Marriage under Various Personal Law

I. Under the Hindu Marriage Act, 1955.

The Hindu marriage in the Hindu law has been given high respect and honour and is treated as a
sacred ceremony. For a Hindu, marriage is a religious rite or sacrament i.e. sankara. According to
Hindu Shastaras, marriage is the last of the ten sacraments for purifying the body from inherited taint.

Objective: The object of marriage according to Hindu is not only for begetting a son but also to
perform necessary religious rites and ceremonies for salvation(moksha).

Characteristics of Hindu marriage

 It is permanent and indissoluble union.

 It is an eternal union (i.e. valid not only for this life but in lives to come)
 It is holy union (i.e. for performance of religious ceremonies)

Case law: Manmohini v. Basant: The Calcutta High Court Held that, “Hindu Marriage is more than
a Sanskar & Sacrament. In Vedas, marriage is the union of flesh with flesh and bone with bone.”

Meaning: Marriage defined by Raghu-nanda as- the acceptance by the bridegroom of a girl as his wife
and girl being away by her guardian. Marriage means the holy inion for the performance of religious
duties. Marriage involves the transfer of dominion over the damsel from the father to the husband.

Essentials of valid Hindu marriage

 Section 5, 7 and 8 of the Hindu Marriage Act, 1955 deals with the requisites of valid Hindu
marriage. They are essential and binding in nature and in case of non-fulfilment of these
conditions’ marriage would not be deemed to be a valid marriage. The essential requirement of
the valid marriage is that both the parties to the marriage shall be Hindus.
 Section 5 lays down the conditions of the Hindu Marriage which are as follows:
i. neither party has a spouse living at the time of the marriage.
ii. At the time of the marriage party shall be capable og giving valid consent, and should not be-
 Incapable of giving valid consent because of unsoundness of mind, or
 Incapable due to subject to recurrent attacks of insanity, or
 Suffering from mental disorder of such kind or to such an extent which would make
him/her unfit for marriage or procreation of children.
iii. The bridegroom has completed the age of twenty-one years and the bride, the age of eighteen
years at the time of the marriage.
iv. The parties are not within the degrees of prohibited relationship unless the custom or usage
governing each of them permits of a marriage between the two.
 v. Such parties are not sapindas of each other, unless the custom or usage governing each of
them permits of a marriage between the two;
 In the case of Sarla Mudgal v. Union of India bigamy was in question. The husband had already
married under the Hindu law. He later embraces to Islam and solemnises a second marriage under
the Muslim law. The supreme court held that the second marriage would be invalid because
unless and until the first marriage is dissolves by a decree under the Hindu Marriage Act. The
second marriage during the existence of the first marriage would amount to violation of rule of
monogamy. Such marriage would amount to bigamy and punishable u/s 494 IPC.

Thus, Muslim law cannot be misused by Hindu and the Hindu marriage does not automatically
get dissolve by apostasy.

 Section 7 - A Hindu marriage may be solemnized in accordance with the customary rites and
ceremonies of either party thereto. Where such rites and ceremonies include the Saptapadi (that is,
the taking of seven steps by the bridegroom and the bride jointly before the sacred fire), the
marriage becomes complete and binding when the seventh step is taken.
 Section 8- Registration of Marriage.

II. Under Muslim Law

Muslim law is an uncodified civil law. In Muslim law the marriage is a civil contract where there is
no prescribed religious ceremony for the marriage. The bride and the groom enter into the contract of
marriage known as Nikah which is an Arabic word which means a contract.

Muslim law has been derived from various codified and uncodified sources like- Quran, Sunnat, Ijma,
Qiyas, customs, legislation, precedents and equity, concise and justice. There are 4 major Sunni
school of thoughts- Hanifi, Maliki, Shafai and Hanabli and 3 major Shia school of thoughts- Itna-
Arshiya, Ismalia and Zyda. In India, Hanifi School of Islamic law is dominant.

 Who is a Muslim?

A Muslim is a person who-

i. Believes in the mission of Mohammad as prophet, and

ii. Says that there is one god and that Mohammad is his prophet.

So, a person by birth as well as by conversion can be a Muslim if he believes in above two views.

 Marriage (Nikah)
Muslim marriage is called as ‘Nikah’. Nikah is an Arabic word. It’s literal meaning- ‘The Union of
the Sexes’. The union of man and woman came to the effect in the form of contract, the objects of
which are:

i. Legalization of Sexual Intercourse and

ii. Procreation of Children.

Definition: According to Maine: “Muslim Marriage is a civil Contract, where wife is the commodity
and mehr is a consideration.”

According to Justice Mahmood: Marriage among the Mohammedan is not a sacrament, but purely a
civil contract.

 Essentials of Valid Muslim Marriage:

i. Proposal and Acceptance.
ii. Capacity of the parties,
iii. Consideration,
iv. Absence of any impediment.

 Essentials Explored
 A Muslim marriage requires proposal ‘Ijab’ from one party and acceptance ‘Qubul’ from the
other side. This must be done in one sitting.
 The acceptance must be corresponding to what is being offered.
 The marriage must be effectively immediate. If the Wali (Islamic legal Guardian) says I will
marry her to you after two months, there is no marriage.
 The two parties must be legally competent; i.e. they must be sane and adult.
 The women must not be from the forbidden class.
 The consent given must be free consent, It must not be an outcome of compulsion, duess,
coercion or undue influence. =
 Kinds of Marriage

Under Muslim generally two types of marriage is recognized

(i) Regular Marriage (essentials discussed earlier)

(ii) Muta marriage

Muta marriage is a temporary marriage it is said to be marriage for pleasure. Muta marriage is
recognized in Shia only. Sunni law doesn’t recognize it. A Shia of the male sex may contract a Muta
marriage with a woman professing the Mahomedan, Christian or Jewish religion, or even with a
 woman who is a fire worshipper but not with any woman following any other religion. But a Shia
woman cannot contract a Muta marriage with a non-Muslim.

 The essentials of Muta marriage are: -

i. The period of the marriage must be fixed or otherwise shall be declared as a permanent
marriage.
ii. Some dower must be fixed, if not fixed, the contract is void. When the term of dower is
fixed, the contract for such marriage shall be valid.
iii. Limitation on number of wives as regard to 4 does not apply to Muta Marriage.
iv. There must be other essentials of valid marriage that is offer, acceptance, free consent,
consideration etc.
v. If the 2 persons under such marriage continue to live as a husband and wife even after the
expiry of the period so fixed, the presumption is that the marriage has been extended and
not converting it into a permanent marriage.

III. Under Christian Marriage Act

The laws regulating the solemnization of marriages among the Christian community in India is laid
down by the Indian Christian Marriage Act of 1872. The marriage among the Indian Christians is
regarded as a civil contract. Initially enacted by the British-Indian administration, Christian marriages
in the country are performed by an authorised Minister or Priest in a church. After the marriage
ceremony is completed, the minister or priest registers the marriage and issues a certificate of
marriage in the name of the couple and thereby, makes it official. 

 Essential Requirements

According to The Indian Christian Marriage Act of 1872, the following are required to be fulfilled to
constitute a valid marriage.

1. The age of the Bridegroom must not under twenty-one years and, the age of the Bride must
not be under eighteen years.

2. Both the parties of the marriage must give voluntary consent to the ceremony and should not
be obtained by misrepresenting facts or under compulsion or undue influence.

3. Neither of the party should have a living spouse at the time of the marriage.

4. The marriage must be performed in the presence of a person licensed to grant a certificate of
marriage and at least two reliable witnesses.

 Section 4 – Marriage as per the provisions of the Act.

 Section 5- Person by whom marriage may be solemnized
 The following individuals are authorised to solemnise a Christian marriage as per the Indian
Christian Marriage Act.

1. By an individual who has received the episcopal ordination and is authorised to solemnise a
marriage according to the rules, rites, ceremonies and the customs of the Church of which he
is a Minister.

2. By an individual who is a Clergyman belonging to the Church of Scotland and is authorised

to solemnise a marriage according to the rules, rites, ceremonies and the customs of the
Church of Scotland.

3. By an individual who is a Minister of Religion who is authorised to solemnise marriage with

a license as per the Act.

4. By an individual who is licensed under the Act to grant Certificated of marriage between
Christians in India.

 Section 10 – Time for Solemnizing the marriage.

 Section 11- Place for Solemnizing the marriage.

IV. The Parsi Marriage and Divorce Act, 1936

The Parsi Marriage is also regarded as a contract through a religious ceremony of ‘Ashirvad’ is
necessary for its validity. ‘Ashirvad’ literally means blessings. A prayer or divine exhortation to
the parties to observe their marital obligations with faith.

 Section 3-Requisites to the validity of Parsi marriages

1. Marriage is not valid if both the contracting parties are related to each other in any of the
degrees of consanguinity i.e. people descended from the same ancestors.

2. Ashirwad Ceremony

3. In Parsi Law, a marriage is not valid if it is not solemnized by the priest in presence of two
Parsi witnesses.

4. A marriage will not be considered if the male is not 21 years old and the female has not
completed 18 years of age.

5. If the marriage is not valid as per the points are given above, any child of such marriage who
would have been legitimate had the marriage been valid, shall be legitimate.

 Section 4- Shall not have either spouse living.

 Section 5 -Punishment for Bigamy:
 As per Section 5 of the Act, every Parsi who during the lifetime of his or her wife or husband,
whether a Parsi or not, contracts a marriage without having been lawfully divorced from such
wife or husband, or without his or her marriage with such wife or husband having legally been
declared null and void or dissolved shall be subject to the penalties provided in Sections 494 and
495, IPC for the offence of marrying again during the lifetime of a husband or wife.

Void Marriage

I. Under Hindu Law

 Section 11 of the Hindu Marriage Act, 1955- Void Marriages - If the provision of Section 5 (i),
(iv) and (v) are not fulfilled, it shall make a Hindu marriage mot only void but void-ab-inito.

So, the Hindu marriage shall be void if the following three conditions are not fulfilled. They are:

 Section 5 (i)- neither party has a spouse living at the time of the marriage.
 Section 5(iv)- the parties are not within the degrees of prohibited relationship unless the
custom or usage governing each of them permits of a marriage between the two.
 Section 5(v)- The parties are not sapindas of each other, unless the custom or usage governing
each of them permits of a marriage between the two.

Additional Grounds:

 That the parties are not Hindus.

 That the marriage is not solemnized according to the customary rites and ceremony as
provided by section 7 of the act.
 Marriage is solemnized in violation of provisions of Prohibition of Child Marriage Act, 2006
is declared void under section 12& 14 of the Act.
 Effects of Void Marriage
 Legitimacy of Children- Section 16 of the Cat clearly lays down that the children conceived
of such a void marriage are deemed to be legitimate, even if a decree of nullity has been
passed declaring the marriage to be null and void.
 Position of women- wife under void marriage is entitled to maintenance until the period she
does not marry.
II. Under Muslim Law
 Batil marriage- A marriage which is unlawful from its beginning. It does not create any civil
rights or obligations between the parties. A marriage contracted by parties suffering from absolute
incapacity, i.e. prohibition on the grounds of consanguinity, affinity, or fosterage, is void.
Similarly, marriage either a woman who is the wife of another, or remarriage with a divorced
wife, when the legal bar still exists will be void. The offspring of a void marriage is illegitimate.
 Essentials for Void Marriage.

(a) Marriage through forced consent.

(b) Plurality of husband.

(c) Marriage prohibited on the ground of consanguinity.

(d) Marriage prohibited on the ground of affinity.

(e) Marriage prohibited on the ground of fosterage.

 Under Shia Law, following marriage are void: -

 Marriage in violation of absolute incapacity
 Marriage with the wife of another person, whose marriage is still subsisting.
 Remarriage with one’s own divorced wife, when there is a legal bar.
 Marriage prohibited by reason of unlawful conjunction.
 Marriage with the fifth wife.
 Marriage during pilgrimage.
 Marriage with a woman undergoing iddat.

Voidable Marriage

I. Under Hindu Law

A marriage which can be annulled or avoided at the option of one or both the parties is known as a
voidable marriage. Section 12 of Hindu Marriage Act contains relevant provisions of Voidable
Marriage. This section lays down four grounds on which a Hindu marriage becomes voidable. These
are:

a) Inability of the respondent to consummate the marriage on account of his or her impotency.
b) Respondent’s incapacity to consent or suffering from a mental disorder.
c) Consent of the petitioner being obtained by fraud or force.
d) Concealment of Pre-marriage pregnancy by the respondent.

II. Under Muslim Law

  Irregular or Fasid Marriage: Those marriages which are outcome of failures on part of parties
in non-fulfilment of prerequisites but then also are marriages; to be terminated by one of the
party is termed to be Irregular marriages. They are outcome of-

(a) A marriage without witness (Not under Shia Law)

(b) Marriage with fifth wife.

(c) Marriage with a woman undergoing Iddat.

(d) Marriage with a fire-worshipper.

(e) Marriage outcome of bar of unlawful conjunction.

An irregular marriage has no legal effect before consummation but when consummated give rise
to several rights & obligations.

Registration of Marriage

 Is Registration of Marriage mandatory in India?

The demand to make marriage registration mandatory in India is not new. In 2005, for instance, the
National Commission for Women drafted a Compulsory Registration of Marriages Bill that was not
taken up further. In 2006, the Supreme Court in the case of Seema v. Ashwani Kumar & ors 2006,
recommended that marriages of all persons who are citizens of India belonging to various religions
should be registered compulsorily in their respective States, where the marriage is solemnised. In
2013, the Rajya Sabha passed a proposed amendment to the Registration of Births and Deaths Act,
1886 to include compulsory registration of marriage, but it was not taken up by the Lok Sabha before
its term expired in 2014.

Some states, however, have already passed laws to make marriage registration mandatory. Himachal
Pradesh became the first state to introduce such a law in 2004 under the Himachal Pradesh
registration of marriage act. In 2006 and 2008, Bihar and Kerala, respectively, followed suit.
Rajasthan introduced such a law in 2009 but it does not apply to marriages solemnised under
Christian and Parsi personal laws.

Who to approach for marriage registration?

For the purpose of registration of marriage1, one has to approach the office of the Sub Divisional
Magistrate under whose jurisdiction the marriage took place or where either of the spouses stayed for
at least six months before the marriage.

Documents required for marriage registration

As per the official website of Delhi Government, following documents are required to be submitted
after being duly attested by the Gazetted Officer, for obtaining registration of   marriage as per Hindu
culture:

  Application form or Memorandum of marriage duly signed by husband and wife.

  Documentary evidence for support of date of birth of both the parties. This age, under both
the Hindu Marriage Act and Special Marriage Act, is 21 years for male and 18 years for
female. This document can be in the form of matriculation certificate/passport/birth
certificate.

 Residence proof of husband and wife (Ration Card, Aadhar Card, Election Voter Id, PAN
Card, or bills like Electricity Bill etc.)

  Two passport size photographs of both the parties and one marriage photograph.

 Marriage invitation card, if available.

 In case the marriage was solemnized at a religious place, a certificate from the priest is
required to solemnize the marriage.

  In case of marriage under Hindu Marriage Act Rs. 100, and in case of marriage Special
Marriage Act, Rs. 150, is required to be submitted to the cashier of the district and the receipt
is to be attached along with the application form.

  The parties are required to give affirmation that they are not related and do not fall within the
degree of prohibited relationship, as laid down under the Hindu Marriage Act 1955 and the
Special Marriage Act, 1955.

 Attested copy of divorce decree/order in case of a divorcee and death certificate of spouse in
case of widow/widower.

  In case one of the parties belong to other than Hindu, Buddhist, Jain and Sikh religions, a
conversion certificate from the priest who solemnized the marriage (in case of Hindu
Marriage Act) is required.

http://colart.delhigovt.nic.in/wps/wcm/connect/DoIT/delhi+govt/community/marriage+certificate+and+regist
ration.
   Affidavit by both the parties stating place and date of marriage, date of birth, marital status at
the time of marriage and nationality.

I. Under Hindu Law

 Section 8 of the Hindu Marriage Act, 1995- Registration of marriage

This section says that for the purpose of proof, the registration of marriage is made compulsory. But if
you do not register that doesn’t mean that your marriage is void. Non entry is punishable only with
fine. Hindu marriage shall in no way be affected by the omission to make an entry in the marriage
register. Thus, marriage will not become void or voidable by mere non-registration. It is merely
formality and proof of evidence of marriage.

II. Under Muslim Law

 Muslim marriage registration process in India is governed by The Muslim Personal Law (Shariat)
application act 1937. This law deals with marriage, succession, inheritance in Muslims.
 The Kazi who has performed the marriage can issue a “Nikahnama” which is a marriage
certificate. For legal reasons, such as passport, bank account opening, inheritance, consent in case
of emergency, etc it is advisable that the Muslim marriage should be registered with the marriage
registrar.
 In India and some of the Muslim countries Nikahnama is sufficient proof of Nikah or Muslim
Marriage, however in other countries for the purpose of immigration/ spousal visa the proper
Muslim marriage certificate is issued by the Registrar of Marriages of the District where marriage
was solemnized and/or where the parties usually resides will be sought by the foreign authorities.
 Muslim Marriage Registration can be registered under the State Marriage Registration Act of the
State where it was solemnized and parties reside or under the Special Marriage Act, 1954
anywhere in India where the parties to marry reside for not less than 30 days.

 What is the need for Compulsory Registration of Marriages in India?

In the absence of compulsory registration of marriages, women and children have been facing
innumerable problems. Hence, registration of marriages compulsorily is of critical importance to
handle various issues such as -

 To prevent child marriages and to ensure minimum age of marriage

 To prevent of marriages without the consent of the parties
 To check social practices such as bigamy and polygamy
 To enable married women to claim their right to live in the matrimonial house and
maintenance
  To enable widows to claim their inheritance rights, other benefits and privileges which
they are entitled to after the death of their husband
 To deter men from deserting women after marriage
 To deter parents and guardians from indulging in trafficking of women to any person,
including a foreigner, under the garb of marriage

Restitution of conjugal rights

 Origin: The remedy of restitution of conjugal rights was neither recognized by the Dharmashastra
nor did the Muslim law made any provisions for it. It came with the Raj. Restitution of conjugal
rights has its roots in feudal England, where marriage was considered as a property deal and wife
was part of man’s possession like other chattels. The concept of restitution of conjugal rights was
introduced in India in the case of Moonshee Buzloor Ruheem v. Shumsoonissa Begum, where
such actions were regarded as considerations for specific performance. In this case it was held that
if either party of the marriage contract has withdrawn from the society of the other without any
valid reason, or has neglected to perform the martial obligations, the aggrieved party may bring a
suit in a civil court for the restitution of conjugal rights
 Meaning: Restitution basically means restoring to a party to its original place. 
 Marriage is just not only a ceremony; it also includes various marital duties and legal rights
associated with it. One of the fundamental purposes of marriage is that the spouses live together
and one spouse is entitled to the society and comfort. A cause of action, therefore, arises when
one party to the marriage withdraws from the society of the other without reasonable and just
cause and excuse would be proceeded against by the other in the court of law praying for a decree
of restitution of conjugal rights. The expression ‘conjugal rights’ connotes two ideas:
 Right of couple to have each other’s society, and
 Right to marital intercourse
 During the time of introducing the provision for restitution of conjugal rights in the Special
Marriage Act, 1954 and the Hindu Marriage Act, 1955, there were heated debates in the
Parliament for and against it. In Shakila Banu v. Gulam Mustafa, the Hon’ble High Court
observed: “The concept of restitution of conjugal rights is a relic of ancient times when slavery or
quasi-slavery was regarded as natural. This is particularly so after the Constitution of India
came into force, which guarantees personal liberties and equality of status and opportunity to
men and women alike and further confers powers on the State to make special provisions for their
protection and safeguard.”
 Section 9: This remedy of Restitution of Conjugal Rights has been laid down under Section 9 of
Hindu Marriage Act, 1955. It runs as under:
“When either the husband or the wife has, without reasonable excuse, withdrawn from the society of
the other, the aggrieved party may apply, by petition to the District Court, for restitution of conjugal
rights and the court on being satisfied with the truth of the statements made in such petition and that
there is no legal ground why the application should not be granted may decree restitution od
conjugal rights accordingly.”

 Burden of proof under Section 9.

Burden of proof operates at two levels. Firstly, burden of proof is on the aggrieved/petitioner who
needs to prove that the respondent has withdrawn from his society. Once that burden is discharged by
the petitioner, it falls on the respondent to prove that there exists a reasonable excuse for the
withdrawal.

 Essential conditions

1. Respondent has withdrawn from the society of petitioner without reasonable excuse

2. Court is satisfied with truth of statement made in such petition, and

3. There is no legal ground why the relief should not be granted

 Constitutional Validity of Section 9

The constitutional validity of the provision for restitution of conjugal rights has time and again been
questioned and challenged. The earliest being in 1983 before the Andhra Pradesh High Court
in T.Sareetha v. T. Venkatasubbaiah where the Hon'ble High Court held that the impugned section
was unconstitutional. The Delhi High Court in Harvinder Kaur v Harminder Singh though had non-
conforming views. Ultimately Supreme Court in Saroj Rani v. Sudharshan gave a judgment which
was in line with the Delhi High Court views and upheld the constitutional validity of the Section 9 of
the Hindu Marriage Act, 1955 and over-ruled the decision given in T. Sareetha v. T.
Venkatasubbaiah.

Under Muslim Law

 The restitution of conjugal rights in Islamic law means restoring the marital relationship between

the husband and wife. The unreasonable fact about this right is that most scholars discuss it as a
right available to the husbands only.
 While according to Tayabji- When either the husband or the wife has without reasonable excuse
withdrawn from the society of the other the aggrieved party may apply by petition to the district
court for restitution of conjugal rights and the court on being satisfied of the truth of the
statements made in such petition and that there is no legal ground why the application should not
be granted may decree restitution of conjugal rights accordingly.
 In case of Muslim law, the concept of restitution of conjugal rights is conceptualized in the form
of a civil suit, under general law, as opposed to a separate petition in other laws, as follows-

“Where either the husband or wife has, without lawful ground withdrawn from the society of the
other, or neglected to perform the obligations imposed by law or by the contract of the marriage,
the court may decree restitution of conjugal rights, and may put either part securing to the other
the enjoyment of his or her rights.”

 In Kothar Beevi v. Aminuddin, the Madras High Court denied the relief of restitution of conjugal
rights to a husband who remarried during the pendency of the suit.
 In the case of Moonshee Buzloor Ruheem v. Shumsoonissa Begum 1867, it was held that if
either party of the marriage contract has withdrawn from the society of the other without any valid
reason, or has neglected to perform the martial obligations, the aggrieved party may bring a suit in
a civil court for the restitution of conjugal rights

Under Christian law

Christians under Section 32 and 33 of the Indian Divorce Act, 1869

 SEC.32 PETITION FOR RESTITUTION OF CONJUGAL RIGHTS:-

 “When either the husband or the wife has without reasonable excuse, withdrawn from the society of
the other, either wife or husband may apply, by petition to the District Court or the High Court, for
restitution of conjugal rights, and the Court, on being satisfied of the truth of the statements made in
such petition, Hand that there is no legal ground why the application should not be granted, may
decree restitution of conjugal rights accordingly”.

 SEC.33 ANSWERS TO PETITION:

“Nothing shall be pleaded in answer to a petition for restitution of conjugal rights, which would not be
ground for a suit for judicial separation or for a decree of nullity of marriage”.

 Christian husband and wife can also apply for an order of restitution of conjugal rights. The Court
cannot pass the decree for following reasons:
 Cruelty of husband or wife
 If either of the spouse is insane
 If any one of the spouses marries again
 Judicial Separation

Judicial separation
It is an instrument devised under law to afford some time for introspection to both the parties to a
troubled marriage. Law allows an opportunity to both the husband and the wife to think about the
continuance of their relationship while at the same time directing them to live separate, thus allowing
them the much-needed space and independence to choose their path.

 Meaning: “A judicial separation is one which permits the parties to marriage to live apart or
separate”.

The provision for judicial separation is contained in section 10 of the Hindu Marriage Act, 1955.
The section reads as under: A decree for judicial separation can be sought on all those ground on
which decree for dissolution of marriage, i.e. divorce can be sought.

 Hence, judicial separation can be had on any of the following grounds:

1. Adultery

2. Cruelty

3. Desertion

4. Apostacy (Conversion of religion)

5. Insanity

6. Venereal disease in a communicable form

7. Renunciation of world by entering any religious order

8. Has not been heard of as being alive for seven years

 If the person applying for judicial separation is the wife, then the following grounds are also
available to her:
i. Remarriage or earlier marriage of the husband but solemnised before the commencement of
Hindu Marriage Act, 1955, provided the other wife is alive at the time of presentation of
petition for judicial separation by the petitioner wife.
ii. Rape, sodomy or bestiality by the husband committed after the solemnization of his marriage
with the petitioner.
iii. Non-resumption of co-habitation between the parties till at least one year after an award of
maintenance was made by any court against the husband and in favour of the petitioner wife.
iv. Solemnization of the petitioner wife’s marriage with the respondent husband before she had
attained the age of 15 years provided, she had repudiated the marriage on attaining the age of
15 years but before attaining the age of 18 years.
 Object of section 10: It is to give opportunity to the disputed couple to think whether to reconcile,
re-cohabit or to get separated once for all. Thus, the main object is to protect the marriage.
Even though either party to the marriage seeks decree of divorce, the Court may pass a decree for
judicial separation and not a decree of divorce, if the Court considers it just so to do having regard to
circumstances of the case.

 What is the Effect of Decree of Judicial Separation?

Where a decree for judicial separation has been passed in your favour, it shall no longer be obligatory
for you to cohabit with your spouse.

 Rescinding of Decree of Judicial Separation

Where Court considers it just and reasonable and is satisfied on the application of either party i.e.,
either husband or wife, Court may rescind decree of judicial separation.

In the case of Sohan Lal vs. Kamlesh 1984 it was held that in case of judicial separation, a wife is
allowed to claim maintenance from husband in case she is not able to maintain herself.

 What to do in case after judicial separation where the parties want to resume cohabitation?

Since a decree for judicial separation is a judgment in rem, if the parties want to resume cohabitation,
it is necessary for them to get the order of judicial separation annulled by the court. Normally, the
court rescinds the degree on presentation of the petition by consent of both the parties.

Under Muslim Law

However, there is no such provision for judicial separation under the Dissolution of Muslim Marriage
Act, 1939 or the Muslim Women (Protection of Rights on Marriage) Act, 1986, etc. The procedure for
judicial separation has been used in practice though, as interpreted by the courts from time to time.

In  Ms. Jordan Diengdeh v. S.S. Chopra AIR 1985, the apex court observed that the grounds for
divorce under Section 2 of the Dissolution of Muslim Marriage Act shall be the grounds for
application for judicial separation as well. Accordingly, the grounds are: A Muslim woman has a right
to live separately on the following grounds:

a. Impotency

b. Cruelty

c. Irregular Marriage

d. Failure to perform obligations mentioned in marriage contract

e. Husband has been outcasted

f. Arrangement of marriage by a guardian other than the father

CHRISTIANITY

The Christian couples can obtain Judicial Separation by filing petition under Section 22 The Indian
Divorce Act, 1869.

 Grounds for Judicial Separation:

The husband or wife may obtain a decree of judicial separation, on the grounds of:

a. Adultery

b. Cruelty

c. Desertion without reasonable excuse for two years or upwards

Application for judicial separation on any one of the grounds specified above may be made by either
the husband or the wife by petition to the district court, and if the court being satisfied of the truth of
the statements made in such petition, and is found that there is no ground as to why the application
should not be granted, then the court may pass the decree for Judicial Separation.

Divorce

Introduction - Earlier divorce was unknown to general Hindu law as marriage was regarded as an
indissoluble union of the husband and wife. Manu declared that a wife cannot be released by her
husband either by sale or by abandonment, implying that the marital tie cannot be severed in any way.
Although Hindu law does not contemplate divorce yet it has been held that where it is recognized as
an established custom it would have the force of law.

In the words of the Law dictionary divorce means, “The legal separation of man and wife, effected,
for cause, by the judgment of a court, and either totally dissolving the marriage relation, or
suspending its effects so far as concerns the cohabitation of the parties.”

However, this changed when divorce was introduced in the Hindu Marriage Act, 1955.

 Theories of Divorce

There are basically three theories for divorce-fault theory, mutual consent theory & irretrievable
breakdown of marriage theory.

 Under the Fault theory or the offences theory or the guilt theory, marriage can be dissolved only
when either party to the marriage has committed a matrimonial offence. It is necessary to have a
guilty and an innocent party, and the only innocent party can seek the remedy of divorce.
However, the most striking feature and the drawback is that if both parties have been at fault,
there is no remedy available.
 Another theory of divorce is that of mutual consent . The underlying rationale is that since two
persons can marry by their free will, they should also be allowed to move out of the relationship
of their own free will. However, critics of this theory say that this approach will promote
immorality as it will lead to hasty divorces and parties would dissolve their marriage even if there
were slight incompatibility of temperament.
 The third theory relates to the irretrievable breakdown of the marriage. The breakdown of
marriage is defined as “such failure in the matrimonial relationships or such circumstances
adverse to that relationship that no reasonable probability remains for the spouses again living
together as husband & wife.” Such marriage should be dissolved with maximum fairness &
minimum bitterness, distress & humiliation.

 Grounds for Divorce Under Hindu Marriage Act

Under modern Hindu law, all of the three theories relating to divorce are recognized and one can
obtain a decree of divorce on the basis of any one of them. Section 13 of Hindu marriage Act, 1955, is
one of the most revolutionary provisions. To meet the changing needs of society it has been amended
or for a couple of times been liberalized, since its introduction in 1955.

The various grounds on which a decree of divorce can be obtained are as follows-

1. Adultery- In Changamunga v. Lianpuri AIR 1988, it was held that mere intimacy between two
individuals does not imply adultery. Here comes the conclusion about the ingredients defining
adultery:

(i)Adultery is a voluntary act of the parties. A Forceful act cannot be considered as Adultery.

(ii)Only a married person can indulge in Adultery. Sexual act done by a married person cannot be
taken as adultery.

(iii)The sexual act or intercourse should be done with a person other than the adulterer’s spouse.

Another two main Judgment of Adultery are Yusuf Abdul Aziz v. Union Of India AIR 1954 and
the latest one is Joseph Shine v Union of India AIR 2018.

2. Cruelty- Pravin Mehta  v.  Inderjeet Mehta,AIR 2002 the court has defined mental cruelty as ‘the
state of mind.’ In another case of Dastane v Dastane AIR 1970, principles were laid down to
determine whether a conduct amounts to cruelty or not.

3. Desertion - In Bipinchandra v. Prabhavati AIR 1957, the Supreme Court held that where the
respondent leaves the matrimonial home with an intention to desert, he will not be guilty of
desertion if subsequently he shows an inclination to return & is prevented from doing so by the
petitioner.
4. Apostacy (Conversion of religion)- In Chandra Mohan i.e. Chand Mohd v Fiza case the court
held that if there was conversion to another religion when the first marriage was in subsistence for
remarriage then such conversion to be held invalid.

5. Insanity- In Harmanjit Kaur v. Bhupinder Singh Gill, 2003 the appellant was suffering from
mental disorder (Schizophrenia) since before her marriage; that this fact was not disclosed to the
respondent; that according to the medical advice the disease is incurable and she might become a
danger to the husband and also to the child. Therefore, the court granted decree of divorce.

6. Venereal disease in a communicable form- Venereal Diseases are illnesses that have a significant
probability of transmission between humans by means of human sexual behaviour, including
vaginal intercourse, oral sex, and anal sex

7. Renunciation of world by entering any religious order- In Sital Das v. sant Ram 1954, it was held
that a person is said to have entered in a religious order when he undergoes some ceremonies and
rites prescribed by the religion. Now there are some other things to notice here. For example, if
one person has entered into a religious order but comes home daily and cohabits then it cannot be
taken as a ground for divorce because he has not renounced the world. Therefore, the
abovementioned two conditions must be satisfied to claim it as a ground of Divorce.

8. Has not been heard of as being alive for seven years

 Under Sub Section 1A- Either party to a marriage, whether solemnized before or after the
commencement of this Act, may also present a petition for dissolution of the marriage by a decree
of divorce on the ground
(i) that there has been no resumption of cohabitation as between the parties to the marriage for a
period of one year or upwards after the passing of a decree for judicial separation in a
proceeding to which they were parties; or
(ii) (ii) that there has been no restitution of conjugal rights as between parties to the marriage for
a period of one year or upwards after the passing of a decree for restitution of conjugal rights
in a proceeding to which they were parties.
 A wife may also present a petition for the dissolution of her marriage by a decree of divorce on
the ground, -
i. That, the husband has married before such commencement, or any other wife of the husband
married before such commencement was alive 144 at the time of the solemnization of the
marriage of the petitioner: Provided that in either case, the other wife is alive at the time of
presentation of the petition; or
ii. that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or
1 [bestiality; or
 iii. that in a suit under section 18 of the Hindu Adoption and Maintenance Act, 1956 (Act no.78
of 1956), or in a proceeding under section 125 of the Criminal Procedure Code, 1973 (Act
no.2 of 1974) or under the corresponding section 488 of the Code of Criminal Procedure,
1898 (Act no.5 of 1898), a decree or order, as the case may be, has been passed against the
husband awarding maintenance to the wife notwithstanding that she was living apart and that
since the passing of such decree or order , cohabitation between the parties has not been
resumed for one year or upwards;
iv. that her marriage (whether consummated or not) was solemnized before she attained the age
of fifteen years and she has repudiated the marriage after attaining the age but before
attaining the age of eighteen years.
 Section 13-B Divorce by mutual consent
 Analysis of Section 13:
i. Eight grounds are based on ‘Fault liability theory’ of divorce. These grounds are laid down in
sub section 1 and only the aggrieved party can avail them.
ii. Two grounds are based on ‘Breakdown Theory’ of divorce which are contained in the Sub
section 1A.
iii. Four Grounds which are special and can be availed only by wife contained in Sub Section 2.

 Divorce Under Muslim law

 Divorce in Islam has many misconceptions. Divorce is a process whereby the marriage is
dissolved and relations between the two as husband and wife comes to an end.
 The Prophet declared that among the things which have been permitted by law, divorce is the
worst. Divorce being an evil, it must be avoided as far as possible. But in some occasions, this
evil becomes a necessity, because when it is impossible for the parties to the marriage to carry on
their union with mutual affection and love then it is better to allow them to get separated than
compel them to live together in an atmosphere of hatred and disaffection.
 Talaaq: Talaaq in its primitive sense means dismission. In its literal meaning, it means "setting
free", "letting loose", or taking off any "ties or restraint". In Muslim Law it means freedom from
the bondage of marriage and not from any other bondage. In legal sense it means dissolution of
marriage by husband using appropriate words. In other words, talaaq is repudiation of marriage by
the husband in accordance with the procedure laid down by the law.

 Conditions for Valid Talaq

 Capacity: Every Muslim husband of sound mind, who has attained the age of puberty, is
competent to pronounce talaaq. It is not necessary for him to give any reason for his
pronouncement. A husband who is minor or of unsound mind cannot pronounce it. Talaaq by
 a minor or of a person of unsound mind is void and ineffective. However, if a husband is
lunatic then talaaq pronounced by him during "lucid interval" is valid.
  Free Consent: Except under Hanafi law, the consent of the husband in pronouncing talaaq
must be a free consent. Under Hanafi law, a talaaq, pronounced under compulsion, coercion,
undue influence, fraud and voluntary intoxication etc., is valid and dissolves the marriage.
Under the Shia law (and also under other schools of Sunnis) a talaaq pronounced under
compulsion, coercion, undue influence, fraud, or voluntary intoxication is void and
ineffective.
 Formalities: According to Sunni law, a talaaq, may be oral or in writing. It may be simply
uttered by the husband or he may write a Talaaqnama. No specific formula or use of any
particular word is required to constitute a valid talaaq. Any expression which clearly indicates
the husband's desire to break the marriage is sufficient. It need not be made in the presence of
the witnesses.
According to Shias, talaaq, must be pronounced orally, except where the husband is unable to
speak. If the husband can speak but gives it in writing, the talaaq, is void under Shia law.
Here talaaq must be pronounced in the presence of two witnesses.
 Express words: The words of talaaq must clearly indicate the husband's intention to dissolve
the marriage. If the pronouncement is not express and is ambiguous then it is absolutely
necessary to prove that the husband clearly intends to dissolve the marriage.

 Mode of Divorce
I. Talaq by husband
II. Talaq by Mutual consent
III. Talaq by wife
IV. Judicial Talaq

I Talaq By Husband – Talaq means the repudiation of the wife by the husband by exercising his
absolute power conferred on him by law. There is no special form of pronouncement of talaq. There
are various modes of talaq which a husband can give to his wife. They are:

Talaq

Talaq Proper Talaq -i-Tufweez

Talaq – ul- Sunnat Talaq-Ul-Biddat

Talaq Ahasan Talaq Hasan

 Talaq-ul-sunnat- it is a traditional or customary form of talaq. It depends upon two concepts:

a) Pronouncement of talaq and
b) Tuhr period.

Tuhr: A period between two menstruation cycles is the period od impurity and after the period of
impurity the period which starts is called as ‘Tuhr’.

 Talaq-ul-sunnat has further two forms:

 Talaq-Ahasan- most approved form of talaq. This talaq consists a single pronouncement of
divorce made during the period of Tuhr along with abstinence from sexual intercourse during
the period of iddat. The talaq pronouncement made during the period of Tuhr applies only to
oral divorce and not applied to talaq in writing.
It is the proper or the best means, because the advantage if this form of talaq is that it can be
revoked at any time before the complete of period of Iddat and thereby hasty talaq can be
prevented.
Thus, if before the completion of the period of Iddat, the husband resumes cohabitation with
his wife, the divorce is revoked.

 Talaq-hasan-
In case of menstruating wife: the husband is required to utter talaq three times during the
three successive tuhr periods, i.e. pronouncement of talaq during each of the 3 consecutive
tuhr periods. When a husband goes to wife during 1st Tuhr period and pronounces talaq goes
away, comes again after a period of 30 days or during next tuhr period and pronounces talaq
goes away and again comes during the next tuhr period and pronounces talaq, after the
pronouncing of third talaq, the marriage is dissolved.
 In case of non- menstruating wife: the pronouncement should be made during the successive
intervals of 30 days.
There should be no intercourse after the first pronouncement i.e. during these 3 periods of
Tuhr. Such a talaq becomes irrevocable on the third pronouncement.
 Talaq-ul-biddat - It has two forms: (i) the triple declaration of talaaq made in a period of purity,
either in one sentence or in three, (ii) the other form constitutes a single irrevocable
pronouncement of divorce made in a period of tuhr or even otherwise. This type of talaaq is not
recognized by the Shias. This form of divorce is condemned. It is considered heretical, because of
its irrevocability.
 Talaq -I- tafweez- Tafweez means delegation or representation. There is power conferred to
husband in this behalf of talaq that he can delegate his power on a person whom he appoints as a
representative or delegate and through his he gives divorce. So, it is called a delegated talaq.

II. Talaq by mutual consent

 Khula
 Mubarat

III. Talaq by wife

 Ila- They are called constructive divorce. In Ila, the husband takes an oath not to have sexual
intercourse with his wife. Followed by this oath, there is no consummation for a period of
four months. After the expiry of the fourth month, the marriage dissolves irrevocably. But if
the husband resumes cohabitation within four months, Ila is cancelled and the marriage does
not dissolve. Under Ithna Asharia (Shia) School, Ila, does not operate as divorce without
order of the court of law. After the expiry of the fourth month, the wife is simply entitled for a
judicial divorce. If there is no cohabitation, even after expiry of four months, the wife may
file a suit for restitution of conjugal rights against the husband.
 Zihar - In this mode the husband compares his wife with a woman within his prohibited
relationship e.g., mother or sister etc. The husband would say that from today the wife is like
his mother or sister. After such a comparison the husband does not cohabit with his wife for a
period of four months. Upon the expiry of the said period Zihar is complete.
 Lian: If the husband levels false charges of unchastity or adultery against his wife then this
amounts to character assassination and the wife has got the right to ask for divorce on these
grounds. Such a mode of divorce is called Lian. However, it is only a voluntary and
aggressive charge of adultery made by the husband which, if false, would entitle the wife to
get the wife to get the decree of divorce on the ground of Lian. Where a wife hurts the
feelings of her husband with her behaviour and the husband hits back an allegation of
infidelity against her, then what the husband says in response to the bad behaviour of the
 wife, cannot be used by the wife as a false charge of adultery and no divorce is to be granted
under Lian. This was held in the case of Nurjahan v. Kazim Ali by the Calcutta High Court.

IV Judicial Talaq

Dissolution of Muslim Marriages Act 1939- Qazi Mohammad Ahmad Kazmi had introduced a bill in
the Legislature regarding the issue on 17th April 1936. It however became law on 17th March 1939
and thus stood the Dissolution of Muslim Marriages Act 1939.

Section 2 of the Act runs thereunder:

A woman married under Muslim law shall be entitled to obtain a decree for divorce for the dissolution
of her marriage on any one or more of the following grounds, namely:

i. Husband not know to her for about 4 years.

ii. That the husband has neglected or has failed to provide for her maintenance for a
period of two years.
iii. That the husband has been sentenced to imprisonment for a period of seven years or
upwards:
iv. That the husband has failed to perform, without reasonable cause, his marital
obligations for a period of three years
v. Impotency of the husband.
vi. Husband has been insane for 2 years or is suffering from leprosy, or virulent venereal
disease.
vii. The marriage was made with the consent of her father before she attained the age of
15 years, she repudiated the marriage before attaining the age of 18 years.
viii. Husbands treat her with cruelty.
ix. On any other ground recognized by the law

 Divorce under the Indian Divorce Act, 1869

 The Indian Divorce Act, 1869 regulates the law relating to divorce of persons professing the
Christian religion and also other matrimonial clauses. This Act is applied if one of the parties to
the proceedings is a Christian. The Act is modelled on the English law of divorce (Section 7). Part
III, Section 10 of the Act provides the grounds on which a husband or a wife may petition for
dissolution of marriage.
 Grounds for dissolution of marriage
(1) Any marriage solemnized, whether before or after the commencement of the Indian Divorce
(Amendment) Act, 2001, may, on a petition presented to the district court either by the husband or the
wife would be dissolved on the ground that since the solemnization of the marriage, the respondent:

i. Has committed adultery

ii. Has ceased to be Christian by conversion to another religion

iii. Has been incurably of unsound mind for a continuous period of not less than two years
immediately preceding the presentation of the petition.

iv. Has for a period of not less than two years immediately preceding the presentation of the
petition, been suffering from a virulent and incurable form of leprosy.

v. Has for a period of not less than two years immediately proceedings the presentation of the
petition, been suffering from venereal disease in a communicable form.

vi. Has not been heard of as being alive for a period of seven years or more by those persons who
would naturally have heard of the respondent if the respondent had been alive.

vii. Has wilfully refused to consummate the marriage and the marriage has not therefore been
consummated.

viii. has failed to comply with a decree for restitution of conjugal rights for a period of two years
or upwards after the passing of the decree against the respondent or dissolution of a marriage,
the Court shall satisfy itself, so far as it reasonably can, not only as to the fact alleged, but
also whether or not the petitioner has been in any manner accessory to, or connived at, the
going through of the said form of marriage, or the adultery, or has condoned the same and
shall also enquire into any countercharge which may be made against the petitioner.

 Power of Court to Pronounce Decree of Dissolution:

According to Section l4 of the Act, the Court shall pronounce a decree declaring such marriage to be
dissolved in case the Court is satisfied on the evidence that the case of the petitioner has been proved
and does not find that the petitioner has been in any manner accessory to or connived at, the going
through of the said form of marriage or the adultery of the other party to the marriage or has condoned
the adultery complained of or that the petition is presented or prosecuted in collusion with either of
the respondents.

 Divorce by Mutual Consent:

After Section 10, a new Section 10-A has been inserted which lays down conditions for dissolution of
marriage by mutual consent.
 Under Section 10-A:

Subject to the provisions of this Act and the rules made there under, a petition for dissolution of
marriage may be presented to the District Court by both the parties to a marriage together, whether
such marriage was solemnized before or after the commencement of the Indian Divorce (Amendment)
Act, 2001, on the ground that they have been living separately for a period of two years or more, that
they have not been able to live together and they have mutually agreed that the marriage should be
dissolved.

 Parsi Marriage and Divorce Act 1936

The Parsi marriage & Divorce Act contains the fault grounds of divorce on which either spouse may
seek divorce. Section 32 runs.

 Wilful non- consummation of marriage for one year.

 Unsoundness of mind at the time of marriage.
 Mental disorder.
 Pregnancy of the Wife before the Marriage.
 Adultery, Bigamy or Rape etc.
 Cruelty
 Causing Grievous hurt, also where the defendant is husband and has compelled the wife to
submit herself to prostitution.
 Imprisonment of a spouse for 7 years or more.
 Desertion
 Order of maintenance.
 Conversion

 Divorce by Mutual Consent: Section 32-B added by the Amendment Act of 1988 provides for
divorce by mutual consent.
It says that, subject to the provisions of the Act, a suit for divorce may be filed by both the parties
to a marriage together on the ground that they have been living separately for a period of one year
or more, that they have not been able to live together and that they have mutually agreed that the
marriage should be dissolved. A suit under this section can only be filed after one year has lapsed
since the date of the marriage. The court after hearing the parties and after making such inquiry as
 it thinks fit to ascertain that the consent of either party to the suit was not obtained by force or
fraud, pass a decree declaring the marriage to be dissolved with effect from the date of decree.

Maintenance

 The word maintenance is of wide connotation. The most precise definition of it has been given under
Section 3 (b) of the Hindu Adoption & Maintenance Act, 1956, which reads as under:-
"in all cases, provisions for food, clothing, residence, education and medical attendance and
treatment; in the case of an unmarried daughter, also the reasonable expenses of an incident to her
marriage."
 There are four different types of provisions regarding maintenance: -

(A) Provisions under Code of Criminal Procedure, 1973.

(B) Provisions under the Hindu Marriage Act, 1955.
(C) Provisions under the Hindu Adoptions and Maintenance Act, 1956.
(D) Provisions under the Protection of Women from the Domestic Violence Act.

Hindu marriage Act, 1955

 Section 24 - When the wife files a maintenance petition, the court may award her interim
maintenance that the husband must pay from the date on which the application was filed by the
wife till the date of dismissal through her divorce law advocate. It is also known as Maintenance
Pendente Lite and is paid so that the wife can pay for the legal expenses incurred by her. This
section lays down that both the husband and wife can file an application for interim maintenance
through their divorce advocate.
 Section 25 - states that the court can order the husband to pay maintenance to his wife in form of a
lump sum or monthly amount for her lifetime. However, the wife may not be eligible for
maintenance if there are any changes in her circumstances.
 Section 26- During the proceedings under the Act, the court may pass orders with respect to the
custody, maintenance, and education of minor children.

Hindu Adoption and Maintenance Act, 1956

 Section 18-Maintenance of wife - Under section 18 of this Act a Hindu wife is entitled to live
separately from her husband under various grounds without cancelling her right to claim
maintenance.
 Section 18(1) - wife is entitled to maintenance by her spouse for lifetime i.e. she will be given
maintenance until she dies or her husband dies
 Section 19 -Maintenance of widowed daughter-in-law.- (1) A Hindu wife, whether married before
or after the commencement of this Act, shall be entitled to be maintained, after the death of her
husband, by her father-in law: Provided and to the extent that she is unable to maintain herself out
of her own earnings or other property or, where she has no property of her own, is unable to obtain
maintenance- (a) from the estate of her husband or her father or mother, or (b) from her son or
daughter, if any, or his or her estate. (2) Any obligation under sub-section (1) shall not be
enforceable if the father-in law has not the means to do so from any coparcener property in his
possession out of which the daughter-in-law has not obtained any share, and any such obligation
shall cease on the re-marriage of the daughter-in-law
 Section 20- Maintenance of Children and aged parents - A Hindu male or female is bound to
maintain his or her legitimate/illegitimate minor children and aged/infirm parents. Aged or infirm
parent (which includes childless stepmother) or unmarried daughter have to be maintained if they
are unable to maintain themselves.
 Section 21 and 22- Maintenance of dependents - Under this Act, even the heirs of a deceased
Hindu are bound to maintain his/her “dependants” out of his/her estate inherited by them.
Dependents include deceased person’s minor son, unmarried daughter, widowed daughter, minor
illegitimate son, minor illegitimate daughter
 Section 23 sub-section (2)- states that while determining the amount of maintenance to be awarded
to children or aged or infirm parents, the court shall consider the following:

(a) position and status of the parties;

(b) reasonable wants of the claimants;

(c) if the claimant is living separately, whether the claimant is justified in doing so;

(d) claimant’s income and value of property held by him, if any; etc.

 Section 24- If a person ceases to be a Hindu (changes his religion), he/she cannot claim
maintenance under this Act.
 In the case of Jasbir Kaur Sehgal v.  District Judge, Dehradun 1997, An unmarried daughter
unable to maintain herself is entitled to claim maintenance under the Hindu Adoption and
Maintenance Act, 1956. The father is obliged to maintain her unmarried daughters even if they are
living separately with their mother.
 Padmja Sharma v. Ratan Lal Sharma,  (2000) 4 SCC 266. Both, a Hindu divorcee father and a
Hindu divorcee earning mother are obliged to contribute for maintenance of their children under the
Hindu Adoption and Maintenance Act, 1956. Father is not exclusively responsible to maintain
children regardless of mother being affluent,

The Protection of Woman from Domestic Violence Act, 2005:

This enactment provides for a specific and effective remedy to an aggrieved person, who is victim of
domestic violence while living in the shared household along with the respondent including husband.
The scope of legislation is wide as it covers not only the wife but every woman who has been living in
the relationship in the nature of marriage. Maintenance is to be granted under Section 20 of the Act.
While disposing of application under Section 12, the Magistrate may direct the respondent to pay
monetary relief to meet the expenses incurred and losses suffered by the aggrieved person as a result
of domestic violence. The basic condition for claiming right under the Act is causing violence.

MAINTENANCE UNDER MUSLIM LAW

Under maintenance laws in India, maintenance under Muslim law is known as “Nafqah” which means
what a man spends over his family. “Nafqah” basically includes food, clothing and lodging. A
mohemaddan is bound to maintain his wife under Muslim law. Her right to maintenance is absolute
and not conditional to whether she can maintain herself or no. maintenance can be denied to a wife
only under the following circumstances: 1. She has not obtained puberty. 2. She abandons conjugal
domicile without any valid cause. 3. She is disobedient to reasonable commands of her husband. 4. If
she has eloped with somebody. Social status of the parties and economic condition of the husband are
taken into consideration while determining the quantum of maintenance.

Maintenance and welfare of Parents and Senior Citizen Act, 2007.

Section 4- Parent (father or mother whether biological, adoptive or step father or step mother, whether
senior citizen or not) or grand-parent who is unable to maintain himself is entitled to claim
maintenance from one or more of his adult children (son, daughter, grandson and grand-daughter but
does not include a minor). Obligation of the children to maintain their parents extends to such needs
of the parents which will allow them to lead a normal life. Additionally, this Act also makes provision
for maintenance of childless senior citizens (who has attained the age of sixty years or above) by their
relatives. The “relative” means any legal heir of childless senior citizen who is in possession of his
property or would inherit it after his death, but it does not include a minor.
In the case of M. Venugopal   v.  DM, Kanyakumari,  2014 SCC OnLine Mad 5642.- Senior
citizens, including parents, will be entitled to maintenance under Maintenance and Welfare of Parents
and Senior Citizens Act, 2007 if only they are unable to maintain themselves from their own earnings
or out of the income from the property owned by them.

The Muslim Women (Protection of Rights on Divorce) Act, 1986

This act completely took away the right of the women to maintenance beyond the period of iddat by
the husband. Hindu women can ask for award of maintenance under Section 125 of he CrPC but in
case of a Muslim women she can file a case under the same but will be awarded maintenance under
this act only if the husband recognizes this in a way.

 Section 3 - A divorced Muslim woman is entitled to a reasonable and fair provision and
maintenance for children born to her for a period of two years from the respective dates of birth of
such children. It does not matter if the children were born before or after the divorce, the former
husband is liable to pay maintenance. If the former husband fails to comply with the order passed
by Magistrate without showing sufficient reason, he may have to suffer imprisonment up to one
year.

Maintenance Under Section 125 Cr.P.C

 Chapter IX of Cr.P.C (125-128) deals with the maintenance of wives, children and parents.
Though the provision is essentially of civil nature, they have been included in the code with a
view affording speedy, cheap and effective remedy against starvation to wives, children and
parents, who are unable to maintain themselves.
 Conditions for Maintenance
 The applicant must be unable to maintain himself or herself, as the case may be; and
 The opponent must have sufficient means to maintain the applicant; and
 The opponent must have refused to live with her husband without sufficient reasons; and
 If the applicant is wife-
She must not be living in adultery.
She must have not refused to live with her husband without sufficient reasons; and
She must not be living separately by mutual consent
 According to this Section magistrate of first class has the power to order the person to provide
monthly allowance to:
1. his legitimate or illegitimate minor child who is unable to maintain itself; or  
2. legitimate or illegitimate major child (not being a married daughter) unable to
maintain itself due to any physical or mental abnormality/injury; or
3. married daughter till she attains majority if her husband is not able to maintain her; or
 4. his/her father or mother who are unable to maintain themselves.
 Magistrate may issue warrants for levying the amount due, in case of non-compliance with the
order. Making of an application is mandatory to the court for levying such amount within a period
of one year from the date on which the amount was due, otherwise warrant cannot be issued.
 Where in case a wife is living separately without any sufficient reason or is living in adultery or
they have separated through a mutual consent, then in such cases she is not entitled to receive
allowance.
 Who can claim Maintenance?
1. Wife.
2. Children.
3. Parents.
 Against who maintenance can be claimed?

On bare reading of Section 125(1), a father or a husband or a son or a daughter as the case may be is
the only person who can be held liable to pay maintenance to his children or to his wife or to his
parents.

 Bakulabai v. Gangaram,  (1988) 1 SCC 537, the court held that A child born out of a void
marriage between a woman and a man who already has a wife is to be treated as a legitimate child
who is entitled to maintenance under Section 125 CrPC
 Jagdish Jugtawat v. Manju Lata, (2002) 5 SCC 422.- Daughter is entitled to maintenance under
CrPC when read with Hindu Adoption and Maintenance Act, 1956 even after attaining majority
but till her marriage
 Amarendra Kumar Paul v. Maya Paul,  (2009) 8 SCC 359. A case for grant of maintenance
under Section 125 CrPC arises only when a person despite having sufficient means neglects or
refuses to maintain his legitimate or illegitimate minor children who are unable to maintain
themselves
 Noor Saba Khatoon v. Mohd. Quasim,  (1997) 6 SCC 233. The benefit under Section 125
CrPC is available to all children irrespective of religion. Right under Muslim Women (Protection
of Rights on Divorce) Act, 1986 is that of the mother to claim maintenance for children for two
years from their date of birth and is distinct and independent of the right to maintenance under
CrPC to minor children unable to maintain themselves,

Bigamy and Adultery

Bigamy- Second marriage, during the subsistence of the first marriage, is illegal in India and the
relationship arising from the same does not have any validity. Even though the law is very clear on
this point, 'second marriage' is a common practice in Indian society. As a result of the aforementioned
contrast between the law and social practice, second wives in India have little protection under the
law.

 Bigamy- legal definition?

A person commits bigamy when he/she:
– When husband or wife living,
– marries, but such marriage is void,
– by reason of it taking place during the life of husband or wife.
 When is Bigamy offence?
Section 5 of the Hindu Marriage Act, 1955, clearly states that a marriage could be valid only if
neither of the party has a living spouse at the time of marriage. Section 11 of the Act declares
second marriage to be null and void.
 Before the enactment of Hindu Marriage Act, 1955, polygamy among Hindu men was common
and enjoyed social acceptance. But this position changed with Hindu Marriage Act coming into
force in the year 1955. Section 5(i) of the said Act stipulates that marriage can be solemnised
between any two Hindus if “neither party has a spouse living at the time of the marriage”,
and Section 11 declares a marriage void if it is in contravention of section 5(i). Further,  Section
17 provides that the provisions of Sections 494 and 495 of the Indian Penal Code shall apply
where either of the parties has a spouse living at the time of the marriage.
 Section 494  of the Indian Penal Code, 1860 states - “Whoever, having a husband or wife living,
marries in any case in which such marriage is void by reason of its taking place during the life of
such husband or wife, shall be punished with imprisonment of either description for a term which
may extend to seven years, and shall also be liable to fine.”
 The above-mentioned Section also provides that the Section does not apply where:

1. any person whose marriage with such husband or wife has been declared void by a Court of
competent jurisdiction

2. where the spouse has been continually absent for a period of 7 years and not heard to be alive
within such period.

 Thus, a combined reading of Sections 17 of Hindu Marriage Act and Section 494 of the Indian
Penal Code require that to make out a case for bigamy the following essential ingredients must be
established as laid down in Nagalingam v. Sivagami 

1. The accused must have contracted the first marriage

2. Whilst the first marriage was subsisting, the accused must have contacted a second
marriage

3. Both the marriages must be valid.

 Bigamy shall NOT apply if:
 the first husband or wife is dead, or
 the first marriage has been declared void by the Court of competent jurisdiction, or
 the first marriage has been dissolved by divorce, or
 the first spouse has been absent or not heard of continually for a space of seven years. Here
The party marrying must inform the person with whom he or she marries of this fact.

 Another option available to the second wife is to get the marriage annulled under Section 11 read
with Section 5(1) of HMA. Section 5, HMA provides for the conditions for the valid marriage, on
being that neither party should have spouse living at the time of the marriage. Accordingly, a
marriage contracted while either party has a spouse living, can be annulled under Section 11 of
Hindu Marriage Act, 1955.
 The provisions for divorce under Section 13, HMA also provide for the remedy available to the
second wife. Section 13 (2) (i) of HMA says that in cases of marriages before commencement of
this Act, a second wife can seek divorce on the ground that her husband's first wife was alive at
the time of the solemnization of the second marriage.
 Religious Conversion for contracting second marriage…
NOT allowed. In Sarla Mudgal v. Union of India (1995 AIR 1531 SC), the Supreme Court held
that a man who has adopted Islam and renounced Hindu religion, marries again without taking
divorce from the first wife, then such marriage is not legal. The person shall be punished for
committing bigamy under section 494 of Indian Penal Code (IPC).

Adultery

Marriage and family are often regarded as the basis of society. Adultery has been a part of the human
existence for as long as there has been marriage. It automatically brings its own conflict between, the
people concerned, sexual desires and a sense of loyalty; it brings intense emotions into the
foreground, and has consequences for all concerned.

Adultery is a "voluntary sexual intercourse between a married person and someone other than the
lawful spouse." The term originates from the Latin word ad-ulterare (a combination of ad, "at", and
ulter, "above", "beyond", "opposite", meaning "on the other side of the bond of marriage"). Adultery
literally means sex between a married man or woman and someone who is not their wife or husband.
An adulterer is a married man who has sex with a woman who is not his wife, or a man who has sex
with another man’s wife while an adulteress is a female adulterer.

 Ingredients

In order to constitute the offence of adultery, the following must be established: –

 (i) Sexual intercourse between a married woman and a man who is not her husband;

(ii) The man who has sexual intercourse with the married woman must know or has reason to believe
that she is the wife of another man;

(iii) Such sexual intercourse must take place with her consent, i.e., it must not amount to rape;

(iv) Sexual intercourse with the married woman must take place without the consent or connivance of
her husband.

 Who may file a complaint?

Only husband of the woman with whom adultery is committed is treated as an aggrieved person and
only he can file a complaint. However, in his absence, some other person who had care of the woman
on his behalf at the time when such offence was committed may file a complaint on husband’s behalf
if the court allows. [Section 198(2) CrPC]

In Joseph Shine, this was held to be arbitrary and violative of constitutional guarantees 

 Woman has no right to file a complaint

A wife is disabled from prosecuting her husband for being involved in an adulterous relationship. The
law does not make it an offence for a married man to engage in an act of sexual intercourse with a
single woman

 Who can be prosecuted?

It is only the adulterous man who can be prosecuted for committing adultery, and not the adulterous
woman, even though the relationship is consensual. The adulterous woman is not even considered to
be an abettor to the offence. Woman is exempted from criminal liability.

 The offence of adultery is non-cognizable (a case in which a police officer cannot arrest the accused
without an arrest warrant). Also, it is a bailable offence. The offence of adultery is compoundable by
the husband of the woman with whom adultery is committed. Compoundable offences are those
where the court can record a compromise between the parties and drop charges against the accused.
[Section 320 CrPC].
 Section 497.  Adultery. — Whoever has sexual intercourse with a person who is and whom he knows
or has reason to believe to be the wife of another man, without the consent or connivance of that man,
such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and
shall be punished with imprisonment of either description for a term which may extend to five years,
or with fine, or with both. In such a case, the wife shall not be punishable as an abettor.
 Section 497 IPC and Section 198(2) CrPC together constitute a legislative packet to deal with the
offence of adultery which have been held unconstitutional and struck down by the Supreme Court
in Joseph Shine  v.  Union of India,  2018
 Adultery continues to be a ground for divorce - There can be no shadow of doubt that adultery can be
a ground for any kind of civil wrong including dissolution of marriage, Joseph Shine  v.  Union of
India,  2018 SCC OnLine SC 1676.

Dowry

“Dowry” is a word that is very prevalent and common in Indian households. It is a practice that has
become a parasite for the Indian society and which has eroded the beautiful institution of marriage. It
is not a new practice but has been followed from ages, and its impact is such in Indian society that one
can make efforts to reduce it, but it cannot be totally eradicated.

What is dowry?

According to section 2 of Dowry Prohibition Act, 1961, the term “dowry” means any property or
valuable security given or agreed to be given either directly or indirectly.

(a) By one party to a marriage to the other party to the marriage, or

(b) By the parent of either party to a marriage or by any other person, to either party to the marriage or
to any other person, at or before [or any time after the marriage] [in connection with the marriage of
the said parties, but does not include] dower or mehr in the case of persons to whom the Muslim
Personal Law (Shariat).

In  Arjun Dhondiba Kamble v. State of Maharashtra 1995 , the court held that, “Dowry” in the sense
of the expression contemplated by Dowry Prohibition Act is a demand for property of valuable
security having an inextricable nexus with the marriage, i.e., it is a consideration from the side of the
bride’s parents or relatives to the groom or his parents and/or guardian for the agreement to wed the
bride-to-be. But where the demand for property or valuable security has no connection with the
consideration for the marriage, it will not amount to a demand for dowry.

Who would be an offender under the law?

According to section 3 of the Dowry Prohibition Act, 1961, it is an offence to both take dowry and
give dowry. So, the family of bridegroom would be liable for taking dowry so would the family of
bride be to consent to give dowry.

Penalty for giving and taking dowry (Section 3) – According to section 3, if any person after the
commencement of the Act gives or takes, abets the giving or taking of dowry shall be punished with
an imprisonment for a term not less than five years and with fine which shall not be less than fifteen
thousand rupees or the amount of the value of dowry, whichever is more.

Penalty for demanding dowry (section 4) – According to section 4, if any person directly or indirectly
demands dowry from the parents, relatives or guardians of the bride or the bridegroom shall be
punished with an imprisonment of not less than six months and which shall extend to two years and
with fine which may extend to ten thousand rupees.

Ban on advertisement (section 4-A) – According to section 4-A, the advertisement in any newspaper,
journal or through any other medium or a share in the property, business, money, etc by any person in
consideration for marriage shall be punished with an imprisonment which shall not be less than six
months and which may extend to five years or with fine which may extend to fifteen thousand rupees

Cognizance of offence– According to section 7, a judge not below the rank of a Metropolitan
Magistrate or Judicial Magistrate of First Class shall try an offence under this Act. The court shall
take cognizance of the offence only on the report by the victim, the parents or relative of the victim,
police report or on its own knowledge of the facts of the offence.

Indian Penal Code

 Dowry Death (section 304 B)- Section 304(B) reads as follows-

1. Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than
under normal circumstances within seven years of her marriage and it is shown that soon before
her death she was subjected to cruelty or harassment by her husband or any relative of her
husband for, or in connection with, any demand for dowry, such death shall be called “dowry
death” and such husband or relatives shall be deemed to have caused her death.

Explanation – For the purposes of this sub section, “dowry” shall have the same meaning as in
section 2 of the Dowry Prohibition Act, 1961.

2. Whoever commits dowry death shall be punished with imprisonment for a term which shall
not be less than seven years but which may extend to imprisonment for life.

 In Vemuri Venkateshwara Rao v. State of Andhra Pradesh, the court has laid down the
following guideline for establishing an offence under section 304(B) and they are-
i. That there is a demand of dowry and harassment by the accused,
ii. That the deceased had died,
iii. That the death is under unnatural circumstances. Since there was demand for dowry and
harassment and death within 7 years of marriage, the other things automatically follow and
offence under section 304-B is proved.
 Section 498-A and “Dowry Demand”- Husband or relative of husband subjecting women to
cruelty (section 498-A) – Section 498- A reads as follows-

1. Husband or relative of husband of a woman subjecting her to cruelty- Whoever, being the
husband or the relatives of the husband of a woman, subject such woman to cruelty shall be
punished with imprisonment for a term which may extend to three years and shall also be
liable to fine.

 Explanation – For the purpose of this section “cruelty” means –

1. Any wilful conduct which is of such a nature as is likely to drive the woman to commit
suicide or to cause grave injury or danger to life, limb or health (whether mental or physical)
of the woman, or

2. Harassment of the woman where such harassment is with a view to coercing her or any
person related to her to meet any unlawful demand for any property or valuable security or is
on account of failure by her or any person related to her to meet such demand

 In Bhoora Singh v. State 1993, it was held that the husband and in-laws subjected the wife the
cruelty for bringing insufficient dowry and finally burnt her down, thereby inviting a sentence of
three years rigorous imprisonment and a fine of Rs.500/- for an offence committed under section
498-A of Indian Penal Code.

Indian Evidence Act, 1872

 Presumption as to dowry death (Section 113 B) – Section 113 B reads as follows-

When the question is whether a person has committed dowry death of a woman and it is shown that
soon before her death such woman had been subjected by such person to cruelty or harassment for, or
in connection with, any demand for dowry, the court shall presume that such person had caused the
dowry death.

Explanation – For the purpose of this section “dowry death” shall have the same meaning as in
section, 304B of the Indian Penal Code (45 of 1860).

Domestic Violence

Domestic violence is sadly a reality in Indian society, a truism. In the Indian patriarchal setup, it
became an acceptable practice to abuse women. There may be many reasons for the occurrence of
domestic violence.  It could be said that the occurrence of domestic violence against women arises out
of the patriarchal setup, the stereotyping of gender roles, and the distribution of power, real or
perceived, in society. Following such ideology, men are believed to be stronger than women and more
powerful. They control women and their lives and as a result of this power play, they may hurt
women with impunity.

There are three laws in place in India that deal directly with domestic violence: The Protection of
Women from Domestic Violence Act, 2005. The Dowry Prohibition Act, 1961. And Section 498A of
the Indian Penal Code.

The Protection of Women from Domestic Violence Act, 2005

It is a civil law that provides protection to women in a household, from men in the household. This
law not only protects women who are married to men but it also protects women who are in live-in
relationships, as well as family members including mothers, grandmothers, etc. Under this law,
women can seek protection against domestic violence, financial compensation, the right to live in
their shared household, and they can get maintenance from their abuser in case they are living apart.

Types of Abuse under the Act

The Gujrat High Court in a recent case of Bhartiben Bipinbhai Tamboli v. State of Gujrat and ors.
elaborated on the types of abuse or domestic violence under the Act which are as follows:

 Physical Abuse
 Sexual Abuse
 Verbal and Emotional Abuse
 Economic Abuse

 Who can file a complaint under the  Domestic Violence Act?

Section 2(a) of the Domestic Violence Act defines “aggrieved person” as any woman who is, or has
been, in a domestic relationship with the respondent and who alleges to have been subjected to any act
of domestic violence by the respondent.

 Against whom can the complaint be filed under the  Domestic Violence Act?

Section 2(q) of the Domestic Violence Act defines “respondent” as any adult male person who is, or
has been, in a domestic relationship with the aggrieved person and against whom the aggrieved
person has sought any relief under this Act:

Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may
also file a complaint against a relative of the husband or the male partner

Sandhya  Wankhede  vs.  Manoj  Bhimrao  Wnakhede 2011  put to rest the issue by holding that
the proviso to Section 2(q) does not exclude female relatives of the husband or male partner from the
ambit of a complaint that can be made under the provisions of the Domestic Violence Act. Therefore,
complaints are not just maintainable against the adult male person but also the female relative of such
adult male

Indian Penal Code

Section 498A

The third law that exists to help women who are facing violence at home is Section 498A of the
Indian Penal Code (Husband or relative of husband of a woman subjecting her to cruelty). This is a
criminal law, which applies to husbands or relatives of husbands who are cruel to women. Cruelty
refers to any conduct that drives a woman to suicide or causes grave injury to her life or health –
including mental health – and also includes harassment in the name of dowry. If convicted, people can
be sent to jail for up to 3 years under this law.

 Ingredients

For commission of an offence under Section 498-A, following necessary ingredients require to be
satisfied: (a) The woman must be married; (b) She must be subjected to cruelty or harassment; and (c)
Such cruelty or harassment must have been shown either by husband of the woman or by the relative
of her husband, U. Suvetha v. State, (2009) 6 SCC 757.

 Object and caution

Section 498-A IPC was introduced with the avowed object to combat the menace of dowry deaths and
harassment to a woman at the hands of her husband or his relatives. Nevertheless, the provision
should not be used as a device to achieve oblique motives, Onkar Nath Mishra  v.  State  (NCT of
Delhi),  (2008) 2 SCC 561.

 Who may file a complaint?

The complaint under Section 498-A may be filed by the women aggrieved by the offence or by any
person related to her by blood, marriage or adoption. And if there is no such relative, then by any
public servant as may be notified by the State Government in this behalf.

 Woman in a live-in relationship — Whether can file complaint under Section 498-A IPC

Kerala High Court, after considering various decisions of the Supreme Court has held that for an
offence under Section 498-A to be committed, the parties must have undergone some sort of
ceremonies with the object of getting married. In that case, the parties did not perform any ceremony
and just started living together. It was held that a woman in a live-in relationship was not entitled to
file a complaint under the section, Unnikrishnan v. State of Kerala,2017 
 Live-In Relationships

Generally speaking, live in relationship means an arrangement wherein a man and a woman live
together without getting married and conduct themselves as husband and wife for all practical
purposes. Such arrangement is ordinarily called as cohabitation. Collins English Dictionary defines
‘cohabitation’ as “the state or condition of living together in a conjugal relationship without
being married”[21]; and the man and the woman cohabitating are called as live-in partners or many
countries recognise them as conjugal partners.

 ACCEPTANCE OF LIVE IN RELATIONSHIP IN INDIA-

Neither the Hindu Marriage Act, nor Special Marriage Act, nor any other law in India recognises live-
in relationships. But judiciary has played a significant role in acting as a catalyst in initiating the
process of social acceptance of live-in relationships and safeguarding the rights of individuals entering
into such relationship.

The acceptance of live-in relationship by Indian courts can be traced back to pre-independence
judgment of the Privy Council in A. Dinohamy v. W.L.Blahamy, in which it took the stand
that, “where a man and a woman are proved to have lived together as man and wife, the law will
presume, unless the contrary be clearly proved that they were living together in consequence of a
valid marriage, and not in a state of concubinage”

The same was restated by the Privy Council in Mohabhat Ali v. Mohammad
Ibrahim Khan that- “The law presumes in favour of marriage and against concubinage when a man
and woman have cohabited continuously for a number of years”

After independence, Hon’ble Justice Krishna Iyer in Badri Prasad v. Dy. Director of Consolidation,
wherein a man and a woman lived together as husband and wife for over 50 years, stated- “A strong
presumption arises in favour of wed-lock where the partners have lived together for a long spell as
husband and wife”. But in the same judgement he observed that “The presumption was rebuttable,
but a heavy burden lies on the person who seeks to deprive the relationship of legal origin to prove
that no marriage took place. Law leans in favour of legitimacy and frowns upon a bastard”.

In Payal Sharma v. Superintendent, Nari Niketan, Hon’ble Justices M Katju and R.B. Mishra
stated- “In our opinion, a man and a woman, even without getting married, can live together f they
wish to. This may be regarded as immoral by society, but is not illegal. There is a difference between
law and morality”.

Similarly, the three-judge bench of Hon’ble Supreme Court consisting of Hon’ble Justices K.G.
Balakrishnan, Deepak Verma, B.S. Chauhan in Khushboo v. Kanniammal & Anr. observed
that “While it is true that the mainstream view in our society is that sexual contact should take place
only between marital partners, there is no statutory offence that takes place when adults willingly
engage in sexual relations outside the marital setting, with the exception of ‘adultery’ as defined
under Section 497 IPC”. The same view was expressed in Lata Singh v. State of U.P. & Anr. ,
that “A major girl is free to marry anyone she likes or live with anyone she likes”.

However, the landmark judgment which has bestowed live in relationship the status of ‘relationship in
the nature of marriage’ is the 2010 judgement of Hon’ble Supreme Court in D. Velusamy v. D.
Patchaiammal

After appraising the provisions of The Protection of Women from Domestic Violence Act, 2005,
Hon’ble Justices Markandey Katju and T.S. Thakur pointed out that the expression ‘domestic
relationship’ also includes a relationship ‘in the nature of marriage’. The question, therefore, arises as
to what is the meaning of the expression ‘a relationship in the nature of marriage’. They interpreted
the expression a ‘relationship in the nature of marriage’ as akin to a common law marriage and laid
down the following criteria for live-in relationship:

1. The couple must hold themselves out to society as being akin to spouses.

2. They must be of legal age to marry.

 3. They must be otherwise qualified to enter into a legal marriage, including being unmarried.

4. They must have voluntarily cohabited and held themselves out to the world as being akin to
spouses for a significant period of time.

In addition to the above requirements the parties must have lived together in a ‘shared household’ as
defined in Section 2(s) of the Act.

Further, the Hon’ble Supreme Court in Indra Sarma v. VKV Sarma, laid down following guidelines
for determining whether a live-in relationship will fall within the expression ‘relationship in the nature
of marriage’:

“1) Duration of period of relationship – Section 2(f) of the DV Act has used the expression “at any
point of time”, which means a reasonable period of time to maintain and continue a relationship
which may vary from case to case, depending upon the factual situation.

(2) Shared household – The expression has been defined under Section 2(s) of the DV Act and, hence,
needs no further elaboration.

 (3) Pooling of Resources and Financial Arrangements supporting each other, or any one of them,
financially, sharing bank accounts, acquiring immovable properties in joint names or in the name of
the woman, long term investments in business, shares in separate and joint names, so as to have a
long standing relationship, may be a guiding factor.

 (4) Domestic Arrangements – Entrusting the responsibility, especially on the woman to run the
home, do household activities like cleaning, cooking, maintaining or up keeping the house, etc. is an
indication of a relationship in the nature of marriage.

(5) Sexual Relationship – Marriage like relationship refers to sexual relationship, not just for
pleasure, but for emotional and intimate relationship, for procreation of children, so as to give
emotional support, companionship and also marital affection, caring etc.

(6) Having children is a strong indication of a relationship in the nature of marriage. Parties,
therefore, intend to have a long-standing relationship. Sharing the responsibility for bringing up and
supporting them is also a strong indication.

(7) Socialization in Public – Holding out to the public and socializing with friends, relations and
others, as if they are husband and wife is a strong circumstance to hold the relationship is in the
nature of marriage.

(8) Intention and conduct of the parties – Common intention of parties as to what their relationship is
and to involve and as to their respective roles and responsibilities, primarily determines the nature of
that relationship.”
 Children born out of illegitimate, void, voidable, live in relationship

 Since time immemorial, there is a social stigma surrounding a child who is not born to legally
wedded/married parents. The illegitimate children never enjoyed equal status along with the
legitimate children. The society always discriminated the illegitimate children in many ways. Not
only the society discriminated them, even law has discriminated them. Law has not given the
illegitimate children the same legal rights as the legitimate ones are given.
 Illegitimacy as defined by the Oxford Dictionary means, “(Of a child) born of parents not
lawfully married to each other”. This means illegitimacy means when the parents of a child are
not lawfully wedded, the child will be considered illegitimate.
 Premarital sexual relationship and extramarital sexual relationship are considered to be a sin in
almost all the societies. So the resultant child of such offensive relationship is also kept in a state
of sin. It is considered illegitimate.

Under Hindu Law

 Under the Hindu Law, if a marriage fulfils all the conditions laid down in Section 7 and Section 5
of the Hindu Marriage Act, 1955 it is considered to be a valid marriage. Children born of such a
valid marriage are alone considered legitimate. If the conditions lay down under Section 5 of the
Act, are not satisfied, the resultant marriage may be void or voidable marriage as per Sections 11
and 12 of the Act.
 Void marriage Section 11 of the Hindu Marriage Act, 1955 defines a void marriage. It says, if the
marriage is in contravention of any of the conditions specified in clauses (i), (iv) and (v) of
Section 5 it shall be null and void. The children born of such a marriage are considered to be
illegitimate children.
 Voidable marriage Section 12 of the Hindu Marriage Act, 1955 lays down the grounds of
voidable marriages. If the marriage is annulled under anyone of the grounds under Section 12,
then the children born of such a marriage are considered to be illegitimate children.
 But after the Amendment of 1976 Section 16 has been introduced as – Legitimacy of children born
out of void or voidable marriage- which states that children shall be considered as Legitimate
children only.
 Apart from the above, if proper ceremonies are not performed at the time of marriage as per
Section 7 of the Hindu Marriage Act, the resultant marriage is not a valid marriage. Children born
of such marriage will also fall under the category of illegitimate children. Hence, children who
will fall under the category of the illegitimate children under Hindu Law may be summed up as
follows:
 1. Children born of illicit relationship;

2. Children born through concubinage; and

3. Children born of a marriage which is not valid for want of proper ceremonies.

 The Hindu law relating to illegitimate children can be discussed under the following four heads:

i. Maintenance- Under the Hindu Adoptions and Maintenance Act, 1956, a Hindu is bound,
during his or her life-time, to maintain his or her illegitimate children. The obligation to
maintain illegitimate children is now upon both, the father as well as the mother. Not only the
illegitimate son, but also an illegitimate daughter, is entitled to be maintained by her father
and mother. The right to be maintained, however, extends only up to the period of minority.
ii. Inheritance- An illegitimate child is not entitled to succeed to his father. But under the Hindu
Succession Act, illegitimate children are deemed to be related by illegitimate kinship to their
mother and to one another, and their legitimate descendants are deemed to be related by
legitimate kinship to them and one another, and can therefore inherit from each other under
the said Act. An illegitimate child can inherit the property of his or her mother or of his or her
illegitimate brother or sister (uterine blood). A mother also can inherit the property of her
illegitimate child. The father has no right to inherit the property of his illegitimate child.

JINIA KEOTIN V KUMAR SITARAM MANJHI [(2003) 1 SCC 730]

In this case the Supreme Court said, ‘Section 16 of the Act while engrafting a rule of fiction
in ordaining children, though illegitimate, to be legitimate, notwithstanding the marriage was
Void or Voidable, also chose to confine its application, as far as succession or inheritance by
such children are concerned, to the properties of the parents only.’ Hence, such children are
entitled to the self-acquired property, or the ancestral property passed to them by the parents,
but not the property of the Hindu Joint Family.

In the case of Revanasiddappa v. Mallikarjun 2011, it was held that ‘Child born in

illegitimate relationship/Void marriage is innocent and is entitled to all rights to property to
which his parents are entitled whether ancestral or self-acquired property.’

iii. Joint Family Property and Partition- Unlike a legitimate son, an illegitimate son does not
acquire any interest in the ancestral property in the hands of his father; nor does he can be a
coparcenary in a Joint Hindu Family.  He is also not entitled to enforce partition against the
family. The father may, in his lifetime, give him a share of his property, which may be a share
equal to that of the legitimate sons.
 iv. Guardianship- The mother is considered the natural guardian. Now, if both the parents of an
illegitimate child are Hindus, Buddhists, Jains or Sikhs by religion, or if one of the parents of
such child is a Hindu, Buddhist, Jain or Sikh by religion, and such child is brought up as a
member of the tribe, community, group or family to which such parent belongs or belonged,
then the Hindu Minority and Guardianship Act, 1956, applies to such a child, and under
section 6 of the Act, in the case of an illegitimate boy or illegitimate unmarried girl, the
mother is the natural guardian, and after her, the father is the natural guardian, and in the case
of a married girl, the husband is the natural guardian.

Under Muslim Law

 Illegitimate children have no rights to inherit from their fathers, however, under the Hanafi law,
the mother and her illegitimate children have mutual rights of inheritance. They also have a claim
on the property of all other relations of his or her through the mother. It also does not confer the
right of maintenance on the illegitimate child, although the Hanafis do recognise the obligation to
nurture the child till the age of 7 years. But such children can only seek remedy under Sec 125 of
the Code of Criminal Procedure.
 In Pavitri v. Katheesumma Vaidiaalingam J. held, "Mohammadan law seems to force no weight
upon the regular dad of an ill-conceived child..."Muslim Law likewise does not present any
privilege to support to the ill-conceived kid, however the Hanafis perceive the commitment to
sustain the youngster till age 7. In any case, such youngsters can look for cure under Section 125
of the Cr.P.C which ought to guarantee that all such ill-conceived kids are kept up by their folks.
The same has been perceived by the Courts in a few cases.

CHRISTIAN LAW

 The Indian Succession Act covers the property rights of Christian children. The term ‘child’ in the
act does not include illegitimate children, and Sec 37 of the Act precludes such children from
inheriting the property of the father. However, they are granted the right to maintenance under
Sec 125 of the Cr.P.C.
Live-In relationship
 In S PS Balasubramanyam vs Sruttayan 1992, the SC had said, “If a man and woman are living
under the same roof and cohabiting for a number of years, there will be presumption under
Section 114 of the Evidence Act, that they live as husband and wife and the children born to them
will not be illegitimate.”
 The crucial pre-conditions for a child born from live-in relationship to be not treated as
illegitimate are that the parents must have lived under one roof and co-habited for a considerably
 long time for society to recognize them as husband and wife. It must not be a “walk in and walk
out” relationship, as the court pointed out in its 2010 judgment in Madan Mohan Singh vs. Rajni
Kant 2010
 Dimple Gupta v. Rajiv Gupta where social justice was given by pronouncing that even the
illegitimate child that is born out of illicit relationship was entitled to maintenance when they are
minor and after they had turned major and where he/she is not able to maintain himself/herself.
By this, the court had stated that children born to live-in parents are legitimate and have the same
rights as in case of children from the valid marriage.