamy, the conflict between the personal laws existing
on matters of marriage and invokes article 44 of Indian Constitution. It is considered a landmark decision
that highlighted the need for a uniform civil code.

As it was against justice, equity and good conscience. Conversion from one faith to another
doesn't dissolve the marriage of an individual. The marriage can only be dissolved by decree
of divorce obtained by the competent court on any of the ground under Section 13 of the
Hindu Marriage Act, 1955. The court also declared that if a person is found guilty then he will
be charged under Section 494 of the Indian Penal Code, 1860 for bigamy.

Section 1 : Short title and extent.—

(1) This Act may be called the Hindu Marriage Act, 1955.

(2) It extends to the whole of India and applies also to Hindus domiciled in the territories to which
this Act extends who are outside the said territories
 Family law -1 lecture 12-Oct-2023 7:15A
Who is a Hindu?
Who is a Hindu as per Hindu Marriage Act (HMA), 1955?

Section 2 of Hindu marriage act defines who is a Hindu

 Hindu by Religion - A person who is Hindu, Jain, Buddha, or Sikh by religion.

 Converts and Reconverts to Hinduism (including Buddhists, Jains, Sikhs). A non-Hindu will
become a Hindu by

 Expressing a bona fide intention to become Hindu, accompanied by conduct

oconversion by undergoing a formal ceremony of conversion or reconversion prescribed by
the caste or community to which he/she converts or reconverts

 Hindu by Birth - A person who is born of Hindu parents.

If only one parent is a Hindu, the person can be a Hindu if he/she has been raised as a Hindu.

 Persons who are not Muslim, Christian, Jew, or Parsee by religion. Persons who are not
governed by any other religious law will be governed by Hindu Law.

Family law -1 lecture 13-Oct-2023 7:15A

Section – 3 :- Definitions
In this Act, unless the context otherwise requires,—

a) The terms "customs" and "usage" refer to rules that have long been seen as equal rights for
Hindus in a local area, tribe, and community.

This rule is fixed and public policy cannot be opposed.

b) 'District Court' means the Civil Court of the City or any other Civil Court within its area of
jurisdiction.
c) 'Full blood' and 'half blood'

Full Blood is when two people are related because they are descendants of the same ancestor but
with the same wives;

Half-blood means when two people are related because they are descendants of the same ancestor
but with different wives.

d) 'Uterine blood' means when they are descended from the same ancestor but from different
husbands.
Clauses (c) and (d) 'ancestors' include father and 'ancestor' mother.

e) 'Prescribed' means prescribed by rules made under the Act.

f) SAPINDA RELATIONSHIP
i) The 'Sapinda' relation refers to one who progresses from the mother's line to the
third generation and the father's ascent to the fifth generation.

ii) People who are called each other's 'Sapinda' mean that one is the descendant of the
other.

g) The term 'degree of restricted relationship' refers to two persons who are said to be in a
restricted relationship.
I. If one is of the lineal ascendant of others.
II. If one of them is wife or husband of lineal ascendant or descendant.
III. If the wife of the brother is one of them, or if one of the father's or mother's
brothers.
IV. If the couple is brother and sister, uncle and niece, aunt and nephew or children of
brother and sister or if two of them are sisters and brothers.

Explanation: - for clauses (f) and (g)

i) If the couple is related by half-blood, full blood or uterine blood.

ii) If the couple is related by illegitimate or legitimate blood relationship.

14 SATURDAY [NON-INSTITUTION DAY] AND 15 SUNDAY

Family law -1 lecture 16-Oct-2023 7:15A

Section-19 JURISDICTION
Court to which petition shall be presented

All the petitions as per this Act will be filed in the district court within the local limits where -

(i) The marriage was solemnized

(ii) The respondent resides at the time of presenting the petition

(iii) Where the parties resided last

(iv) Where the petitioner is residing to but the respondent at the time is residing on other territories
to the area where the act extends.
 The State Of Bombay vs Narasu Appa
Mali on 24 July, 1951
In this case, a Hindu man convicted under a Hindu bigamy prohibition law complained that the law
violated his fundamental right to equality under the recently adopted Constitution, since the law
prohibited Hindu men from committing bigamy, but not Muslim men...

A two-judge bench of the Bombay High Court held that personal laws could not be invalidated by
courts even if they are found to be opposed to fundamental rights, since personal laws were not
“laws in force” as defined by Article 13 of the Constitution.

Thus, personal laws were held to be immune from constitutional challenge.

Family law -1 lecture 17-Oct-2023 7:15A

Section :- 5 CONDITIONS FOR HINDU MARRIAGR.

Marriage between a Hindu couple is solemnized on fulfilling the following conditions.

i] Neither of the couples should have a living spouse at the time of marriage.

ii]At the time of the marriage -

a] Both the parties should be able to give consent and should be of sound mind.

b] Neither party should be subject to any kind of mental disorder & the person is unfit for marriage
and procreation.

c] Neither party should be at risk of recurrent episodes of dementia or epilepsy.

iii] By law, the couple must be an adult, the bride must be 18 years of age and above and the groom
must be 21 years of age and above.

iv] Both the partners should not fall under the degree of prohibited relationship.

v] Both the partners must not be Sapindas of each other.

Section :- 11 VOID MARRIAGES

It states that all the marriages completed after the commencement of the Act will be considered Null
& Noid –

If one of the parties wants to file a petition against another & violates the conditions mentioned in
clauses (1) , (4) & (5) Of Section 5.

DADAJI BHIKAJI VS RUKHMABAI

 Rukhmabai Raut was married to Dadaji Bhikaji at the age of 11. However, she stayed at the
house of her widowed mother after her marriage.
 Rukhmabai’s step-father supported her when she refused to stay with Bhikaji and his family
at his house. This has led to Dadaji Bhikaji vs Rukhmabai case in 1885.
  Bhikaji asked for “restitution of conjugal rights”. Justice Pinhey gave judgment in favour of
Rukhmabai and said, “Rukhmabai was a young woman and was married off in helpless
infancy and therefore cannot be forced”.
 After many criticised the judgment as diminishing Hindu customs, the case came up for
retrial.
 There were debates around internal reforms vs external reforms, Hindu vs English law and
respecting ancient customs and traditions.
 The final judgment in 1887 had asked Rukhmabai to live with her husband or face
imprisonment for six months instead.
 Finally, Queen Victoria settled the matter by overruling the court order and dissolved her
marriage.
 It influenced the Age of Consent Act, 1891 which abolished child marriages thereafter .

Family law -1 lecture 18-Oct-2023 7:15A

Section: - 7 CEREMONIES FOR HINDU MARRIAGES

(1) Hindu marriage should take place according to the customs and rituals in the Hindu culture.

(2) These rites and rituals include Saptapadi (seven steps taken by the bride and groom in the
presence of holy fire), after completing the seven steps the marriage is considered complete as per
Hindu customs.

Section: - 8 REGISTRATION OF HINDU MARRIAGES

1] In order to provide proof of marriage to Hindu couples, the government can make rules for the
registration of their marriages.

2] Standing with anything contained in the sub-section -

a] The State Government may provide that it should be mandatory to specifically enter
(if necessary) in the register in each State.

b] Anyone who violates the rule made by the state government will be punished with a fine of
not more than 25 Rupees.

3] These rules should be laid before the state legislature.

4] The Hindu Marriage Register shall remain open at every reasonable time as evidence of the
statements. It shall obtain a certified extract from the Registrar after paying the prescribed fee.

5] There is no validity under this section, should not be affected by omission in the entry.

Family law -1 lecture 19 & 20 -Oct-2023 7:15A

Section: - 9 RESTITUTION OF CONJUGAL RIGHTS

If either husband or wife withdraws themselves from society without any valid reason, the other
party can file a petition in the district court.

The judge has the power to pass the order for the restitution of the conjugal rights only if -

1) the partner does not have the valid reason

2) It does not have any valid legal ground

Explanation- Anybody who decides to withdraw from the society of either of them will have to
prove the excuse to the court.

T. Sareetha vs T. Venkata Subbaiah

AIR 1983 ANDHRA PRADESH 356

 Sareetha was studying in High School and living with her parents in Madras. Venkata
Subbaiah was from Cuddapah. He had agricultural lands there.
 It was contended that a sixteen-year-old Sareetha’s hand was given to Venkata Subbaiah in
marriage at Tirupathi. They separated almost immediately after and had been living
separately for over five years.
 Venkata Subbaiah had therefore filed a suit in the Subordinate Court, Cuddapah, under
Section 9 of the Act for the restitution of conjugal rights.
 T Sareetha raised a preliminary objection regarding the jurisdiction of the Subordinate Court,
Cuddapah, in entertaining Venkata Subbaiah’s application.
 The Subordinate Judge struck down Seetha’s objection.
 Therefore, Sareetha filed a Civil Revision Petition in the High Court.
 The Cuddapah Court had jurisdiction to entertain the application made by Venkata Subbaiah.
 Section 9 of the Hindu Marriage Act is null and void.
 The application filed by Venkata Subaiah in the Subordinate Court, Cuddapah, for the
restitution of conjugal rights with Sareetha was legally incompetent.
 The Subordinate Court, Cudappah, was prohibited from trying Venkata Subbaiah’s
application.
 Revision Petition was allowed.

Harvinder Kaur v. Harmander Singh

Choudhry
AIR 1984 DELHI 66

 Harvinder Kaur who is the appellant was married to Harmandar Singh Choudhry who is the
respondent. They were married on the 10th of October, 1976
 They both were independent and had jobs of their own.
 They had a son who was born to them on the 14th of July, 1978.
  They both started living on their own and separately as the appellant left the house accusing
the respondent that is her husband and his mother of malpractice and maltreatment.
 Due to these circumstances the husband applied for a petition under Section 9the Hindu
Marriage Act, 1955 which seeks and exemplifies the restitution of conjugal rights.
 The Additional District Judge ruled in Favor of the husband and granted a decree of
restitution of conjugal rights to him.
 The other party challenges the validity and significance of the constitutionality of the section
9 of the Hindu Marriage Act.
 The wife also raised an objection pertaining to the jurisdiction of the court.

SAROJ RANI V SUDARSHAN KUMAR

AIR 1984 SUPREME COURT 1568
Smt. Saroj Rani vs Sudarshan Kumar Chadha was sentenced on August 8, 1984. It is considered a
milestone because it challenges the legitimacy of Section 9 of the Hindu Marriage Act, 1955 when a
two-judge panel of the Supreme Court of India upheld the law. Legality of Restitution of Marital
Rights contained in the Act.

 The Appellant, the wife, faced alleged maltreatment and eviction from the marital home by
the Respondent, the husband, two years after their marriage and the birth of their second
daughter.
 Subsequently, the Appellant initiated a suit for restitution of conjugal rights under Section 9
of the HMA, leading to the issuance of a consent decree by the sub-judge 1st class.
 Although the Appellant claimed to have briefly cohabited with the Respondent after the
decree, subsequent courts did not accept this assertion.
 After one year, the Respondent filed for divorce under Section 13 of the HMA, arguing that a
year had passed since the consent decree was issued, and no cohabitation had occurred
between them.
 The district judge rejected the divorce petition, citing the consent nature of the decree for
restitution of conjugal rights.
 The Respondent appealed to the High Court, and the Single Judge referred the case to the
Chief Justice, requesting the formation of a Division Bench to assess whether a consent
decree for restitution of conjugal rights was valid.
 The Division Bench determined that the consent decree was not collusive and granted the
Respondent a divorce decree.
 The Appellant lodged an appeal with the Supreme Court.

Family law -1 lecture 21-Oct-2023 7:15A

Section: - 10 JUDICIAL SEPARATION

(i) Anyone who wants to separate has to file a petition. A marriage solemnized before this Act or
after that Act, requires the petitioner to find grounds under any of the sub-sections on which they
shall file for separation of section 13(1).
 (ii) In the case where the separation is passed by the court, the petitioner doesn't have to live
together with the partner. But the court can make the couple stay together in a case where it is
reasonable to do so.