What is Family and

Family Law
Dr. Samreen Hussain
Meaning of Family

► Sociologist define family in terms of: how society sanction relationship of

people who are connected through
► 1. Blood- full or half
► 2. marriage
► 3. adoption.
► Smallest and primary unit of society- helps in understanding the behaviour
and how it affects different member of society.
► Changing definition and concept of family
► meaning also depends upon social cultural, biological definitions.
► joint family or nuclear family, two parent or one parent family, same sex
partners or live-in relationship
► Polygamous or monogamous
► Patriarchal patrilocal matrilocal
► Meaning of family cannot be restrictive- changes with changing time and
societies. Grows and develop.

► Family law- area of law that deals with family matters and domestic
relations- example marriage and other civil unions, divorce, maintainence
custody adoption etc.
► There are five brads sets of family law in india- Hindu Law, Muslim Law,
Christian Law, Parsi Law and Secular law ( SMA, 1954)
Some Common terms

► Personal law- laws that applies to certsin class or group of people based on
religion.
► Full blood- when related by blood and share same parent-
► Half blood- when share either a father or a mother- consanguine when share father,
uterine when share mother.
For example: A marries W and have a daughter D1. A dies and w marries B. together
they have a daughter D2. DI and D2 are uterine siblings.
Example 2- A marries W and have a daughter D1. W dies and A marries W1 and have a
son S, now S and D1 shares father- consanguine siblings.
► Step relation- only related through marriage. Example. A marries F and a son S is
born to them. B marries W and a Daughter D is born to them. Now A and W dies. B
marries F. in this case S and D are step siblings and B is step Father of S and F is
step mother of D
► Ascendants- persons with whom one is related in ascending line- one parents,
grandparents, great grandparents
► Decendants- a person with whom related in descending line- ones own
children, grandchildren etc
► Collaterals-relatives of one another who descends from common ancestors-
sibling and their offspring's.
► Spouse – husband or wife
► Live-in partners- living together sharing household without marriage
► Family law courts-
► ADR in family law- conciliation and mediation.
SOURCES AND SCHOOL OF HINDU LAW

► Source of Law means “the roots of the law”, “cause of the law”, “the things
from which the laws have been taken”
► The personal laws which governed and are even now governing the social life
of Hindus (such as marriage and divorce, adoption, inheritance, minority and
guardianship, family matters, etc.) are compiled in the form of Hindu Law. It
is believed that Hindu law is a divine law
► It was revealed to sages by God through the vedas
► Divided into two – Ancient and Modern Sources
Ancient sources

► 1. SHRUTI- The word is derived from the root “shru” which means “to hear”. In theory, it
is the primary and paramount source of Hindu law and is believed to be the language of the
divine revelation through the sages. The material heard by people constitute Sruti.
► It is believed that Sruti contains the very words of the Deity. The Sruti comprise the four
Vedas (Rig-Veda, Sum-Veda, Yajur-Veda and Atha Veda), the six Vedangas and eighteen
Upanishads.
► 2. SMRITI The word Smriti is derived from the root “smri” meaning “to
remember”. Traditionally, Smritis contain those portions of the Shrutis which the sages
forgot in their original form and the idea whereby they wrote in their own language with
the help of their memory.
► There are two kinds of Smritis. Their subject matter is almost the same.
► Dharmasutras (Early smritis)
► Dharmshastras (later Smritis)
► Dharmasutras are written in prose, in short maxims (Sutras). The Dharmasutras were
written from 800 to 200 BC. They incorporate the teachings of Vedas with local
customs. They generally bear the names of their authors and sometimes also
indicate the shakhas to which they belong. Some important smritis: Gautama,
Apastamba, harita, vashista et
► Dharmashastras (Later smritis)- Dharmashastras are composed in poetry (Shlokas).
Also contain local customs along the laws. Dealt subject Matter in three parts-
Achara, vyavahara and prayashchit. Three important smritiis
► 1. Manu smiriti
► 2. yajnavalkya smiriti- vijeneshwara- basis of mitakashara school.
► 3. Narad smriri
►
► 3. CUSTOMS - From the earliest period custom (‘Achara’) is regarded as the
highest ‘dharma’. As defined by the Judicial Committee custom signifies
a rule which, in a particular family or in a particular class or district has from
from long usage obtained the force of law. Most of the Hindu law is based on
customs and practices followed by the people all across the country. Even smritis
have given important to customs . Essentials of valid custom

► i) The custom must be ancient. (Devyani acchi v Chidambaram chetty. AIR1953 mad

Rajaiah v Selliah, AIR 1966)

► ii) The custom must be certain and should be free from any sort of ambiguity. (Saraswati
Ammal v Jagadambal, AIR 1954, SC 201)

►
► (iii) The custom must be reasonable and not against any existing law. Prakash v Parmeshwar AIR
1987 P&H.

► (iv) It must not be immoral or against any public policy and (Mathura v Esa, 1880) Murugappa v
Nagapa, 1906 Mad)

► (v) The custom must have been continuously and uniformly followed for a long time. Shyam sunder v
state of Bihar, AIR 1981 SC

There are two types of custom recognized by courts in India

1. Family these are customs which are binding upon the members of a family. Eg. There is a custom in
families of ancient India that the eldest male member of the family shall inherit the estates.
2. Local prevalent in a particular region or locality.
3. Class these are customs which are acted upon by a particular class. Eg. There is a custom among a class
of Vaishyas to the effect that desertion or abandonment of the wife by the husband abrogates the marriage
and the wife is free to marry again during the life-time of the husband.
DIGEST AND COMMENTARIES

► The work done to explain a particular smriti is called a commentary, vedas do

not contain positive law, - codification of laws and legal treatise given in
smritis and vedas,
► Two main commentaries- Mitakshara and Dayabhaga
MODERN SOURCES

► Justice equity and good conscience

► Precedents
► Legislations- Caste Disabilities Removal Act 1850,
Applicability of Hindu Law

► Who is a Hindu
APPLICATION OF HINDU LAW
SECTION 2 OF HMA 1955 STATES :

• This Act applies

(a) to any person who is a Hindu by religion in any of its forms or developments,
including a Virashaiva, a Lingayat or a follower of the Brahmo, Prathana or Arya
Samaj,
(b) to any person who is a Buddhist, Jain or Sikh by religion, and
(c) to any other person domiciled in the territories to which this Act extends who is
not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such
person would not have been governed by the Hindu law or by any custom or usage
as part of that law in respect of any of the matters dealt with herein if this Act had
not been passed.

•
Explanation.The following persons are Hindus, Buddhists, Jainas or Sikhs by religion, as
the case may be:

(a) any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas
or Sikhs by religion;
(b) any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jaina or
Sikh by religion and who is brought up as a member of the tribe, community, group or
family to which such parent belongs or belonged; and
(c) any person who is a convert or re-convert to the Hindu, Buddhist, Jaina or Sikh religion.
Notwithstanding anything contained in sub-section (1), nothing contained in this Act shall
apply to the members of any Scheduled Tribe within the meaning of clause (25) of Article
366 of the Constitution unless the Central Government, by notification in the Official
Gazette, otherwise directs.
WHO IS A HINDU

• PROBLEMS IN DEFINIG HINDU- AS HINDUISM IS NO RELIGION PER SE.

• Etymologically derived from the word sindhu- refers to geographical location of Indus
river.

• No precise definition of Hinduism- derivative of Santa Dharma- way of life more than a
religion- include in its ambit each and everything- borrowed good from everywhere.

• According to Derrett “ The Hindus are diverse in race , psychology, habitat,

employment, way of life as any collection of human beings that might be gathered from
the ends of earth.”
 • According to section 2- any person can be Hindu
1. By religion
2. By birth
3. By conversion or reconversion
4. Who is not a Muslim, Jews Parsi or Christian
HINDU BY RELIGION

• The assumption that Hindu law is applicable only to those who believe in the Hindu
religion in the strictest sense has no basis in fact. Apart from the fact that Hindu religion
has in practice, shown much more accommodation and elasticity than it does in theory..
• Supreme Court in Shastri V Muldas (AIR 1966 SC 1119) Held:
“ …. Acceptance of the Vedas with reverence, recognition and realization of the truth
that the number of Gods to be worshipped is large, is distinguishing feature of Hindu law “
 C.W.P.

The Hindu religion does not claim any prophet, it does not worship any one philosophic
concept; it does not follow any one set of religious rites or performances ; in fact it does
not appear to satisfy the narrow traditional features of any religion or creed. It may
broadly be described as a way of life and nothing more.
Includes in its ambit Buddhism, Sikhism and Jainism
Birendra kaur v state of P&h (2011)
Anand Karaj marriage Act 1909.
HINDU BY BIRTH

• Under modem Hindu Law, a person will be a Hindu by birth in any one o f the
following cases :
(i) If he/she is born to a Hindu parents (i,e. when both parents are Hindus), or
(ii) If he/she is born to a Hindu parent (i,e. one o f the parents is Hindu) and he is
brought up as a Hindu.
Sapna Jacob V State of Kerala (AIR 1993 Ker 75)
Maneka Gandhi V Indira Gandhi (AIR 1985 Del 114)
 HINDU BY CONVERT OR RE-CONVERT

• Converts- conversion from any other faith to Hinduism

• Re-convert- born Hindu converts to Christianity- again converts to Hinduism
• No particular ceremony under ancient laws,
• If a person expresses a bonafide intention to become Hindu accompanied by a conduct
unequivocally expressing that intention coupled with the acceptance o f him as its
member by the community o f caste into the fold o f which he has ceased Perumal v.
Poonuswami, (A.I.R. 1971 S.C. 2352.)
• If a person bonafide declares that he has accepted Hinduism as his faith and he
has been following Hinduism for some time, he becomes a Hindu. (Mohandas v.
Devasam Board, 1975 Ker L.T. 55).
• If by his clear and conclusive conduct he reconverts to his old faith his caste
automatically revives. (Kailash v. Maya DeviA. I. R. 1984 S.C.600.
End
MARRIAGE UNDER
HINDU LAW
DR SAMREEN HUSSAIN
INTRODUCTION

► Marriage as an exclusive and sacramental union also gave birth to polygamy,

concubinage and prostitution. The marriage became monogamous for the woman
alone. It became a sacrament for her alone.
► Under old Hindu law, EIGHT forms of marriage were there- divided into two
categories- approved and un approved
► Approved- 4 kinds
1. Brahma form: The gift of a daughter, after decking her with ornaments and
honouring her with jewels to a man learned in the Vedas, whom the father of the girl
himself invites, is called the “Brahma marriage
► Daiva form: In this form of marriage, the damsel is given to a person who operates
as a priest in a sacrifice performed by the father, in lieu of the fee due to the priest
► Arsha form: In Arsha form of marriage, the bridegroom makes a present of a cow
and a bull or two cows and two bulls to the bride’s father which is accepted for
religious purpose only.
► Prajapatya form: The last kind of approved marriage is called “prajapatya” which
does not materially differ from the Brahma, but in this the gift is made with
condition that “you two be partners for performing secular and religious duties
► Unapproved- four types
► Asura form: In the Asura form of marriage, the dominion of the father over the
daughter ceases by his sale of the girl to the bridegroom.
► Gandharva form: The gandharva marriage was the union of a man and a woman
by mutual consent- no involvement of the father
► Rakshasa form: The forcible abduction of the bride from her paternal home is the
essence of the Rakshasa form. This form of marriage is still practiced among
certain classes of Gond tribals of Berar and Betul. This kind of marriage was
effected by forcible capture and was allowed only to the kshatriyas or military
classes
► Paisacha form: This form of marriage was the most reprehensible as being
marriage of a girl by a man who had committed the crime of ravishing her either
when asleep or when made drink by administering intoxicating drug or when in
the state of mental disoroder.
MARRIGE UNDER HMA, 1955

► HMA has not prescribed any form- need to fulfil essentials laid down for a valid
marriage.
► Section 5 lays down essential for valid Marriage, read with section 7 of the Act.
► Section 11 deals with void Marriage and Section 12 voidable marriage
Whether right to marry is a FUNDAMENTAL RIGHT?
1. Mr. X v Hospital Z (1999 SC 495)
2. Mr. X v Hospital Z (2003 SC 664)
3. Lata Singh V state of UP (2006 5 SCC 475) parental opposition of inter caste marriage.
4. Shafin Jahan V Ashoka K.M 2018 SCC On Line SC 201
NATURE OF MARRIAGE UNDER
HINDUN LAW
CONTRACT OR SCRAMENT
The concept of marriage is to establish a relationship between husband and wife. Based on Hindu
law, the marriage is a sacred tie and a sacraments that can never be broken.
► There are three characteristics of the sacramental nature of marriage.
• It is an eternal union wherein it is valid in all the life to come.
• It is considered as a permanent union where if it is tied once it cannot be untied.
• Holy union where it is essential to perform religious ceremonies
Now after the enactment of HMA 1955, can Hindu Marriage still be called a
Sacrament?
ESSENTIALS OF VALID MARRIAGE
UNDER HINDU LAW
► A marriage to be valid two criterion to be fgulfilled
1. Capacity to Marry (Section 5)
2. Ceremonies to be Performed ( Section 7)
Section 5 of the HMA :
A marriage may be solemnized between any two Hindus, if the following
conditions are fulfilled, namely:
—(i) neither party has a spouse living at the time of the marriage;
ii) at the time of the marriage, neither party—
(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 subject to recurrent attacks of insanity 3 [***];]
(iii) the bridegroom has completed the age of 4 [twenty-one years] and the bride, the
age of 5 [eighteen years] at the time of the marriage;
(iv) the parties are not within the degrees of prohibited relationship unless the custom
or usage governing each of them permits of a marriage between the two;
(v) the parties are not sapindas of each other, unless the custom or usage governing
each of them permits of a marriage between the two;
► .First condition- both the parties should be Hindus
► A marriage between a Hindu man who converted as Christian and a Christian lady
in a Hindu form is not a valid marriage. According to section 5 of the Act
marriage can be solemnized between two Hindus; M. Vijay kumari v. K.
Devabalan, AIR 2003 Ker 363
► Gullipilli Sowria Raj vs Bandaru Pavani (2009 DMC 164 SC) A marriage
between Hindu and Christian is void.
► K. Shanmugha Raja @ Raja vs Shanthakumari 2018 Madras HC
No living Spouse-

► No living spouse at the time of marriage- deemed void

► Dr N.A Mukherjee V State (AIR 1969 All. 489)
► Bhaurao Shankar lokhande v State of Maharashtra (1965 SC 1564)- strict proof of
second marriage required for conviction
► Priya V Suresh 1971 SC
► Balwinder Kaur V Gurumukh Singh (AIR 2007 P&H 74) Daughter continuation
os suit of annulment
► S. Subbulakshmi @ Sunitha vs S. Subramanian @ Saravanan 2018 Mad HC
► Santosh kumari V surjit Singh (AIR 1990 HP70)- injuction
Age competency

► Child marriage is valid in Hindu Law

► Party can obtain annulment under Prohibition of Child Marriage Act 2006.
► Gajar Narain Bhura v Kanbi Kunverbai Parbat ( AIR 1997 Guj. 185)
► Ravi V state ( 2005 1 DLT 124) concept of age of discretion.
► NCW V State of NCT (2006) SC
► Prohibition of child Marriage Act 2006 Important sections.
► Section 3 – ANNLMENT OF MARRIAGE- sraswasti v Lokesh Chandra
► SECTION 4- MAINTENANCE AND RESIDENCE
► SRCTION5- CUSTODY AND MAINTENANCE OF CHILDREN
► SECTION 6- CHILD BORN OUT OF MARRIAGE - LEGITIMATE
► SECTION 9- PUNISHMENT FOR ADULT MALE
► SECTION 10- PUNISHMENT FOR SLOMENIZING CHILD MARRIAGE
► SECTION 12- MINOR MARRIAGE VOID IN CERTAIN CIRCUMSTANCES
► HARVEEN SINGH V HARDEEP KAUR ( 2019 SC)
Mental Competency

► Legal insanity covered- implying of such nature that it is dangerous, person unable to
function normally and of incurable nature.
► mentally ill person may be unable to give consent to marriage and understand the
obligations of a martial relationship. Consent and understanding are essential legal
requirements whether marriage is considered a contract or a sacrament.
► Gurnam Singh v. Chad Kaur (Punjab High Court, 1980)
In this case, the court held that a diagnosis of schizophrenia only established the
existence of a mental disorder. For a decree of nullity, it was essential to prove that the
ailment rendered the respondent incapable of marriage and the procreation of children. The
respondent was an educated individual who had given birth to a daughter. In the face of this
fact, though the existence of mental disorder was established, the court refused to nullify the
marriage because incapacity consequent to the disorder was not proved.
► Kollam Padmalatha Vs. Kollam Chandrasekhar (Supreme Court, 2000)
The court in this case ruled that wife can’t be dumped on grounds of schizophrenia.
The court considered that schizophrenia is a treatable, manageable disease, which can
be put on a par with hypertension and diabetes. The court observed that illness has its
problems, but can this be reason for seeking dissolution of marriage especially after a
child is born? The court stated that wife also must stick to treatment plan and get
better.
Vidhayadhar v Malini (2006 BOM 609)
Wife suffering from schizophrenia but evidence of doctor suggested that it was not
incurable. Hence annulment not allowed.
► The court's opinion remains that the person should have the capacity to understand
the contract of marriage and the duties and responsibilities entailed by it. Even
where the respondent was found to be subnormal in mental capacity, slow to
understand complicated questions, but able to give relevant answers to simple
questions and could manage herself and all her affairs in her own simple way, it
was held that individual had the capacity to get married and cope with the
obligations of marital life.
► Sharada v Dharampal ( AIR 2003 SC 3450)
Privacy is not an absolute right. Waived in matrimonial litigations.
Impotency / Physical Capacity

► Permanent and incurable impotency such as to render complete and natural

sexual intercourse between parties practically impossible is a ground for
annulment of marriage. Impotency means physical and incurable incapacity to
consummate marriage.
► Consummation is ordinary or complete intercourse.[xiv]
► Any penetration, however transient, doesn’t amount to the consummation of
marriage. Full and complete penetration is an essential ingredient to complete
intercourse.[xv]
► Capacity to have sexual intercourse doesn’t depend on the capacity to conceive,
and the inability to conceive is not a ground for annulment. Sexual intercourse or
consummation is referred to as Vera copula, as the natural sort of coitus without
power of conception. Vera copula consists of erectio and intromissio, i.e. of
erection and penetration by male of female
► In Urmila Devi v. Narinder SinghAIR 2007 HP19he marriage lasted just about six
weeks and ended immediately after the medical examination which said that the
wife would not be able to consummate the marriage and the petition for
annulment was also filed within four months of marriage. Husband was held
entitled to a decree of nullity
► S v. R, AIR 1968 Del 79. as argued for the appellant that there was an
unnecessary and improper delay in instituting petition and it was a good reason
for refusing to grant any relief under section 12 of HMA. The court said that it
was true that there was considerable delay. But, we couldn’t ignore the condition
of society in which parties lived and the traditions of the families to which they
belong. The Hindu society looked with disfavour at the dissolution of marriage.
The question whether in a given case there had been an unnecessary or improper
delay in instituting the proceeding has to be decided on its own facts. No hard
and fast rules can be applied to deciding that question.
► If a marriage is once consummated, nullity cannot be given on the ground
of subsequent impotency.
► Suvarnabahen v. Rashmikant , AIR 1970 Guj 43 it was held that impotency
may arise either from a structural defect in the genital organs which is
‘incurable’ or from ‘incurable’ mental or moral disability vis-à-vis the other
spouse resulting in inability to consummate.
► in Laxmi v. Babulal , AIR 1973 Raj 89. taken into consideration whether the
wife could be considered impotent even after the operation had
successfully taken place and her vagina reconstructed. The court took
curability into consideration and held that sexual acts can be
consummated by surgery creating an artificial vagina.
► The mere absence of a desire for sexual intercourse may not by itself
amount to impotency. Absence of such desire may be temporary and the
attitude of the person may be a passing phase and may be due to age or
other similar factors or may be due to psychical influence. It has been
noted that temporary absence of a desire for sex may be due to fear,
anxiety, guilt sense, timidity and the like sometimes due to sexual over
indulgence
► Mental defect or mental block which precludes consummation of marriage
is also a ground for annulment tantamount to a physical shortcoming.
Absence of desire for sexual intercourse, timidity, psychological reasons
like depressive psychosis[lvii] may lead to impotency.[lviii]
PROHIBITED DEGREES

► SECTION 3 CLAUSE g OF HMA 1955S

► two persons are said to be within the “degrees of prohibited relationship
► ” if one is a lineal ascendant of the other; or
► (ii) if one was the wife or husband of a lineal ascendant or descendant of the other;
or
► (iii) if one was the wife of the brother or of the father's or mother's brother or of
the grandfather's or grandmother's brother of the other; or
► (iv) if the two are brother and sister, uncle and niece, aunt and nephew, or children
of brother and sister or of two brothers or of two sisters;
► Explanation .—For the purposes of clauses (f) and (g), relationship includes
► —(i) relationship by half or uterine blood as well as by full blood;
► (ii) illegitimate blood relationship as well as legitimate;
► (iii) relationship by adoption as well as by blood;
► For this Section widow includes divorced wife.
SAPINDA RELATIONSHIP

► SECTION 3 CLAUSE F OF HMA 1955

► with reference to any person extends as far as the third generation (inclusive) in
the line of ascent through the mother, and the fifth (inclusive) in the line of ascent
through the father, the line being traced upwards in each case from the person
concerned, who is to be counted as the first generation;
► (ii) two persons are said to be “sapinda” of each other if one is a lineal ascendant
of the other within the limits of sapinda relationship, or if they have a common
lineal ascendant who is within the limits of sapinda relationship with reference to
each of them;
Examples

► A marries his grandfathers brothers widow- marriage is void

► A marries his son sons widow- void
► A marries his maternal uncles daughter – void
► Sumit marries Priya in 1975 and have one son and one daughter in 1977 and 1979
respectively. They get a divorce in 1989 and sumit gets the custody of their
daughter and Priya of the son. Priya with her son shifts to US and marries ben.
They have a daughter 1994. this daughter jenna comes to india in 2020 to meet her
sibling and here fells in love with sumits sisters son. What is the validity of the
marriage.
FROM FATHERS SIDE

FFF
F
FF
F
F
F
F
P
FROM MOTHER SIDE

MF
M
P
EXAMPLES

► A wants to marry his paternal grandfathers brothers daughter.

► P wants to marry D
 FFF

FF FF
F F
P D
ANNULMENT
OF
MARRIAGE
UNDER
HINDU LAW
DR SAMREEN HUSSAIN
MEANING OF ANNULMENT
• Procedure To Legally Declare A Marriage As Null And Void
• Marriage Is Completely Erased From The Legal Perspective And It Is
Believed That It Never Existed.
• It Is Different Than Divorce As Divorce Means Bringing An End To
A Valid Marriage And Entails The Parties With Certain Ancillary
Rights.
TYPES OF ANNULLED MARRIAGE
UNDER HINDU LAW
• Void- Section 11
• Voidable- Section 12
• Void Marriage- A Marriage Is Void When It Doesn’t Require Any
Decree Of Court- Under Hindu Law A Marriage Is Void Under Three
Conditions In Accordance With Section 11 Of The Act
1. Bigamy
2. Prohibited Degrees
3. Sapinda Relationships
VOIDABLE MARRIAGE – SECTION 12
• Forced Consent
• Insanity
• Impotency
• Respondent Pregnant at the time of Marriage with some one else child.
Pre marriage pregnancy
CONSENT OBTAINED THROUGH FRAUD
C0ERCION OR MISREPRESENTTAION
• Though free consent is not an essential conditions mentioned under
section 5 of the HMA 1955, but it is provided under section 12 (1) that
if the consent of the petitioner or the guardians is not obtained through
fraud or misrepresentation it shall be a ground for annulment
1. Babui kuer v Ran Agya Singh ( AIR 1967 Pat)-age of the
bridegroom was misrepresented.
2. Jolly das V tapan Rajan das (AIR 1994) 4 SCC 363 – signature on
blank form- no proof of ceremony or cohabitation. Consent obtained
by fraud
 3.State of Maharashtra v. Ravikant Patil (2011) SCC- statement of
solitary witness that the groom did not look happy cannot be taken as
lack of consent.
According to Marriage Amendment Act 1976, fraud vitiating consent
should relate to
1. Nature of ceremony
2. Any material fact or circumstances.
1. Pubi V Vasudev (1969) SC- frauds relating to material facts like-
religion, identities of the parties, marital status, issues, concealment
of diseases. Normal exaggeration as to accomplishment of either
parties not a ground.
2. Naba kumar Mondal v Lilabati Mondal-(2000) cal. Husband alleged
the fraud with regard to age, complexion and educational
qualificatio,. Petition filed after 3 years.
3. Bimla V shankar (1959 MP) concealment of caste.
IMPOTENCY
• Marriage has not been consummated due to impotency of the respondent,
• Impotency should be incurable.
1. Rajendra Bhardwaj v. Shanti Devi (1977 SC)- when deficiency is curable
and wife was able to perform after the surgery- no ground left
2. Anju kundu v Shyamal Kundu (2009, cal) impotency can be mental too.
3. Samir Adhikari V Krishna Adhikari (2010, cal)- Impotency different from
infertility
• Sunil Mirchandani v reena Mirchandnai (2000 DMC 79 BOM)
Duty of the party alleging to give corroborative and trustworthy
Evidence
Insanity

• Due to mental disorder

1. Respondent unable to understand the nature and consequence of
his/her act
2. Understand responsibilities of marriage
3. Incurable and unbale to discharge normal functions of marriage.
Hridaya narain v Ratanjay (2007, Raj) Pradhan- annulment granted on
the account of wife ,mental illness. But alimony was still granted.
WIFE PREGNANT WITH SOME ONE
ELSE CHILD AT THE TIME OF
MARRIAGE.
1. Sujeet V Raj Kumar (AIR 1967 Punj 522) unchastity and delivering
illegitimate child- not ground for annulment.
2. Mohinder kaur v bhikar Singh- pre requiste condition for this ground:-
a) Respondent should be pregnant at the time of marriage
b) Pregnant from some other person
c) petitioner unaware about the pregnancy
d) Petition should be filed within one year of marriage
e) No intercourse after he comes to know about the pregnancy
 • Burden of proof on the petitioner
• If petition not given within the stipulated time- its barred.
3. Devendra sharma v Sandhya (AIR 2007 MP)- the husband not only need to
prove pregnancy but also that he refrained from cohabitation after the
discovery of the fact. Failure to prove shall disentitle him to the remedy
4. Maya Ram V kamla Devi ( 2008 HP) – a child was born within six months
of marriage, the husband through cogent and rekliable evidence able to prove
that had no access to wife before marriage.
LIVE-IN RELATIONSHIP IN INDIA
DR SAMREEN HUSSAIN
STATUS OF LIVE-IN –RELATIONSHIP IN INDIA

 Live-in-relationship- relationship in nature of marriage where couple reside together for

considerable period of time where society might see them as married couple. It is a walk
in and walk out kind of a relationship. (Alok Kumar v. state &anr, 2010 SCC OnLine Del
2645)
 There are no strings attached , any of the parties can end the relationship at any point of
time without reason and without the consent of other party.
Mohabbat Ali v Ibrahim Khan (1929 PC)
Badri prasad v. Dy Director Consolidation ( AIR 1978 SC 1557)
 The phrase Live in Relationship was first time used in the case – Payal sharma V
Supritendent Nari niketan ( AIR 2001 All 254).
 Lata Singh V State of UP, (AIR 2006 SC)- major girl can live with anyone she likes.
 S. Khushboo vs kanniammal & an (2010 SC)- PRE-MARITAL SEX OR LIVE IN NOT ILLEGAL.
may be immoral
 D. Veluswamy V D. Patchaiammal (2010 SC)- for a valid Live in relationship- certain featires
1. Must behave as husband and wife in front of society
2. Regarded as married couple in eyes of society
3. Voluntarily Sharing household for considerable period of time
4. No legal impediment if wanted to get married.
 Indira Sharma V VKV Sharma (2014 SC) – gave more guidelines and that live in only possible
when both the parties are unmarried. Also gave added criterion as
1. Duration of period is important
2. Shared household
3. Pooling of resources and financial arrangements
4. Domestic arrangement
5. Sexual relationship for emotional need- procreation of children
6. Having children
7. Socialization in public
8. Intention and conduct of the parties.
Status of children

 Tulsa v. Durghatiya (2008 SC)- children born out of live in relationship are legitimate but
only for their parents. – entitled to property of the parents not any other relatives
 Same reiterated in case of Madan Mohan v. Rajnikant (2010 SC)- no share in ancestral
property.
Right Maintenance to women Partner

 Before the enactment of Domestic Violence Act 2005, providing maintenance to liv in
partner were quite difficult as both the secular law (section 125 crpc) as well Personal laws
take into account only wife and divorced wife. So the position of live in partner was very
precarious. Now the live in partner has been recognised as domestic partner and given
maintenance under the DV act 2005.
PROTECTION OF WOMEN FROM DOMESTIC
VIOLENCE ACT 2005

 DEFINITIONS
A) aggrieved person” means any woman who is, or has been, in a domestic relationship with
the respondent and who alleges to have been subjected to any act of domestic violence
by the respondent; (section v2 (a)
Lalita Toppo v. State of Jharkhand (2018 SC) include live in partner and estranged wife
D Veluswamy v D. Patchaiammal and Indira Sharma
A) “domestic relationship” means a relationship between two persons who live or have, at
any point of time, lived together in a shared household, when they are related by
consanguinity, marriage, or through a relationship in the nature of marriage, adoption or
are family members living together as a joint family; (section 2 (f)
 Shared household means a household where the person aggrieved lives or at any stage
has lived in a domestic relationship either singly or along with the respondent and includes
such a house hold whether owned or tenanted either jointly by the aggrieved person and
the respondent, or owned or tenanted by either of them in respect of which either the
aggrieved person or the respondent or both jointly or singly have any right, title, interest or
equity and includes such a household which may belong to the joint family of which the
respondent is a member, irrespective of whether the respondent or the aggrieved person
has any right, title or interest in the shared household.
1. SR Batra v. Tarun batra (2006 SC)
2. Vimlaben Ajit Bhai Patel V Vatslaben Ashokbhai Patel ( 2008 SC)
3. Satish Chandra Ahuja V Sneha Ahuja (2020 SC)
 respondent” means any adult male person who is, or has been, in a domestic relationship
with the aggrieved person and against whom the aggrieved person has sought any relief
under this Act: Provided that an aggrieved wife or female living in a relationship in the
nature of a marriage may also file a complaint against a relative of the husband or the
male partner
1. Sandhaya Wankhade v. Manoj Wankahde (2012 SC)
2. Hiralal P harsora v Kusum harsora (2016 SC)
Meaning of Domestic Violence

 any act, omission or commission or conduct of the respondent shall constitute domestic
violence in case it— (a) harms or injures or endangers the health, safety, life, limb or well-
being, whether mental or physical, of the aggrieved person or tends to do so and includes
causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse;
or
 (b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her
or any other person related to her to meet any unlawful demand for any dowry or other
property or valuable security; or
 (c) has the effect of threatening the aggrieved person or any person related to her by any
conduct mentioned in clause (a) or clause (b); or (d) otherwise injures or causes harm,
whether physical or mental, to the aggrieved person.
 Include in its ambit
1. Physical
2. Sexual
3. Verbal and emotional
4. Economic abuse
RIGHTS AVAILABLE TO THE WOMEN

 UNDER SECTION 12- APPLICATION TO THE MAGISTRATE

 RIGHT TO RESIDE IN SHARED HOUSEHOLD (S17
(1)Notwithstanding anything contained in any other law for the time being in force, every woman in a domestic
relationship shall have the right to reside in the shared household, whether or not she has any right, title or
beneficial interest in the same.
(2) The aggrieved person shall not be evicted or excluded from the shared household or any part of it by the
respondent save in accordance with the procedure established by law.
1. SABITA BURGES V MARK BURGES 2013 BOM
2. 2. UMA NARAYAN V PRIYA PRASAD 2008 MAD
3. 3. BABU VENKATESH V RAVI 2012 MAD
 Protection orders. (SECTION 18) —The Magistrate may, after giving the aggrieved person and the respondent an opportunity of
being heard and on being prima facie satisfied that domestic violence has taken place or is likely to take place, pass a protection
order in favour of the aggrieved person and prohibit the respondent from—(a) committing any act of domestic violence;
 (b) aiding or abetting in the commission of acts of domestic violence;
 (c) entering the place of employment of the aggrieved person or, if the person aggrieved is a child, its school or any other plac
e
frequented by the aggrieved person;
 (d) attempting to communicate in any form, whatsoever, with the aggrieved person, including personal, oral or written or electronic
or telephonic contact;
 (e) alienating any assets, operating bank lockers or bank accounts used or held or enjoyed by both the parties, jointly by the
aggrieved person and the respondent or singly by the respondent, including her stridhan or any other property held either jointly by
the parties or separately by them without the leave of the Magistrate;
 (f) causing violence to the dependents, other relatives or any person who give the aggrieved person assistance from domestic
violence;
 (g) committing any other act as specified in the protection order.
 RIGHT TO RESIDENCE (SECTION 19)
—(a) restraining the respondent from dispossessing or in any other manner disturbing the possession of the aggrieved person from the
shared household, whether or not the respondent has a legal or equitable interest in the shared household;
(b) directing the respondent to remove himself from the shared household;
(c) restraining the respondent or any of his relatives from entering any portion of the shared household in which the aggrieved person
resides;
(d) restraining the respondent from alienating or disposing of the shared household or encumbering the same;
(e) restraining the respondent from renouncing his rights in the shared household except with the leave of the Magistrate; or
(f) directing the respondent to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared
household or to pay rent for the same, if the circumstances so require: Provided that no order under clause (b) shall be passed against
any person who is a woman.
)
1. ROMA TIWARI V RAJESH TIWARI 2017 BOM

 ALTERNATE RESIDENCE
1. AJAY KUMAR V BALJEET KAUR (2009 deL )
2. SHAACHI MAHAJAN V SANTOKHI (DEL 2018)
 RIGHT TO MONETARY RELIEF (SECTION 20)
1. While disposing of an application under sub-section (1) of section 12, the Magistrate may direct the
respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and
any child of the aggrieved person as a result of the domestic violence and such relief may include but is not
limited to—(a) the loss of earnings;
(b) the medical expenses;
(c) the loss caused due to the destruction, damage or removal of any property from the control of the aggrieved
person; and
(d) the maintenance for the aggrieved person as well as her children, if any, including an order under or in
addition to an order of maintenance under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) or
any other law for the time being in force.
1.BINITA DAS V UTTAM KUMAR (2019 DEL)- MONETARY RELIEF CANNOT BE DENIED ON THE
GROUND THAT WIFE IS EDUCATED OR HAS EARNING CAPACITY- REITERATED BY COURT IN
2.MEGHA KAHNDELWAL V RAJAT KHANDELWAL (2019 SC)
3. SADHNA V HEMANT (2019 bom) DIVORCEE NOT ENTITLED TO GET RELIEF UNDER THE ACT
4. VIJAYRAM DATTRAM NAIK V VISHRANTI VIJAYNAND NAIK (2019)- IN ABSENCE OF PROOF OF
DOMESTIC VIOLENCE NO ORDER OF MAINTENANCE CAN BE ORDERED
 CUSTODY ORDERS (S 21)Notwithstanding anything contained in any other law for the time being in
force, the Magistrate may, at any stage of hearing of the application for protection order or for any other
relief under this Act grant temporary custody of any child or children to the aggrieved person or the person
making an application on her behalf and specify, if necessary, the arrangements for visit of such child or
children by the respondent: Provided that if the Magistrate is of the opinion that any visit of the respondent
may be harmful to the interests of the child or children, the Magistrate shall refuse to allow such visit.
 COMPENSATION ORDERS (S 22) In addition to other reliefs as may be granted under this Act, the
Magistrate may on an application being made by the aggrieved person, pass an order directing the respondent
to pay compensation and damages for the injuries, including mental torture and emotional distress, caused by
the acts of domestic violence committed by that respondent.
PROTECTION OF LIVE IN PARTNER

1. KAMINI DEVI V STATE OF UP (2006)

2. PRIYA PREET V STATE OF PUNJAB (2020)
3. GURINDER SINGH V STATE OF PUNJAB (2021)