1.

EXPLAIN MODERN AND ANCIENT SOURCES OF HINDU LAW/

BRIEFLY EXPLAIN THE SOURCES AND HINDU LAW WITH SPECIAL REFERENCE
TO CUSTOMS/EXPLAIN SOURCES OF HINDU LAW/ BRIEFLY EXPLAIN SOURCES
OF HINDU LAW WITH REFERENCE TO “SMRITHIS” (16M)

Introduction

Hindu system of law has the most ancient pedigree of the known systems of law.
Hindu law, despite the fact that before the advent of modern era, there was no direct
law-making machinery, has shown remarkable adaptability.

The study of sources of Hindu law is the study of various phases of its development
which gave it new drive and vigour, enabled it to conform to the changing needs.
Originally, it came to sub serve the needs of pastoral people and now it has come to
subserve the needs of modern society.

According to Manu there are four sources of Dharma. Namely, the Vedas the Smritis,
Sadachara (approved customs and usage) and what is agreeable to one’s good
conscience and desires, sprung from due deliberation are ordained as the foundation
of Dharam(law)

It would be convenient to classify the various sources under the following two heads:

A. Ancient sources

Before the codification of Hindu Law, the ancient literature was the only source of the
law.

a. SHRUTHI

The theory was that some of Hindu sages had attained great spiritual heights, so
much so that they could be in direct contact with God. at some time, the sacred law
was revealed to them by God Himself.

The word Shruthi’s is derived from the root word “Sru”. The divine revelation is
obtained in Shruti which literally means “what is heard”. It is believed that it contains
the very words of ‘Deity’ revealed to inspired sages.

They are considered to be fundamental, primary and paramount sources with

supreme authority if the divine itself.

The term Shruti stands for four Vedas viz., the Rig Veda, Yajur Veda, Sama Veda and
Atharva Veda along with their respective Brahmanas (appendices to the Vedas, they
deal with various ceremonies, rituals, and sacrifices.). However, its importance as a
source of positive law is doubtful, on note that Vedas contain practically no law and
are of little value.

In sum, the Shruthi depict the life of our early ancestors, their way of life, their way of
thinking, their customs, their thought, but does not deal with rules of law in any
systematic manner.
b. SMRITIS

Smriti means “what is remembered”. With Smritis, a systematic study and teaching
of Vedas started. Many sages, from time to time, have written down the concepts
given in Vedas. So, it can be said that Smritis are a written memoir of the knowledge
of the sages. Immediately after the Vedic period, the expounding meaning contained
in the Vedas were to be understood in the light of new needs of the society which had
made further progress from agro-pastoral society.

 Dharma sutras (early Smritis): The Dharma Sutras were written during 800 to 200 BC.
They were mostly written in prose form but also contain verses. It is clear that they
were meant to be training manuals of sages for teaching students.

 Dharma Shastras (later Smritis): Dharma Shastras were mostly in metrical verses and
were based on Dharma sutras. However, they were a lot more systematic and
clearer.

 Manu Smriti: This is the earliest and most important of all. It is not only defined the
way of life in India but is also well known in Java, Bali, and Sumatra. The name of the
real author is not known because the author has written it under the mythical name of
Manu, who is considered to the first human.

 Yajnavalkya Smriti: Though written after Manu Smritis, this is a very important Smritis.
Its language is very direct and clear. It is also a lot more logical. He also gives a lot of
importance to customs but hold the king to be below the law.

 Narada Smriti: Narada was from Nepal and this Smritis is well preserved and its
complete text is available. This is the only Smritis that does not deal with religion and
moral

03. COMMENTARIES AND DIGESTS

 In an ever-advancing society, a clear and systematic exposition of rules of law, legal

concepts and principles was necessary. The rules of law enunciated in the smritis
were not always clear cut and they did not cover all situations.

 Commentaries (Tika or Bhatia) and Digests (Nibandhs) covered a period of more than
thousand years from 7th century to 1800 A.D. In the first part of the period most of
the commentaries were written on the Smritis but in the later period the works were
in the nature of digests containing a synthesis of the various Smritis and explaining
and reconciling the various contradictions.

 The evolution of the different schools of Hindu law has been possible on account of
the different commentaries that were written by various authorities. The original
source of Hindu law was the same for all Hindus. But schools of Hindu law arose as the
people chose to adhere to one or the other school for different reasons.

 The Dayabhaga and Mitakshara are the two major schools of Hindu law. The
Dayabhaga school of law is based on the commentaries of Jimutavahana (author of
Dayabhaga which is the digest of all Codes) and the Mitakshara is based on the
commentaries written by Vijnaneswar on the Code of Yajnavalkya.
 04. CUSTOMS

 Customs are regarded as the third source of Hindu Law.

 usage of custom prevails over the Smritis. It is superior to written law. There are
certain characteristics which need to be fulfilled for declaring custom to be a valid
one. They are: -

(I) The custom must be ancient. The particular usage must have been practised for a
long time and accepted by common consent as a governing rule of a particular
society.

(ii) The custom must be certain and should be free from any sort of ambiguity. It
must also be free from technicalities.

(iii) The custom must be reasonable and not against any existing law. It must not be
immoral or against any public policy and

(iv) The custom must have been continuously and uniformly followed for a long time.

(v) It should not be against public policy and Morality.

Indian Courts recognize three types of customs viz:

(a) Local custom – these are customs recognised by Courts to have been prevalent in
a particular region or locality.

(b) Class custom – these are customs which are acted upon by a particular class.

(c) Family customs - these are customs which are binding upon the members of a
family.

PROOF OF CUSTOM
 Usually, customs when repeatedly brought into notice of the court, the court may hold
customs proved without any necessity of fresh proof, otherwise all customs need be
proved like any other fact, usually customs are proven by instances.

 The burden of proving a custom is on the person who asserts the custom, and if he
fails to prove it, he will be governed by Hindu Law.

 In the case of Prakash vs Parmeshwari, it was held that one instance does not
prove a custom. However, in the case of Ujagar vs Jeo, it was held that if a custom
has been brought to the notice of the court repeated, no further proof is required.

B. Modern sources

 Among the modern sources of Hindu law are included equity, justice and good
conscience, precedents and legislation. In ancient times, the Hindus had a fairly
perfect system of rendering justice but, they did not have a system of reporting of
decisions; nor did the common law doctrine of precedents existed.
 In their modern version, these sources are essentially the outcome of the
administration of Hindu law in British India.

a. Equity, justice and good conscience.

 Equity means fairness in dealing. Modern judicial systems greatly rely on being
impartial. True justice can only be delivered through equity and good conscience. In a
situation where no rule is given, a sense of ‘reasonableness’ must prevail. According
to Gautama, in such a situation, the decision should be given that is acceptable to at
least ten people who are knowledgeable in shastras. Yagyavalkya has said that
wherever there are conflicting rules, the decision must be based on ‘Nyaya’.

 The principles of Nyaya and Yukti were used to mitigate the rigour of law.

 In its modern version, equity, justice and good conscience as a source of law owes its
origin to the beginning of the British administration of justice in India. Justice, equity
and good conscience have been generally interpreted to mean rules of English law on
the analogous manner as modified to suit the Indian conditions and circumstances.

 In Gurunath v. Kamalbhai, the Supreme court said that it is now well established
that in the absence of any rule of Hindu law, the courts have authority to decide the
case on the principles of justice, equity and good conscience unless in doing so, the
decisions would be inconsistent with any doctrine or theory of Hindu Law.

b. Precedent

 This doctrine is essentially a gift of the British administration of justice in India.

 Precedents is called to be sources of Hindu law in two senses:

1. firstly -- practically all the important principles and rules of Hindu law have now been
embodied in the case law.

2. secondly--Precedent is sources of law in the sense that by the process of judicial

interpretation, doctrines, principles, and rules of law stand modified or altogether new
principles, doctrines and rules have been introduced in the body of Hindu law.

The difficulties of English judges administering Hindu law as they did not know the
language of the Dharma Shastras and they could not comprehend the spirit of Hindu
law. At the stage of understanding of Hindu law, it was difficult for the English judges
to grappled with a system of law in which legal obligations were coextensive with
moral and religious obligations.

 The Indian courts were required to ascertain and minister the personal law of Hindus
in matters relating to marriage, adoption, inheritance, succession, most of the cases
they were successful. But, at the same time, in some matters they interpreted the
rules of Hindu law in their own light.
 Once a decision was given, even if, later on, it was found to be incorrect, the doctrine
of stare decisis was considered to be more proper a course than to change the law
by overriding earlier decision.

 Today, the doctrine of stare decisis is part of Indian law. SC decisions are binding on
all courts, though the SC is not bound by its own decisions. The decision of State High
courts is binding on all subordinate courts though decisions of High Courts are not
binding on each other.

C. Legislation

 Although Hindu society has advanced much beyond what it was during the period of
digest and commentaries, Hindu law became static and did not conform to the
changed context of the Hindu society. In 1941, a Hindu law Committee was
constituted which in its report recommended that Hindu law shield be codified in
gradual stages, beginning with the law of intestate succession and marriage.in 1944
the Rau’s committee evolved a uniform code for Hindu law which would binding on all
Hindus with a blend of different schools of Hindu law.
 The Hindu code of Bill was proposed by an orthodox section of Hindus; however, it
was opposed as to how can legislative form would possibly unveil the complicated
structure of Hindu law.

D.Judicial Decision: -
During the British regime, for administering law in India, the courts exercised the old
Smritis and their commentaries while deciding the legal issues applicable to Hindus.

The English Judges administered Hindu law with the assistance of Hindu pandits, later
it was abolished.

The Judicial decision constitute an important source of law. A large number of

decisions have now piled up on almost every point of law which have superseded the
law laid down in commentaries on several fronts.

The precedent is not merely an evidence of a law but also a source of law and the
courts are bound to follow the precedents.

The judicial decision has modified and supplemented the pure Hindu Law and now
they have emerged as important source of law.

There are numerous instances where the judges in administering the Hindu law either
modified or altered it.

Ex: - Adoption, son to pay father’s debts, restriction on definition of stridhan,

curtailment of women’s rights
 INSTITUTION OF MARRIAGE

Evolution of the institution of marriage Introduction

 The ancient human society was a nomadic society. With the passage of time, the
nomadic human beings evolved into an agricultural society and it was considered
necessary to ascertain the paternity of children. Paternity could not be determined.

 As human society developed the necessity arose for demarcating possession and
ownership of material belongings as a natural consequence of human behaviour and
the human male was seized with the idea of knowing his children.

 Thus, it seems, in man’s quest to know the paternity of children lie the seeds 2 of the
institution of marriage. Thus, the concept of marriage–a sort of man-woman
relationship as a responsible one-to-one unit of society-evolved a unique human family
system.

 Naturally, in the realm of family relationships, some sort of sex regulation came to be
established. But the conception of marriage was a gradual and prolonged process, at
various places, and at various stages of human development, marriages came into
existence in different forms.

 Further Patriarchal stage emerged, the chief attribute was the organisation of number
of persons, bound and free, into a family under the paternal power of the head of the
family. At this point of time monogamy (as a strict rule for women, though not so strict
for men) in West and polygamy in the East came to be established.

 The traditional Hindu family was an institution, a joint family system, characterized by
homogeneous togetherness of its members.

 Thus, in the era of man’s ascendency to power, the institution of marriage came into
existence as an exclusive union. Man, tried to impose fidelity on the woman by the
power which he had acquired over her, he stared to idealise the institution of marriage
with a view to dominate the will and mind of a woman.
 CONCEPTION OF MARRIAGE

Definition of marriage
Marriage is a civil and religious contract whereby a man is joined and united to a woman for
the purpose of civilized society. In law ‘marriage’ may mean either the acts, agreements, or
ceremony by which two persons enter into wedlock, or their subsequent relationship created
thereby. Marriage is the civil status or personal relation of one man and one woman joined
together in a matrimonial union which was lawfully entered into.

 According to sociologist Mazumdar, “marriage is a socially sanctioned union of male

and female for the purpose of establishing (a) household (b) entering into sex relations
(c) procreating and (d) providing care for the offspring”

Marriage as sacrament
 The conception of marriage is much deeper than the relationship between male and
female. It has been called as essential Sanskar as it imbibes all the humane ethos of
Hindu Culture. Marriage among Hindus is one of the sixteen Sanskar – a sacrament,
indissoluble union of flesh with flesh, bone with bone, to be continued in the next world.
It is thought to be a ‘janam–janmantar ka bandhan’
 Hindu marriages are considered to be sacramental union/ holy union. No other religion
has idealized the institution of marriage as the Hindus have done.
 Where wester conception of the marriage includes only the personal, legal and social
status, the Hindu traditional conception imbibes Dharma as the most important
ingredient. according to Hindu tradition marriage is-
o Firstly, an instrument for the pursuance of higher goals of life, rather than a
means for personal sexual gratification only.
o Secondly, marriage is Prajanan or procreation of a progeny for the continuation
of the family line (orderly replacement of the family culture acquired through
centuries of innovations, trials and tribulations).
o Thirdly, Rati kreeda or sexual act in marriage, which is regarded as very
insignificant in Hindu tradition although it is an essential biological function of
marriage.
The husband and wife are referred by several means,
Husband- bhartri, because he supports his wife, patient, because he is to protect her.
Wife- jaya, because one’s own self is begotten on her. She is also compared to the goddess of
prosperity.

CAPCITY TO MARRIAGE/ EXPLAIN THE GROUNDS OF VALID MARRIAGE

(16marks)

Capacity of marriage

It was firmly accepted that hindu marriage was a sacrament, and was one of the 10
samskaras. It also came to be established that every and any Hindu could marry. Only
prohibitions that were recognized were on the basis of caste, gotra, religion or blood
relationship.

Ingredients of Section 5

Parties must be Hindus under Section 2(3) of Hindu Marriage Act. According to this section
both the parties to the marriage under the Act must be Hindus. If one of them is a Hindu and
the other a non-Hindu or both are non-Hindus, the marriage will not be a subject matter of
this Act but will relate to some other law i.e. Special Marriage Act etc.
 a. Bigamy -- section 5(I): neither party has a spouse living at the time of
marriage

 Bigamy includes both polygamies was recognised by Hindu law (permits a mal
to have more than one wife simultaneously.) and polyandry was not recognised
by Hindu law (permits female to have more than one husband simultaneously)

 At present both polygamy and polyandry have been abolished and monogamy
has been made a rule for all Hindus prescribed in section 5(I) of Hindu Marriage
Act, 1955, it lays down neither party should have a spouse living at the time of
marriage.

 The offence of bigamy is committed only if the required ceremonies of marriage

are performed. The second marriage cannot be taken to be proved by the mere
admission of the parties; essential ceremonies and rites must be proved to have
taken place. In the case of a bigamous marriage, the “second wife” has no status
of wife. But in case she files a petition for nullity, she can claim both interim and
permanent maintenance.

 Section 11 makes bigamous marriage void. Section 17 makes it a penal

offence for both Hindu male and female under Section 494 and 495 of IPC.

Case laws

 In this case of BHAURAO V. STATE OF MAHARASTRA AIR 1965 SC 1964 it

was held by the SC that, marriage without the performance of essential
ceremonies laid down under Sec.7 of HMA is not valid marriage, in the present
case the second marriage was Gandrava vivaha and the prosecution failed to
prove that Gandrava type of ceremonies that will constitute under their
customs.
 In another case of DR.N.A. MUKERJI V. STATE AIR 1969, the court held invalid
the ceremony of exchange of garlands in Kali temple after walking seven steps
and imitation of Saptapadi, the court observed that mere intention of the
parties however serious it is will not make them husband and wife and the
accused can escape the prosecution however deliberately he performed a
defective ceremony.
 SARLA MUDGAL V. U.O.I AIR 1995 SC 1531, husband of the petitioner
wanted to conduct a second marriage so he got converted into a Muslim by
embracing Islam under Muslim law. The court held that the second marriage was
invalid unless the first marriage is dissolved through decree under Hindu
Marriage Act which would strictly professes polygamy (bigamy) which is
punishable under 494 of IPC. The principle that court followed was marriage
which is in violation of any law would be void under Sec 494 of IPC.

b. Mental capacity -- section 5(ii): at the time of marriage, neither

A) Is incapable of giving valid consent owing to unsoundness of mind,
or
B) Though capable of giving a valid consent, has been suffering from
mental disorder of such a kind as to be unfit for marriage and the
procreation of children, or
C) Has been subjected to recurrent attacks of insanity or epilepsy
 This section lays down that neither party to marriage should be an idiot or lunatic at
the time of marriage. The causes are thus,

a. Is incapable of giving a valid consent to it in consequence of “unsoundness of

mind”; or
 b. Though capable of giving a valid consent, has been suffering from mental
disorder of such a kind or to such an extent as to be unfit for marriage and the
procreation of children; or

c. Has been subjected to recurrent attacks of insanity.

 If a case covers any one of the above clauses, the marriage can be annulled.

 Under clause (a) every unsoundness of mind is not included. It should be such which
incapacitate a person from giving a valid consent to marriage, it need not be persistent
or continuous. It may exist just before the marriage.

 Under clause (b) has been suffering requires the mental disorder should be of duration.
Not every mental disorder renders the marriage voidable, but should satisfy 2 main
conditions:

A. It renders him unfit for marriage and

B. Of procreation of children.

 Under clause (c) Recurrent attacks of insanity makes a person unfit for marriage, words
insanity and epilepsy are not qualified with incurable.

Case law

In the case of ALKA v. ABHINASH, the Madhya Pradesh High Court took the view that if the
respondent was unfit for marriage or/and procreation of children.

In another case Bennett v. Bennett, 1969 a person is unfit for marriage if she/he is
unable to carry out the ordinary duties and obligations of marriage.

c. Condition for marriageable Age--- section 5(iii): the bridegroom has completed
the age of 21 years and the bride age of 18 years.

 The Child Marriage Restraint Act, 1929, prescribed 15 as the minimum age for girls,
and 18 for the boys. But such was the impact of the them prevailing social notions that
the child marriages were made neither void or voidable, but once performed, they were
perfectly valid. (GIDEON v BARELAL, 1957).

 The Child Marriage Restraint Act, 1978, now raises the minimum age of marriage to 18
for girls, and 21 for boys. However, thus a child marriage is prohibited under Hindu
Marriage Act. However, violation of this condition does not make the marriage void or
voidable. It means that it is valid (RABINDRA v. SITA, 1986) though it may attract
penalties. But it can become a valid ground for repudiation of the marriage. The Hindu
Marriage Act and the Child Marriage Restraint Act provide for punishment for such
marriage.

 According to Section 18 of Hindu Marriage Act, anyone who procures a marriage for
himself or herself in contravention of Section 5(iii) may be punished with up to 15
days imprisonment or with fine up to Rs. 1000 or with both.

Under the Child Marriage Restraint Act, 1929, a male above the age of 25 years
marrying a girl below 15 years is punishable with up to 3 months imprisonment and is
also liable to fine.

Case law
In the case of Shivanandi v. Bhagavathyamma, AIR 1962 Madras 400, a marriage a
minor male is valid even though there was no consent from the guardians of the minor. A
Hindu marriage is a sacrament and not a contract a minor can’t enter into a contract but, can
perform necessary Samskaras (reasoning)

In another case of Venkatraman v. State AIR 1977 Andra Pradesh 43, it was held that a
child or minor’s marriage is perfectly valid marriage under Hindu law.

d. Avoidance of degrees of prohibited relationship--- section 5(iv): the parties are

not within the degree of prohibited relationship, unless the custom or usage
permits such marriage.

The parties to the marriage must not fall within the degree of prohibited relationship. This
relationship is defined under Section 3(f) and (g) of the Act lays down that the relationship
includes legitimate as well as illegitimate relationship, relationship by full, half and uterine
blood, and relationship by adoption as well as nature of birth.

 When both mother and father of 2 persons are same----relationship by full

blood.
 When father is common and mothers are different-----relationship by half blood.
 When mother is same and fathers are different-----relationship by uterine blood.

According to Section 3(g) “degree of prohibited relationship” means when two persons are
related to each other in any of the following manners:

(I) By lineal ascent: If one is a lineal ascendant of the other. This relationship covers the
Sapinda relationship which extends up to fifth degree in the line of father and third degree in
the line of the mother. The distinction of this category is that it extends even beyond the
Sapinda ascendants.

(ii) By affinity: If one is the husband or wife of the lineal ascendants or descendants of the
other. For example, father-in-law and daughter-in-law, mother-in-law and son-in-law, step
mother and step son or step farther and step daughter are thus within the degrees of
prohibited relationship.

(iii) Wives of certain brother relations if one was the wife of:
(1) The brother, or
(2) The father’s brother, or
(3) The mother’s brother, or
(4) The father’s brother, or
(5) The mother’s father’s brother, or
(6) The father’s mother’s brother, or
(7) The mother’s mother’s brother.

(iv) Certain close relations if both are:

(1) Brother and sister, or
(2) Niece and uncle (paternal or maternal), or
(3) Nephew and aunt (paternal or maternal), or
(4) Children of a brother and a sister, or

(5) Children of two brothers, or

(6) Children of two sisters.
According to Section 11 of Hindu Marriage Act, a marriage in contravention of this condition
is void. It is also punishable under section 18(b) of the Act.
illustration
(I) ‘A’ married his adopted sister. This is not a valid marriage, as it falls within the degrees of
Prohibited relationship.
(ii) ‘A’ marries with the wife of Pre-deceased brother. It is not a valid marriage as it falls within
the degree of Prohibited relationship.
(iii) ‘A’ marries his stepmother’s sister. It is not a valid marriage, ‘A’ is related to his step-
mother by half-blood relationship.

e. Sapinda relationship------section 5(v): the parties are not sapindas of each other,
unless the custom or usage permits such marriages

the Hindus believes in ancestor worship and offer pinda-dan to their departed ancestors
during every year shradha fortnight offering. the pinda literally means a ball which are mad of
rice.

The rule is that one is connected by pindas dan to six ancestors on the paternal side and the
four ancestors on the maternal side.

they are considered to be valid marriages only if the customs permit so. For instance, among
the Jats of Punjab marriage with brother’s widow and in South India marriage with one’s
sister’s daughter are recognized by customs. The HMA defines Sapinda relationship. If one
person:

1) If he is direct degrees of ascent within five degrees to the other through the
father or three degrees of ascent to the other through the mother.
2) If both are sapindas to the common ancestors. When 2 persons offer pindas to
the same ancestor, they are called sapindas of each other.

The party guilty of performing such a marriage may be sentenced to a term of imprisonment
up to one month or with fine up to Rs.1000 or with both mentioned in S.18 of HMA. However,
the modern society do not attach much importance to these relations nor has there been any
legal objection on grounds of Sec 3(f) and (g)

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f. Impotency

 Under the Hindu Marriage Act and the Special Marriage Act,1954 the marriage of an
impotent person is voidable at the instance of the non-impotent spouse.

 A party is impotent if his or her physical or mental condition makes consummation of

marriage a practical impossibility. Impotence means inability to perform sexual act or
inability to consummate the marriage.

 Essential grounds:

1. Full and complete penetration is an essential ingredient of ordinary and

complete intercourse, though degree of sexual satisfaction is irrelevant.

2. Sexual intercourse which is incomplete occasionally does not amount to

impotency.
 3. If impotency can be cured by medical treatment or surgery, it would not amount
to impotency, unless the respondent refused to undergo treat

 Originally under the Hindu Marriage Act, 1955, it was laid down that if at the time of
marriage one of the parties to marriage was impotent and continued to be so till the
presentation of the petition, the other party could sue for annulment of marriage.

 Amendment --The Marriage Laws Act, 1976, has reworded the clause thus, “the
marriage has not been consummated on account of impotency of the respondent”

Case law

Laxmi v. Babulal, the wife had no vagina, but by a surgical operation an artificial vagina of
about 21/2 was constructed. in this case the Rajasthan High Court held that did not remove
wife’s impotency.

Ganeshji v. Hanstuben, are instances where the wife on an account of structural

malformation of vagina was not capable to have normal sexual intercourse.

Burden of proof

It is for the petitioned to prove that consummation of marriage has not taken place on
account of the impotency of the respondent. It is not to show that the respondent has no
interest in marriage or that she has inclination for religious life. However, the court may draw
interference of impotency where intercourse has not taken place over a long period.

What does not amount to impotency:

A. Barrenness and sterility.
B.Marriage with eunuch.

MATRIMONIAL CAUSES

There was no law that recognized divorce in Hindu law before 1955, although some reliefs in
respect of marriage could be obtained under general law. For instance, a suit for declaration
of marriage null and void could be filed under Sec 9, CPC. Read with the Specific Relief Act.
Similarly, as suit for restitution of conjugal rights could also be filed. The Hindu married
Woman’s right to Separate residence and Maintenance Act, 1946, laid down certain grounds
on which the wife could live separately and claim maintenance from her husband. The Hindu
Marriage Act, 1955, accords recognition to matrimonial causes and makes provision for them:
A) matrimonial causes.

1. Nullity of marriage,
2. Judicial separation,
3. Dissolution of marriage, and
4. Restitution of conjugal rights.

B) customary divorce and divorce recognized under special enactments have been
retained.

1) NULLITY OF MARRIAGE

The law of nullity relates to the pre-marriage impediments. The subject matter of
impediments to marriage is covered under capacity to marry. If there exist certain
impediments, parties cannot many each other. If they marry, despite impediments,
their marriage may not be valid. These impediments are usually divided into two:

A) Absolute impediments—it exists when marriage is void ab initio, that is, invalid
from the beginning.
B) Relative impediment—here marriages are voidable i.e., it may be avoided by one of the parties to
the marriage in case he/ she desires.

These impediments have given rise to classification of marriage into:

1) Void marriages
 A void marriage is no marriage i.e., it does not exist from the beginning it. It is
called a marriage because the two parties would have undergone all the
ceremonies of marriage. Since they absolutely lack the capacity to marry, they
cannot just by undergoing ceremonies of marriage, become husband and wife.
There are no legal consequences (status of marriage, legitimacy of children and
legal obligation and rights against each other and on third person) flow from a
void marriage.
 In respect of void marriages, no decree of court is necessary, even it passes a
decree, it merely gives the judicial declaration that the marriage is null and
void. However, a petition for nullity under Section 11 of the HMA, 1955, can be
made by either of the parties to the marriage.
 In case of marriages being void, because a person has taken second wife, the
second wife can not petition under Sec 11, only the second wife can.

Grounds for void marriage:

Under section 11 of HMA the following grounds amounts to void marriage:

i) Where the husband has married again without obtaining decree of divorce, it
amounts to bigamous marriage which is void from the beginning.

Case law

In the case of UMASHANKER V. RADHADEVI, 1967 the question Infront of Hon’ble

court was that whether the first wife can bring injunction to restrain husband from
taking second wife, the Patna High Court, said that there is no such provision in HMA
for a wife to restrain her husband from doing so. but she can file suit for perpetual
injunction, under Section 9 of CPC read with Sec 38 of Specific Relief Act.

ii) The parties are sapindas of each other

iii) The parties are within the prohibited degrees of relationship.
iv) Other grounds to call a void marriage are (a) if proper ceremonies have not
been performed during the marriage and (b) if the marriage has been
performed in violation of section 15 of HMA.

2) Voidable marriage

A voidable marriage is perfectly valid as long as it is not avoided. It can be avoided

only on the petition of one of the parties to the marriage. If one of the parties does not
petition for annulment of marriage, the, marriage will remain valid. If one of the
parties die before the annulment, no one can challenge the marriage and it will
remain valid forever. So long as it is not avoided, all the legal consequences of valid
marriage flow from it.

Grounds for voidable marriages are laid down in Sec 12 of HMA, these are available
pre-marriage and post-marriage:

i) the marriage has not been consummated owing to the wilful refusal of
respondent to consummate the marriage, or
ii) concealment of pre- marriage pregnancy by respondent, or
the ground is pre-marriage pregnancy and not bride’s unchastity
(1)the respondent was pregnant during the time of marriage’
(2)pregnant from a person other than petitioner,
(3)the petitioner was not aware of the fact,
(4)it must be presented within one year of concealment of the act in respect
of both pre and post-marriages and
(5)marital intercourse did not take place with the consent of petitioner, after
knowing the fact of pregnancy. In case he accepts the way, she is, he later
on cannot repudiate the marriage as it is not maintainable.

Case law

PAWAN KUMAR V. MUKESH KUMAR, wife was pregnant by some other person and
the marriage has broken immediately, though petition was filed belatedly. The fact of
pre-marriage pregnancy by other person itself was held in causing of mental agony
and cruelty, therefore the application was converted into decree of divorce.

iii)the consent to marriage was obtained by coercion or fraud, as defined in ICA,

or
(1)the consent was obtained by fraud or coercion during the time of marriage
(2)the petitioner must be present within a year after the discovery of the
fraud,
(3)the petitioner must not have lived with the respondent as a wife/husband
after knowing the fact of coercion or fraud, the mere act of sexual
intercourse acts the discovery of fraud will be fatal to the petitioner.

Case law
1) in the case of BHAGAWATI alias REENA V. ANIL CHOUBEY, husband filed a
declaration of marriage as null and void.

firstly, the wife below the age of 18 at the time of marriage

secondly, the consent for marriage was contracted under coercion and threat to life.
The court held that only a minor spouse has a right to seek annulment and husband
who was a major cannot seek annulment.

2) In a foreign case of SHIREEN V. TAYLOR, where the parties went through a

ceremony of marriage with the respondent who was a friend of her brother, while she
thought it to be merely a ceremony of Betrothal. This was held to amount to fraud.

iv)respondent’s incapacity to consent or her/his suffering from a mental

disorder.

2) JUDICIAL SEPERATION (16M)

Parties may separate from each other under a decree of the court, known as judicial
separation, or under agreement entered into by the parties, called consensual
separation.

Effects of decree: After the separation the parties are not bound to cohabit with each
other and all basic marital obligations remain suspended. Nonetheless the parties
remain husband and wife.

Ordinarily JS either leads to divorce or to reconciliation. If the cohabitation is not

resumed for a period of one year or more after the passing of decree of JS, any party
may sue for divorce under Sec 13(1A) (ii) of HMA. This cannot be done if parties are
living separate under a mutual agreement.

Grounds for divorce

A district court will entertain a petition for JS either from the husband or from the wife
on any of the following grounds that the respondent: Section 10 of HMA provides
grounds for JS,

1) has committed adultery;

2) has deserted the petitioner without cause for a period of 2 years immediately
preceding the petitioner;
3) undergoing imprisonment for seven years or more for offences defined under IPC;
4) cruelty;
5) incurable unsoundness of mind;
6) venereal disease in communicable form;
7) suffering from leprosy not contracted from the petitioner;
8) has not been heard of being alive for not less than seven years.

Where the petitioner is a wife she can petition for JS on the additional
grounds,

since the time of marriage her husband is guilty of:

1) rape,
2) sodomy or,
3) Bestiality or,
4) There has been no cohabitation between her and her husband for not less than one
year after passing decree,
5) Non-compliance with decree of restitution of conjugal rights by her husband.

Rescinding of Decree of JS

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

GROUNDS FOR DISSOLVING MARRIAGE (16M)

3) DISSOULTION OF MARRIAGE

Divorce puts marriage to an end, parties revert back to their unmarried status, and
are once again free to marry. 9 fault grounds such as adultery, desertion, cruelty,
insanity, leprosy, venereal diseases, conversion or renunciation of world... etc are
enshrined in Sec 13(1) of HMA either by the husband or wife could sue for divorce,
and two fault grounds in Sec 13(2) on which wife alone could seek for divorce. An
issue was raised in case of GAURAV NAGPAL that sec 13 was conceived as a provision
to strengthen the institution of marriage, as there was no phenomenal increase in the
breakdown of marriage, this provision serves no purpose; hence it should be removed
for the statue book. The SC held that the validity of this provision cannot be
questioned as continuous work has been for the various levels to strengthen this
institution. Corresponds to s. 10 of the Divorce Act 1869.

Theories of divorce

Section 13 of HMA recognises all the three theories of divorce, and the divorce can be
obtained on the basis of any on of them. Section 13(1) contains 9 fault grounds on
which either the husband or the wife, in respect of a marriage can claim under.

1. Offence or guilt or fault theory:

It was taken from English law, at present this theory is abandoned but the Indian law
has retained, originally in the HMA,1955, divorce was based only on the fault theory.

 Divorce is regarded as a mode of punishing the guilty party who had committed
a matrimonial offence and thus rendered herself or himself unworthy of
consortium. The offence must be recognised under one of the grounds of
divorce.
 The guilty theory, implies a guilty party and on the other hand, it implies that
the other party is innocent i.e., in no way party to or, responsible for the offence
of guilty party. Thus, if one party condones the acts of guilty party, no divorce
can be granted. Similar is in the case if the cruelty is provoked. Hence if both
are guilty the petition will be refused.
 The “doctrine of recrimination” provides that if both the parties, independent of
each other have committed matrimonial offence, marriage should not be
dissolved.
  If one party has some fault I him/her, marriage could be dissolved whether this
fault is his or her conscious act (adultery) or providential (insanity)

2. Consent theory:

 According to this theory parties to marriage are as “free to dissolve a marriage,

as they are to enter it.” Freedom of marriage, implies Freedom of Divorce the
very basis of marriage is mutual fidelity, and if for any reason the parties feel
that it cannot continue living harmoniously, they should be free to dissolve the
marriage. Further, an unhappy family is a breeding ground for diligent children.
 As this theory offers a great temptation to hasty and ill-considered divorce it has
been hedged with safeguards. It requires the consent of both the parties and if
one party is withholding his/ her consent, divorce can never be obtained.

3. Breakdown theory:

This theory represents the modern theory of divorce. The fundamental judicial
recognition of principle that the guilty should be punished was struck down. The main
objective now was to protect the innocent party (observed in the case WILLIAM V.
WILLIAM). The guilt theory was found deficient as it recognised divorce only on
restricted grounds. Whatsoever is the mistake whosoever is at fault what the use of
such union when the 2 parties are not serving the social and individual interest?

Breakdown theory implies: If marriage has broken down beyond all possibilities of
repair, then it should be brought to an end, without looking into the cause of
breakdown and without fixing any responsibility on either party. Such marriage should
be dissolved even if one of the parties does not desire it.

1. Adultery [section 13(1) (i)]

 Prior to 1976 amendment for this ground the petitioner had to prove that the
respondent was ‘living in adultery’ i.e., for a continuous period. At present
one single act is adultery is sufficient.
 Adultery is the matrimonial offence where there is consensual sexual
intercourse between a married person and a person of the opposite sex other
than the spouse, during the subsistence of the marriage (extra-marital
intercourse) the sexual act is necessary for the act of adultery.
 The act must be voluntary. Thus, the spouse in guilty if Sexual intercourse
with respondent, when he, or she is unconscious, or under the influence of
drug or liquor, or in cases of Rape.
 The mere knowledge of respondent that he/ she was not his/her wife or
husband at the time of sexual intercourse it is sufficient for the petitioner to
approach under divorce.
 The very fact that acts are committed in extreme secrecy forbids direct
proof, in such cases the court accepts circumstantial evidence. Such
evidence establishes ‘’preponderance of probabilities” there is no need of
proving beyond all reasonable doubts (for instance the wife was found in a
compromising position with a man in a room)

Case law
 In the case of Jyotish Chandra Guha v Meera Guha, mere production of love
letters written to wife by a person will not prove adultery in the absence of wife’s
reciprocity.
In another case VIRA REDDY V. KISTAMMA, on single act of adultery is not
enough for divorce or JS.

Burden of proof
It is on the petitioner. Prior to the amendment he had to prove at one time beyond all
reasonable doubts, but at present preponderance of probabilities can be proved. No
eye witness is required, it is adequate to show that wife had gone with someone and
stayed together in the same room.

2. Desertion

 Section 13(ia), Hindu Marriage Act gives for desertion. The respondent must
have deserted the petitioner without cause for a period of not less than 2 years
before the presentation of the petition. Desertion in its essence means
intentional permanent forsaking and abandonment of one spouse by the other
without the other’s consent and without reasonable cause. The “doctrine of
constructive separation” is one when one spouse is forced by the conduct of the
other to leave the matrimonial house does not amount to desertion on the part
of wife, this was held in the case of SHAYM CAHND V. JANAKI
 Desertion is not a withdrawal from a place but from a state of things necessary
in a marital life.
 Following five elements are necessary to constitute a desertion. All of them
should co-exist to make it a ground for divorce:
a) the factum of separation (eg: the husband has separated himself from the wife,
or he indifferent, or there is a wilful neglect)- mere temporary abandonment in
anger or in delusion without intending cohabitation to cease permanently, will not
amount to desertion.
b) animus deserdendi (intention to desert)- a must element
c) desertion should be without any reasonable cause.
d) statutory period of 2 years.

Case law

In Geeta Jagdish Mangtani v. Jagdish Mangtani, the wife had deserted the
husband after 7 months of marriage on the ground that he had insufficient income.
She started living with her parents and gave birth to a child. She made no attempts to
re-join the husband and continued with her teaching job. She was aware of the income
status of husband before marriage. Desertion on her part was proved.

In Sunil Kumar v. Usha, the wife left the matrimonial home due to unpalatable
atmosphere in the matrimonial home and the reign of terror prevailing there drove
her out. It was held that she was not guilty of desertion.

Termination

It can be put an end either before or after the statutory period has run out. It may be
bought to an end by the act of the deserting spouse. It becomes incomplete until the
deserted spouse goes to court filing a petition for matrimonial relief.
 In BIPINCHANDRA case, the wife was clearly in desertion, but she expressed an
intention to resume cohabitation before the husband filed a petition for divorce and
thus terminated the desertion. Thus, the guilty party can bring desertion to an end.

 Essential for termination

Resumption of cohabitation by mutual consent

Consensual separation

Genuine offer to reconciliation with no conditions or qualifications

Supervening event may remove the duty to cohabit.

3. Cruelty

 Section 13(1) (ia) of HMA. Since the solemnization of marriage, the

respondent must have treated the petitioner with cruelty. It may be physical or
mental. Nagging and scolding and even incompatibility of temperament have
been held to be included in cruelty.
 The legal position of cruelty in a divorce proceeding is laid down in Russell v.
Russell. Is generally described as conduct of such character as to have caused
danger to life, limb or health (bodily or mental) or as to give rise to a reasonable
apprehension of such danger.
 In the case of WILLIAM V. WILLIAM, the intention as an element for cruelty
was rejected, the court observed that the main concern was to give protection
to the suffering spouse. It may be noted that an act or conduct which has an
intention to injure, will constitute cruelty.
 Cruelty should not always be of such character as to cause danger to life or
health, but harm to or injury to health, reputation and mental pain will also
amount to cruelty. Further, intention or motive is not an essential element of
cruelty, thus, an unintentional act may amount to cruelty was in so in the cases
of SAYAL V. SARALA AND BHAGAWAT V. BHAGAWAT cases.

 Mental cruelty: in the watermark case of Dastane v. Dastane, it was held that
mental cruelty is a very important aspect of legal cruelty. The wife took delight
in causing misery to her husband, to his relatives, whom she abused profusely,
day and night.
Some instances of cruelty:
 In another case of JYOTISH V. MEERA, it was held that utter indifference,
callousness and apathy on the husband’s part towards his wife with whom
he lived like a stranger under the same roof, amounted to cruelty.
 False accusations of adultery or unchastity,
 Demanding dowry,
 Persistent refusal to have marital intercourse: in case of SANGEETA V.
HITESH KUMAR, the wife went to parental home for no reason and
stayed there for long period of time thereby denying husband healthy
physical relationship would be mental cruelty.
 Drunkenness,
 False criminal charges,
 Wilful refusal to sexual intercourse and impotency,
 Refusal to have children (wife’s insistence to terminate pregnancy twice
over for no valid reason despite the husband’s desire to have a child and
 wife terminating her pregnancy without consulting her husband amounts
to cruelty on the part of wife),
 Peculiar behaviour,
 Birth of an illegitimate child (within 6 months of marriage),
 Noncordial behaviour with the matrimonial home,
 Disrespect towards elders and indulgence in false criminal complaints,
 Threat to commit suicide,
 Incompatibility of temperament- case of broken marriage… etc amounts
to cruelty

Case law

In Naveen Kohli v. Neelu Kohli the Supreme court has observed that the conduct
complained of should be grave and weighty. It should be such that no reasonable
person should tolerate it.

In G.V.N. KUMESWARA RAO V. G. JAILI, the supreme court has observed that the
act of cruelty need not be of such nature as to create reasonable apprehension that it
would be harmful for petitioner to live with the other party.

What does not amount to cruelty?

 Ordinary wear and tear of married life E.g. mere neglect or want of affection,
use of vulgar, obscene or rude language does not amount to cruelty.
 Wife’s refusal to resign her job
 Wife’s quarrelling with mother-in-law
 Non-payment of interim maintenance.
 Desertion per se also does not amount to cruelty.
 Insanity.
 Provocation in self-defence.
 Acquiescence to the acts or conduct (with consent) of defendant, but
submission to acts must be voluntary.

4. Conversion (section 13(1) (ii))

 If the respondent has ceased to be Hindu by conversion to another religion,

divorce may be obtained (non-Hindu faith such as Islam, Christianity… etc) it
was held in the case of CHANDRASHEKAR V. KUNANDAIVELU, mere
renunciation of Hinduism does not make him/her cease to be a Hindu and so
does leading a very unorthodox life so much so as to eat beef and decry all
Hindu gods and goddesses; he will cease to be Hindu when he converts to
another religion.
 Conversion should be in accordance with rites and ceremonies or formalities laid
down by that religion to which conversion is sought.
 The conversion of the respondent does not amount to automatic dissolution of
marriage and free him from all the marital obligations he otherwise had as a
Hindu husband. Only the petitioner has the right to file a petition to obtain a
decree of divorce. Because it is considered as taking advantage on owns wrong
on the part of respondent, which is against the principles of Natural Justice.
 5. Insanity [section 13(1) (iii)]

 Grounds: the respondent has been incurably of unsound mind, or Suffering

continuously or intermittently from mental disorder of such a kind and to such
an extent that the petitioner cannot reasonably be expected to live with the
respondent, divorce may be obtained.
 Schizophrenia. Mental disorder should be of such a degree that the petitioner is
not reasonably expected to live with the respondent (RAM NARAYAN V.
RAMESHWARI)
 The explanation to this section is not added to limit the scope of the main
provision. The portioner only has to prove that as a reasonable person it is not
possible for him/her to live with the other party because of mental illness.

6. Leprosy [section 13(1) (iv)]

 The marriage laws at, 1976, has made leprosy a ground both for judicial
separation and divorce.no duration of leprosy is specified.
 The petitioner is required to show that the respondent has been suffering from
virulent and incurable leprosy. Thus, 2 conditions are necessary:
 It must be (I) virulent (ii) incurable.

7. Venereal disease [ section 13(1) (v)]

 The respondent must be suffering from venereal disease in a communicable

form. Where it is not contracted from the petitioner who gives evidence to the
effect that he or she has not had intercourse with any person other than the
respondent, it is a prima facia case that the respondent has committed adultery.
It is they’re for the respondent to rebut the prima facia case against him by call
medical evidence to show that. The doctor who has personally examined the
respondent can only give evidence to this effect.
 Essentials:
1.The respondent was not suffering from the disease, or
2.The respondent contracted the disease innocently, or
3.The respondent had not committed adultery.
 It may be noted that venereal disease includes AIDS. In Mr. X v. Hospital the SC
held that, a person suffering from AIDS prior to marriage must be injuncted from
entering into marriage.

Other grounds

a) Imprisonment

The respondent is undergoing a decree of imprisonment for seven years or more for
an offence defined in the India Penal Code. But no decree for divorce shall be granted
on this ground unless the respondent has already undergone at least three years’
imprisonment out of the said period of seven years or more prior to the presentation
of the petition.
b) Renunciation

section 13(1) (vi)—when a person has renounced the world by entering into
any religious order, divorce may be obtained. Must have entered into a religious
order i.e., to some Ashram with a view to living the remaining part of his life
permanently there. Again, merely entering into any holy order for instance when
a Hindu becomes a pujari or mahant does not amount to renunciation

Divorce by Mutual Consent

Section 28 Divorce by mutual consent. Since Divorce is the last remedy available to
put an end to the marital tie, the parties can decide to separate amicably, divorce
petition may be submitted by any one of the spouses to the District Court on any one
of the grounds given in Section 13 of the Act to take divorce on mutual consent.
Divorce by mutual consent was not incorporated in the original Act of 1955. It has
been inserted in the Section 13-B by the Hindu Marriage (Amendment) Act, 1976.

This section has incorporated in the doctrine of discharge from contractual obligation
by mutual consent of the parties. A special marriage in nothing but a contractual
bondage that can be severed like ordinary contract. Considering the vital important
and necessity of marital life in society a special statute is made incorporating basic
principles of law of contract therein.

Even if dissolution of marriage by mutual consent is sought by a joint petition of the

husband and wife still it is incumbent on the court to comply with the mandatory
provisions of S.34(2) of the act to make attempt for reconciliation between the
parties.

 parties living separately for a period of one year or more

 not able to live together
 mutual agreement in dissolving the marriage
 consent of the parties has been obtained.

Distinction between Judicial Separation and Divorce

 The relationship of husband and wife stands suppressed, while in Divorce the
relationship of husband and wife ceases to exist
 Temporarily suspends the marital rights and duties of parties to marriage for some
time by Court, while Divorce puts an end to the marital relationship between the
parties
 The object is the hope of adjustment, reconciliation and reunion of the spouses,
while in Divorce, the object is to give the last resort
 The parties to the marriage cannot remarry, while in Divorce, the parties are
entitled to get another marriage of his/her choice
 Original marital relationship can be restored, while in Divorce, the original marital
status cannot be restored
 After obtaining the judicial separation, the wife can file and succeed for the
maintenance, while in Divorce, the divorced woman cannot file for the
maintenance under Hindu Adoption and Maintenance Act
 It is a lesser remedy than divorce, but in Divorce, it is stronger, drastic and last
remedy than judicial separation
4) RESTITUION AND CONJUGAL RIGHTS (8m)

The necessary implication of marriage is that parties will live together. The restitution
of conjugal rights means that if one of the parties to the marriage withdraws draw the
other’s society, the latter is entitled to compel the former to live with him/her. Thus, it
is a positive relief which aim to ‘preserve marriage’ and not disrupting it as in the case
of divorce or judicial separation. The remedy has its origin under the Jewish Law.

Section 9 of the HMA provides this relief. The court, on being satisfied of the truth
of the statement made in such petition and that there is nonlegal ground why the
application should not be granted (matrimonial reliefs) may decree restitution of
conjugal rights. Where there was no valid marriage between the parties, the decree
could not be granted. Similarly, when both parties are not Hindu, Sec 9 will not reply.

The term ‘conjugal rights’ mean matrimonial rights (the right of the parties to society
and comfort of each other) the term ‘withdrawals from the society’ means withdrawal
from the totality of conjugal relationship, such as refusal to stay together, refusal to
have marital intercourse and refusal to give company and comfort.

A petitioner shall be entitled to a decree of restitution on establishing that he/she has

a Bonafede intention to resume matrimonial cohabitation and to perform all
matrimonial obligations. A petition for restitution of conjugal rights will be granted,
even if it is established that the respondent has withdrawn from the other’s society
where there is a ‘reasonable excuse’ for doing so. The following can be some
reasonable excuses:

1) a ground for relief in any matrimonial cause.

2) an act, omission or conduct, which makes it impossible for the respondent to live
with the petitioner.
3) the matrimonial misconduct should be weighty and grave; mere temperamental
incompatibilities will not amount to reasonable cause

The following have been held to amount reasonable excuses:

case laws

a) husband insistence that wife must live with his parents or persistent nagging of
wife by the husband’s parents (SHANTI v. BALBIR)

b) husband keeping a concubine or addicted to drink/drugs accompanied by violent

temper or husband’s overbearing, domineering and dictatorial conduct (TIMMUS v.
TIMMUS)

c) husband forces wife to take drink before guests or to eat meat (if she is vegetarian)
(CHANDRA v. SURA)

d) husband’s false accusation of adultery or immorality without any basis.