FAMILY LAW

The Indian Divorce Act, 1869 governs the dissolution of marriages for Christian couples in
India. It sets out various grounds for divorce under Section 10. These grounds allow either
party to file for divorce in the District Court on specific reasons, which are categorized into
fault-based grounds and grounds for mutual consent.

Grounds for Divorce under Section 10 of the Divorce Act, 1869

A petition for divorce can be presented to the District Court by either the husband or the wife
on the following grounds:

1. Adultery: If the respondent has committed adultery since the solemnization of the
marriage, it is a valid ground for divorce. The petitioner must prove the act of infidelity.

2. Conversion to Another Religion: If the respondent ceases to be a Christian by converting to

another religion, it can serve as a ground for dissolution of marriage. This condition is
designed to address situations where one partner no longer shares the religious beliefs that
formed part of the marital bond.

3. Mental Illness: If the respondent has been suffering from an incurable mental illness for a
continuous period of at least two years before filing the petition, this can also serve as a
ground for divorce. This ground requires the mental illness to be of such a nature that it
makes it impossible for the respondent to maintain a normal marital relationship.

4. Venereal Disease: If the respondent has been suffering from a communicable venereal
disease (sexually transmitted disease) for a period of at least two years immediately
preceding the filing of the divorce petition, this can be used as a ground for divorce.

5. Absence for Seven Years: If the respondent has not been heard from for at least seven
years, and there are reasonable grounds to believe that the person is dead, the spouse can file
for divorce. This ground is based on the assumption that a spouse presumed dead may be
legally divorced from the absent partner.

6. Non-consummation of Marriage: If the respondent has willfully refused to consummate the

marriage, making it impossible for the marriage to be completed in a physical sense, the
petitioner may seek a divorce. This includes situations where one spouse refuses or is unable
to engage in sexual relations.

7. Failure to Comply with Decree for Restitution of Conjugal Rights: If the respondent has
failed to comply with a decree for restitution of conjugal rights for a period of at least two
years after the decree is passed, it can form the basis for divorce. Restitution of conjugal
rights is a court order requiring the spouse to cohabit with the other.
8. Desertion: If the respondent has deserted the petitioner for a continuous period of at least
two years immediately before the presentation of the petition, it can be a ground for divorce.
Desertion refers to the abandonment of one spouse by the other without reasonable cause or
consent.

9. Cruelty: If the respondent has treated the petitioner with cruelty, it can serve as a valid
ground for divorce. Cruelty can include physical, emotional, or mental abuse, and if it causes
a reasonable apprehension that living together would be harmful to the petitioner, divorce
may be sought.

Additional Ground for Divorce for Wife

Under Section 10(2), a wife may also seek divorce on the specific ground that the husband
has been guilty of serious sexual offenses, such as:

Rape
Sodomy
Bestiality

These are considered extreme offenses and are grounds for divorce under the Indian Divorce
Act, 1869, available only to the wife.

Dissolution of Marriage by Mutual Consent (Section 10A)

The Indian Divorce (Amendment) Act, 2001 introduced the option of divorce by mutual
consent. Under Section 10A, both parties can jointly petition the court for divorce on the
following grounds:

They have been living separately for at least two years.

They mutually agree that they are unable to live together and want the marriage to be
dissolved.
The petition can be filed by both parties together, and the court will consider the petition.
However, the petition cannot be finalized immediately and must be presented after six
months but before eighteen months from the date of the initial petition. If the petition is not
withdrawn, the court will pass a decree of divorce.

Conclusion

The Indian Divorce Act, 1869 provides specific and detailed grounds for divorce,
emphasizing fault-based grounds such as adultery, cruelty, desertion, and mental illness,
along with the option of mutual consent. These grounds reflect the evolution of marital laws
in India, balancing individual rights with legal protections for both spouses.
The Parsi Marriage and Divorce Act, 1936 governs the solemnization, validity, and
dissolution of marriages among Parsis in India. The Act lays down specific conditions that
must be met for a marriage to be valid under the law. These essential conditions include:

1. Absence of Prohibited Relationship (Section 3(1)(a)): The contracting parties must not be
related to each other within the degrees of consanguinity or affinity specified in Schedule I of
the Act.
Consanguinity refers to blood relations (e.g., parent-child, siblings), and affinity refers to
relationships by marriage (e.g., between a person and their spouse's family members).

If the parties are related within these prohibited degrees, the marriage is considered invalid.

2. Ceremony of Marriage (Section 3(1)(b)): The marriage must be solemnized according to

the Parsi form of ceremony, called the “Ashirvad.”

This ceremony must be conducted by a priest and must occur in the presence of two Parsi
witnesses, aside from the priest.

The "Ashirvad" is a traditional religious ceremony performed by a Parsi priest and is an

essential part of the Parsi marriage.

3. Minimum Age for Marriage (Section 3(1)(c)): The parties must meet the minimum age
requirements:
A male must have completed twenty-one years of age.
A female must have completed eighteen years of age.

Any marriage where a party is below the stipulated age is considered invalid under this
provision.

4. Legitimacy of Children (Section 3(2)): If a marriage is found to be invalid under any of the
above provisions (e.g., prohibited degrees of relation, failure to conduct the ceremony
correctly, or underage marriage), children born from such a marriage are still considered
legitimate.

The law ensures that children from invalid marriages are not disadvantaged and are granted
legitimacy as if the marriage had been valid.

5. Remarriage and Its Conditions (Section 4): Remarriage is prohibited during the lifetime of
a spouse unless the previous marriage is lawfully dissolved or declared null and void.

If a Parsi individual wishes to remarry, it must be after a lawful divorce or a declaration that
the marriage is null and void (under the Parsi Marriage and Divorce Act or any other relevant
law).
Any remarriage contracted in violation of this provision is void and not legally recognized.

6. Bigamy and Its Punishment (Section 5): A Parsi person who contracts a marriage during
the lifetime of a spouse, without having been lawfully divorced or without the marriage being
declared void or dissolved, is committing bigamy.

Bigamy is a punishable offense under the Indian Penal Code (IPC) sections 494 and 495,
which provide penalties for marrying again while a spouse is still alive.

Key Takeaways: For a Parsi marriage to be valid under the Parsi Marriage and Divorce Act,
1936, it must be between individuals who are not closely related by blood or marriage, must
be solemnized in the prescribed manner, and must adhere to the minimum age requirements.

Additionally, remarriage during the lifetime of a spouse without a lawful divorce or

annulment is prohibited, and those who commit bigamy are subject to criminal penalties.

Nikah and muta marriage are both forms of marriage in Islamic law, but they differ
significantly in their nature, purpose, and duration.

1. Nikah (Permanent Marriage):

Definition: Nikah is the traditional, permanent Islamic marriage contract between a man and
a woman.

Duration: It is a permanent and lifelong marriage unless dissolved by divorce (talaq) or

annulment.

Rights and Responsibilities: Both parties have long-term rights and obligations, such as
mutual support, inheritance rights, and the upbringing of children.

Consent: The marriage requires the consent of both parties and is usually accompanied by a
mahr (dower).

Inheritance: Spouses inherit from each other after death, provided they fulfill the legal
conditions.

Acceptance in Mainstream Islam: Nikah is widely accepted by all sects of Islam, including
Sunni and Shia Muslims, as the fundamental form of marriage.
2. Muta (Temporary Marriage):

Definition: Muta marriage is a temporary marriage in which the duration and terms are
explicitly specified in the contract, often for a fixed period, ranging from a few hours to
several years.

Duration: It is a fixed-term marriage, which automatically terminates once the agreed period
ends. It does not require a formal divorce.

Rights and Responsibilities: While it involves some rights and responsibilities, they are much
less extensive than in a permanent marriage. There is typically no obligation to provide long-
term support or inheritance rights.

Consent: Both parties consent to the duration and terms of the marriage at the outset.

Inheritance: There is generally no inheritance between the partners unless specified in some
interpretations.

Acceptance in Islam: Muta marriage is predominantly practiced by Shia Muslims,

particularly in certain Shia communities, but it is not accepted by Sunni Muslims, who
consider it invalid or impermissible based on their interpretation of Islamic law.

In summary, Nikah is a permanent marriage with long-term rights and responsibilities, while
Muta is a temporary marriage with a fixed duration and fewer obligations. The practice of
Muta is more common among Shia Muslims but is rejected by Sunni Muslims.

In India, a Hindu wife can claim maintenance under various statutes. The key provisions that
address her right to maintenance are found in the following acts:

1. Hindu Marriage Act, 1955

Section 24 – Maintenance Pendente Lite and Expenses of Proceedings: This section provides
for maintenance during the pendency of a divorce or judicial separation proceeding. The wife
(or husband) can claim maintenance during the trial of the case, depending on their financial
capacity.

Section 25 – Permanent Alimony and Maintenance: After a decree of divorce or judicial

separation, the wife can claim permanent alimony and maintenance from her husband. The
court considers factors such as the wife’s needs, the husband's ability to pay, the wife’s
conduct, the standard of living, and other circumstances. The maintenance is not fixed and
can be modified based on changing circumstances.

2. Code of Criminal Procedure, 1973 (CrPC)

Section 125 – Order for Maintenance of Wives, Children, and Parents: This is one of the most
common provisions under which a Hindu wife can claim maintenance. Under this section, a
wife who is unable to maintain herself can claim maintenance from her husband. It is not
necessary to have a formal divorce or judicial separation; the wife can claim maintenance
even if she is living separately due to reasons like cruelty, desertion, or neglect by the
husband.

The wife has to prove that she is unable to maintain herself, and the husband has sufficient
means to provide maintenance. The maintenance can be granted on a monthly basis or as a
lump sum.

The court may also award interim maintenance until a final order is passed.

3. Hindu Adoption and Maintenance Act, 1956

Section 18 – Maintenance of Wife: This section provides that a Hindu wife is entitled to be
maintained by her husband during her lifetime, provided she is not living in adultery or has
abandoned him without sufficient reason. The maintenance can be claimed by the wife even
if she is living separately for reasons such as cruelty, desertion, or other sufficient grounds.

This statute focuses on the entitlement of a Hindu wife to be maintained by her husband and
allows her to claim maintenance as long as she meets the eligibility criteria.

4. Domestic Violence Act, 2005 (Protection of Women from Domestic Violence Act, 2005)

Section 20 – Right to Maintenance: Under this provision, a wife (or female partner in a
relationship) who is a victim of domestic violence can seek maintenance from her husband.
The Act recognizes economic abuse as a form of domestic violence, and it allows a woman to
claim maintenance even if there is no formal divorce or separation.

The wife can claim maintenance for herself and for her children if she is living in a domestic
violence situation, with the right to interim maintenance until the final order is passed.
5. Indian Succession Act, 1925

Section 30 – Maintenance for Wife from Husband’s Estate: If a Hindu wife has been
abandoned or has been left without any means of support, she may claim maintenance from
her deceased husband’s estate under this provision.

6. Maintenance under the Special Marriage Act, 1954

Section 36 – Maintenance of Wife (or Husband): This provision allows a wife (or husband) to
claim maintenance if they are unable to support themselves after the dissolution of marriage.
This is applicable to all marriages solemnized under the Special Marriage Act, which is
applicable to inter-religious or inter-caste marriages.

7. The Family Courts Act, 1984

This Act establishes Family Courts and empowers them to handle cases related to
maintenance, alimony, and other matrimonial disputes. Family courts have simplified the
process and expedited maintenance claims for wives.

8. The Indian Penal Code, 1860

Section 498A – Husband or Relatives of Husband of a Woman Subjecting Her to Cruelty:

While this section primarily deals with cruelty, a wife suffering cruelty under this section may
be entitled to claim maintenance under CrPC Section 125 or the Hindu Marriage Act.
The maintenance claim can be pursued concurrently with the cruelty charge under IPC.

Relevant Points to Note:

Eligibility: A Hindu wife must show that she is unable to maintain herself (either due to
financial incapacity or due to desertion, cruelty, or neglect by her husband).

Interim Maintenance: Wives can claim interim maintenance during the pendency of cases,
which is a temporary measure until the final order is passed.

Factors Considered by the Court: The court will assess the financial status of both the
husband and wife, the wife's needs, the standard of living, the conduct of both parties, and
other relevant factors.
Rights under Different Acts: These provisions are not mutually exclusive. A wife can claim
maintenance under more than one provision depending on her specific circumstances.

Conclusion:
A Hindu wife can claim maintenance under various statutes, with the primary ones being the
Hindu Marriage Act, 1955, and Section 125 of the CrPC. These provisions ensure that a wife
can seek maintenance during and after marriage, especially when she is unable to maintain
herself due to her husband's actions or financial situation. Each statute provides different
routes and remedies, and a wife may invoke any of these depending on her specific legal and
factual situation.

A Hindu wife can claim maintenance under various provisions of law in India. Here are the
key statutory provisions:

1. Hindu Marriage Act, 1955 (Section 24 and 25):

Section 24 (Interim Maintenance): A Hindu wife can seek interim maintenance during the
pendency of a matrimonial proceeding. This is granted to ensure that the wife has financial
support during the ongoing litigation.

Section 25 (Permanent Alimony and Maintenance): A wife may claim permanent

maintenance (alimony) after the divorce. This provision is designed to provide financial
support to the wife after the dissolution of marriage, based on the husband's financial capacity
and the wife’s needs.

2. Hindu Adoption and Maintenance Act, 1956 (Section 18):

Under Section 18, a Hindu wife has the right to claim maintenance from her husband if they
are living separately, even without divorce. This can be due to reasons such as cruelty,
desertion, or any other valid reason for living apart.

The maintenance under this section is determined based on the husband’s income and the
wife’s needs.

3. Code of Criminal Procedure, 1973 (Section 125):

Section 125 allows a Hindu wife to claim maintenance from her husband if she is unable to
maintain herself and is not living in adultery. This section applies to all women, regardless of
their religion, and aims to prevent vagrancy and destitution.

The husband is required to provide maintenance if the wife is unable to sustain herself, and
the wife does not need to prove the reasons for separation.
4. Domestic Violence Act, 2005 (Section 20):

Under Section 20 of the Protection of Women from Domestic Violence Act, 2005, a Hindu
wife (or any woman in a domestic relationship) can claim maintenance from her husband as
part of relief from domestic violence. This includes not only financial support but also shelter,
medical expenses, and compensation for emotional distress.

5. Indian Succession Act, 1925:

While not directly addressing maintenance, this Act may be relevant when a wife is claiming
maintenance from her deceased husband's estate. In such cases, she may seek financial
support as a legal heir.

These statutes ensure that a Hindu wife is not left destitute and has the legal right to seek
financial support during and after the marriage, especially in situations of neglect, separation,
or divorce.

The provisions regarding the maintenance of a wife under the Hindu Adoption and
Maintenance Act, 1956 are primarily laid out in Chapter III of the Act, particularly in Section
18. These provisions provide the legal framework for the maintenance of a wife within a
Hindu marriage, even in cases of separation or marital discord.

1. Maintenance of Wife (Section 18(1))

Right to Maintenance: A Hindu wife is entitled to be maintained by her husband during her
lifetime, regardless of whether the marriage occurred before or after the commencement of
the Act. This provision places the responsibility on the husband to support his wife
financially and materially.

2. Entitlement to Separate Residence and Maintenance (Section 18(2))

A Hindu wife can live separately from her husband and still claim maintenance in the
following cases:

Desertion (Clause a): If the husband abandons the wife without reasonable cause, consent, or
against her wishes. Desertion means the husband leaves the wife and ceases to live with her
without justifiable reasons.

Cruelty (Clause b): If the husband treats the wife with such cruelty that it causes a reasonable
apprehension in her mind that living with him would be harmful or injurious to her.

Bigamy (Clause d): If the husband has another wife living, this is a valid ground for the wife
to seek separate maintenance.
Concubinage (Clause e): If the husband keeps a concubine in the same house where his wife
is living, or if he habitually resides with a concubine elsewhere. This provision is meant to
protect the wife from being neglected or treated unfairly while her husband keeps other
women.

Conversion (Clause f): If the husband ceases to be a Hindu by converting to another religion,
the wife can claim maintenance.

Other Causes (Clause g): Any other justifiable reason, as per the circumstances, that justifies
the wife living separately. This clause is broad and can cover situations not specifically
mentioned in the Act, but which might result in hardship or mistreatment of the wife.

3. Conditions for Denial of Maintenance (Section 18(3))

A Hindu wife will not be entitled to separate residence and maintenance in the following
circumstances:

Unchastity: If the wife is unchaste, meaning she is living in an adulterous relationship or has
been involved in immoral behavior.

Conversion to Another Religion: If the wife converts to another religion and ceases to be a
Hindu, she will not be entitled to maintenance from her husband under this Act.

Key Features of Section 18:

Duty of the Husband: The maintenance obligation primarily rests on the husband, who is
required to maintain his wife. This is a fundamental duty under Hindu law, ensuring the
wife’s financial security.

Right of the Wife: A wife has the legal right to live separately and claim maintenance if her
husband’s conduct (such as cruelty, desertion, or bigamy) makes it impossible for her to live
with him.

Social Protection: The Act protects women from abandonment, mistreatment, and neglect by
ensuring they are provided for financially.

Separation vs. Divorce: The provisions for maintenance separate the concepts of living apart
and seeking a divorce. A wife need not divorce her husband to claim maintenance if she is
living separately due to justified reasons like cruelty or desertion.
Specific Grounds for Maintenance: The Act lists specific grounds (e.g., bigamy, concubinage,
cruelty) that allow a wife to claim maintenance, but it also gives a broad scope for other
causes that justify separate living arrangements.

In summary, Section 18 of the Hindu Adoption and Maintenance Act, 1956, provides
significant legal safeguards for a Hindu wife, ensuring her right to maintenance during her
lifetime and the possibility of living separately under various adverse conditions without
forfeiting this right. However, her entitlement to maintenance is subject to certain conditions,
such as her behavior and religious status.

Certainly! Here's the detailed explanation incorporating the additional points under Section
13(2) of the Hindu Marriage Act, 1955:

Section 10 of the Hindu Marriage Act, 1955: Judicial Separation

Section 10(1): This section allows either party (husband or wife) to file a petition before the
court seeking judicial separation.

The petition can be filed on the grounds specified in Section 13(1), which applies to both
parties.

Additionally, the wife has the option to file a petition based on the grounds mentioned in
Section 13(2), which may include specific grounds available to women under Hindu personal
law.

Section 10(2): After the decree of judicial separation is granted, it is no longer obligatory for
the petitioner (the party seeking judicial separation) to live with the respondent (the other
spouse).

However, the court may, upon an application from either party, rescind the judicial separation
decree. This means the marriage may be resumed if both parties reconcile, and if the court is
satisfied with the truth of the statements made in the petition for rescission.

The court has discretion to rescind the decree if it considers it just and reasonable to do so,
allowing the parties to live together again.

Grounds for Judicial Separation (Section 13(1) and 13(2))

Section 13(1) – Grounds for Judicial Separation Available to Both Husband and Wife
The following grounds can be invoked by either spouse to seek judicial separation under
Section 10:

1. Adultery: If the respondent has had voluntary sexual intercourse with someone outside the
marriage.

2. Cruelty: If one spouse has treated the other with cruelty, making it unreasonable to live
together. This can include both physical and mental cruelty.

3. Desertion: If one spouse has deserted the other for a continuous period of at least two years
immediately before the petition is filed.

4. Conversion: If one spouse has converted to another religion, making the marriage void
under Hindu law.

5. Mental Disorder: If the respondent has been suffering from a mental disorder that makes it
impossible for the parties to live together.

6. Venereal Disease: If the respondent has a communicable venereal disease.

7. Renunciation of the World: If the respondent has renounced the world by becoming a
hermit or ascetic.

8. Not Heard of for Seven Years: If the respondent has not been heard from for a continuous
period of seven years, the petitioner may presume them dead.

Section 13(2) – Grounds for Judicial Separation Available Only to the Wife

Under this section, a wife can seek judicial separation on the following grounds in addition to
those mentioned under Section 13(1):

1. Rape, Sodomy, or Bestiality: If the husband has committed rape, sodomy, or bestiality
against the wife, she has the right to seek judicial separation.

2. Non-Resumption of Cohabitation After Decree or Order of Maintenance:

If the husband has not resumed cohabitation with the wife after a decree of judicial separation
has been passed or an order for maintenance has been made, the wife can seek judicial
separation. This ground helps a wife when the husband refuses to live together or provide for
her after the court has given such orders.
3. Option of Puberty (Repudiation of the Marriage):
This ground allows a wife to seek judicial separation if she was married before attaining the
age of puberty and repudiates the marriage upon reaching puberty. According to Hindu law, a
woman may annul the marriage if it was consummated before she reached puberty, provided
that the marriage is repudiated after attaining the age of puberty (around 15 years of age).

Effects of Judicial Separation

Cohabitation: The decree of judicial separation does not dissolve the marriage but permits the
parties to live apart. It may be granted for a variety of reasons, including cruelty or desertion.
However, it is not mandatory for the petitioner to cohabit with the respondent after the decree
is passed.
Maintenance: If one party has been granted judicial separation, the petitioner may be entitled
to maintenance under the provisions of the Act.

No Remarriage: Since judicial separation does not dissolve the marriage, neither spouse can
remarry. Only a divorce can lead to remarriage.

Rescission of Decree: As mentioned in Section 10(2), either party may apply to the court for
the rescission of the judicial separation decree if they wish to resume cohabitation. The court
will consider the application, and if satisfied, the decree may be rescinded.

Comparison with Divorce

Judicial separation differs from divorce in that it does not permanently end the marriage. It
allows the parties to live apart but does not allow either spouse to remarry.

If the parties desire to end the marriage completely, they must seek a divorce under Section
13 of the Hindu Marriage Act, 1955.

In essence, judicial separation offers a middle ground for couples who want to live separately
without dissolving the marriage, and provides a chance for reconciliation. However, it also
sets the stage for a divorce if the parties are unable to reconcile their differences.
Here is an overview of Nikah (Marriage) in Islamic law, including its meaning, nature, and
essentials for validity:

Meaning of Nikah

The word Nikah is derived from the Arabic word "nakaha", meaning "to unite or bind."

Nikah is a solemn contract between a man and a woman for the purpose of living together as
husband and wife in accordance with Islamic principles. It is both a social and religious
institution.

The Quran and Hadith emphasize that Nikah is a virtuous and recommended act.

Nature of Nikah

1. Contractual Nature: Nikah is a civil contract (aqd) governed by mutual consent.

It includes an offer (ijab) and acceptance (qabul) between the parties.
The contract also obligates the husband to pay mehr (dower) to the wife.

2. Religious Significance: While it is a contract, it also has a spiritual and moral dimension,
as it is an act of worship (ibadah) that fulfills the Sunnah of the Prophet Muhammad (PBUH).

3. Legal Implications: It legitimizes cohabitation between a man and woman and defines
mutual rights and duties.
The aim of Nikah is companionship, procreation, and the establishment of a family unit.

4. Optional and Revocable: Both parties have the right to impose conditions and can seek
separation under certain circumstances.

Essentials of a Valid Nikah

For a Nikah to be valid under Muslim law, the following conditions must be met:

1. Offer (Ijab) and Acceptance (Qabul)

There must be a clear and unequivocal proposal by one party and acceptance by the other in
the same meeting.

Both offer and acceptance must be expressed in clear terms.

2. Competence of Parties

Majority: Both parties must have attained the age of puberty (15 years is presumed in absence
of evidence to the contrary).
Mental Capacity: Both must be of sound mind.
Free Consent: Consent must not be obtained by fraud, coercion, or undue influence.

3. Presence of Witnesses

In a Sunni marriage, the presence of at least two adult Muslim male witnesses or one male
and two female witnesses is mandatory.
In Shia marriage, witnesses are not necessary, but the marriage must be openly declared.

4. Payment of Mehr (Dower)

The groom is obligated to pay a specified amount (mehr) to the bride, either at the time of
Nikah or deferred later. It is a woman's legal right.

5. Absence of Prohibitions

The parties must not be within the prohibited degrees of relationship (mahram), such as blood
relatives, foster relationships, or close affinities.

There must be no existing valid marriage (except in case of polygamy allowed under certain
conditions).

6. Formalities

The contract must be declared publicly to avoid secrecy, as secrecy may render the marriage
invalid or irregular (fasid).

The Nikah is usually solemnized by a Qazi or Imam, but it is not mandatory under Islamic
law.

Additional Notes

Void (Batil) Marriage: If the essentials are not fulfilled, such as marriage within prohibited
degrees, the Nikah is void.

Irregular (Fasid) Marriage: Non-fulfillment of procedural requirements (e.g., absence of

witnesses) makes the Nikah irregular but rectifiable.

Mutah Marriage: Temporary marriage is recognized under Shia law but not under Sunni law.
Nikah serves as the foundation of family life in Islamic society, balancing rights and
responsibilities between spouses.

In legal theory, divorce represents the dissolution of a marital relationship. The theories of
divorce address the grounds upon which a marriage can be terminated and the principles
governing the process. Below is a detailed explanation of the various theories of divorce:

1. Fault Theory (Offense-Based Theory)

The Fault Theory of divorce asserts that one spouse must be at fault or guilty of committing a
matrimonial offense for the other spouse to seek divorce. The petitioner must prove that the
respondent’s conduct has rendered the continuation of the marriage intolerable.

Grounds for Divorce under Fault Theory:

1. Adultery: A spouse engages in a consensual sexual relationship with someone other than
their partner.

2. Cruelty: Physical or mental harm that endangers the spouse's well-being or safety.

3. Desertion: One spouse abandons the other without reasonable cause for a specified period
(typically 2 years).

4. Bigamy: Entering into a second marriage while the first is still valid.

5. Conviction of a Crime: If one spouse is sentenced to imprisonment for a significant

duration.

6. Venereal Disease: If a spouse suffers from an incurable sexually transmitted disease.

7. Insanity: Mental illness or unsoundness of mind that renders marital cohabitation unsafe.

Criticism:

The theory encourages allegations and counter-allegations, fostering animosity.

Proving fault can be burdensome and invasive.
It is inadequate for cases where neither spouse is "at fault" but the marriage has broken down
irretrievably.
2. No-Fault Theory

Under the No-Fault Theory, divorce can be granted without attributing blame to either party.
This theory is based on the principle that marriage may break down due to incompatibility or
irreconcilable differences, regardless of wrongdoing.

Key Features:

1. Irretrievable Breakdown of Marriage: The marriage has collapsed beyond repair, and
cohabitation is no longer possible.
2. Mutual Consent: Both spouses agree that the marriage should end.

Advantages:

Eliminates the need for proof of fault or guilt.

Promotes amicable separations and reduces hostility.
Simplifies and expedites the divorce process.

Criticism: It may undermine the sanctity of marriage by making divorce too accessible.
One spouse might feel unfairly abandoned without recourse to legal remedies.

3. Breakdown Theory

The Breakdown Theory focuses on the practical reality of whether the marriage has
functionally ceased to exist. It combines aspects of both fault and no-fault theories by
acknowledging that fault may exist but is not necessary to dissolve a marriage.

Grounds for Divorce under Breakdown Theory:

1. Separation for a Specified Period: Prolonged physical or emotional separation signifies the
marriage's collapse.

2. Irreconcilable Differences: Persistent issues make reconciliation impossible.

3. Failure of Conjugal Obligations: If the spouses fail to fulfill marital responsibilities, the
relationship is deemed broken.

Advantages: Reflects modern societal norms and recognizes emotional and psychological
aspects of marital breakdown.

Reduces the adversarial nature of divorce proceedings.

Criticism: Defining and proving "breakdown" may be subjective.
It may disadvantage one party who wishes to save the marriage.

4. Consent Theory

The Consent Theory allows divorce based entirely on the mutual agreement of both spouses.
This theory emphasizes individual autonomy and the right to terminate a marriage without
assigning fault or proving breakdown.

Requirements: Both parties must file a joint petition stating that they wish to divorce.
A waiting period is often required to ensure the decision is deliberate.

Advantages:
Encourages cooperative and respectful separations.
Saves time and legal expenses.

Criticism: One party may be coerced into consenting.

It may trivialize marriage by making divorce too easy.

5. Supernatural Theory
The Supernatural Theory views marriage as a sacred and indissoluble bond ordained by
divine will. Under this theory, divorce is either prohibited or granted only under extremely
limited circumstances.

Features: Divorce may be allowed only for severe reasons, such as adultery or apostasy.

Often associated with religious laws and practices (e.g., canon law in Christianity or certain
interpretations of Hindu law before the modern era).

Criticism: Impractical in modern societies where individuals may seek freedom from an
unhappy marriage.
Often disregards the personal rights and autonomy of spouses.

Conclusion

Each theory of divorce reflects the evolving understanding of marriage and its dissolution
across time and cultures. Modern legal systems often blend elements of these theories to
balance the sanctity of marriage with individual rights and societal realities.
In Muslim law, absolute impediments to marriage are conditions or prohibitions that render a
marriage permanently void (batil). These are based on clear prohibitions in Islamic law and
cannot be remedied or removed. If a marriage takes place despite these impediments, it has
no legal validity.

Absolute Impediments to Marry

1. Consanguinity (Blood Relationship):

A man cannot marry a woman who is closely related to him by blood. This includes:

His mother or grandmother (how high so ever).

His daughter or granddaughter (how low so ever).

His sister (full, consanguine, or uterine).

His niece (brother's or sister's daughter).

His aunt (paternal or maternal).

2. Affinity (Marriage Relationship):

A man cannot marry certain female relatives of his wife or former wife. This includes:

His mother-in-law or grandmother-in-law.

His stepdaughter, if the marriage with her mother was consummated.

His daughter-in-law (wife of his real son).

These prohibitions are also rooted in the Quran and are permanent.

3. Fosterage (Milk Relationship) (Raza’at):

A man cannot marry a woman who is related to him through the act of breastfeeding
(fosterage) by the same foster mother. This includes:

His foster mother.

His foster sister.

The same rules apply as in consanguinity. This prohibition is based on the Hadith of Prophet
Muhammad (PBUH), which equates foster relationships with blood relationships in terms of
marriage restrictions.

4. Difference in Religion:

A Muslim man is prohibited from marrying:

A polytheist (mushrikah).

An idolater (kafirah).

A Muslim woman cannot marry a non-Muslim man under any circumstances. This is an
absolute bar, as such a marriage is considered invalid.

5. Marriage During Iddat:

Marrying a woman who is observing iddat (waiting period after the dissolution of her
marriage or the death of her husband) is absolutely prohibited.

6. Existing Marriage with Certain Relatives (Unlawful Conjunction):

A man cannot marry two women simultaneously if they are so closely related that they would
have been prohibited to marry each other if one of them were a man. For example:

Two sisters.

A woman and her niece.

Such marriages are void because they create a conflict of relationships and family structure.

Effects of Absolute Impediments

1. Marriage is Void: Any marriage performed despite these impediments is treated as null and
void (batil).

2. No Legal Rights: Such marriages confer no legal rights or obligations on either party,
including inheritance or maintenance.

3. Progeny: Children born out of such marriages may face illegitimacy under traditional
Islamic law.
Rationale Behind Absolute Impediments

The rationale for absolute impediments lies in the preservation of social, familial, and
religious structures. These rules aim to:

Maintain familial harmony by preventing intra-family conflicts.

Uphold religious purity and compliance with Islamic principles.

Ensure clear lines of descent and legitimacy.

These absolute prohibitions are fundamental to the framework of Muslim marriage and
cannot be overridden under any circumstances.

Concept and Rationale of Iddat

Iddat (or Iddah) is a waiting period prescribed for Muslim women after the dissolution of a
marriage, either due to divorce (talaq) or the death of the husband. This concept is derived
from Islamic principles and is aimed at addressing certain personal, social, and spiritual
considerations.

Rationale Behind Iddat

1. Certainty of Parenthood: The primary rationale is to ascertain whether the woman is

pregnant, thus avoiding confusion regarding the paternity of a child born after the dissolution
of marriage.

2. Respect for Marital Bond: In the case of a husband's death, iddat serves as a mourning
period, symbolizing respect for the deceased spouse.

3. Reconciliation Opportunity: In divorce cases, iddat offers a time frame during which the
couple may reconsider their decision and reconcile.

4. Protection of Dignity: Iddat ensures the social and personal dignity of the woman by
discouraging hasty remarriage.

Provisions Relating to Iddat in Muslim Personal Law

The rules of iddat vary between Shia and Sunni schools of Islamic jurisprudence and depend
on the circumstances under which the marriage is dissolved.

Duration of Iddat
1. In Case of Divorce:

Sunni Law: The iddat period is three menstrual cycles (qurooh) for a woman who experiences
menstruation. For women who do not menstruate (e.g., post-menopausal women), it is three
lunar months.

Shia Law: Similar to Sunni law but with additional emphasis on the qurooh meaning, as the
interpretation of the start and end of the menstrual cycle differs slightly.

If the woman is pregnant, the iddat lasts until the delivery of the child (both in Sunni and Shia
law).

2. In Case of Husband's Death:

Sunni Law: Iddat lasts for four months and ten days, irrespective of whether the marriage was
consummated or not.

Shia Law: The same duration applies, but specific mourning practices might differ based on
sectarian customs.

If the woman is pregnant, the iddat period extends until the delivery of the child, whichever is
later.

3. In Case of Invalid/Irregular Marriage (Fasid Nikah):

If there was no consummation, iddat is not required in either Shia or Sunni law.

If consummation occurred, the rules for iddat after divorce apply.

4. In Case of Apostasy:

In Sunni law, if a Muslim woman renounces Islam, iddat is required as per general principles.

In Shia law, the application of iddat may depend on whether the apostasy affects the marital
status.

Additional Provisions

1. Remarriage: A woman cannot remarry during iddat. Doing so renders the second marriage
void in both Sunni and Shia law.
2. Maintenance: During iddat following divorce, the husband is required to provide
maintenance (nafaqah) to the woman unless the marriage was void or the divorce was
initiated due to the wife’s misconduct.

No maintenance is required in case of iddat following the husband’s death.

Differences Between Shia and Sunni Law on Iddat

1. Calculation of Menstrual Cycles:

Sunni: Emphasizes three complete menstrual cycles.

Shia: Interprets the start and end of the menstrual cycles slightly differently, leading to
variations in duration.

2. Irregular Marriage:

Sunni: Requires iddat if consummation occurred.

Shia: May not always require iddat, depending on circumstances.

3. Interpretation of Time:

Shias tend to be more specific in defining the qurooh (menstrual cycle), leading to stricter
adherence to time periods.

Iddat is a significant practice in Muslim personal law, reflecting the intertwined nature of
religious beliefs, legal rules, and societal norms. While the essence remains the same across
Sunni and Shia schools, differences in interpretation and practice highlight the diversity
within Islamic jurisprudence.

Concept of Mehr in Islamic Law

Mehr (also spelled Mahr) is a mandatory payment in the form of money or possessions that a
Muslim husband is required to give to his wife as a token of respect, commitment, and
financial security during the marriage. It is an essential part of a Muslim marriage contract
(Nikah) and symbolizes the husband’s obligation towards his wife. The amount and nature of
the Mehr are typically agreed upon by both parties and documented at the time of marriage.
Utility of Mehr

1. Financial Security for the Wife: Mehr serves as a safeguard for the wife's financial
independence, especially in case of divorce or the husband’s death.

2. Recognition of Marriage Rights: It emphasizes the wife's rights and ensures that the
husband acknowledges his responsibilities within the marital relationship.

3. Symbol of Respect: Mehr signifies the husband’s respect and commitment towards his
wife, enhancing her dignity in the marital bond.

4. Legal and Social Safeguard: Mehr provides legal and financial recourse to the wife in the
event of any marital disputes.

Types of Mehr

1. Prompt (Mehr-e-Muajjal)

This type of Mehr is payable immediately after the marriage is solemnized.

The wife has the right to demand it at any time after the Nikah.

2. Deferred (Mehr-e-Muwajjal)

This type of Mehr is agreed to be paid at a later date, typically upon the dissolution of the
marriage by divorce or the husband’s death.

It remains a debt on the husband’s estate until it is fulfilled.

3. Customary Mehr

In some cases, the amount of Mehr is determined by local customs or traditions rather than
individual negotiation.

4. Nominal Mehr

A nominal amount is fixed as Mehr, which may not necessarily represent the actual financial
standing of the parties but satisfies the legal requirement.
When Does Mehr Become Payable?

1. Prompt Mehr: Payable immediately after the marriage contract is completed.

2. Deferred Mehr: Payable at the stipulated time agreed by both parties or upon the
termination of the marriage due to divorce or death.

3. On Demand: If the wife demands the Mehr at any point after marriage, the husband is
obligated to fulfill it.

Rights of the Wife Regarding Mehr

1. Absolute Right: Once the marriage is solemnized, the wife becomes the absolute owner of
the Mehr and can use it as she wishes.

2. Right to Withhold Conjugal Relations: The wife has the right to refuse conjugal relations
until the payment of prompt Mehr is made.

3. Right to Legal Remedy: If the husband fails to pay Mehr, the wife can approach the court
to enforce her right.

4. Inheritance Rights: In the event of the husband's death, unpaid Mehr is considered a debt
on his estate and must be paid to the wife before the distribution of the estate.

5. During Divorce: In case of divorce, the wife retains her right to Mehr, whether prompt or
deferred.

Mehr serves as a vital institution in Islamic law, ensuring the wife’s financial and social
protection, while highlighting the husband’s responsibilities in the marital framework.

The concept of iddat (also spelled iddah) in Muslim personal law refers to the prescribed
waiting period a Muslim woman must observe after the dissolution of her marriage due to
divorce or the death of her husband. The purpose of iddat is to ensure clarity of parentage and
respect for the sanctity of marriage. The period and provisions of iddat differ between Sunni
and Shia interpretations of Islamic law, based on their jurisprudential schools. Below is a
detailed explanation:

Provisions Relating to Iddat in Sunni Law

Sunni law primarily follows the interpretations of the four major schools: Hanafi, Maliki,
Shafi'i, and Hanbali. Although they have minor differences, the core principles remain
consistent.

1. Iddat on Divorce (Talaq)

If the woman is menstruating:

The iddat period is three menstrual cycles (three quru).

This applies regardless of whether the marriage was consummated or not.

If the woman is not menstruating (e.g., due to menopause):

The iddat period is three lunar months.

If the woman is pregnant:

The iddat ends upon delivery of the child, regardless of the duration.

2. Iddat on Husband’s Death

For a non-pregnant woman:

The iddat period is four months and ten days (as per Surah Al-Baqarah, 2:234).

For a pregnant woman:

The iddat ends upon delivery of the child, even if it exceeds four months and ten days.

3. Conditions Affecting Iddat

Marriage not consummated:

There is no iddat upon divorce if the marriage was not consummated (as per Surah Al-Ahzab,
33:49).
Minority of the wife:

If the wife has not reached puberty, iddat is three months (as per Surah At-Talaq, 65:4).

4. Purpose of Iddat

To ascertain whether the woman is pregnant (to avoid confusion of lineage).

To show respect for the previous marriage and allow emotional adjustment.

Provisions Relating to Iddat in Shia Law

Shia law, predominantly followed by the Jafari (Twelver Shias), has similar provisions with
some notable differences.

1. Iddat on Divorce (Talaq)

If the woman is menstruating:

The iddat is three menstrual cycles.

However, the divorce must be pronounced during a period of purity (tuhr) when there has
been no sexual intercourse.

If the woman is not menstruating:

The iddat is three lunar months.

If the woman is pregnant:

The iddat ends with delivery of the child.

2. Iddat on Husband’s Death

For a non-pregnant woman:

The iddat period is four months and ten days, similar to Sunni law.
For a pregnant woman:

The iddat ends upon delivery, regardless of whether it is shorter or longer than four months
and ten days.

3. Conditions Affecting Iddat

Temporary Marriages (Mut’ah):

In the case of a temporary marriage (mut’ah), the iddat is two menstrual cycles or 45 days if
the woman does not menstruate.

Marriage not consummated:

No iddat is required if the marriage was not consummated.

4. Additional Rules

Recognition of Pregnancy:

Shia law emphasizes ensuring clarity of lineage, particularly in cases where remarriage might
occur soon after iddat.

Witnessing Divorce:

Divorce must be witnessed by two just witnesses, which influences the timing of iddat.

Legal Implications of Iddat

1. Maintenance:

A woman in iddat is entitled to maintenance (nafaqah) from her husband in case of divorce,
provided she is not at fault (e.g., talaq-e-bain).

No maintenance is provided during iddat for a widow.

2. Remarriage:
A woman cannot remarry until her iddat period is complete.

3. Housing:

During iddat, the woman has a right to reside in her matrimonial home unless there are
specific circumstances like danger or harm.

4. Violation of Iddat:

If a woman remarries before completing her iddat, the second marriage is considered void
under Islamic law.

Conclusion
The period of iddat ensures respect for marital relations, protects lineage, and allows
emotional and physical adjustment for the woman. Both Sunni and Shia laws emphasize these
principles but differ slightly in their interpretations and applications, especially concerning
temporary marriages and procedural aspects of divorce.

Grounds for Divorce under the Hindu Marriage Act, 1955

Section 13 of the Hindu Marriage Act, 1955, enumerates various grounds on which a spouse
can seek divorce. These include:

1. Adultery: Voluntary sexual intercourse with a person other than the spouse after the
marriage. [Section 13(1)(i)]

2. Cruelty: Treatment of the petitioner with cruelty after the marriage. [Section 13(1)(ia)]

3. Desertion: Desertion by the other party for a continuous period of at least two years before
filing the petition. [Section 13(1)(ib)]

4. Conversion: Conversion of the other party to a religion other than Hinduism. [Section
13(1)(ii)]
5. Mental Disorder: The respondent is incurably of unsound mind or suffering from a mental
disorder that makes it unreasonable to live with them. [Section 13(1)(iii)]

6. Venereal Disease: Suffering from a communicable venereal disease. [Section 13(1)(v)]

7. Renunciation of the World: The respondent has renounced the world by entering a religious
order. [Section 13(1)(vi)]

8. Presumption of Death: The respondent has not been heard of for at least seven years by
those who would naturally have heard about them if alive. [Section 13(1)(vii)]

Additional Grounds for Wives:

Under Section 13(2), a wife may also seek divorce on the following grounds:

1. If the husband had a wife alive at the time of the marriage and the other wife is still alive.

2. If the husband has been guilty of rape, sodomy, or bestiality. [Section 13(2)(ii)]

3. If the wife has obtained maintenance orders and cohabitation has not resumed for one year
or more. [Section 13(2)(iii)]

4. If the marriage was solemnized before the wife attained the age of 15, and she repudiates it
after attaining the age of 15 but before 18. [Section 13(2)(iv)]

Procedure for Divorce by Mutual Consent (Section 13B)

Divorce by mutual consent is provided under Section 13B of the Hindu Marriage Act, 1955.
The process involves the following steps:

1. Joint Petition

Both parties to the marriage must jointly file a petition in the district court.
The petition should declare:

That they have been living separately for a period of one year or more.

That they have not been able to live together.

That they mutually agree that the marriage should be dissolved.

2. Waiting Period

After filing the petition, the parties must wait for a period of six months (cooling-off period)
before making a motion for the decree of divorce.

The motion must be filed within a maximum of 18 months from the date of filing the petition.

3. Second Motion and Court Hearing

After the six-month period, both parties must appear before the court and make the second
motion.

The court will examine the averments made in the petition and ensure that both parties
consent to the divorce voluntarily.

The court will also verify that the marriage has irretrievably broken down and there is no
possibility of reconciliation.

4. Decree of Divorce

If the court is satisfied that the statements made in the petition are true and there is mutual
consent, it will pass a decree of divorce.

The marriage will be dissolved from the date of the decree.

Important Notes

The six-month cooling-off period may be waived by the court in exceptional cases where
reconciliation is impossible, as clarified in Amardeep Singh v. Harveen Kaur (2017).
The court must ensure that mutual consent is not obtained through force, fraud, or undue
influence.

This procedure ensures an amicable resolution for couples seeking to part ways mutually.

The essentials of a valid marriage under the Hindu Marriage Act, 1955 are outlined primarily
in Section 5 and supplemented by related provisions. Below is a detailed explanation of the
conditions and requirements:

---

1. Neither Party Has a Spouse Living at the Time of Marriage (Section 5(i))

This condition prohibits bigamy or polygamy, ensuring that neither party is already married
to someone else.

A marriage solemnized in violation of this condition is void under Section 11 and is also
punishable under Section 17 of the Act, as per the Indian Penal Code (IPC).

---

2. Soundness of Mind (Section 5(ii))

At the time of marriage:

1. Valid Consent (Section 5(ii)(a)): Neither party should be incapable of giving valid consent
due to unsoundness of mind.

2. Mental Disorder (Section 5(ii)(b)): If a party suffers from a mental disorder making them
unfit for marriage or procreation, the marriage is invalid.

3. Recurrent Insanity (Section 5(ii)(c)): A party who has recurrent attacks of insanity is
disqualified from marrying.
Violation of this condition renders the marriage voidable under Section 12(1)(b), subject to
judicial annulment.

---

3. Minimum Age Requirement (Section 5(iii))

The bridegroom must have completed 21 years of age, and the bride must have completed 18
years at the time of marriage.

Although non-fulfillment of this condition does not render the marriage void, the parties can
be penalized under the Prohibition of Child Marriage Act, 2006.

---

4. Prohibited Degrees of Relationship (Section 5(iv))

The parties must not fall within the degrees of prohibited relationship as defined under
Section 3(g) of the Act unless a custom or usage governing them permits such a marriage.

A marriage within prohibited degrees is void under Section 11.

Prohibited relationships include:

1. Relationships through blood (e.g., parent-child, siblings).

2. Specific cultural prohibitions outlined in customary laws.

---

5. Sapinda Relationship (Section 5(v))

The parties must not be sapindas of each other unless permitted by a custom or usage
governing them.
Sapinda refers to relationships traced through common ancestors up to three generations in
the paternal line and five generations in the maternal line.

Violation of this condition makes the marriage void under Section 11.

---

6. Ceremonial Requirements (Section 7)

A Hindu marriage must be solemnized in accordance with the customary rites and ceremonies
of either party.

If the Saptapadi (seven steps before the sacred fire) is part of the ceremonies, the marriage
becomes binding after the seventh step.

Without the performance of necessary ceremonies, the marriage is not valid.

---

7. Registration of Marriage (Section 8)

While registration of marriage is recommended for evidentiary purposes, failure to register

does not affect the validity of the marriage.

State governments may make rules to make marriage registration compulsory in specific
regions.

---

Validity and Consequences

1. Void Marriages (Section 11): A marriage is void if it violates:

Section 5(i) (bigamy),

Section 5(iv) (prohibited degrees), or

Section 5(v) (sapinda relationships).

2. Voidable Marriages (Section 12): A marriage is voidable on grounds such as lack of
consent due to unsoundness of mind, fraud, or force.

Summary

To solemnize a valid Hindu marriage under the Act:

1. Both parties must be unmarried, sane, and of legal age.

2. They should not fall within prohibited degrees or be sapindas unless permitted by custom.

3. The marriage must follow customary rituals, such as Saptapadi, for completion.

These provisions ensure the legal, cultural, and moral sanctity of the institution of marriage
under Hindu law.

Section 144 of the Bharatiya Nyay Sanhita, 2023 (BNSS) (previously Section 125 of the
Criminal Procedure Code, 1973) deals with the maintenance of wives, children, and parents.
It empowers a Magistrate to direct a person to pay a monthly allowance for the maintenance
of his wife, children, or parents in cases where they are unable to maintain themselves. Here's
a detailed explanation of the provisions:

1. Eligibility for Maintenance (Section 144(1))

Wife: A wife who is unable to maintain herself may seek maintenance.

Children: Legitimate or illegitimate children (whether married or not) who are unable to
maintain themselves are entitled to maintenance.

Children with disabilities: If a child (not a married daughter) who has attained majority is
unable to maintain itself due to physical or mental abnormality, the person is liable for
maintenance.
Parents: A father or mother who is unable to maintain themselves can claim maintenance.

The Magistrate, upon proof of neglect or refusal, can order the person responsible to provide
a monthly allowance at a rate determined by the Magistrate.

Proviso:

The Magistrate may order a father to provide maintenance for his female child until she
attains majority if the child's husband does not have sufficient means.

The Magistrate can order interim maintenance during the pendency of the application and
cover the expenses of proceedings. This should be disposed of within 60 days of notice being
served to the person.

2. Payment and Timing (Section 144(2))

The maintenance ordered is payable from the date of the order or, if applicable, from the date
the application for maintenance was made.

3. Non-Compliance and Penalties (Section 144(3))

If the person ordered to pay maintenance fails to comply with the order, the Magistrate can
issue a warrant to recover the amount. The recovery will be made in the same manner as
fines, and the person may face imprisonment for non-payment, up to one month or until the
payment is made.

The application for enforcement must be made within one year from when the payment was
due.

If a husband offers to maintain his wife under the condition that she lives with him, but she
refuses, the Magistrate may still order maintenance if the refusal is justified (e.g., if the
husband has remarried or has a mistress).

Explanation: A wife's refusal to live with her husband may be justified if he has remarried or
has a mistress.

4. Disqualification for Maintenance (Section 144(4))

A wife is not entitled to maintenance if:

She is living in adultery.

She refuses to live with her husband without sufficient reason.

They are living separately by mutual consent.

5. Cancellation of Maintenance Order (Section 144(5))

If it is proven that the wife is living in adultery, refuses to live with her husband without
sufficient reason, or is living separately by mutual consent, the Magistrate shall cancel the
maintenance order.

6. Jurisdiction (Section 145(1))

Proceedings for maintenance can be taken in any of the following jurisdictions:

Where the person who is to pay maintenance resides.

Where the wife, child, or parent resides.

Where the person and his wife last resided together.

Where the father or mother resides.

7. Procedure (Section 145(2))

Evidence in maintenance proceedings must be presented in the presence of the person against
whom the order is proposed or his advocate. If the person is avoiding service or neglecting to
attend court, the Magistrate may proceed ex-parte (in the absence of the person).

The order made in the absence of the person can be set aside if the person applies within three
months with valid reasons.

8. Costs (Section 145(3))

The Magistrate has the power to order costs in the maintenance proceedings, based on what is
deemed just.
Explanation of Key Terms:

Wife includes a woman who has been divorced or has obtained a divorce and has not
remarried.
Interim Maintenance refers to the maintenance provided during the pendency of the case,
ensuring that the claimants are not left without support during the legal proceedings.

Conclusion:

Section 144 of the BNSS, 2023 ensures that individuals who are legally obligated to maintain
their wives, children, or parents, but fail to do so, can be ordered by a Magistrate to pay a
reasonable amount of maintenance. The law provides mechanisms to enforce these orders and
makes provisions for interim support while the main case is pending. It also outlines the
consequences of non-compliance and conditions under which maintenance orders may be
cancelled.

The grounds for divorce under the Muslim law for women are provided under Section 2 of
the Dissolution of Muslim Marriages Act, 1939. The section lays down specific grounds on
which a woman married under Muslim law can seek the dissolution of her marriage
(divorce). The conditions are as follows:

1. Husband's whereabouts unknown for 4 years: If the husband has been untraceable for a
period of four years.

2. Husband's failure to maintain for 2 years: If the husband neglects or fails to provide for the
wife's maintenance for at least two years.

3. Husband's imprisonment for 7 years or more: If the husband has been sentenced to
imprisonment for seven years or more.

4. Husband's failure to perform marital obligations for 3 years: If the husband fails to perform
his marital obligations without a reasonable cause for three years.

5. Impotency: If the husband is impotent at the time of marriage and continues to be so.
6. Husband’s insanity or venereal disease: If the husband has been insane for two years or
suffers from a virulent venereal disease.

7. Repudiation of marriage: If the woman was married before the age of 15 and repudiated
the marriage before reaching 18 years, provided the marriage has not been consummated.

8. Cruelty by the husband: If the husband treats the wife with cruelty, which includes:

Habitual assault or conduct that makes her life miserable.

Association with women of ill repute or leading an infamous life.

Forcing her into an immoral life.

Disposing of her property or obstructing her legal rights.

Hindering her religious practices.

If he has multiple wives, failure to treat her equitably.

9. Other valid grounds under Muslim law: Any other ground that is recognized as valid under
Muslim law for the dissolution of marriage.

Additionally, there are specific conditions for certain grounds:

Ground (iii): Divorce cannot be granted if the husband is imprisoned until the sentence
becomes final.

Ground (i): If the husband reappears within 6 months of the decree, the court may set aside
the divorce.

Ground (v): If the husband proves he is no longer impotent within a year of the court order,
the divorce will not be granted.

This section provides a legal framework for a woman to seek dissolution of her marriage
under Muslim personal law based on specific grounds, and the court has the discretion to
consider the validity of the claims based on the circumstances.
The conditions required for adopting a child under the Hindu Adoptions and Maintenance
Act, 1956 (HAMA) are laid out in various sections of the Act. Below are the detailed
conditions:
1. General Conditions for a Valid Adoption (Section 6):

An adoption is valid only if the following conditions are fulfilled:

Capacity of the adopter: The person adopting must have the legal capacity to adopt.

Capacity of the person giving the child in adoption: The person giving the child for adoption
must have the legal right to do so.

Capacity of the child to be adopted: The child must be capable of being adopted under the
law.

Compliance with the conditions of the Act: The adoption must comply with other legal
conditions laid out in the Act.

2. Capacity of the Adopter (Sections 7 and 8):

Male Hindu: A male Hindu must be of sound mind and not a minor. Additionally, if he is
married, he cannot adopt without the consent of his wife unless she has renounced the world
or been declared legally incompetent by a court. If he has more than one wife, the consent of
all living wives is required unless one is exempted under the conditions set out (e.g.,
renounced the world or is of unsound mind).

Female Hindu: A female Hindu must be of sound mind and not a minor. If she is married, she
cannot adopt without the consent of her husband unless he has renounced the world or been
declared legally incompetent by a court.

3. Persons Who Can Give a Child in Adoption (Section 9):

Father or Mother: The biological father or mother, or the guardian of the child, has the legal
right to give the child in adoption.

Consent of both parents: If both parents are alive, both must consent to the adoption, unless
one has renounced the world, ceased to be a Hindu, or has been declared by a court to be of
unsound mind.

Guardianship: If both parents are deceased, have renounced the world, or have been declared
of unsound mind, the guardian may give the child in adoption with the permission of a court.
The adoption must be in the best interest of the child.
4. Persons Who May Be Adopted (Section 10):

Hindu: Only a Hindu can be adopted.

Not Previously Adopted: A person who has already been adopted cannot be adopted again.

Marital Status: A married person cannot be adopted unless there is a custom or usage
permitting it.

Age: The child must not have completed the age of 15 years, unless a custom or usage allows
the adoption of children over 15 years.

5. Other Conditions for Valid Adoption (Section 11):

No living children: If adopting a son, the adopter must not have a living Hindu son or
grandson, or a great-grandson. If adopting a daughter, the adopter must not have a living
Hindu daughter or granddaughter.

Age Difference: The adoptive father must be at least 21 years older than the female child
being adopted. Similarly, the adoptive mother must be at least 21 years older than the male
child being adopted.

Single Adoption: Only one person may adopt a child at a time. Two or more persons cannot
adopt the same child.

Actual Giving and Taking of the Child: The child must be physically handed over to the
adopting family with the intent to transfer the child’s status from the birth family to the
adoptive family. The performance of dattahomam (a Hindu religious ceremony) is not
essential for the adoption to be valid.

6. Effects of Adoption (Section 12):

Legal Status: An adopted child is considered the child of the adoptive parents for all purposes
from the date of adoption. All ties with the biological family are severed.

Marriage Restrictions: The child cannot marry any person they could not have married if they
had remained in their birth family.

Property Rights: The adopted child retains any property vested in them prior to adoption.
Adoption does not affect pre-existing property ownership rights.
7. Power of Adoptive Parents (Section 13):

Adoption does not strip the adoptive parents of their power to dispose of their property during
their lifetime, whether by transfer or will, unless there is an agreement to the contrary.
8. Determination of Adoptive Mother (Section 14):

In case of multiple wives: If a male with more than one wife adopts a child, the senior-most
wife is considered the adoptive mother. The others are considered step-mothers.

In case of widowers and bachelors: If a widower or bachelor adopts a child, any future wife is
considered the step-mother of the child.

In case of widows or unmarried women: If a widow or unmarried woman adopts a child, any
future husband is considered the step-father of the adopted child.

9. Cancellation of Adoption (Section 15):

A valid adoption cannot be canceled by the adoptive parents or any other person, nor can the
adopted child renounce their adopted status and return to their biological family.

10. Presumption of Registered Adoption Documents (Section 16):

If a document is registered, which purports to record the adoption and is signed by the parties
involved, the court will presume that the adoption was made in compliance with the Act
unless disproved.

In Summary:

The Hindu Adoptions and Maintenance Act, 1956, lays down a structured framework for
adoption, ensuring that the welfare of the child is the primary concern. The adoption process
must comply with several legal conditions, including consent from the relevant parties,
eligibility criteria for both the adopter and the child, and ensuring that the adoption is made in
good faith, with the welfare of the child in mind.

Under the Hindu Adoptions and Maintenance Act, 1956 (HAMA), both male and female
Hindus must meet certain qualifications to adopt a child. The qualifications are outlined in
Sections 6, 7, and 8 of the Act, and they focus on mental soundness, marital status, and other
requirements specific to the gender of the adoptive parent.
1. Qualifications for a Male Hindu to Adopt (Section 7)

Sound Mind and Not a Minor: The male Hindu must be of sound mind and must not be a
minor. This means he should have the legal capacity to make decisions.

Consent of Wife (if Married): If the male Hindu has a wife who is alive, he cannot adopt a
child without her consent, unless:

His wife has renounced the world completely and finally (e.g., became a nun or similar), or

She has ceased to be a Hindu, or

She has been declared by a court to be of unsound mind.

If a male Hindu has more than one wife living at the time of adoption, the consent of all the
wives is required, unless one of them is in a situation where consent is unnecessary as
specified above (e.g., if a wife has renounced the world or been declared insane by a court).

Age Requirement: The male adoptive parent must be at least 21 years older than the child he
is adopting, if the child is a female. This condition is set out to prevent inappropriate or
exploitative age differences.

2. Qualifications for a Female Hindu to Adopt (Section 8)

Sound Mind and Not a Minor: Similar to the male Hindu, the female Hindu must be of sound
mind and not a minor.

Consent of Husband (if Married): If the female Hindu has a living husband, she cannot adopt
a child without his consent, unless:

Her husband has completely and finally renounced the world, or

Her husband has ceased to be a Hindu, or

Her husband has been declared by a court of competent jurisdiction to be of unsound mind.

As with a male Hindu, if a female Hindu has more than one husband (in a polygamous
marriage), the consent of all husbands is required, unless one of them falls under the
exceptions stated above.
Age Requirement: The female adoptive parent must be at least 21 years older than the child
she is adopting, if the child is a male. This ensures that the adoption does not result in a
situation that could be seen as inappropriate in terms of age disparity.

3. General Conditions (Section 6)

In addition to the gender-specific conditions, Section 6 of the HAMA outlines other basic
requisites for a valid adoption:

Capacity of the Adopting Person: Both the male and female adoptive parents must have the
capacity and the right to adopt. This includes being of sound mind and not a minor.

Person Giving in Adoption: The person giving the child in adoption must also have the
capacity to do so (i.e., they must be the legal parent or guardian of the child).

The Adopted Child’s Eligibility: The child being adopted must also be capable of being
adopted, meaning the child must be a Hindu, unmarried, and under the age of 15 (unless there
is a custom allowing older children to be adopted).

Other Conditions: The adoption must comply with other provisions set out in the Act, such as
the requirement that the child must be actually given and taken in adoption, and the adoption
must not be concurrent with other adoptions.

4. Consent of Both Parents (Section 9)

Both parents (father and mother) of the child must give consent for adoption unless one of
them has renounced the world, has ceased to be a Hindu, or has been declared of unsound
mind by a court.

If both parents are deceased, have abandoned the child, or have been declared of unsound
mind, a guardian can give the child in adoption with the permission of the court. The court
ensures the adoption is in the child’s best interests.

Summary of Requirements:

Male Hindu:

Must be of sound mind and not a minor.

If married, must get the wife’s consent, unless the wife has renounced the world or been
declared of unsound mind.
Must be at least 21 years older than a female child.

Female Hindu:

Must be of sound mind and not a minor.

If married, must get the husband’s consent, unless the husband has renounced the world or
been declared of unsound mind.

Must be at least 21 years older than a male child.

These qualifications ensure that the adoption process is carried out with due regard to the
welfare of the child and in compliance with the norms laid out by the Hindu community.

Hindu Minority and Guardianship Act, 1956

Introduction

The Hindu Minority and Guardianship Act, 1956 (Act No. 32 of 1956), governs the laws
relating to guardianship and minority among Hindus in India. The Act defines who can be a
guardian, the various kinds of guardians, and the powers, rights, and duties that come with
such an appointment. The primary objective is to ensure that the welfare of the minor is
protected, while also laying down guidelines for the management of their person and
property.

General Definition of Guardian

A guardian, in general, refers to an individual who is legally responsible for the care and
protection of a minor. This responsibility extends to the minor's person (physical well-being)
and property (financial and legal matters).

Definition of Guardian Under the Hindu Minority and Guardianship Act, 1956

As per Section 4(b) of the Hindu Minority and Guardianship Act, a "guardian" includes:

A natural guardian (usually a parent).

A guardian appointed by the will of the minor’s father or mother.

A guardian appointed or declared by a court.

A person empowered to act as a guardian under any enactment relating to a Court of wards.

A natural guardian refers to the parent or legal guardian without formal appointment by a
court.

Kinds of Guardians

The Act recognizes various types of guardians, each having specific roles and duties. The
main categories of guardians are as follows:

1. Natural Guardian (Section 6):

Father and Mother: In the case of a Hindu minor, the natural guardians of a boy or unmarried
girl are the father and then the mother. However, if the minor is under the age of five years,
the custody is generally with the mother.

Illegitimate Minor: In the case of an illegitimate minor, the natural guardian is the mother,
followed by the father.

Married Girl: The natural guardian of a married girl is her husband.

Step-parents: Step-parents are excluded from the term "father" or "mother" in the Act.

2. Testamentary Guardians (Section 9):

A Hindu father or mother can appoint a guardian through a will, to take care of their minor
children’s person or property.

The appointment becomes effective after the death of the parent who made the will, but if
both parents die, the will’s appointment remains in force.

3. Court-Appointed Guardians (Section 13):

In situations where the parents are deceased or incapacitated, the court may appoint a
guardian for the minor. The paramount consideration in such appointments is the welfare of
the minor.
4. De facto Guardian (Section 11):

A person who assumes the role of a guardian without formal legal appointment, but who does
not have the right to deal with the minor's property.

Rights of Guardians

The rights of a guardian vary depending on the type of guardian and their role:

1. Natural Guardians:

A natural guardian has the right to take decisions for the welfare of the minor, including
decisions about education, health, and living arrangements.

In case of property, the natural guardian has rights over the minor's property, but only to the
extent of managing it for the benefit of the minor, as outlined under Section 8 of the Act.

2. Testamentary Guardians:

A guardian appointed by a will can act on behalf of the minor regarding both person and
property, subject to the limits specified in the will.

3. Court-Appointed Guardians:

Court-appointed guardians have the right to make decisions for the minor’s welfare, but they
must act in the best interests of the minor, and their actions can be reviewed by the court.

Duties of Guardians

Guardians have the following duties, irrespective of their type:

1. Duty to Act in the Best Interest of the Minor:

The primary duty of a guardian is to act in the welfare of the minor, as per Section 13 of the
Act. This includes making decisions that benefit the minor's health, education, and
upbringing.

2. Property Management:
A guardian must protect the minor’s property and estate, ensuring it is used for the minor’s
benefit. Under Section 8, natural guardians must seek permission from the court to deal with
immovable property (e.g., sale, mortgage, or lease), and any unauthorized act can be voidable
at the minor’s instance.

3. Custodial Duty:

The guardian is responsible for the physical care and custody of the minor, ensuring that the
minor is raised in a safe environment, particularly if the minor is below five years of age.

4. Reporting to the Court:

A guardian appointed by the court must report back to the court periodically to ensure that the
welfare of the minor is being prioritized.

Conclusion

The Hindu Minority and Guardianship Act, 1956, provides a clear structure for the
appointment of guardians and outlines their responsibilities. It emphasizes the welfare of the
minor, ensuring that decisions regarding their person and property are made in their best
interest. This legal framework helps in protecting minors from potential exploitation or
neglect, and provides a process for guardians to act on behalf of the minor while being
accountable for their actions.

The Parsi Marriage and Divorce Act of 1936 establishes a specialized legal framework for the
Parsi community, particularly in matters of marriage and divorce. Here's an overview of the
key points regarding Parsi Matrimonial Courts under this Act:

1. Establishment
The Act mandates the creation of Parsi Matrimonial Courts, which are designated courts to
handle cases exclusively related to Parsi marriage and divorce.

These courts are set up to ensure that matrimonial disputes are resolved in alignment with
Parsi customs and the legal provisions of the Act.

2. Jurisdiction

These courts have exclusive jurisdiction over all cases pertaining to Parsi marriage and
divorce.

Their authority includes interpreting and applying the provisions of the Act to resolve
disputes.

3. Adjudication

Parsi Matrimonial Courts adjudicate various matrimonial matters, including:

Divorce petitions

Custody of children

Maintenance claims

Guardianship issues

The courts aim to ensure that all proceedings and decisions comply with the Act's provisions.

4. Judicial Powers

These courts possess powers equivalent to civil courts under the Code of Civil Procedure
(CPC), 1908.

They can: Summon and examine witnesses

Receive evidence

Issue orders and injunctions

Enforce their decisions effectively

5. Appeals

The Act provides for an appeal mechanism:

Decisions of the Parsi Matrimonial Courts can be appealed to a higher court, ensuring a
system of judicial review and fairness.

6. Expertise

Being specialized courts, they are uniquely qualified to handle the complexities of Parsi
matrimonial law.

Judges and associated personnel are well-versed in Parsi customs, traditions, and the nuances
of the community's legal framework.

These courts play a crucial role in ensuring that disputes within the Parsi community are
resolved efficiently and in accordance with their distinct legal and cultural heritage.

Introduction

The Parsi Marriage and Divorce Act of 1936 is a significant legislation that governs marriage
and divorce among the Parsi community in India. It provides legal guidelines addressing
marriage, divorce, maintenance, custody, and judicial authority.

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Objective and Scope of the Parsi Marriage and Divorce Act, 1936

Objective

1. Regulates marriage and divorce within the Parsi community in India.

2. Provides legal frameworks for solemnization and dissolution of marriages.

3. Protects the rights and interests of Parsi individuals.

Scope

1. Defines conditions and formalities for valid Parsi marriages, including eligibility and
registration.

2. Outlines grounds, procedures, and implications for divorce.

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Types of Divorce

1. Mutual Consent Divorce

Both parties mutually agree to dissolve their marriage voluntarily.

Requirements:

Living separately for 1+ year.

Irreconcilable differences and mutual agreement to dissolve the marriage.

Suit cannot be filed before 1 year of marriage.

Court’s Role:

Ensures the marriage was solemnized under the act.

Verifies consent was not obtained by force or fraud.

Passes decree to dissolve the marriage.

2. Contested Divorce
One spouse seeks divorce against the other’s wishes.

Requires valid legal grounds under Section 32.

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Grounds for Contested Divorce (Section 32)

1. Non-Consummation of Marriage:

Marriage not consummated within 1 year due to defendant’s refusal.

2. Unsound Mind:

Defendant was habitually or incurably unsound at the time of marriage (e.g., schizophrenia).
(Conditions: Plaintiff was unaware and files suit within 3 years.)

3. Pregnancy by Another Person:

Defendant pregnant by another at the time of marriage.

(Conditions: Plaintiff was unaware, filed suit within 2 years, and no intercourse after
discovery.)

4. Adultery, Fornication, Bigamy, Rape, or Unnatural Offense:

(Condition: Suit filed within 2 years of discovery.)

5. Cruelty:

Defendant treated plaintiff with cruelty or improper behavior.

6. Grievous Hurt, Venereal Disease, or Prostitution:

(Conditions: Suit filed within 2 years of the act/discovery.)
7. Imprisonment:

Defendant sentenced to 7+ years and served at least 1 year.

8. Desertion:

Defendant deserted plaintiff for 2+ years.

9. Order for Separate Maintenance:

No intercourse for 1+ year after a maintenance order.

10. Conversion:

Defendant converted to another religion.

(Condition: Suit filed within 2 years of knowledge.)

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Additional Ground under Section 32A

11. Non-Resumption of Cohabitation or Conjugal Rights:

No cohabitation or restitution of conjugal rights for 1+ year after judicial separation or

decree.
(Exception: Plaintiff failed to comply with maintenance orders.)

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Parsi Matrimonial Courts

1. Establishment:

Special courts for Parsi marriage and divorce cases.

2. Jurisdiction:

Exclusive authority over cases under the act.

3. Adjudication:

Handles disputes on divorce, custody, maintenance, and guardianship.

4. Judicial Powers:

Powers of a civil court, including summoning witnesses and issuing orders.

5. Appeals:

Decisions can be reviewed by appellate courts.

6. Expertise:

Knowledgeable in Parsi customs and legal frameworks specific to the community.

Conclusion

The Parsi Marriage and Divorce Act of 1936:

Provides a structured legal framework for marriage and divorce within the Parsi community.

Ensures proper solemnization and dissolution of marriages.

Protects individual rights with provisions for maintenance, custody, and child welfare.

Establishes specialized courts for fair adjudication of matrimonial disputes.

The Special Marriage Act, 1954, under Chapter VII, outlines the jurisdiction and procedural
framework for petitions related to marriage disputes. Below is a summary of the key
provisions regarding jurisdiction and procedure:

1. Jurisdiction (Section 31)

A petition under Chapters V (restitution of conjugal rights, judicial separation) or VI (nullity

and divorce) must be presented to the district court with jurisdiction over:

Place of marriage: Where the marriage was solemnized.

Respondent's residence: Where the respondent resides at the time of petition presentation.

Last residence: Where the parties last resided together.

Wife's residence: If the wife is the petitioner, where she resides on the petition's filing date.

Petitioner's residence: If the respondent resides outside the Act's territories or has not been
heard of for 7 years.

Additionally, a wife domiciled in the Act’s territories can file for nullity or divorce if she has
lived there for at least 3 years before filing, even if her husband is not resident.

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2. Petition Contents and Verification (Section 32)

Facts and claims: The petition must clearly state the facts on which relief is sought.

Verification: The petition must include a declaration of no collusion and be verified in a

manner similar to plaints under the Civil Procedure Code.
---

3. Confidential Proceedings (Section 33)

Proceedings are to be conducted in camera (private).

Publishing details of the proceedings, except for approved High Court or Supreme Court
judgments, is punishable with a fine up to ₹1,000.

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4. Court’s Duty in Granting Relief (Section 34)

The court must ensure the following before granting relief:

Grounds for relief exist (e.g., adultery, cruelty, desertion).

No collusion or condonation of the offending acts by the petitioner.

Mutual consent divorces are free from fraud, force, or undue influence.

There is no undue delay or legal bar to granting relief.

Reconciliation efforts: The court should attempt to reconcile parties unless the grounds
involve specific acts like adultery or cruelty.

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5. Interim Relief (Sections 36–38)

Alimony pendente lite (Section 36): A wife can seek maintenance during proceedings if she
lacks sufficient independent income.

Permanent alimony and maintenance (Section 37): The court can order maintenance post-
decree, considering the husband’s financial ability and other circumstances.

Custody of children (Section 38): Interim or final orders for custody, maintenance, and
education of minor children can be passed.
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6. Appeals (Section 39)

Appealable decrees: Orders under Sections 37 and 38, excluding interim orders, are
appealable within 90 days of the decree or order.

No appeal: Costs-only matters are non-appealable.

7. Special Provisions for Efficiency (Sections 40A–40C)

Transfer of petitions (Section 40A): In case of multiple petitions in different courts, they are
consolidated for trial in one court.

Expeditious trial (Section 40B): Trials should conclude within 6 months, and appeals within 3
months of notice service.

Document admissibility (Section 40C): Documents cannot be excluded based on inadequate

stamping or registration.

8. High Court’s Rule-Making Powers (Section 41)

The High Court can frame rules for regulating procedural aspects, including:

Impleading adulterers as co-respondents.

Awarding damages in adultery cases.

Petition contents and cost provisions.

These provisions collectively ensure a fair, private, and expedient resolution of matrimonial
disputes under the Act.

The Special Marriage Act, 1954, provides for the dissolution of marriage through divorce
under certain specified grounds. Below are the grounds for divorce under the Act:

Section 27: Divorce - Either the husband or wife can file for divorce on the following
grounds:
1. Adultery: The respondent has, after the marriage, engaged in voluntary sexual intercourse
with someone other than their spouse.

2. Desertion: The respondent has deserted the petitioner for a continuous period of at least
two years before the petition.

3. Imprisonment: The respondent is undergoing a sentence of imprisonment for seven years

or more.

4. Cruelty: The respondent has treated the petitioner with cruelty since the solemnization of
the marriage.

5. Mental Disorder:

The respondent is incurably of unsound mind, or

Has been suffering from a mental disorder (including schizophrenia or psychopathic disorder)
to such an extent that the petitioner cannot reasonably be expected to live with them.

6. Venereal Disease: The respondent is suffering from a communicable venereal disease.

8. Presumption of Death: The respondent has not been heard of as being alive for seven years
or more by persons who would naturally have heard of them.

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Section 27(1A): Additional Grounds for the Wife

A wife can also file for divorce on these additional grounds:

1. The husband has been guilty of rape, sodomy, or bestiality after the marriage.

2. A decree or order for maintenance has been passed in favor of the wife under:

Section 18 of the Hindu Adoptions and Maintenance Act, 1956, or

Section 125 of the Criminal Procedure Code, 1973,

and cohabitation has not resumed for one year after the decree.

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Section 27(2): Post-Decree Divorce Grounds

Either party to the marriage may seek a divorce if:

1. Judicial Separation: There has been no resumption of cohabitation for one year or more
after a decree for judicial separation.

2. Restitution of Conjugal Rights: There has been no restitution of conjugal rights for one
year or more after a decree for restitution.

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Section 28: Divorce by Mutual Consent

Both parties may file jointly for divorce on the following conditions:

1. They have been living separately for at least one year.

2. They are unable to live together.

3. They have mutually agreed that the marriage should be dissolved.

The court, after verifying the petition, can pass a decree for divorce:

Not earlier than six months, and

Not later than eighteen months from the date of the petition, provided it is not withdrawn
during this period.

These grounds ensure that marriages under the Special Marriage Act, 1954, can be dissolved
lawfully in cases of irretrievable breakdown or specific marital issues.

Provisions Regarding Solemnization of Marriages under the Special Marriage Act, 1954

1. Conditions for Solemnization of Marriage (Section 4):

A marriage under this Act can be solemnized if the following conditions are fulfilled:

No living spouse: Neither party has a living spouse at the time of marriage.

Mental capacity:

Neither party is incapable of giving valid consent due to unsoundness of mind.

Neither party suffers from a mental disorder that makes them unfit for marriage or
procreation.

Neither party has recurrent attacks of insanity.

Age requirement: The male must be at least 21 years old, and the female must be at least 18
years old.

Prohibited relationships: The parties should not fall within degrees of prohibited relationship
unless permitted by custom.

Citizenship (Jammu and Kashmir): If the marriage is solemnized in Jammu and Kashmir,
both parties must be Indian citizens domiciled in the territories where the Act applies.
2. Notice of Intended Marriage (Section 5):

The parties must give a written notice in the prescribed form to the Marriage Officer of the
district where one party has resided for at least 30 days before the notice.

3. Marriage Notice Book and Publication (Section 6):

The Marriage Officer maintains a Marriage Notice Book with all notices.

A copy of the notice is displayed conspicuously in the Marriage Officer's office.

If a party resides in another district, a copy is sent to the respective Marriage Officer, who
also displays it in his office.

4. Objection to Marriage (Section 7):

Any person can object to the marriage within 30 days of notice publication on grounds of
non-fulfillment of Section 4 conditions.

If no objection is raised or resolved within 30 days, the marriage can be solemnized.

5. Inquiry into Objections (Section 8):

The Marriage Officer must investigate objections and decide within 30 days.

If the objection is upheld, the parties can appeal to the district court within 30 days. The
court's decision is final.

6. Powers of Marriage Officer (Section 9):

The Marriage Officer has the powers of a civil court, such as summoning witnesses, receiving
affidavits, and examining documents.

Unreasonable or bad faith objections can lead to compensation of up to ₹1,000.

7. Declaration by Parties and Witnesses (Section 11):

Before solemnization, the parties and three witnesses must sign a declaration in the
prescribed form before the Marriage Officer.
8. Place and Form of Solemnization (Section 12):

Marriage may take place in the Marriage Officer's office or another reasonable location.

The marriage is valid only if both parties declare in the presence of the Officer and witnesses,
“I take you to be my lawful wife/husband.”

9. Certificate of Marriage (Section 13):

After solemnization, a certificate is entered into the Marriage Certificate Book, signed by the
parties and witnesses.

The certificate is conclusive evidence of the marriage.

10. Validity of Notice (Section 14):

If the marriage is not solemnized within three months of the notice, the notice lapses, and a
fresh notice must be given.

These provisions ensure transparency, legality, and protection of rights in marriages under the
Special Marriage Act, 1954.

Under the Hindu Marriage Act, 1955, the concepts of void and voidable marriages are crucial
in understanding the legal consequences of marriages that do not fulfill the conditions
required for a valid union. These terms are defined under Section 11 and Section 12 of the
Act.

1. Void Marriages (Section 11)

A marriage is considered void under Section 11 of the Hindu Marriage Act if it contravenes
certain mandatory conditions set forth in Section 5 of the Act. The essential conditions for a
valid Hindu marriage, as per Section 5, include:

1. Monogamy: The parties must not be married to someone else at the time of the marriage
(Section 5(i)).

2. Age of the parties: Both parties must have attained the minimum age of marriage, i.e., 21
years for males and 18 years for females (Section 5(ii)).

3. Mental capacity: The parties must be capable of giving valid consent, i.e., they should not
be of unsound mind (Section 5(iii)).

4. Prohibited degrees of relationship: The marriage must not be within the prohibited degrees
of relationship (Section 5(iv)).

5. Sapinda relationship: The parties must not be sapindas of each other unless permitted by
custom (Section 5(v)).

If a marriage violates any of these conditions, it is considered void, and either party can file a
petition for a decree of nullity, as per Section 11. Such a marriage is treated as though it never
existed, and both parties are free to marry again. A void marriage does not require a decree of
divorce because it is considered legally non-existent from the beginning.

Examples of Void Marriages:

A person who is already married marries another person (violating the monogamy condition).

A marriage where one of the parties has not attained the legal age for marriage.

A marriage between close relatives (where there is a prohibited degree of relationship).

2. Voidable Marriages (Section 12)

A voidable marriage, as per Section 12 of the Hindu Marriage Act, is one that is valid unless
it is annulled by the court. A marriage becomes voidable when it meets any of the conditions
specified in Section 12, which can be used as grounds for annulling the marriage.
Grounds for a Voidable Marriage (Section 12(1)):

1. Non-consummation due to impotence (Clause a): If the marriage has not been
consummated because one of the parties is impotent (unable to perform sexual intercourse),
the marriage can be annulled.

2. Contravention of consent (Clause b): If the marriage contravenes the condition under
Section 5(ii) regarding the age of marriage (for instance, if the marriage happens when one
party is underage), it can be annulled.

3. Consent obtained through force or fraud (Clause c): If the consent of one party was
obtained by force or fraud, the marriage can be annulled. This includes cases where a party's
consent was obtained by misrepresenting the nature of the ceremony or material facts about
the respondent.

4. Pregnancy by someone else (Clause d): If one party is pregnant by someone other than the
other party at the time of the marriage, it can be grounds for annulment.

Conditions for Filing a Petition to Annul a Voidable Marriage (Section 12(2)):

A petition for annulment based on force or fraud (Clause c) cannot be filed if more than one
year has passed since the fraud or force stopped affecting the petitioner or if the petitioner has
lived with the other party after the fraud or force ended.

A petition for annulment based on pregnancy by another person (Clause d) can only be filed
under certain conditions:

The petitioner was unaware of the pregnancy at the time of the marriage.

The petition is filed within a specific time frame—one year from the marriage if it occurred
after the commencement of the Hindu Marriage Act, or one year from the commencement of
the Act for marriages before it.

The petitioner has not engaged in marital intercourse with the respondent after discovering
the facts about the pregnancy.
Examples of Voidable Marriages:

A marriage where one party is impotent and the marriage has not been consummated.
A marriage where one of the parties was underage at the time of marriage.

A marriage where one party was coerced or deceived into giving consent.

Distinction Between Void and Voidable Marriages

Conclusion

In summary, while a void marriage is treated as if it never existed due to a violation of

fundamental conditions of marriage under the Hindu Marriage Act, a voidable marriage is
legally valid unless one party petitions to annul it on specific grounds, such as non-
consummation, force, fraud, or pregnancy by another person. The legal remedies for each are
different, with void marriages being treated as non-existent and voidable marriages requiring
annulment proceedings to declare them invalid.

Nature of Dower (Mahr) Under Muslim Personal Law

The dower, or mahr, is an essential element of a Muslim marriage. It is a sum of money or

property that the husband agrees to pay or provide to the wife as part of the marriage contract.
The dower acts as a mark of respect towards the wife, acknowledging her rights and securing
her financial independence. It is not a consideration for marriage (as marriage under Muslim
law is not a contract for sale) but a fundamental duty imposed upon the husband.

Importance of Dower

1. Legal Requirement: The payment of dower is mandatory in Muslim marriages, making it

an inherent right of the wife. Without dower, a Muslim marriage remains valid, but the
obligation to pay it persists.

2. Financial Security: It serves as a financial safeguard for the wife, ensuring her support
during marriage and after its dissolution (through divorce or widowhood).

3. Symbol of Respect: It symbolizes the husband's respect and commitment towards his wife.
4. Protection Against Arbitrary Divorce: The existence of a dower discourages the husband
from arbitrarily divorcing his wife, as he must fulfill his financial obligation.

5. Encouragement of Gender Equity: It provides the wife with some economic standing
within the marriage, emphasizing her importance and value.

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Kinds of Dower

The dower can be classified into several types based on the time and conditions of payment.
The primary categories are:

1. Specified Dower (Mahr al-Musamma)

Meaning: This is the dower amount mutually agreed upon by the bride and groom or their
families at the time of marriage.

Division:

Prompt Dower (Mu’ajjal):

Payable immediately after the marriage contract is completed.

The wife can demand this at any time before or after consummation.

Deferred Dower (Mu’wajjal):

Payable at a specified later time, often at the time of dissolution of marriage (divorce or death
of the husband).

Importance: The division ensures flexibility and caters to the financial capabilities of the
husband.

2. Unspecified Dower (Mahr al-Misl)

Meaning: If the dower is not fixed at the time of marriage, the wife is entitled to a reasonable
amount determined based on her family’s social status, education, and other factors.

Criteria: The amount is typically equivalent to the dower received by women of similar social
and familial standing in the wife's family.

3. Proper Dower (Mahr al-Adl)

Meaning: A specific kind of unspecified dower where the amount is determined based on
fairness and customary practices.

4. Special Dower

Bartered Dower: The dower can consist of non-monetary assets, such as property, jewelry, or
even services, as agreed upon by the parties.

Conditional Dower: Payment depends on the fulfillment of certain conditions agreed upon in
the marriage contract.

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Legal Aspects of Dower

1. Wife's Right: The wife has an inalienable right to claim the dower. She can refuse to
consummate the marriage until the prompt dower is paid.

2. Husband's Obligation: Non-payment of dower does not invalidate the marriage but remains
a debt that can be enforced against the husband or his estate.

3. Enforcement: The wife can seek legal remedies for unpaid dower through courts. She can
also retain the husband’s property in certain cases (Lien of Dower).

Judicial Interpretation

Indian courts have recognized the significance of dower in Muslim personal law,
emphasizing its role in protecting women. Key judicial observations include:
1. Mulla’s Principles: The dower is a legal right that enhances the dignity and financial
independence of the wife.

2. Supreme Court Cases:

Humera Bibi v. Zubaida Bibi: Highlighted that dower is not a bride price but a mark of
respect and obligation.

Abdul Kadir v. Salima: Clarified the wife’s right to refuse cohabitation if the dower is unpaid.

Conclusion
The concept of dower under Muslim personal law is an essential safeguard for women,
ensuring their dignity and financial security. It reflects the egalitarian principles of Islam and
highlights the importance of mutual respect and obligations in marriage. Its multifaceted
nature provides flexibility while maintaining the wife's financial rights, making it a
cornerstone of Muslim marital jurisprudence.