family law- 11th.pdf

UNIT V FAMILY LAW I. SCHOOL OF HINDU LAW Hindu Law is the most ancient law in the world. Originally Hindu Law was created to satisfy every need and welfare of the people. The sources of the concept for H...

UNIT V FAMILY LAW I. SCHOOL OF HINDU LAW Hindu Law is the most ancient law in the world. Originally Hindu Law was created to satisfy every need and welfare of the people. The sources of the concept for Hindu Law are Shruti (words of God), Smriti (text), customs (old practices), commentaries and digests. With the development of the Smriti came the disparity in opinion amongst commentators and interpreters. There was no authoritative position of law, although various codes were developed. An authority could be accepted in one part of India and totally rejected in other parts of India. Persons who accepted one authority were likely not to accept other authorities. Thus, different schools of thought emerged. The two major schools of Hindu law are as follows:  Mitakshara  Daya Bhaga Mitakshara and Dayabhaga are the two important schools of Hindu Law which have given us the required information about the present legislated laws. In Rutcheputty v. Rajendra, it has been observed that the different schools of Hindu Law have originated due to different local customs prevailing in different provinces of the country. A. Mitakshara School Mitakshara is one of the most important schools of Hindu law. It is a running commentary of the Smriti written by Yajnvalkya. This school is applicable in the whole part of India except in West Bengal and Assam. The Mitakshara has a very wide jurisdiction. However different parts of the country practice law differently because of the different customary rules followed by them. Mitakshara is further divided into five sub-schools namely as following:  Benaras Hindu law school  Mithila law school.  Maharashtra law school.  Punjab law school.  Dravida or Madras law school. These law schools come under the ambit of Mitakshara law school. They enjoy the same fundamental principle but gives preference to certain treaties and commentaries which control the certain passage of Mitakshara. B. Dayabhaga School Dayabhaga school predominantly prevailed in Assam and West Bengal. This is also one of the most important schools of Hindu laws. It is considered to be a digest for the leading smritis. Its primary focus was to deal with partition, inheritance and joint family. Dayabhaga school was formulated with a view to eradicating all the other absurd and artificial principles of inheritance. The immediate benefit of this new digest is that it tends to remove all the shortcomings and limitations of the previously established principles and inclusion of many cognates in the list of heirs, which was restricted by the Mitakshara school. In Dayabhaga school, various other commentaries were followed such as:  Dayatatya  Dayakram-sangrah  Virmitrodaya  Dattaka Chandrika II. WHO IS A HINDU? The law which governs Hindus is known as the Hindu Law. According to ancient Hindu texts, a Hindu is born and cannot be made. In other words, the status of a person as Hindu is determined by his/her birth to Hindu parents. However, this view is not valid legally since a person can become Hindu by Conversion to Hinduism. Similarly, a Hindu can destroy his/her status of being a Hindu by conversion to any other religion. Therefore, Hindus are born as well as made and thus applicability to Hindu Laws is not restricted or confined to those persons only who are Hindus by birth. A non-Hindu may renounce his religion and become a Hindu by conversion by any of the three methods: a) If he performs ceremony of conversion prescribed by the caste or community to which he converts b) If he expresses an intention to become a Hindu and actually lives as a Hindu and the community or caste into the fold of which he is ushered accepts him as a member of that community or caste c) If he declares that he is a Hindu and lives as a Hindu According to section 3 of the Hindu Minority and Guardianship Act, 1956; a. A person who is a Hindu by religion in any of its forms or developments, including a Virashiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj b. Any person who is a Buddhist, Jaina, or Sikh by religion c. Any other person domiciled in the territories to which the Act extends who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed The following persons are Hindus, Buddhists, Jains or Sikhs by religion, as the case may be; a. Any child legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jains or Sikhs by religion b. Any child legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jain or Sikh by religion and who is brought up as a member of the tribe, community, group or family to which such parent belongs or belonged c. Any child legitimate, or illegitimate who has been abandoned by his father and mother, or whose parentage is not known and who in either case is brought up as a Hindu, Buddhist, Jain or Sikh d. Any person who is a convert or re-convert to the Hindu, Buddhist, Jain or Sikh religion A. Hindu by Religion  Those who are originally Hindus, Jains, Sikhs or Buddhists by religion  Those who are converts or reconverts to Hindu, Jain, Sikh or Buddhist religion Shastri vs. Muldas An attempt to define Hindu was made. “Acceptance of Vedas with reverence, recognition of the fact that means and ways of salvation are diverse and realisation of the truth that number of Gods to be worshipped is large, that indeed is the distinguishing feature of Hindu religion.” B. Hindu by Conversion Conversion is a process by which a person gets converted from one religion to another, by performing the formalities/ ceremonies, if any prescribed for the conversion. C. Hindu by Birth Any person born of Hindu parents is a Hindu by birth. According to modern Hindu law, a person is a Hindu by birth in the following cases: i. When both the parents are Hindus ii. When one parent is a Hindu iii. Maneka Gandhi vs. Indira Gandhi it was held that Sanjay Gandhi, son of a Parsi father and a Hindu mother was a Hindu at the time of his death as he was brought up as a member of his mother’s (Indira Gandhi’s) community. III. ESSENTIAL CONDITIONS OF A VALID HINDU MARRIAGE A. Conditions under the Ancient Texts  Identification of castes  Monogamy  Sapinda relationship  Prohibited degrees of relationship  Prohibition of Sagotra and Sapravara  Marriage ceremonies  B. Conditions under the Hindu Marriage Act, 1955  Monogamy  Mental capacity  Age of parties (age limit)  Degrees of Prohibited Relationship  Sapinda Relationship These conditions are specified under the section 5 of the Hindu Marriage Act, 1955. C. Additional Conditions  Requirement of Marriage Ceremonies  Requirement for Registration of Marriage  Free consent of both the parties to the marriage IV. VOID & VOIDABLE MARRIAGE A void marriage is no marriage at all. It does not exist from the very beginning. Section 11 of the Act deals with void marriage. “Any marriage solemnised after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto against the other party, be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i) , (iv) and (v) of section 5.” It is not applicable to marriages solemnized before the commencement of this act, i.e., Mau 1955, though such marriages may be void. Kedar vs. Suparna where a marriage is void because a person has taken a second wife, his first wife being alive, the first wife cannot file a petition under section 11, only the second wife can file the petition Grounds of void marriage:  that at the time of marriage, either party has a spouse living (such a marriage will be void only if the first marriage is valid)  the parties are sapindas to each other  the parties are within the prohibited degree of relationship There are two other cases in which marriage is void:  if proper ceremonies not performed  marriage performed in violation of section 15 of the Act M.M. Malhotra vs. Union of India where a man who had married an already married woman whose marriage was in subsistence, can marry again and his subsequent marriage would be valid because his first marriage was null and void Legal Consequences of Void Marriages:  Legitimacy of children Under section 16, it clearly lays down that the children conceive of such a void marriage are to be deemed to be legitimate, even if a decree is of nullity has been passed declaring the marriage to be null and void.  Position of Women The parties under void marriage have no status of husband and wife. It does not give rise to mutual rights and obligations between the parties. The wife under a void marriage cannot file a suit for defamation against a person who calls her a concubine. The Act has provided in section 24 & 25 for the maintenance of the woman during the time he or she does not marry. A voidable marriage is the one which can be avoided at the option of one of the parties to the marriage. It remains valid for all practical purposes until and unless its validity is questioned. Section 12 of the Act deals with the same. “(1)Any marriage solemnised, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely: (a)that the marriage has not been consummated owing to the impotence of the respondent; or (b)that the marriage is in contravention of the condition specified in clause (ii) of section 5; or (c)that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner was required under section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978 (2 of 1978), the consent of such guardian was obtained by force or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent; or (d)that the respondent was at the time of the marriage pregnant by some person other than the petitioner. (2)Notwithstanding anything contained in sub-section (1), no petition for annulling a marriage (a)on the ground specified in clause (c) of sub-section (1) shall be entertained if (i)the petition is presented more than one year after the force had ceased to operate or, as the case may be, the fraud had been discovered; or(ii)the petitioner has, with his or her full consent, lived with the other party to the marriage as husband or wife after the force had ceased to operate or, as the case may be, the fraud had been discovered; (b)on the ground specified in clause (d) of sub-section (1) shall be entertained unless the court is satisfied(i)that the petitioner was at the time of the marriage ignorant of the facts alleged;(ii)that proceedings have been instituted in the case of a marriage solemnised before the commencement of this Act within one year of such commencement and in the case of marriages solemnised after such commencement within one year from the date of the marriage; and(iii)that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of the said ground.” One of the parties to the marriage (i.e. the aggrieved) can avoid/ repudiate the marriage by filing a petition for annulment of marriage under any one of the following grounds: a) Impotency It means inability to have conjugal intercourse or incapacity to consummate (ordinary and complete intercourse) marriage Rajendra Prasad vs. Rashmi Kant if the marriage is subsequently capable of consummation, be it due to surgical operation or otherwise, no decree of annulment of marriage can be granted Padmavathi vs. Ravi Kumar Varma in this case, both the parties on their first night after marriage, agreed not to have sex for six months, i.e., till the date of P.G. entrance in medicine the marriage could not be consummated due to refusal by the wife the wife, at a later stage stated that the marriage was performed without her consent and she has an aversion for sexual life the court granted a decree under section 12 in favour of the husband b) Unsoundness of mind It is one of the conditions given under section 5 of the Act. A marriage contrary to this rule is voidable in India. The marriage can also be annulled where the marriage was in contravention of section 5(ii) of the Act, which lays down that neither party should suffer from unsoundness of mind at the time of marriage. Marriage of such a person is not void, but voidable. Section 5(iii) of the Act provides the following three circumstances of unsoundness where either party at the time of marriage: i. Is incapable of giving a valid consent to it in consequence of unsoundness of mind ii. Though capable of giving a valid consent, has been suffering from mental disorder of such kind or such an extent as to be unfit for marriage and the procreation of children iii. Has been subjected to recurrent attacks of insanity or epilepsy Alka Sharma vs. Abhinesh Chandra Sharma in this case, the wife was found so cold, frigid and nervous on first night of marriage that no consummation could take place she was unable to handle domestic appliances and she also urinated in presence of all family members it was held that the wife suffered from schizophrenia and the husband was entitled to decree of nullity of marriage c) Use of force or fraud to obtain consent A marriage to be valid, the parties must have given their consent freely. If the consent is obtained by force or fraud, it is voidable. The expression ‘force’ has not been defined in the Act. Rice vs. Rice a woman was forced to marry a man who showed a pistol threatening to blow out her brain, it was held that consent was obtained by force Nand Kishore vs. Smt. Munni Bai the terms force and fraud mean those conditions in which there is absence of real consent the term fraud has been used in the sense which lacks the element of consent and there is an intention to defraud it should not be understood in the sense of contract laws d) Pregnancy by some other at the time of the marriage If the wife is pregnant by some other at the time of marriage, the husband can file a petition for decree of nullity of his marriage. To get a decree, he has to satisfy the following conditions: i. He was ignorant of the fact ii. Proceedings have been instituted within one year of the marriage iii. Marital intercourse with the consent of the petitioner has not taken place Mahendra vs. Sushila Bai the Supreme Court held that where wife admitted her pregnancy from before the solemnization of marriage, when the husband had not met her, the case would be covered under section 12(1)(d) and the husband would be entitled to get a decree of nullity in the above case, the baby born to Sushila after 171 days from the date of marriage the child was fully developed and healthy there was no evidence of their meeting before the marriage hence, the husband was entitled to the decree  V. THEORIES OF DIVORCE There are three Theories of Divorce under Hindu Law: 1. Fault or Guilt Theory This theory is provided in Section 13(1) of the Hindu Marriage Act, 1955. In this theory, fault of one party entitles other party to get divorce. This theory will be enforced when either party in the marriage has committed a matrimonial offence. The other party is supposed to be innocent otherwise there is no remedy. The Hindu Marriage Act, 1955 lays down seven fault grounds of divorce. 2. Divorce by Mutual Consent The provisions regarding divorce by mutual consent are given u/s 13B of the Hindu Marriage Act. The requirements for divorce by mutual consent given under section 13B of the Hindu Marriage Act: i. The parties have been living separately for a period of at least one year, ii. They have not been able to live together, iii. They have mutually agreed to have the marriage dissolved. 3. Irretrievable breakdown of Marriage It is the most controversial theory in legal jurisprudence. Hindu marriage is said to be and inseparable and indissoluble union of two persons based on love, affection and respect for each other. But this inseparable and indissoluble bond can get irreparable completely to the point where the spouses can't live peacefully with each other and there is no choice left for them other than to dissolve the marriage.  VI. CONCEPT OF DIVORCE UNDER THE ACT SECTION 13 Divorce is a process by which the marriage is dissolved (comes to an end). After dissolution of the marriage, the parties revert to their unmarried status and are free to marry again. Section 13 of the Act deals with Divorce. According to this section, either of the parties to the marriage can file a petition in the district court praying dissolution of the marriage. The Court, if satisfied with the grounds as specified under the section 13, may grant the decree. However, no petition for divorce can be filed within one year of the marriage. Changes introduced in the law of divorce by the Marriage Laws (Amendment) Act, 1976: i. The ground of adultery has been made simple and now a single act of adultery may constitute a sufficient ground for divorce ii. Cruelty and desertion, which were grounds of judicial separation originally, have been made the grounds of divorce iii. The minimum period prescribed under the other grounds like venereal diseases, etc., has been omitted in order to facilitate divorce without inordinate delay iv. The court has been given power to exercise its discretion, in petitions of divorce, to grant an alternative relief under certain circumstances v. A vital change has been made by providing divorce by mutual consent of the parties. Thus, by this amendment, the sacramental character of a Hindu marriage has been affected in a big way. The parties can get divorce by an agreement between them vi. The parties can, now, obtain divorce by presenting a petition after one year of their marriage The petition for divorce can be filed by either of the parties to the marriage under any one of the following grounds: a) Adultery b) Cruelty c) Desertion d) Conversion (to other religion) e) Insanity f) Venereal disease g) Renunciation of world h) Unheard for 7 years i) After decree of Judicial separation j) After decree of restitution of conjugal rights Grounds available to wife alone: a) Bigamy b) Sexual offences c) Decree of Order awarding maintenance d) Repudiation of the marriage Case Laws:  Subbarama Reddiar vs. Saraswati In this case, husband returned home late and found his wife with an unrelated person in the bedroom. Court held that adultery may be inferred unless the act can be explained by some innocent explanation.  Tribat Singh vs. Mst. Bimala Devi A married woman had been absenting herself from her house for four to six days at a stretch and had been seen more than once with a total stranger to her husband’s family, and no explanation was given by her for having been seen in the company of that stranger at different places, leads to an irresistible conclusion that she had contracted an illicit connection with that man and had been living in adultery with him.  Dastane vs. Dastane The following five tests were laid down in determining whether a given conduct amounts to legal cruelty: i. The alleged act constituting cruelty should be proved according to the law of evidence ii. There should be an apprehension in the petitioner’s mind or real injury or harm from such conduct iii. The apprehension should be reasonable having regard to the socio-economic and psycho- physical condition of the parties iv. The petitioner should not have taken advantage of his position v. The petitioner should not by his/her conduct have condoned the acts of cruelty  Sobhadevi vs. Bhima Intemperate violent behaviour by husband due to heavy drinking was held to be cruelty. Mere habit of drinking is not cruelty.  Cropala vs. Pushpadevi The husband asked/forced his wife to live away because of the cruelty of his step mother. It was held that it would not amount to desertion.  Ram Narayan vs. Smt. Rameshwari In schizophrenic mental disorder, the petitioner should prove no merely the said mental disorder, but should also establish that on that account the petitioner could not reasonably be expected to live with the respondent  Shital Das vs. Sita Ram Renunciation of world affairs followed by entrance into a religious order generally operates as a civil death and it is necessary that all required ceremonies for entering the religious sect or order are proved satisfactorily. VII. RESTITUTION OF CONJUGAL RIGHTS (Right to stay together) SECTION 9 In case one spouse happens to leave the other from the marital society without any reasonable cause, the other spouse can file a petition in the Court for restitution of conjugal rights. The relief under section is subject to fulfilment of the following conditions: i. The marriage between the parties must have a valid marriage under section 5 ii. The respondent has withdrawn from the society of the petitioner without reasonable excuse iii. The court is satisfied with the truth of the statements, made in the petition iv. There is no legal ground, why the relief should not be granted The relief under section 9 is subject to fulfilment of the following conditions: i. The marriage between the parties must be a valid marriage ii. The respondent has withdrawn from the society of the petitioner without reasonable excuse iii. The court is satisfied with the truth of the statements, made in the petition iv. There is no legal ground, why the relief should not be granted  VIII. JUDICIAL SEPARATION Judicial Separation means suspension of Conjugal Rights for some time i.e., one year. Section 10 of the Act deals with judicial separation. During the period of judicial separation, the parties to the marriage have no obligation to live together or cohabit with each other. During the course of judicial separation either party may be entitled to get maintenance from the other if the situation so warrants. But during this period the husband or the wife would not acquire the competence to marry afresh. The right of fresh marriage would be available to them only after the dissolution of marriage. Before 1976, the grounds available for Judicial Separation were: i. Desertion ii. Cruelty iii. Leprosy iv. Venereal disease v. Insanity or unsoundness of mind vi. Adultery A. Grounds available for both husband and wife: i. Adultery ii. Cruelty iii. Desertion iv. Conversion v. Unsoundness of mind vi. Venereal disease vii. Renunciation of world viii. Presumed death B. Grounds available to wife alone: i. Bigamy ii. Rape, sodomy or bestiality iii. Non-resumption of cohabitation after decree or order of maintenance iv. Option of puberty C. Defences to Respondent i. Statutory time limits as to disability have not been fulfilled ii. Alleged acts of cruelty do not amount to legal cruelty iii. Alleged desertion does not constitute legal desertion Shyam Chand vs. Janki where the husband asked for judicial separation on the ground of wife’s desertion, the wife in her reply stated that she was maltreated, beaten up and turned out of his house by the husband she further stated that her husband kept her in a village at Bedar, while he himself lived at Ghorus and the food given to her at Bedar was meager she was kept there in a cow-shed, was deprived of the company of her children, was beaten up and ultimately turned out IX. MAINTENANCE OF WIFE Section 24 of the Act provides Maintenance pendente lite and expenses of the proceedings Section 25 of the Act deals with permanent alimony and maintenance The relief under these provisions is available to a Hindu wife, who is unable to live on her own. Further, it is to be noted that a Hindu husband unable to live on his own can also claim maintenance under sections 24 & 25. Pendente lite = pending suit/ pendency of a case Section 24 A Hindu husband or wife, who does not have sufficient means for maintenance and expenses to conduct the proceedings can bring an action under this provision. Both the spouses are placed equally in respect of the liability for payment of the interim maintenance and expenses. The quantum of maintenance is generally 1/5th of the net income of the respondent depending upomn the circumstances of the case. Section 25 This section provides for a permanent alimony and maintenance. This relief is available either to the husband or the wife, whatever the case maybe. The relief is not available if the wife or the husband has remarried or if the wife has not remained chaste or the husband has had sexual intercourse with any other woman. These provisions do not stand in the way for invoking relief under section 125, CrPC.