Directory of Sc-hc Judgements

7/27/2019 Directory of Sc-hc Judgements

http://slidepdf.com/reader/full/directory-of-sc-hc-judgements 1/54

Chapter 1. INTRODUCTION

India is a multi-linguistic, multi-cultural and multi-religious state of more than a

billion people, of which almost half comprise females. The principles of fairness and equity

are enshrined in the Constitution of India, that unequivocally mandates gender

equality. Such equality – truly in fact and deed - is imperative for the development of

India, for no country if it is to prosper can afford to underutilie or suppress half its

human resources that women represent. !iscrimination and violence against women

do not "ust victimie the individual women, but do indeed hold bac# whole sections of

society. $uaranteeing rights to women is an investment in ma#ing the whole nation

stronger and self-reliant.

In India, it is particularly the %ersonal law that principally governs the lives of

women, though to many, the e&act dimension and how it controls the lives of eachone of us may not be very clear. Simply stated, %ersonal law is the set of rules which

govern the behavior of individuals vis a vis their family i.e. spouse, parents, children

etc. 's often seen, law by itself is no deterrent against crime. In fact it is the attitude

of society in general and the individual in particular that determines the effectiveness

of any legal system. Thus, laws are nothing but codified social behaviour, so in order

to ma#e the law effective there is equally a bac#-up requirement for social education

and social transformation. 's a matter of fact, conditioned by the old historical and

patriarchal social baggage even the provisions of personal law often betray a certain

underlying bias that tends to treat women as if they essentially were the property of a

man and that all her entitlements are not a function of her right but a function of her

status as the property of the male vis a vis whom her rights are sought to be enforced.

It has been widely observed that the rights that women have under personal law are

often usurped. Though the law provides for a "udicial procedure to enforce the law by

way of courts as well as the penalty for violating the law, women being socially and

economically subservient are either unaware or unable to enforce these legal rights

through courts. (ost common people are apprehensive and reluctant to approach the

court because the language of the law is difficult and the procedure often e&tremely

complicated, for e&ample, if two people are faced with the same legal problem,

depending on where they reside, their religion etc., the court of "urisdiction and

remedy available to them may be different.

WHY THE NEED FOR THIS DIRECTORY?

The whole purpose of preparing this directory is to de-mystify the law and the legal

process for women, so that women and women)s organiations can #now and enforce

their legal rights. It proceeds from the premise that perfect #nowledge casts out fear

and liberates. Ironically, as far as rights of women are concerned mostly their rights

and legal entitlements are not only often inadequate but merely in letter, never being

implemented. This !irectory besides being a tool for lawyers, will play an important

role in familiariing ordinary non-legal people with their legal rights and entitlements

and will ensure that people armed with this information will be more vigilant, thereby

preventing their rights from being curtailed and also more confident thereby more

eager to have their rights enforced.



*hile this !irectory facilitates, on the one hand, the dissemination of legal

information and enables the user to supplement their cases with "udgments to get

"ustice in court, it on the other hand also facilitates a comparative and holistic study of

personal laws in India. 'fter + years of independence, when we evaluate the rights

guaranteed to women under the various personal laws, we find the laws inadequate

and unequal on the touchstone of the Constitutional $uarantee of the ight toquality. 's discussed in detail in the introduction to each section the reader will find

that the laws governing women)s rights accord a woman often a secondary status to

their male counter parts. /owever, a study of the case law compiled in this !irectory

also at the same time points to an encouraging trend whereby courts by their liberal

interpretation of the statutory provisions have leveled the playing field for women by

ma#ing the implementation of law more egalitarian.

THE INDIAN LEGAL SYSTEM

The Indian legal system is based on a three-tier structure of courts. 't the bottom of

the system are the !istrict Courts. In each district there is a court, which is headed bya !istrict "udge. Subordinate to the !istrict "udge are the civil "udges 0who ad"udicate

upon civil disputes, arising in the "urisdiction of the district1 and magistrates 0who

ad"udicate upon criminal matters arising within the area of the police station under

their "urisdiction1. Similarly each state has a /igh Court having "urisdiction over the

whole state, and the 2nion of India has a Supreme Court that has "urisdiction over

the whole country.

$enerally spea#ing 0though there maybe specific provisions for appeal and revision in

each law1 any party who is aggrieved by an order of a Civil 3udge or a (agistrate can

appeal to the !istrict or Sessions 3udge. 'nd if aggrieved by an order of the Sessions

3udge can appeal against the same to the /igh Court. Similarly appeals against theorders of the /igh Court will lie to the Supreme Court.

It is important to mention here that both the Supreme Court and /igh Court have

original "urisdiction, which means they can hear matters directly. These matters

pertain to the enforcement of fundamental rights. 'ny citien of India whose

fundamental rights have been violated can approach either a /igh Court of their state

or the Supreme Court and see# direction for enforcement of their fundamental rights.

(any readers may be wondering what is the difference between a fundamental and

legal right. To understand this it is important to understand the three-tier structure of

the law in India. The supreme legal document, which defines the basic rights of every

citien of the country and which lays the foundation for the legal and administrativesystem in the country, is the Constitution of India. The Constitution of India gives

certain basic rights to all its citiens, which are #nown as the 4undamental ights.

These include the right to equality which provides that every citien is equal before

the law5 the right to life so that no citien is deprived of their life or liberty e&cept by

the due process of law5 the right to religious freedom and the right against

e&ploitation. These fundamental rights if violated can be enforced directly through the

Supreme Court or the /igh Courts. Then, there are statutory laws that are enacted by

the %arliament or state legislatures, which govern various aspects of social and

commercial intercourse. These statutes are bound to be in consonance with the

Constitution and cannot have any provision that violates any right or entitlement

provided under the Constitution. Statutory law includes laws such as the Indian %enal

Code, Customs 'ct, Contract 'ct, etc. These laws apply uniformly to all citiens



irrespective of their religion or caste. /owever, family interaction and entitlement in

India is governed by personal law, which is the law whether codified by the

legislature or not, but which is laid down by the religion which governs a particular

individual.

PROBLEMS OF WOMEN

*omen in India though common in need and circumstance are divided by caste,

religion, social and regional customs. /ence, even after + years of Independence,

issues fundamental to all women such as, maintenance, custody, physical and mental

security in marriage, fair and equal divorce entitlements, continue to elude them .

To understand the importance and utility of this !irectory it is very important to

understand the social and economic status of women in India. 's the readers of this

boo# may be aware, in India we do not have a uniform civil code and therefore family

and succession related issues are governed by the relevant personal law. !espite

facing common problems the legal rights of women are different depending on theentitlements under the personal law. It is in this conte&t that compilations li#e this

become important in bringing together in a single te&t all the laws that effect women.

*omen in India face multiple hurdles in getting legal redress of their problems. These

problems arise not only as a result of different laws governing women but also from

the fact that there is no common court having "urisdiction over women)s issues. 's a

result women have to run to different forums to see# each relief separately. 4or

e&ample, /indu women are governed by the /indu (arriage 'ct for divorce, /indu

'doption and (aintenance 'ct for maintenance, $uardians and *ards 'ct for

custody, and the /indu Succession 'ct for inheritance5 (uslims are governed by the

Shariat 'ct and the (uslim *omen %rotection of ights 'ct5 Christian women are

governed by the Indian !ivorce 'ct and the Indian Succession 'ct. ach of these

'cts vests "urisdiction in a different court. This multiplicity of litigation increases the

physical and financial burden of litigation manifold. 'bove all, there is the problem of

ignorance of the law. (ost women and many service providers including doctors,

social wor#ers and often lawyers are not aware of the specific scope and e&tent of the

legal rights of women both under the statute and "udicial precedent.

The inability of women to access "ustice through the legal system is magnified by the

fact that most women are not economically independent and lac# the financial

capacity to contest a legal battle. ven socially, women are mostly restricted within

the sphere of family and home, and live outside the legal system. Therefore, when

women face issues of domestic violence and the family support structure brea#s downthey find themselves vulnerable and remediless. It is this socio-economic

vulnerability that encourages discrimination and violence against women.

OBJECTIE OF THIS DIRECTORY

Thus, the primary ob"ective of this manual is to provide the reader the latest

"udgments on all aspects of civil law concerning women. The intended target

readership of this boo# include mainly service providers such as lawyers, 6$7)s

wor#ing in grass root areas, women litigants themselves and even "udges. 7n account

of the wide ambit of proposed usership for this boo#, the methodology adopted in

compiling the !irectory has been #ept simple. The basic idea behind the preparation

of this compilation being to provide quic# and easy access to the law-governing



women of different religions on their civil rights on the issues of marriage, divorce,

maintenance, dowry and inheritance. Thus the ob"ective of compiling this !irectory is

8

9 To create awareness in the language of the people5

9 To shed light on violence against women by bringing to life "udgmentsthrough cases law5

9 To raise awareness towards issues of women and children5

9 To place emphasis on the rights of women in order to understand that the

freedom to choose is fundamental to dignity5

9 To spread awareness of law through "udgments of the Supreme Court and

/igh Courts.

The !irectory has been formulated li#e a dictionary wherein catch words have been

identified under each of the above categories and catalogued in alphabetical order, all

the Supreme Court "udgments under each catch word have been sourced and

reproduced in the manual. ' reading of these "udgments will not only familiarie the

reader with the "udicial precedent and the prevailing law on that issue, but the said

"udgments can also be cited by legal service providers in court matters. 4or e&ample,

under the title of maintenance, various relevant catchwords have been identified such

as quantum, right to residence and "udgments on the said issue have been compiled

together.

The undeniable conclusion from this e&ercise of e&haustive compilation is that law is

both an instrument of social change and a function of social structures and morality.

*hile domestic violence and succession issues continue to be governed by personal

laws and are symbols of the continuance of a feudal patriarchal structures in society,the constitutional recognition of equality has accelerated change in legal entitlements

both in terms of legislation and statutory interpretations by the "udiciary. /owever,

the impact of positive legislation and interpretation can only percolate social change if

women are empowered with the #nowledge and means to access the law. This boo# is

an effort to hand women an instrument to understand and use the law.



Chapter !. CONSTITUTION

:'ll /uman ights for 'll;, was the mandate of the 2niversal !eclaration of /uman

ights 02!/1 adopted by the 2nited 6ations on <th !ecember, <=>? nearly +<

years ago,. 'fter India attained independence, the people of India gave to themselvesa new Constitution, containing fundamental rights, which incorporated all the human

rights, mentioned in the 2!/. The language of human rights carries great rhetorical

force of uncertain practical significance. In other words, the meaning and scope of

each right has to be clarified, the content and location of any co-relative duties to

which it gives rise must be spelt out, and the permissible range of e&ceptions and

limitations specified.

HISTORY

The framers of our Constitution were men of vision and ideals. They wanted an

idealistic and philosophical base upon which to raise the administrative superstructure

of the Constitution. The %reamble to the Constitution declares India)s goal and %art

III gives a constitutional mandate for certain /uman ights - called 4undamental

ights and also provides modes of enforcing them. The only restriction or the only

basis of discrimination in any of the rights will be as mentioned under the

Constitution in conte&t of rational grounds such as health, morality, public order.

Special provisions for special categories such as women, children, schedule castes and

schedule tribes are provided.

PHILOSOPHY BEHIND THE FUNDAMENTAL RIGHTS

'ddressing the Constituent 'ssembly, %andit 6ehru told the members8 : the first

tas# of the 'ssembly is to free India through a new Constitution, to feed the starving people, and to clothe the na#ed masses, and to give every Indian the fullest

opportunity to develop himself according to his capacity.; The Constitution of India

is thus the first and foremost a social document which symbolises the hopes and

aspirations of the people.

It was in an atmosphere surcharged with human suffering and yet a firm resolve

not to succumb to it, that the Constituent 'ssembly which was set up to frame the

Constitution, embar#ed upon its tas# on !ecember =, <=>@. They were aware of the

full blossoming of the concept of /uman ights in the writings of the :philosophies;

such as Aoltaire, ousseau, !iderot, ayal, d)'lembert and others, and of the

concrete e&pression given to it in the various !eclarations of ights of the 'merican

Colonies and in the 'merican !eclaration of Independence. They were aware of thefact that the first ten amendments to the Constitution of the 2nited States of 'merica

contained certain rights a#in to /uman ights5. the Constitution of ire contained a

chapter headed :4undamental ights; and another headed :!irective %rinciples of

State %olicy;5 and that the Constitution of 3apan also contained a chapter headed

:ights and !uties of the %eople;.

E"UALITY# HUMAN DIGNITY AND ALUE

The Constitution of India assures equality for both se&es. 'rticle <> of the

Constitution provides equality before law. 'rticle <+ prohibits discrimination on the

basis of se&, but permits discrimination in favour of women. Some !irective

%rinciples of State %olicy of the Constitution of India apply to women specifically.'rticle B= states that the State shall direct its policy towards securing that men and



women equally have the right to an adequate means of livelihood. That there is equal

pay for equal wor# for both men and women and that the health and strength of

wor#ers, men and women, and the tender age of children are not abused and that

citiens are not forced by economic necessity to enter avocations unsuited to their age

or strength. 'rticle > ma#es provision for "ust and humane conditions of wor# and

maternity relief .

RIGHT TO LIFE

ach e&pression used in the 4undamental ights enhances human dignity and

value. It lays foundation for a society where rule of law has primacy and not arbitrary

or capricious e&ercise of power. ight to life as guaranteed by the Constitution was

given new dimension in Francis Coralie Mullin vs. The Administrator, Union

Territory of Delhi, 0<=?<1 SC +<@ where the question arose as whether it was

limited to protection of limb or faculty or does it go further and embrace something

more. The Supreme Court held that :*e thin# that the right to life includes the right

to live with human dignity and all that goes along with it, namely, the bare necessaries

of life such as adequate nutrition, clothing and shelter and facilities for reading,writing and e&pressing oneself in diverse forms, freely moving about and mi&ing and

commingling with fellow human beings.;

The right to life is also available to non-citiens. In the case of Chairman,

Railway Board and Others vs. Chandrima Das Mrs! and Others, 01 SCC >@>,

the Supreme Court held that Smt. /anuffa Dhatoon, was, nevertheless, entitled to all

the constitutional rights available to a citien so far as :right to life; was concerned.

She was entitled to be treated with dignity and was also entitled to the protection of

her person as guaranteed under 'rticle < of the Constitution.

PERSONAL LAW

The Constitution promises equality but a parallel regime of personal laws

prevails and is "ustified on the ground that they are permitted in view of the e&press

guarantee of the freedom of religion under 'rticle + of the Constitution of India.

INTERNATIONAL COENANTS AND DECLARATIONS

The Supreme Court has held that the International Covenants and !eclarations

as adopted by the 2nited 6ations have to be respected. The meaning given to the

words in the !eclarations and Covenants, has to be such as would help in effective

implementation. In the case of "isha#a $ Ors v. %tate of Ra&asthan E<==F 0@1 SCC

>< SC 8 <==F 0?>1 'I B<< SCG the Supreme Court held that :it is now an

accepted rule of "udicial construction that regard must be had to internationalconventions and norms for construing domestic law when there is no inconsistency

between them and there is a void in the domestic law.;

TRINITY OF LIBERTY# E"UALITY AND FRATERNITY

'ccording to !r. 'mbed#ar in his closing speech in the Constituent 'ssembly

the principles of liberty, equality and fraternity are not to be treated as separate

entities but in a trinity. They form the union of trinity in the sense that to divorce one

from the other is to defeat the very purpose of democracy. Hiberty cannot be divorced

from equality. quality cannot be divorced from liberty. 6or can equality and liberty

be divorced from fraternity. *ithout equality, liberty would produce supremacy of

law. quality without liberty would #ill individual initiative. *ithout fraternity,



liberty and equality would not become a natural course of things. Courts, as sentinel

qui vive, therefore must stri#e a balance between the changing needs of the society.

COURTS AS SENTINELS

Courts, play an important role in stri#ing a balance between the changing needs of the

society and protection of the freedom of the individual. 4reedom can never e&istwithout order. It is essential that freedom be e&ercised under authority and order

should be enforced by authority which is vested solely in the e&ecutive. The Supreme

Court and the /igh Courts are the protectors of constitutional rights. Courts by way of

several "udgements have elaborated the e&act e&tent and nature of the guarantee given

by the Constitution. These "udgements in fact have clarified the law to a large e&tent.

The purpose of collating cases pertaining to the constitutional rights of women is to

show how courts have either struck down statutory provisions, customs, social

practices which are derogatory to women, or treat women unequally to men, or

have interpreted them in a manner that they stop offending the fundamental rights

provided under the Constitution of India.

CONSTITUTION OF INDIA

PART III

!"#A$%"TA& RI'(T)

Article *+. %quality efore law.' The %tate shall not deny to any (erson e)uality

*efore the law or the e)ual (rotection of the laws within the territory of +ndia.

Article *-. Prohiition of discrimination on grounds of religion, race, caste, se or

place of irth.' ! The %tate shall not discriminate a-ainst any citien on -rounds

only of reli-ion, race, caste, se/, (lace of *irth or any of them.

0! 1o citien shall, on -rounds only of reli-ion, race, caste, se/, (lace of *irth or

any of them, *e su*&ect to any disa*ility, lia*ility, restriction or condition with

re-ard to'

a! access to sho(s, (u*lic restaurants, hotels and (laces of (u*lic

entertainment2 or

*! the use of wells, tan#s, *athin- -hats, roads and (laces of (u*lic

resort maintained wholly or (artly out of %tate funds or

dedicated to the use of the -eneral (u*lic.

3! 1othin- in this article shall (revent the %tate from ma#in- any s(ecial

(rovision for women and children.

45! 1othin- in this article or in clause 0! of article 06 shall (revent the %tate from

ma#in- any s(ecial (rovision for the advancement of any socially and

educationally *ac#ward classes of citiens or for the %cheduled Castes and the%cheduled Tri*es.7

Article */. %quality of opportunity in matters of pulic employment.' ! There

shall *e e)uality of o((ortunity for all citiens in matters relatin- to em(loyment or

a((ointment to any office under the %tate.

0! 1o citien shall, on -rounds only of reli-ion, race, caste, se/, descent, (lace of

*irth, residence or any of them, *e ineli-i*le for, or discriminated a-ainst in

res(ect of, any em(loyment or office under the %tate.

3! 1othin- in this article shall (revent 8arliament from ma#in- any law

(rescri*in-, in re-ard to a class or classes of em(loyment or a((ointment to an

office 4under the 9overnment of, or any local or other authority within, a %tate

or Union territory, any re)uirement as to residence within that %tate or Union

territory7 (rior to such em(loyment or a((ointment.



45A! 1othin- in this article shall (revent the %tate from ma#in- any (rovision for

reservation in matters of (romotion to any class or classes of (osts in the services

under the %tate in favour of the %cheduled Castes and the %cheduled Tri*es which, in

the o(inion of the %tate, are not ade)uately re(resented in the services under the

%tate.7

45B! 1othin- in this article shall (revent the %tate from considerin- any unfilledvacancies of a year which are reserved for *ein- filled u( in that year in accordance

with any (rovision for reservation made under clause 5! or clause 5A! as a

se(arate class of vacancies to *e filled u( in any succeedin- year or years and such

class of vacancies shall not *e considered to-ether with the vacancies of the year in

which they are *ein- filled u( for determinin- the ceilin- of fifty (er cent.

reservation on total num*er of vacancies of that year.7

:! 1othin- in this article shall affect the o(eration of any law which (rovides that

the incum*ent of an office in connection with the affairs of any reli-ious or

denominational institution or any mem*er of the -overnin- *ody thereof shall

*e a (erson (rofessin- a (articular reli-ion or *elon-in- to a (articular

denomination.0*. Protection of life and personal lierty.' 1o (erson shall *e de(rived of his life

or (ersonal li*erty e/ce(t accordin- to (rocedure esta*lished *y law.

#IR%CTI1% PRI"CIP&%) 2 )TAT% P2&IC3

Article 45. Certain principles of policy to e followed y the )tate.6

The %tate shall, in (articular, direct its (olicy towards securin-'

a! that the citiens, men and women e)ually, have the ri-ht to an

ade)uate means of livelihood2

*! ....

c! ....

d! that there is e)ual (ay for e)ual wor# for *oth men and women2e! that the health and stren-th of wor#ers, men and women, and the

tender a-e of children are not a*used and that citiens are not

forced *y economic necessity to enter avocations unsuited to

their a-e or stren-th2

f! that children are -iven o((ortunities and facilities to develo( in a

healthy manner and in conditions of freedom and di-nity and

that childhood and youth are (rotected a-ainst e/(loitation and

a-ainst moral and material a*andonment.

Article +0. Provision for 7ust and humane conditions of work and maternity

relief.6 The %tate shall ma#e (rovision for securin- &ust and humane conditions of

wor# and for maternity relief. Artilce +4. &iving wage, etc., for workers.6 The %tate shall endeavour to secure, *y

suita*le le-islation or economic or-anisation or in any other way, to all wor#ers,

a-ricultural, industrial or otherwise, wor#, a livin- wa-e, conditions of wor#

ensurin- a decent standard of life and full en&oyment of leisure and social and

cultural o((ortunities and, in (articular, the %tate shall endeavour to (romote

cotta-e industries on an individual or co'o(erative *asis in rural areas.

LIST OF CASES

CRIMES AGAINST WOMENC1. Sanaboina Satyanaryana vs. Govt. of A.P. & Others

NO PERSON CAN BE COMPELLED TO BE WITNESS AGAINST HIMSELFC2. Mrs.Teeku Dutta vs. State & Another

NUMBER OF CHILDRENC3. Jave & Others vs. State of !aryana & Others



PREFERENCE TO WOMAN FOR APPOINTMENT OF PRINCIPALC". #i$ay %akshi vs. Pun$ab 'niversity & Others

PROCEDURE FOR ARREST OF WOMANC(. )a*a Peo+,e-s Moveent of !uan i*hts vs. 'nion of /nia

RIGHT TO POSITIVE DISCRIMINATIONC0. Air /nia Cabin Cre Assoiation vs. eshainee Merhant & Others

SEX SELECTION/SEX DETERMINATION TESTSC4. Centra, 5n6uiry into !ea,th & A,,ie thees & Others vs. 'nion of /nia & Others

SEXUAL HARASSMENTC7. A++are, 58+ort Prootion Couni, vs. A.9. Cho+ra

STATUS OF FEMALEC:. State of Jau & 9ashir & Others vs. Dr. Sushee,a Sahney

WOMEN WORKERSC1;. St. <i,a ani & Others vs. A++e,,ate Authority 56ua, euneration At= 1:40=

The Coo+erative Store %t.C11. Munii+a, Cor+oration of De,hi vs. >ea,e orkers ?Muster o,,@ & Another



Chapter 3 MARRIAGE AND DIVORCE

(arriage is the formal union of a man and a woman, typically as recognied

by

law, by which they become husband and wife. It is of tremendous social and

legal importance. It is at the center of how we structure our families5 it is the primary

way that people ac#nowledge, and accept responsibility for, the person they have

chosen, above all others, to be with for the rest of their lives. The foundation of

marriage is based on religion. 'll religions delineate a moral and social code of

conduct. very religious te&t provides for the method of a valid marriage, the duties

of the spouses the nature and circumstances that entitle a spouse to a divorce.

In India marriage and its dissolution is regulated by personal laws but the

Child (arriage estraint 'ct <== supercedes personal law. In essence personal law

determines the qualification for being entitled to get married, the manner in which the

marriage is to be solemnied, the number of spouses 0wives husbands1 that a person

is entitled to marry. There has been continuous development of personal law by

amendment and "udicial interpretation which has made them far more egalitarian.Illustratively spea#ing prior to the amendment a Christian women could only get a

divorce if they could prove that their husband was guilty of two matrimonial offences

such as cruelty and adultery, however subsequent to the amendment they are entitled

to a divorce by merely proving one matrimonial offence such as adultery. Similarly

the provision for divorce on the grounds of cruelty under the /indu (arriage 'ct has

been e&panded by successive "udgments, which have broadened the scope of cruelty

to encompass mental cruelty such as neglect, taunts and verbal abuse as grounds for

divorce. Courts of law have suo moto interpreted Shariat 'ct liberally on several

occasions granting relief under muslim personal law and clarifying the legal rights of

women under the Shariat. This has been further followed by a proactive stance ta#en

by the (uslim %ersonal Haw Joard which has proposed to frame and circulate a

model ni#ahnama to secure the interests of women and delineate the right of #hulla

0divorce at the behest of a women1 guaranteed under the Shariat to muslim women.

The ma"or problem in law governing marriage and divorce is the piece meal

nature of the law which has slotted divorce, maintenance and custody as independent

causes of action. 's a result women have to face and initiate litigation in multiple

fora. To remedy this situation the Hegislature enacted the 4amily Courts 'ct, which

provides for single window relief in matrimonial matters. 2nfortunately most states

have failed to enact and set up family courts therefore this legislation has remained

ineffective.

It has been "ustifiably argued that there is a need for a 2niform Civil Codehomogenising the personal laws. In the Constitution of India, 'rticle >>, under the

!irective %rinciples of State %olicy specifically states that :The State shall endeavour

to secure for the citiens a uniform civil code throughout the territory of India;.

/owever, due to certain reasons this has not been complied with. It has been

suggested that the Haw Commission draft a comprehensive legislation, incorporating

the :present-day concept of human rights for women;.

THE HINDU PERSONAL LAW

;Om sam&natu vishwedev sam(o hridaynino

%amatvishwa sandhat samohdrishti dadhatunoh<'%hu#la =a&urveda



7riginally marriage under /indu Haw was considered a religious and sacramental

union. In the above quotation the couple is invo#ing the blessings of the $ods to

combine their hearts and souls, and to ma#e their union inseparable li#e the union of

the two sacred rivers $anga and Kamuna. !espite the fact that they are two bodies

they should be one in soul.

/indus conceived of marriage as a union primarily meant for the performance of

religious and spiritual duties. It could not ta#e place without the performance of

sacred rites and ceremonies and it was considered a permanent and eternal union.

There was no requirement for the consent of the parties to a marriage and a marriage

was not rendered null and void due to lac# of consent. Therefore marriages of lunatics

and minors were legal. In fact even courts of law in India have upheld such a marriage

as was held in Amirthammal vs. "allimayil 'I <=> (ad. @=B.Therefore the concept

of divorce was unimaginable and did not e&ist.

The /indu personal law has been codified in the form of /indu (arriage 'ct 0for

short :the 'ct;1, <=++ and is applicable to /indus, Juddhists, 3ains or Si#hs, any

person who is born to /indu parents and any person who is not a (uslim Christian,%arsi or 3ew, and who is not governed by any other law. 4or the first time the concept

of divorce was introduced in the /indu (arriage 'ct by way of amendment. /indus

can see# to put an end to their marriage by either obtaining a declaration that the

marriage between them was a nullity on grounds specified in Section << or to dissolve

the marriage between them on any ground mentioned in Section <B of the 'ct.

Section = of the 'ct saves the rights recognied by customs or conferred by special

enactment to obtain the dissolution of marriage before or after commencement of the

'ct.

The seven grounds of divorce provided under the 'ct include8 incurable virulent

disease, insanity, mental disorder, incurable or virulent leprosy, cruelty, adultery andchange of religion. In various "udgments wherein it has been held that a party cannot

ta#e advantage of its own conduct and where it is found that either party to a marriage

conducted itself in a manner resulting in marital misconduct by the other party such

party was not entitled to any relief.

The right to divorce by mutual consent was recognied by the /indu (arriage 'ct

<=++ after amendment in <=F@, wherein it is recognied that marriages fail not

because of fault or guilt of any party to the marriage, but because the couple realie

that they are temperamentally incompatible and they are unable to live together.

The scope and definition of these rights have been defined and redefined by

successive "udicial pronouncements. 4or instance the concept of cruelty has e&pandedover the years from being merely physical cruelty by a spouse to mental cruelty.

*hile defining the scope and intensity of cruelty the court has also in many instances

ta#en into account the educational and social status of the women.

This reflects social and legal acceptance of the fact that marriage is not eternal and

individual happiness of the spouses out weighs the social significance of continuing a

marriage.

MUSLIM PERSONAL LAW

The Luran says8



And amon- >is si-ns is this, that >e created for you mates from amon-

yourselves, that you may dwell in tran)uillity with them, and >e has (ut

love and mercy *etween your hearts. Undou*tedly in these are si-ns for

those who reflect. 3?@0!

And Allah has made for you your mates of your own nature, and made for

you, out of them, sons and dau-hters and -randchildren, and (rovided for

you sustenance of the *est. @0!

These verses clearly show that in contrast to other religions, which consider celibacy

or monasticism as a great virtue and a means of salvation, Islam considers marriage as

one of the most virtuous and approved institutions. The importance of the institution

or marriage receives its greatest emphasis from the following hadith of the %rophet,

;Marria-e is my sunna. hosoever #ee(s away from it is not from me.<

The word awa& is used in the Luran to signify a pair or a mate. Jut in common

parlance it stands for marriage. The Shariat prescribes rules to regulate the

functioning of the family so that both spouses can live together in love, security, andtranquillity. (arriage in Islam has aspects of both Mibadah) 0worship1 of 'llah and

Mmu)amalah) 0transactions between human beings1.

's described in the /oly Luran marriage is a contract between two sane

consenting persons. *ho if minors at the time of marriage have the right to

repudiation on attaining ma"ority. The Luran accords a special solemnity and status to

this contract. /owever it grants complete freedom to the parties to settle their own

terms, including restricting each other from such actions which Islam permits but does

not ma#e obligatory including the freedom of a man to contract a second marriage.

The unique feature of (uslim personal law is that consent is a prerequisite formarriage. Courts in India have held that the marriage of a girl without her consent is

invalid and is voidable at her instance. >assan utti vs. Eaina**a 'I <=? 0 (ad1

<?+, %ayyad Mo*in vs. hati&a 'I <=B= Jom >?=, Adam vs. Manmad 0 <==1 <

DHT F+.

's mentioned earlier the Child (arriage estraint 'ct <== supercedes

personal law. The minimum age of marriage prescribed by it has been incorporated in

the codified personal laws but since (uslim law is not codified, it is pertinent to

reiterate here that it applies to (uslims also and any adult contracting the marriage of

a minor will be liable to punishment under the 'ct. The 'ct does not effect the

legality and validity of the marriage as such which will be governed by personal law

and can be invalidated only at the option of the minor on attaining ma"ority by

e&ercise of her right to repudiation. The courts in India have held that any #ind of

"udicial verdict in any "udicial proceeding confirming the e&ercise of the option of

puberty is enough for this purpose. Mafiuddin "s. Rahima Bi*i 'I <=B> Cal <>,

Batoolan vs. a*oor 'I <=+ (J B, 1iamuddin vs. >useni 'I <=@ (% <,

8irmo*amed vs. %tateof Madhya 8radesh 'I <=@ (% >.

(uslim personal law unli#e other personal laws always recognised the right to

divorce unilaterally by either party, consensually by both parties and by operation of

the guilt theory. 2nli#e other personal laws the whole of the (uslim law in India has

not been codified e&cept for three statutes, The (uslim %ersonal Haw 0Shariat1

'pplication 'ct <=BF, !issolution of (uslim (arriage 'ct <=B= and (uslim *omen0 %rotection of ights on !ivorce 1 'ct <=?@.



2nilateral right of divorce granted to a man under (uslim personal law is

#nown as tala). ' detailed study of Islam which is unfortunately not adopted in social

practice defines the conditions in which tala) ought to be pronounced. These are of

dissuasive nature and men are discouraged from e&ercising this right.

's per the Guran men pronouncing tala) may follow the model code of conduct by

pronouncing tala) three times at the gap of three menstrual cycles, this is the

preferable form of tala) and is #nown as tala) e sunnat . ' man may also pronounce

tala) three times in one sitting however this is denounced and such conduct is #nown

as improper tala). ven the %a#istan /igh Court has frowned upon such tala) and in

its "udgments has only accepted the proper form of tala). 't this stage it is relevant to

point out that a proper perspective on tala) has been given by Jarul Islam 3. of the

'ssam /igh Court in iauddin Ahmed vs. Anwar Be-um 0 <=F?1 and Ru#hia hatton

vs. A*dul halif Hasha# 0<=F=1 Islamic and Comparative Haw quarterly Aol. II <=?

p. B? N <B

Simultaneously a (uslim women has a parallel right of #hulla, in which she is

entitled to dissolution of the marriage by #hulla at her instance without the consent ofher husband. The only difference between #hulla and tala) is that a women-see#ing

#hulla may at the instance of her husband forsa#e her right to Mahr 0dower1.

In addition, women in India are entitled to see# divorce under the (uslim %ersonal

Haw 0 Shariat1 'pplication 't <=BF, !issolution of (uslim (arriage 'ct <=B= on the

ground of the husband)s disappearance for a period of four years or more, if the

husband fails to provide his wife maintenance, impotency of husband, if the husband

is suffering from insanity, cruelty, option of puberty.

It is important to mention here that bigamy and differentiation between co- wives has

been regarded by courts in India as a ground of cruelty entitling a woman to resist a

plea of restitution of con"ugal rights. The court has held in +twari vs.Ashari 'I <=@'ll @?> and a vs.'mina 'I <=F@ Dant < that such conduct amounts to cruelty.

CHRISTIAN PERSONAL LAW

;>ave you not read that the one who made them male and female,

And said, IFor this reason a man shall leave his father and mother

And he who &oined to his wife, and the two shall *ecome one flesh

%o they are no lon-er two *ut one flesh.J

Therefore what 9od has &oined to-ether, let no one se(arate.<

- Matthew 6@ 5'

Christianity regarded marriage as indissoluble. The oman Church became the

supreme ecclestic authority governing matrimonial matters. The ecclesiastic

court recognied the right to separation but no spouse had the right to remarry

during the life of the other spouse.

The issue of divorce or dissolution of marriage was in many respects responsible for

the division of the Christian world into the Catholics and %rotestants. The %rotestants

considered marriage as a dissoluble union and under the "urisdiction of civil courts. It

was in these circumstances that the Church of ngland separated from the Aatican. In

<?+F, the first (atrimonial Causes 'ct was passed and the "urisdiction in nglandwas transferred from the ecclesiastic courts to the civil court.



!uring the early days of nglish settlement in India, the marriage laws prevailing in

ngland were sought to be introduced over marriage of native Christians. The law

prior to <?+ was laid down by Sir r#ine %erry, the Chief 3ustice of Jombay in

Maclean v. 9ristall 8erryJs O.C. :!. %riests were not necessary in the days of the

ast India Company. Collectors and "udges acted as their substitutes.

The Indian Christian (arriage 'ct <?F was enacted to consolidate and amend the

law relating to the solemniation in India of the marriages of Christians. This 'ct was

the product of consolidation of different small statutes of marriage of the Indian

Christians. It also amended certain laws on the sub"ect and repealed 'ct + of <?+ and

'ct + of <?@+.

The Indian !ivorce 'ct came into force in <?@=. In <=BF by way of amendment

desertion, insanity and cruelty were added as grounds for divorce. In < the Indian

!ivorce 'ct was further amended to remove gross gender inequalities, and women

got the right to divorce on a single count of adultery or cruelty without having to

prove two matrimonial offences of adultery coupled with cruelty. (utual consent was

also added as a ground for divorce.

The Courts have always ta#en a liberal interpretation and in fact, prior to amendment

by way of legislation, a !ivision Jench of the Derala /igh Court directed the State

$overnment to bring in an amendment see#ing to delete the provision under Section

<F of the Indian !ivorce 'ct which says that a decree for a dissolution of a Christian

marriage passed by !istrict Courts should be confirmed by a 4ull Jench of the /igh

Court. The Court observed that the procedure prescribed by the provision :prolongs

the agony of the affected parties, even though none of the parties is desirous of

preferring an appeal; against the !istrict Court decrees. Therefore, there was :no

"ustification for the continuation of this procedure;, especially when no such

procedure had been prescribed by other 'cts dealing with dissolution of marriages,vi, the Special (arriage 'ct <=+> and the /indu (arriage 'ct <=++.

The Jench said that there was :an urgent need; for ma#ing suitable amendments to

the 'ct. Luoting Supreme Court verdicts, the 3udges said that the :remedy lies in the

legislature in the instant case; as the sub"ect matter fell under ntry + of the

Concurrent Hist in the Fth Schedule of the Constitution. 0The State $overnment has

the power to bring an amendment to the 'cts on sub"ects falling under the concurrent

list1.

THE PARSI PERSONAL LAW

' group of Ooroastrians came to India, having fled religious persecution in %ersia

0now +ran1 and came to be #nown as %arsis. The personal law has been codified in the

%arsi (arriage and !ivorce 'ct, <=B@. The number of %arsis is small and is now

diminishing at an alarming rate.

The %arsi personal law is one of the most comprehensive and modern laws. Jigamy is

not only prohibited but Section + also provides for punishment for bigamy. Section >

not only incorporates the minimum age prescribed by the Child (arriage estraint

'ct, <== but also Section << incorporates provisions for penalty for solemniing

marriage contrary to Section >. Confidentiality is ensured in matrimonial cases and

Section >B specifically states that suits are to be heard in camera and may not be

printed or published.



SPECIAL MARRIAGE ACT# 1$%&

This introduction would be incomplete without mentioning that though in India we

don)t yet have a 2niform Civil Code, but the Special (arriage 'ct was enacted by the

legislature in <=+> and provides a uniform law for any citien of India and by all

nationals in foreign countries irrespective of the faith, which either party to themarriage may profess. The parties may observe any ceremonies for the solemniation

of their marriage but certain formalities are prescribed before the marriage can be

registered by the magistrate officers. 4or the benefit of Indian citiens abroad, the 'ct

provides for the solemniation and registration of the marriage between citiens of

India in a foreign country. The provisions of the Special (arriage 'ct are a#in to the

provisions of the /indu (arriage 'ct with the e&ception that the solemniation of the

marriage is solemnied before a registrar after giving B days prior notice of the

intended marriage in the presence of two witnesses.

The conditions relating to solemniation of Special (arriage are given in

Section > according to which the parties should not be within the degrees of

prohibited relationship. /owever there is a proviso which states :provided that

where a custom governing at least one of the parties permits of a marriage

between them, such marriage may be solemnied, notwithstanding that they are

within the degrees of prohibited relationship;. This section came into criticism

by some sections of the (uslim community as being e&clusionary since Islam

permits marriage amongst cousins.

T(% C(I&# $ARRIA'% R%)TRAI"T ACT *505

)ection 4@ hoever, *ein- a male a*ove ei-hteen years of a-e and *elow twenty

one, contracts a child marria-e shall *e (unisha*le with sim(le im(risonmentwhich may e/tend to fifteen days or with fine which may e/tend to one thousand

ru(ees, or with *oth!.

)ection 0@ Definitions K +n this Act, unless there is anythin- re(u-nant in the su*&ect

or conte/t@

a! ;Child< means a (erson who, if a male, has not com(leted twenty one

years of a-e, and if a female, has not com(leted ei-hteen years of a-e2!

*!;Child marria-e< means a marria-e to which either of the contractin-

(arties is a child2

c!; Contractin- (arty ; to a marria-e means either of the (arties whose

marria-e is or is a*out to *e! there*y solemnied2 and >indu Marria-e Act,

6::.

)ection -@ Conditions for a (indu $arriage K A marria-e may *e solemnied

*etween any two >indus, if the followin- conditions are fulfilled, namely@ '

iii! the *ride-room has com(leted the a-e of twenty one years and the *ride,

the a-e of ei-hteen years at the time of the marria-e2

)ection *4 80 9. A wife may also (resent a (etition for the dissolution of her

marria-e *y a decree of divorce on the -round K

iv! that her marria-e whether consummated or not! was solemnied *efore

she attained the a-e of fifteen years and she has re(udiated the marria-e

after attainin- the a-e *ut *efore attainin- the a-e of ei-hteen years.

L/(lanation K This clause a((lies whether the marria-e was solemnied *efore orafter the commencement of the Marria-e Haws Amendment Act 6.



T(% (I"#! $ARRIA'% ACT, *5--

)ection -. Conditions for a (indu marriage.' A marria-e may *e solemnied

*etween any two >indus, if the followin- conditions are fulfilled, namely@'

iii! the *ride-room has com(leted the a-e of twenty'one years and the *ride,the a-e of ei-hteen years at the time of the marria-e2

T(% #I))2&!TI2" 2 $!)&I$ $ARRIA'%) ACT *545

)ection 0:'rounds for decree for dissolution of marriage@ A women married under

Muslim Haw shall *e entitled to o*tain a decree for dissolution of her marria-e on

anyone or more of the followin- -rounds, namely@ '

vii! that she, havin- *een -iven in marria-e *y her father or other -uardian

*efore she attained the a-e of fifteen years, re(udiated the marria-e *efore

attainin- the a-e of ei-hteen years@

(rovided that the marria-e has not *een consummated.

T(% I"#IA" C(RI)TIA" $ARRIA'% ACT, *;<0

)ection /=. 2n what conditions marriages of 8Indian9 Christians may e

certified @Lvery marria-e *etween +ndian! Christians a((lyin- for a certificate,

shall without the (reliminary notice re)uired under 8art +++, *e certified under this

(art, if the followin- conditions *e fulfilled and not otherwise @'

! the a-e of the man intendin- to *e married shall not *e under twenty one

years and the a-e of the women intendin- to *e married shall not *e

under ei-hteen years.

T(% PAR)I $ARRIA'% A"# #I12RC% ACT, *54/

)ection 4. Requisites to validity of Parsi $arriages4!7 1o marria-e shall *e validif'

c! in the case of any 8arsi whether such 8arsi has chan-ed his or her reli-ion or

domicile or not! who, if a male, has not com(leted twenty'one years of a-e, and if a female,

has not com(leted ei-hteen years of a-e.

LIST OF CASES

LIST OF CASES

AGEM1. Mst. Shabna vs. Moh. Shafi6M2. aesh vs. a$+atiM3. Muaffar A,i Sa$$a & Others vs. State of Anhra Praesh

ADULTER!M". Dr. 9iran obinson vs. A$eet Ma,o, obinson & OthersM(. a 9uar B aener 9uar vs. St. aksha B Ga,abo

M0. A$ant <huiya vs. St. %airinaii 9hian*te BIGAM!

M4. Muhaa %atheef= so 9. Sainuheen vs. )ishathM7. D. Jeyara$ vs. The Mana*in* Diretor= Tai, )au A*ro /nustries Cor+oration %t.M:. 5,iabeth Skariah vs. Aby Skariah & OthersM1;. D. #i$ay,akshi vs. D. San$eeva eyM11. S. aa B #i$aya,akshi vs. State of Anhra PraeshM12. Muru*esan & 1( Others vs. aa,akshiM13. S.G. Jin*ae & Others vs. St. SatyavathiM1". Dr. Pre Mitta, vs. State of a$asthan & Others

CRUELT!

M1(. Muhaa %atheef vs. )ishathM10. D.). Shara vs. 'sha SharaM14. #i$ay 9uar ahanra <hate vs. )ee,a #i$ay 9uar <hate



M17. Dr.P.9.Toar vs. St. ArhanaM1:. Poona Gu+ta vs. Ghanshya Gu+taM2;. Dr. 9iran obinson vs. A$eet Ma,o, obinson & OthersM21. Monika Santis vs. !enry Jose+h & AnotherM22. St. Push+a vs. Mukesh 9uarM23. Mrs. /nu <a,a To++o vs. >ranis av,er To++oM2". )avneet 9uar vs. Meena 9uariM2(. #eeran Sayvu avuthar vs. <eevathua

M20. 9atherine vs. Mr. Saue, Denia, B ChanM24. Piyush 9uar asto*i vs. St. Arhana #arshneyM27. Ana 9hatoon vs. M. 9ashi AnsariM2:. EAF vs. E<FM3;. %ini Mohan John vs. Mohan JohnM31. Ga$enra vs. St. Mahu MatiM32. Devra <i,ve vs. /nuitM33. St. Abha A*ara, vs. Suni, A*ara,M3". St. De+ika B <aby vs. )aresh Chanra Sin*hania

CUSTOMM3(. Subraani & Others vs. Chanra,ekhaM30. Jasbir Sin*h vs. /ner$eet 9aurM34. Dr. Sura$ani Ste,,a 9u$ur vs. Dur*a Charan !ansah & Another

DESERTION

M37. Dr. 9iran obinson vs. A$eet Ma,o, obinson & OthersM3:. 9ishan Chan vs. St. Munni DeviM";. Chetan Dass vs. 9aa, DeviM"1. Ms Santosh 9uari vs. Shiv Prakash SharaM"2. Ga$enra vs. St. Mahu Mati

FRAUDM"3. <enny Mathe vs. Phi,oenaM"". Au*ustine & Another vs. 9un$aa 9uriakose & AnotherM"(. )eena Abraha vs. a$i 5a++enM"0. %i,,y 9utty Mathe vs. C.J. Sion

IRRETRIEVABLE BREAKDOWNM"4. Mohinuin Miya vs. State of est <en*a, & Another M"7. Geeta Mu,,ik vs. <ro$o Go+a, Mu,,ik MisraM":. Susita Aharya vs. abinra 9uar MisraM(;. Chetan Dass vs. 9a,a Devi

M(1. Suhir Sin*ha, vs. )eeta Sin*ha,M(2. Ga$enra vs. St. Mahu MatiM(3. Ana 9hatoon vs. M. 9ashi Ansari

IMPOTENCEM(". <hasati Sarakar ?nee Mukho+ayay@ vs. An*shuan SarakarM((. Suriner Sin*h vs. )ira,$it 9aur

"UDICIAL SEPARATIONM(0. #. Sreeevi vs. #. #arara$an

LIMITATIONM(4. Savitry Paney vs. Pre Chanra PaneyM(7. Su+riya Chakraborty vs. Cha+ak 9uar Chakraborty

MA"OR

M(:. Paya, Shara B 9aa, Shara a,ias Paya, 9atara vs.Su+erintenent )air )iketan 9a,inri #ihar= A*ra & Others

.MEDICAL TEST

M0;. Shara vs. Dhar+a,

MENTAL DISORDER/UNSOUNDNESS OF MINDM01. T. !ari 9uar )aiu vs. St. Praee,aM02. Suhir Sin*ha, vs. )eeta Sin*ha,M03. J. Suhakara Shenoy vs. Mrs. #rina Shenoy & AnotherM0". 9aka,i Muker$ee vs. Gauta Muker$eeM0(. %issy vs. Jaison

MUTUAL CONSENTM00. St Chaner 9anta vs. Mohiner Prata+ Do*ra

NO ENTITLEMENT TO RESERVATION ON BASIS OF MARRIAGEM04. Sanhya Thakur vs. #i,a Devi 9hushah & OthersM07. Sobha !yavathi Devi vs. Setti Gan*aharara Say & Others



NON PA!MENT OF MAINTENANCEM0:. Aburahian vs. )asseraM4;. Mehafo A,a Dasta*irsab 9i,,ear vs. Sha*ufta

PERMANENT ALIMON!M41. St. Abha A*ara, vs. Suni, A*raa,M42. Pavitra vs. Arun #ara ?Deease@ throu*h %.s

PRIVAC!M43. Sur$it Sin*h Thin vs. 9ana,$it 9aurM4". Ms. EF vs. Mr. EHF

PROMISE TO MARR!M4(. Dee,i+ Sin*h B Di,i+ 9uar= Petitioner vs. State of <ihar

SECOND MARRIAGE AFTER CONVERSIONM40. %i,y Thoas vs. 'nion of /nia & Others

VALID MARRIAGEM44. Joyita Saha vs. a$esh 9uar Paney

VOIDM47. St. Devi Shara vs. Chaner Mohan Shara

VOIDABLEM4:. .%akshi )arayan vs. Santhi

WAITING PERIODM7;. St Chaner 9anta vs. Mohiner Prata+ Do*ra



Chapter &. MAINTENANCE

(ost women perform the role of homema#ers and child bearers. Though

these

functions have immense social and economic contribution, they are not valued

financially and women get no independent remuneration for this wor#.Consequentially they are financially dependant on their spouse.

/indu personal law grants both men and women a right to maintenance from a

spouse who is earning a better income, while only a wife is entitled to maintenance

under (uslim and Christian %ersonal law. The provision for maintenance is to secure

to women and children an allowance up#eep and survival.

The right to maintenance is inherent to marriage as it is presumed by law that

a man is under obligation to ensure the financial security of his wife. The criteria for

determination of quantum of maintenance have been defined by courts to include, the

husband)s income, property and his legitimate e&penses, e&tent of the wife)s incomeand property, conduct of parties, financial needs of the wife. It is important to note

that over the years the definition of financial needs of the wife have been broadened

by courts beyond "ust needs for bare survival to the right of a wife to maintain a

standard of living, which is in consonance with the standard en"oyed by her at the

matrimonial home. In fact the right to maintenance has been defined by courts to

include the right to residence also.

It is not necessary for a husband and wife to be see#ing a divorce to be entitled

to the right to maintenance. 'ny spouse who neglects to maintain his wife and child

even while married is sub"ect to the "urisdiction of the Court.

I' (a)e *+ a H,'- /*0a'

' /indu woman can as# for maintenance under section <? of the /indu

'doption and (aintenance 'ct, <=+@ if she is not divorced and under Section > of

the /indu (arriage 'ct, <=++ during divorce proceedings in court by either party.

I' (a)e *+ a M),0 /*0e'' (uslim woman see#ing maintenance 0after divorce1 can file a case within

the "urisdiction of the court where she resides. 2nder section B0<1 a N b of the (uslim

*omen)s 0%rotection of ights on divorce1 'ct, <=?@, the husband is obliged to

provide a reasonable and fair maintenance to be made and paid to the woman withinthe iddat period. /owever for children born out of wedloc# have to be given a

reasonable and fair maintenance to be made and paid to the mother on behalf of the

children for a period of two years from the date of birth. The amount of maintenance

the woman gets is in addition to the mehr amount. Mehr is a predetermined lump sum

amount payable to a women by her husband during the course of the marriage or at

the time of divorce before the completion of the iddat period.

I' the (a)e *+ Chr,)t,a' a'- Par), W*0e'

' Christian woman is entitled to see# maintenance under Chapter IP of the !ivorce

'ct, <?@=. *hereas a %arsi woman is entitled to see# maintenance under Sections B=to >< of the %arsi (arriage and !ivorce 'ct, <=B@.



A /*0e' maintenance can see# maintenance under Section <+ of the Code of

Criminal %rocedure 0Cr.%.C.1. 'n order under this section is in the nature of a

summary order which does not determine the rights of the parties, but it)s aim is to

ameliorate the plight of destitute and hapless women. The benefit of the provisions of

Section <+ is that being a provision of criminal law no court fee is payable.

/owever a (uslim woman after divorce would require her husbands consent to beinggoverned under this 'ct. If the husband does not consent then she can claim

maintenance under the (uslim *omen)s 0%rotection of ights on divorce1 'ct, <=?@.

Ironically procedural hurdles in the enforcement of the right to maintenance leave

many women. To see# maintenance a women has to approach the court by way of a

civil suit and pay court fee on the basis of < years maintenance claimed. This amount

is often prohibitive leaving destitute women remedyless due to their inability to

approach the court. *hile the Code of Civil %rocedure 0C.%.C1 entitles a women who

cannot pay court fee to approach the court as an indigent person but often

determination of indigent person applications ta#e very long. Deeping this in mind

many courts have started granting interim maintenance during the pendency of theindigent person petition. Courts have ta#en a liberal interpretation in favour of

women and held that a man is bound to maintain his spouse and orders to grant

maintenance under Code of Criminal %rocedure 0Cr.%.C.1 are independent of Section

> of the /indu (arriage 'ct or that matter even the 'rmy 'ct.

/owever, there is still a long way to go before the law, procedure and "udicial mindset

ensure that women without being sub"ected to indignity and poverty are entitled to,

and can enforce their right to maintenance.

T(% (I"#! A#2PTI2") > $AI"T%"A"C% ACT, *5-/

)ection *;. $aintenance of wife ! %u*&ect to the (rovisions of this section, a

>indu wife, whether married *efore or after the commencement of this Act, shall *e

entitled to *e maintained *y her hus*and durin- her life time.

0!A >indu wife shall *e entitled to live se(arately from her hus*and without

forfeitin- her claim to maintenance K

a! +f he is -uilty of desertion that is to say, of a*andonin- her without

reasona*le cause and without her consent or a-ainst her wish,

or willfully ne-lectin- her2

*! +f he has treated her with such cruelty as to cause a reasona*le

a((rehension in her mind that it will *e harmful or in&urious to

live with her hus*and2

c! +f he is sufferin- from a virulent from of le(rosy2

d! +f he has any other wife livin-2e! +f he #ee(s a concu*ine in the same house in which his wife is

livin- of ha*itually resides with a concu*ine elsewhere2

f! +f he has ceased to *e a >indu *y conversion to another reli-ion2

-! +f there is any other cause &ustifyin- livin- se(arately.

3!A >indu wife shall not *e entitled to se(arate residence and maintenance from

her hus*and if she is unchaste or cease to *e a >indu *y conversion to another

reli-ion.

)ection 0*. #ependants defined KFor the (ur(ose of this Cha(ter ;de(endants<

mean the followin- relatives of the deceased@'

i! his or her father2

ii! his or her mother2

iii! his widow, so lon- as she does not re'marry2



iv! his or her son or the son of his (redeceased son or the son of a

(redeceased son, so lon- as he is a minor2 (rovided and to the

e/tent that he is una*le to o*tain maintenance, in the case of a

-randson from his fatherJs or motherJs estate, and in the case of

-reat -rand'son, from the estate of his father or mother of fatherJs

or fatherJs mother2

v! his or her unmarried dau-hter, or the unmarried dau-hter of his

(redeceased son or the unmarried dau-hter of a

(redeceased son of his (redeceased son, so lon- as she

remains unmarried @ (rovided and to the e/tent that she is

una*le to o*tain maintenance, in the case of a -rand'dau-hter

from her fatherJs estate and in the case of -reat'-rand'dau-hter from

the estate of her father or mother of fatherJs father or fatherJs mother2

vi! his widowed dau-hter@ (rovided and to the e/tent that she is

una*le to o*tain maintenance'

a! from the estate of her hus*and, or

*! from her son or dau-hter if any, or his her estate, or

c! from her father'in'law or his father or the estate or either or them2vii! any widow of his son or of a son his (redeceased son, so lon- as

she does not remarry @ (rovided and to the e/tent that she is

una*le to o*tain maintenance from her hus*andJs estate or

from her son or dau-hter, if any, or his or her estate, or in

the case of a -randsonJs widow, also from her

father'in'lawJs estate2

viii! his or her minor ille-itimate son, so lon- as he remains a minor2

i/! his or her ille-itimate dau-hter, so lon- as she remains unmarried.

)ection 00. $aintenance of dependants?6

. %u*&ect to the (rovisions of su*'section 0! the heirs of a deceased >indu are

*ound to maintain the de(endants of the deceased out of the estate inherited *y

them from the deceased.0. here a de(endant has not o*tained , *y testamentary or intestate'succession,

any share in the estate of a >indu dyin- after the commencement of this Act, the

de(endant shall *e entitled, su*&ect to the (rovisions of this Act, to maintenance

from those who ta#e the estate.

3. The lia*ility of each of the of the (ersons who ta#es the estate shall *e in

(ro(ortion to the value of the share or (art of the estate ta#en *y him or her.

5. 1otwithstandin- anythin- contained in su*'section 0! or su*'section 3!, no

(erson who is himself or herself a de(endant shall *e lia*le to contri*ute to the

maintenance of others, if he or she has o*tained a share or (art, the value of which

is, or would if the lia*ility to contri*ute were enforced, *ecome less than what

would *e awarded to him or her *y way of maintenance under this Act.

T(% (I"#! $ARRIA'% ACT, *5--

)ection 0-. Permanent alimony and maintenance !Any court e/ercisin-

&urisdiction under this Act may, at the time of (assin- any decree or at any time

su*se)uent thereto, on a((lication made to it for the (ur(ose *y either the wife or

the hus*and as the case may *e, order that the res(ondent shall (ay to the

a((licant for her or his maintenance and su((ort such -ross sum or such monthly

or (eriodical sum for a term not e/ceedin- the life of the a((licant as, havin-

re-ard to the res(ondentJs own income and other (ro(erty, if any, the income and

other (ro(erty of the a((licant, the conduct of the (arties and other circumstances

of the case, it may seem to the court to *e &ust and any such (ayment may *e

secured, if necessary, *y a char-e on the immova*le (ro(erty of the res(ondent.



0! +f the court is satisfied that there is a chan-e in the circumstances of either (arty

at any time it has made an order under su*'section ! it may at the instance or

either (arty, vary, modify or rescind any such order in such manner as the court

may deem &ust.

3! +f the court is satisfied that the (arty in whose favour an order has *een made

under this section has re'married or, if such (arty is the wife, that she has not

remained chaste or, if such (arty is the hus*and, that he has had se/ual intercourse

with any woman outside wedloc#, it may at the instance of the other (arty vary

modify or rescind any such order in such manner as the court may deem &ust.

T(% #I12RC% ACT, *;/5

)ection 4<. Power to order permanent alimony K here a decree of dissolution of

the marria-e of a decree of &udicial se(aration is o*tained *y the wife, the District

Court may order that the hus*and shall, to the satisfaction of the Court, secure to

the wife such -ross sum of money, or such annual sum of money for any term not

e/ceedin- her own life, as havin- re-ard to her fortune if any!, to the a*ility of the

hus*and, and to the conduct of the (arties, it thin#s reasona*le2 and for that

(ur(ose may cause a (ro(er instrument to *e e/ecuted *y all necessary (arties. Power to order monthly or weekly payments.6 +n every such case the Court may

ma#e an order on the hus*and for (ayment to the wife of such monthly or wee#ly

sums for her maintenance and su((ort as the Court may thin# reasona*le2

8rovided that if the hus*and afterwards from any *ecomes una*le to ma#e such

(ayments, it shall *e lawful for the Court to dischar-e or modify the order, or

tem(orarily to sus(end the same as to the whole or any (art of the money so

ordered to *e (aid and a-ain to revive the same order wholly on in (art, as to the

Court seems fit.

)ection 4;. Court may direct payment of alimony to wife or to her trustee .' +n all

cases in which the Court ma#es any decree or order for alimony, it may direct the

same to *e (aid either to the wife herself or to any trustee on her *ehalf to *e

a((roved *y the Court, and may im(ose any terms or restrictions which to theCourt seem e/(edient, and may from time a((oint a new trustee, if it a((ears to the

Court e/(edient so to do.

T(% PAR)I $ARRIA'% A"# #I12RC% ACT , *54/

)ection +=. Permanent alimony and maintenance.6 ! Any Court e/ercisin-

&urisdiction under this Act may, at the time (assin- decree or at anytime su*se)uent

thereto, on an a((lication made to it for the (ur(ose *y either the wife or the

hus*and, order that the defendant shall (ay to the (laintiff for her or his

maintenance and su((ort, such -ross sum or monthly or (eriodical sum, for term

not e/ceedin- the life of the (laintiff as havin- re-ard to the defendantJs own

income and other (ro(erty, if any the income and other case, it may seem to the

Court to *e &ust , and any such (ayment may *e secured, if necessary, *y a char-eon the mova*le or immova*le (ro(erty of the defendant.

0!The Court if it is satisfied that there is chan-e in the circumstance of either (arty

at any time it has made an order under su*'section !, it may, at the instance if

either (arty, vary, modify, or rescind any such order in such manner as the Court

may deem &ust.

3! The Court if it is satisfied that the (arty in whose favour an order has *een made

under this section remarried or, if such (arty is the wife, that she has not remained

chaste or, if such (arty is the hus*and, that he had se/ual intercourse with any

woman outside wedloc#, it may, at the instance of the other (arty, modify or rescind

any such order in such manner as the Court may deem &ust.

)ection +*. Payment of alimony to wife or to her trustee.6 +n all cases in which the

Court shall ma#e any decree or order for alimony it may direct the same to *e (aid

either to the wife herself, or to any trustee on her *ehalf to *e a((roved *y the



Court or to a -uardian a((ointed *y the Court may seem e/(onent and may from

time to time a((oint a new trustee or -uardian the Court e/(edient so to do.

T(% )P%CIA& $ARRIA'% ACT, *5-+

)ection 4<. Permanent alimony and maintenance :6 ! Any court e/ercisin-

&urisdiction under Cha(ter " or Cha(ter "+ may, at the time (assin- any decree or

at any time su*se)uent to the decree, on a((lication made to it for the (ur(ose,

order that the hus*and shall secure to the wife for her maintenance and su((ort, if

necessary, *y a char-e on the hus*and (ro(erty such -ross sum or such monthly or

(eriodical (ayment or money for a term not e/ceedin- her life as, havin- re-ard to

her own (ro(erty, if any, her hus*andJs (ro(erty and a*ility the conduct of the

(arties and other circumstances of the case, it may seem to the court to *e &ust.

0! +f the district is satisfied that there is a chan-e in the circumstances of either

(arty at any time after it has made an order under su*'section !, it may, at the

instance of either (arty, vary, modify or rescind any such order in such manner as

it may seem to the court to *e &ust.

3!+f the district court s satisfied that the wife in whose favour an order has

*een made under this section has re'married or is not leadin- a chaste life, itmay, t the instance of the hus*and vary, modify or rescind any such order

and in such manner as the court may deem &ust.

DAUGHTER2IN2LAW3S RIGHT TO MAINTENANCE

T(% (I"#! A#2PTI2") > $AI"T%"A"C% ACT, *5-/

)ection *5. $aintenance of widowed daughter6in6law:6.A >indu wife, whether

married *efore or after the commencement of this Act, shall *e entitled to *e

maintained after the death of her hus*and *y her father'in'law@

8rovided and to the e/tent that she is una*le to maintain herself out of

her own earnin-s or other (ro(erty or, where she has no (ro(erty of herown, is una*le to o*tain maintenance'

a! from she estate of her hus*and of her father or mother, or

*! from her son or dau-hter, if any, or his or her estate.

0. Any o*li-ation under su*'section ! shall not *e enforcea*le if the father'in'

law has not the means to do so from any co(arcenary (ro(erty in his (ossession out

of which the dau-hter'in'law has not o*tained any share and any such o*li-ation

shall cease on the re'marria-e of the dau-hter'in'law.

DIORCED WOMAN3S RIGHT TO MAINTENANCE

T(% $!)&I$ @2$%"

8PR2T%CTI2" 2 RI'(T) 2" #I12RC%9 ACT, *5;/

)ection 4. $ahr or other properties of $uslim woman to e given to her at the

time of divorce.6 .1otwithstandin- anythin- contained in any other law for the

time *ein- in force, a divorced woman shall *e entitled to K

a! a reasona*le and fair (rovision and maintenance to *e made and

(aid to her within the iddat (eriod *e her former hus*and2

*! where she herself maintains the children *orn to her *efore or

after her divorce, a reasona*le and air (rovision and maintenance

to *e made and (aid *y her former hus*and for a (eriod of two

years from the res(ective dates of *irth of such children2

c! an amount e)ual to the sum of mahr or dower a-reed to *e (aid

to her at the time of her marria-e or at any time thereafteraccordin- to Muslim law2 and



d! all the (ro(erties -iven to her *efore or at all the time of marria-e

or after the marria-e *y her relatives or friends or the hus*and

or any relatives of the hus*and of his friends.

0!here a reasona*le and fair (rovision and maintenance or the amount of mahr

or dower due hasnJt *een made or (aid or the (ro(erties referred to in clause d! of

su*' section ! have not *een delivered to a divorced woman on he divorce, she orany one duly authoried *y her may, on her *ehalf, ma#e an a((lication to a

Ma-istrate for an order for (ayment of such (rovision and maintenance, mahr or

dower or the delivery of (ro(erties, as the case may *e.

3!here an a((lication has *een made under su*'section 0! *y a divorced

woman, the Ma-istrate may, if he is satisfied that@

a! her hus*and havin- sufficient means has failed or ne-lected to

ma#e or (ay her within the iddat (eriod a reasona*le and the

(rovision and maintenance for her and the children2 or

*! the amount e)ual to the sum of mahr or dower has not *een (aid or that

the (ro(erties referred to in clause d! of su*'section ! have not *een

delivered to her.

Ma#e an order, within one month of the date of the filin- of the a((lication,

directin- her former hus*and to (ay such reasona*le and fair (rovision and

maintenance to the divorced woman as he may determine as fit and (ro(er havin-

re-ard to the needs of the divorced woman, the standard of life en&oyed *e her

durin- her marria-e and the means of her former hus*and or, as the case may *e

for the (ayment of such mahr or dower of the delivery of such (ro(erties referred to

in clause d! of su*'section ! to the divorced woman@

5! +f any (erson a-ainst whom an orders has *een made under su*'section 3! fails

without sufficient cause to com(ly with the order, the Ma-istrate may issue a

warrant for levyin- the amount of maintenance or mahr or dower due in the

manner (rovided for levyin- fines under the Code of Criminal 8rocedure, 63 0of 65! and may sentence such (erson, for the whole or (art of any amount

remainin- un(aid after the e/ecution of the warrant, to im(risonment for a term

which may e/tend to one year or until (ayment if sooner made, su*&ect to such

(erson *ein- heard in defence and the said sentence *ein- im(osed accordin- to

the (rovisions of the said Code.

)ection +.2rder for payment of maintenance.' .1otwithstandin- anythin-

contained in the fore-oin- (rovisions of this Act or in any other law for the time

*ein- in force, where the Ma-istrate is satisfied that a divorced woman has not re'

married and is not a*le to maintain herself after the iddat (eriod, he may ma#e an

order directin- such or her relatives as would *een titled to inherit her (ro(erty on

her death accordin- to Muslim law to (ay such reasona*le and fair maintenance toher as he may determine fit and (ro(er, havin- re-ard to the needs of the divorced

woman, the standard of life en&oyed *y her durin- her marria-e and the means of

such relatives and such maintenance shall *e (aya*le *y such relatives in the

(ro(ortions in which they would inherit her (ro(erty and at such (eriods as he may

s(ecify in his order.

8rovided that where such divorced woman has children, the Ma-istrate shall order

only such children to (ay maintenance to her, and in the event of any such children

*ein- una*le to (ay such maintenance, the ma-istrate shall order the (arents of

such divorced woman to (ay maintenance to her2

8rovided further that if any of the (arents is una*le to (ay his or her share of the

maintenance ordered *y the Ma-istrate on the -round of his or her not havin- the

means to (ay the same, the Ma-istrate may, on (roof of such ina*ility *ein-



furnished to him, order that the share of such relatives in the maintenance ordered

*y him *e (aid *y such of the other relatives as may a((ear to the ma-istrate to

have the means of (ayin- the same in such (ro(ortions as the ma-istrate may thin#

fit to order.

0! here divorced woman is una*le to maintain herself and she has no relative as

mentioned in su*'section ! or such relatives or any one of them have not enou-hmeans to (ay the maintenance ordered *y the Ma-istrate or the other relatives have

not the means to (ay the shares of those relatives whose shares have *een ordered

*y the Ma-istrate to *e (aid *y such other relatives under the second (roviso to su*

Ksection !, the Ma-istrate may, *y order direct the %tate a#f Board esta*lished

under section 6 of the a#f Act, 6:5 06 of 6:5!, or under any other law for the

time *ein- in force in a %tate, functionin- in the area in which the woman resides to

(ay such maintenance as determined *y his under su*'section ! or, as the case

may *e, to (ay the shares of such of the relatives who are una*le to (ay, at such

(eriods as he may s(ecify in his order.

)ection -. 2ption to e governed y the provisions of section *0- to *0; of Act 0

of *5<+.' +f on the date of the first hearin- of the a((lication under su*'section 0!of section 3, a divorced woman and her former hus*and declare, *y affidavit or any

other declaration in writin- in such form as may *e (rescri*ed either &ointly or

se(arately, that they would (refer to *e -overned *y the (rovisions of sections0:

to 0 of the Code of Criminal 8rocedure, 63 0 of 65!2 and file such affidavit

or declaration in the court hearin- the a((lication, the Ma-istrate shall dis(ose of

such a((lication accordin-ly.

E4pa'at,*'52 For the (ur(ose of this section, ;date of the first hearin- of the

a((lication< means the date fi/ed in the summons for the attendance of the

res(ondent to the a((lication.

PENDENTE LITE6 PENDING LITIGATION

T(% (I"#! $ARRIA'% ACT, *5--

)ection 0+. $aintenance pendente lite and epenses of proceedings:6 here in

any (roceedin- under this Act it a((ears to the court that either the wife or the

hus*and as the case may *e, has no inde(endent income sufficient for her or his

su((ort and the necessary e/(enses of the (roceedin-, it may on the a((lication of

the wife or the hus*and, order the res(ondent to (ay to the (etitioner the e/(enses

of the (roceedin- and monthly durin- the (roceedin- such sum as, havin- re-ard to

the (etitionerJs own income and the income of the res(ondent it may seem to the

court to *e reasona*le.

8rovided that the a((lication for the (ayment of the e/(enses of the (roceedin- and

such monthly sum durin- the (roceedin-, shall, as far as (ossi*le *e dis(osed of

within si/ty days from the date of service of notice on the wife or the hus*and, as

the case may *e.

T(% #I12RC% ACT, *;/5

)ection 4/. Alimony pendente lite.6 +n any suit under this Act, whether it *e

instituted *y a hus*and or a wife, and whether or not she has o*tained an order or

(rotection the wife may (resent a (etition for e/(enses of the (roceedin-s andalimony (endin- the suit.



%uch (etition shall *e served on the hus*and and the Court, on *ein- satisfied of the

truth of the statements therein contained, may ma#e such order on the hus*and for

(ayment to the wife of the e/(enses of the (roceedin-s and alimony (endin- the suit

as it may deem &ust@

8rovided further that the (etition for the e/(enses of the (roceedin-s and alimony

(endin- the suit, shall as far as (ossi*le, *e dis(osed of within si/ty days of serviceof such (etition on the hus*and.

T(% PAR)I $ARRIA'% A"# #I12RC% ACT , *54/

)ection 45. Alimony pendente lite.6 here in any suit under this Act, it a((ears to

the Court that either the wife or the hus*and, as the case may *e, has no

inde(endent income sufficient for her or his su((ort and the necessary e/(enses of

the suit, it may, on the a((lication of the wife of the hus*and, order the defendant to

(ay to the (laintiff, the e/(enses of the suit and such wee#ly or monthly sum, durin-

suit, as havin- re-ard to the (laintiffJs own income and the income of the

defendant, it may seem to the Court to *e reasona*le.

8rovided that the a((lication for the (ayment of the e/(enses of the suit and such

wee#ly or monthly sum durin- the suit shall as far as (ossi*le, *e dis(osed or

within si/ty days from the date or service of notice on the wife or the hus*and as the

case may *e.

T(% )P%CIA& $ARRIA'% ACT, *5-+

)ection 4/. Alimony pendente lite:6 here in any (roceedin- under Cha(ter " or

Cha(ter "+ it a((ears to the district court that the wife has no inde(endent income

sufficient for her su((ort and the necessary e/(enses of the (roceedin-, it may, on

the a((lication of the wife, order the hus*and to (ay to her the e/(enses of the

(roceedin-, and wee#ly or monthly durin- the (roceedin- such sum as havin-re-ard to the hus*andJs income, it may seem to the court to *e reasona*le.

8rovided that the a((lication for the (ayment of the e/(enses of the

(roceedin- and such wee#ly or monthly sum durin- the (roceedin- under

Cha(ter " or Cha(ter "+, shall, as far as (ossi*le, *e dis(osed of within

si/ty days from the date of service of notice on the hus*and.

SECTION 1!% CODE OF CRIMINAL PROCEDURE

C(APT%R I: 2R#%R 2R $AI"T%"A"C% 2 @I1%), C(I&#R%" A"#

PAR%"T)

)ection *0-. 2rder for maintenance of wives, children and parents.B ! +f any

(erson havin- sufficient means ne-lects or refuses to maintain.N

a! his wife, una*le to maintain herself, or

*! his le-itimate or ille-itimate minor child, whether married or not, una*le

to maintain itself, or

c! his le-itimate or ille-itimate child not *ein- a married dau-hter! who has

attained ma&ority, where such child is, *y reason of any (hysical or mental

a*normality or in&ury una*le to maintain itself, or

d! his father or mother, una*le to maintain himself or herself,

a Ma-istrate of the first class may, u(on (roof of such ne-lect or refusal, order

such (erson to ma#e a monthly allowance for the maintenance of his wife or such



child, father or mother, at such monthly rate as such ma-istrate thin#s fit, and to

(ay the same to such (erson as the Ma-istrate may from time to time direct@

Provided that the Ma-istrate may order the father of a minor female child referred

to in clause *! to ma#e such allowance, until she attains her ma&ority, if the

Ma-istrate is satisfied that the hus*and of such minor female child, if married, is

not (ossessed of sufficient means.

Provided further that the Ma-istrate may, durin- the (endency of the (roceedin-

re-ardin- monthly allowance for the maintenance under this su*'section, order

such (erson to ma#e a monthly allowance for the interim maintenance of his wife or

such child, father or mother, and the e/(enses of such (roceedin- which the

Ma-istrate considers reasona*le, and to (ay the same to such (erson as the

Ma-istrate may from time to time direct@

Provided also that an a((lication for the monthly allowance for the interim

maintenance and e/(enses of (roceedin- under the second (roviso shall, as far as

(ossi*le, *e dis(osed of within si/ty days from the date of the service of notice of

the a((lication to such (erson2

%planation.Q For the (ur(oses of this Cha(ter.N

a! ;minor< means a (erson who, under the (rovisions of the +ndian Ma&ority Act, : 6 of :! is deemed not to have attained his ma&ority2

*! ;wife< includes a woman who has *een divorced *y, or has o*tained a

divorce from, her hus*and and has not remarried.

0! Any such allowance for the maintenance or interim maintenance and

e/(enses of (roceedin- shall *e (aya*le from the date of the order, or, if so

ordered, from the date of the a((lication for maintenance or interim

maintenance and e/(enses of (roceedin-, as the case may *e.3! +f any (erson so ordered fails without sufficient cause to com(ly with the order,

any such Ma-istrate may, for every *reach of the order, issue a warrant for levyin-

the amount due in the manner (rovided for levyin- fines, and may sentence such

(erson, for the whole, or any (ort of each monthJs allowance allowance for the

maintenance or the interim maintenance and e/(enses of (roceedin- , as the case

may *e remainin- un(aid after the e/ecution of the warrant, to im(risonment for a

term which may e/tend to one month or until (ayment if sooner made@

Provided that no warrant shall *e issued for the recovery of any amount due under

this section unless a((lication *e made to the Court to levy such amount within a

(eriod of one year from the date on which it *ecame due@

Provided further that if such (erson offers to maintain his wife on condition of her

livin- with him, and she refuses to live with him, such Ma-istrate may consider any

-rounds of refusal stated *y her, and may ma#e an order under this section

notwithstandin- such offer, if he is satisfied that there is &ust -round for so doin-.

%planation.N+f a hus*and has contracted marria-e with another woman or

#ee(s a mistress, it shall *e considered to *e &ust -round for his wifeJs refusalto live with him.

5! 1o wife shall *e entitled to receive an allowance for the maintenance or the

interim maintenance and e/(enses of (roceedin- , as the case may *e from her

hus*and under this section if she is livin- in adultery, or if, without any sufficient

reason, she refuses to live with her, hus*and, or if they are livin- se(arately *y

mutual consent.

:! On (roof that any wife in whose favour an order has *een made under this

section is livin- in adultery, or that without sufficient reason she refuses to live with

her hus*and, or that they are livin- se(arately *y mutual consent, the Ma-istrate

shall cancel the order.

LIST OF CASESACCESS TO MATRIMONIAL HOME

MT1. Anu Seth & Others vs. ohit )arain Seth & Others



APPEAL AGAINST INTERLOCUTOR! ORDERMT2. avi Saran Prasa B 9ishore vs. St. ashi Sin*h

ARM! OFFICERS LIABILIT!MT3. Ca+t. Sunee, vs.'nion of /nia & Others

CONTEMPT OF COURT

MT(. Shahea Sarar 9han vs. Sarar Ahe auf 9han

DATE FROM WHICH MAINTENANCE IS EFFECTIVEMT0. Praee+ 9uar Prahan vs. Da,iba Sahu

DAUGHTER#IN#LAW$S RIGHT TO MAINTENANCEMT4. <a,bir 9aur & Another vs.!ariner 9aur & OthersMT7. Master Da,$it Sin*h & Others vs. S. Dara Sin*h & Others

DIVORCED WIFE$% RIGHT TO MAINTENANCEMT:. Panitrao Chia$i 9a,ure vs. Gayaba,MT1;. Tri+ura <oar of akf & Another= vs. Sti Tahera 9hatoonMT11. 9ari Abu, ehaan Shaikh= vs. Shehna 9ari Shaikh & Others

EDUCATIONAL EXPENSESMT12. %t Co,. avee Saharaat vs. St. '$$a, Saharaat

EVIDENCE OF HUSBAND$S INCOMEMT13. A,ka vs. #arhan B Pushkara$ B )arener

HUSBAND DEN!ING MARRIAGEMT1". <asanti Mohanty a,ias aut vs. Parikhit out

INTERIM MAINTENANCEMT1(. St. <ubu, Saantaray & Others. vs. Dhirenra 9uarMT10. Shivani Chatto+ahaya vs. Siarth Chatto+ahaya.MT14. St. Prafu,,aben Dhirubhai 9an$iya vs. Dhirubhai 9aharbhai 9an$iyaMT17. 9a,aben 9a,abhai Desai vs. A,abhai 9arashibhai DesaiMT1:. Merubhai Mananbhai Oeara vs. aniben Merubhai OearaMT2;. Pre 9uar vs. O Prakash

LIMITATION

MT21. Shahna <ano a,ias Shahna 9han vs. Perves Ahe 9han

LUMP SUM MAINTENANCEMT22. St. Partia <isa, vs. Au,ay 9uar

MONTHL! MAINTENANCE TILL PERMANENT ALIMON! PAIDMT23. /ra Das a,ias /a Das vs. aesh an$an Ma,,ik

NO DISTINCTION BETWEEN A WIFE AND DIVORCED WIFEMT2". St. San*hsaitra Sin*h vs. 9a,ish Chanra Sin*h

ORDER OF MAINTENANCE UNAFFECTED B! DECREEOF DISSOLUTION OF MARRIAGE

MT2(. G.#.). 9aeshara ao vs. G. Jabi,,i

PENDENTE LITE/ PENDING LITIGATION

MT20. Sabit Pari$a. vs. St. Surita Pari$aMT24. Aar$it 9aur vs. !arbha$an Sin*h & AnotherMT27. #. 'sha ani vs. 9.%.). aoMT2:. #a,,abhaneni eukona,u B 9arunakara ra vs.

#a,,abhaneni )a*esaraa B 9aruna 9uar

PETITION FOR MAINTENANCE FILED SUBSE&UENTL!MT3;. enu Dhin*ra vs. #i$ay Dhin*ra

PUNISHMENT FOR NON#PA!MENTMT31. An*re$ Sin*h B Ar$an Sin*h vs. State of Pun$ab & Others

POWERS UNDER SECTION '() CrPCMT32. #eu,a+a,,i a$anikuari vs. #eu,a+a,,i Sarath <abu & Another

&UANTUM

MT33. St. Menu Cho+ra vs. Dee+ak Cho+raMT3". <ansihar Mohanth vs. St. JyoshnaraniMT3(. %akshi Sharan vs. Anura* Sharan



RIGHT OF ENFORCEMENT AGAINST TRANSFEREE OF PROPERT!MT30. 9an*a, & Others vs. St. Atariya Devi

RIGHT OF RESIDENCE INHERITABLE OR NOTMT34. Shee,a ani ?eease by %s@ vs.Ja*ish Chaner Shara

RE&UIREMENT OF FOREIGN MATRIMONIAL "UDGEMENT

MT37. St. Anubha vs. #ikas A**raa, & Others

SECOND WIFE ENTITLED TO MAINTENANCE OR NOTMT3:. )ariner Pa, 9aur Cha,a vs. Man$eet Sin*h Cha,aMT";. Suresh 9hu,,ar vs. #i$ay

SECTION *)+ CODE OF CRIMINAL PROCEDURE, *-.3MT"1. Danie, %atifi & Another vs. 'nion of /niaMT"2. Aher Mensi asi vs. Aherani <ai Mini JethaMT"3. Patna #aheu,,ah 9han vs. P. Ashia 9hatoon & Another MT"". 9uaresh <rabha vs. <ani Das & OthersMT"(. #eena Devi vs. Ashok 9uar Mana,

WIFE EARNINGMT"0. Ti,ak 9uari & Another vs. Sh. Anan

VALIDIT! OF MARRIAGE DISPUTEDMT"4. Susi,aa vs. Chanra++a



Chapter + DOWR!

!owry is a social evil, and the greed for it is growing day by day. The newspapers

are replete with news items of young brides being tortured and brutally #illed by

burning them as a result of unsatisfied dowry demands. Civil society is outraged bythe brutality of dowry to which women are sub"ected in their homes. Inspite of

stringent measures, sections of society are still boldly pursuing this chronic evil to

fulfil their greedy desires.

The !owry %rohibition 'ct, <=@< was enacted with the aim to chec# the growing

menace of the social evil of dowry and ma#e punishable not only the actual receiving

of dowry but also the very demand of dowry made before, or at the time, or after the

marriage where such demand is referable to the consideration of marriage.

The Statements and 7b"ects and easons for enactment of the legislation are telling

of the social circumstances in which the said 'ct was enacted.

;The o*&ect of this Bill is to (rohi*it the evil (ractice of -ivin- and ta#in- of

dowry. This )uestion has *een en-a-in- the attention of the 9overnment for

some time (ast, and one of the methods *y which this (ro*lem, which is

essentially a social one, was sou-ht to *e tac#led *y the conferment of

im(roved (ro(erty ri-hts on women *y the >indu %uccession Act, 6:. +t is,

however, felt that a law which ma#es the (ractice (unisha*le and at the same

time ensures that any dowry, if -iven, does ensure for the *enefit of the wife

will -o a lon- way to educatin- (u*lic o(inion and to the eradication of this

evil. There has also *een a (ersistent demand for such a law *oth in and

outside 8arliament. >ence, the (resent Bill.<

The 'ct was further amended vide 'ct 6o. >B of <=?@. The Hegislature in its wisdomwhile providing for the definition of :dowry; has emphasied that any money,

property or valuable security given as consideration for marriage :before, at or any

time after; the marriage would be covered by the e&pression : dowry :, and this

definition as contained in Section of the 'ct has to be read whenever the e&pression

: dowry : occurs in the 'ct. 2nder Section B of the 'ct, if a person gives or ta#es or

abets the giving or ta#ing dowry shall be punished. 2nder Section > of the 'ct mere

demand of dowry is sufficient to bring home the offence to an accused. Thus, any

demand of money, property or valuable security, made from the bride or her parents

or other relatives, or the bridegroom or his parents or other relatives, or vice versa,

would fall within the mischief of : dowry : under the 'ct, where such demand is not

properly referable to legally recognied claim and relatable only to the consideration

of the marriage.;

7ther salient features of the amended 'ct are 8

0a1 The minimum punishment for ta#ing or abetting the ta#ing of dowry under

Section B of the 'ct has been raised to five years and a fine of rupees fifteen

thousand.

0b1 The burden of proving that there was no demand or dowry will be on the person

who ta#es or abets the ta#ing of dowry.

0c1 The statement made by the person aggrieved by the offence shall not sub"ecthim to prosecution under the 'ct.



0d1 'ny advertisement in any newspaper, periodical, "ournal or any other media by

any person offering any share in his property or any money in consideration of

the marriage of his son or daughter is proposed to be banned and the person

giving such advertisement and the printer or publisher of such advertisement

will be liable for punishment with imprisonment of si& months to five years or

with fine up to fifteen thousand rupees.

0e1 7ffences under the 'ct are made non-bailable.

0f1 %rovision has also been made for appointment of !owry %rohibition 7fficers by

the State $overnment for the effective implementation of the 'ct. The !owry

%rohibition 7fficers will be assisted by the 'dvisory Joards consisting of not

more than five social welfare wor#ers 0out of whom at least two shall be

women1.

Consequently the Hegislature introduced an amendment in <=?B in the Indian %enal

Code by introducing a new Section >=?' relating to cruelty to married woman. Jy an

amendment in <=?@ the offence of Mdowry death) was also inserted as Section B>J.The law of evidence was also amended by inserting Section <<B relating to

presumption of abetment of suicide.

It is a well-#nown rule of interpretation of statutes, that the te&t and the conte&t of the

entire 'ct must be loo#ed into while interpreting any of the e&pressions used in a

Statute. The Courts have always loo#ed to the ob"ect which the statute see#s to

achieve while interpreting any of the provisions of the 'ct. In %tate of >.8. 0<==+ Cri

H3 ><?>1 0SC1 the Supreme Court has held that the aforesaid definition 0definition of :

dowry :1 ma#es it clear that the property or the valuable security need not be as a

consideration for marriage, as was required to be under the unamended definition.

This apart, the addition of the words :any time; before the e&pression :after themarriage; would clearly show that even if the demand is long after the marriage, the

same could constitute dowry, if other requirements of the section are satisfied.

In 8awan umar v. %tate of >aryana 0<==?1 B SCC B= 8 0<==? Cri H3 <<>>1 the

Supreme Court has held that it is significant that Section > of the <=@< 'ct, was also

amended by means of 'ct @B of <=?>, under which it is an offence to demand dowry

directly or indirectly from the parents or other relatives or guardian of a bride. The

word :agreement; referred to in Section has to be inferred on the facts and

circumstances of each case. The interpretation that the appellant see#s, that conviction

can only be if there is agreement for dowry, is misconceived. This would be contrary

to the mandate and ob"ect of the 'ct. :!owry : definition is to be interpreted with the

other provisions of the 'ct including Section B which refers to giving or ta#ing dowryand Section > which deals with penalty for demanding dowry, under the <=@< 'ct and

the Indian %enal Code. This ma#es it clear that even demand of dowry on other

ingredients being satisfied is punishable.

In 8rem %in-h 0supra1, the Supreme Court re"ected the argument that any additional

demand of dowry would not be covered by the definition of :dowry; under Section .

The definition of : dowry :, the ob"ect of the 'ct and the above decisions of the

Supreme Court clearly show that any property or valuable security given or agreed to

be given comes within the purview of : dowry : on three occasions in which any

property or valuable security comes within its purview. They are - 0i1 before themarriage, 0ii1 at the time of marriage, and 0iii1 :at any time; after the marriage. The



third occasion may appear to be an unending period, but the crucial words are :in

connection with the marriage of the parties;. This means, giving or agreeing to give

any property or valuable security on any of the above three stages should have been in

connection with the marriage of the parties.

2nless there is a strong awareness in the minds of the people, unless the entire society believes that dowry is an evil, unless the entire society ob"ects to the demand for

dowry, and refuses to give dowry, the evils of dowry will remain in society.

2nfortunately, despite amendments in the law to ma#e the offence of dowry or cruelty

against women stringent domestic violence is still a common occurrence in society.

To ma#e the law effective and fruitful, people should be aware of the law. It is in this

light that this directory assumes significance. The purpose of compiling this directory

is to ma#e both women and men aware about a women)s right against dowry demands

and to live a life free from fear and violence. #2@R3 PR2(IITI2" ACT, *5/*

)ection0. #efinition of Ddowry6 +n this Act, ;dowry< means any (ro(erty or

valua*le security -iven or a-reed to *e -iven either directly or indirectly'

a. *y one (arty to a marria-e to the other (arty to the marria-e2 or

*. *y the (arents of either (arty to a marria-e or *y any other (erson,

to either (arty to the marria-e or to any other (erson,

at or *efore or any time after the marria-e! in connection with the marria-e of the

said (arties, *ut does not include dower or ImahrJ in the case of (ersons to whom

the Muslim 8ersonal Haw %hariat! a((lies.<

L/(lanation ++@ The e/(ression ;valua*le security< has the same meanin- as

%ection 3? of the +ndian 8enal Code5: of ?!.

)ection 4. Penalty for giving or taking dowry. ' +f any (erson, after the

commencement of this Act, -ives or ta#es or a*ets the -ivin- or ta#in- of dowry, he shall *e (unisha*le with im(risonment for a term which shall not *e less than five

years, and with fine which shall not *e less than fifteen thousand ru(ees or the

amount of the value of such dowry, whichever is more@

8rovided that the Court may, for ade)uate and s(ecial reasons to *e recorded

in the &ud-ment, im(ose a sentence of im(risonment for a term of less than five

years.

0! 1othin- in su*'section ! shall a((ly to or, in relation to,'

a! (resents which are -iven at the time of a marria-e to the *ride without any

demand havin- *een made in that *ehalf!@ 8rovided that such (resents are

entered in a list maintained in accordance with rule made under this Act2

*! (resents which are -iven at the time of marria-e to the *ride-room

without any demand havin- *een made in that *ehalf!@ 8rovided that such (resents are entered in a list maintained in accordance

with the rules made under this Act2

8rovided further that where such (resents are made *y or on *ehalf of the

*ride or any (erson related to the *ride, such (resents are of a customary

nature and the value thereof is not e/cessive havin- re-ard to the financial

status of the (erson *y whom, or on whose *ehalf, such (resents are -iven.

)ection +. Penalty for demanding dowry.'+f any (erson demands directly or

indirectly, from the (arents or other relatives or -uardian of a *ride or *ride-room,

as the case may *e, any dowry, he shall *e (unisha*le with im(risonment for a term

which shall not *e less than si/ months *ut which may e/tend to two years and with

fine which may e/tend to ten thousand ru(ees@



8rovided that the Court may, for ade)uate and s(ecial reasons to *e

mentioned in the &ud-ment, im(ose a sentence of im(risonment for a term of

less than si/ months.

)ection +6A. an on advertisement '+f any (erson,'

a! offers, throu-h any advertisement in any news(a(er, (eriodical, &ournal or

throu-h any other media, any share in his (ro(erty or if any money or *oth as

a share in any *usiness or other interest as consideration for the marria-e of

his son or dau-hter or any other relative.

*! (rints or (u*lishes or circulates any advertisement referred to in clause

a!,

he shall *e (unisha*le with im(risonment for a term which shall not *e less than

si/ months, *ut which may e/tend to five years, or with fine which may e/tend to

fifteen thousand ru(ees@

8rovided that the Court may, for ade)uate and s(ecial reasons to *e recorded

in the &ud-ment, im(ose a sentence of im(risonment for a term of less than si/

months.

)ection -. Agreement for giving or taking dowry to e void. 6 Any a-reement for

the -ivin- or ta#in- of dowry shall *e void. )ection /. #owry to e for the enefit of the wife or her heirs.6 ! here any

dowry is received *y any (erson other than the woman in connection with whose

marria-e it is -iven, that (erson shall transfer it to the woman'

a! if the dowry was received *efore marria-e, within three months after the

date of marria-e2 or

*! if the dowry was received at the time of or after the marria-e within three

months after the date of its recei(t2 or

c! if the dowry was received when the woman was a minor, within three

months after she has attained the a-e of ei-hteen years2

and (endin- such transfer, shall hold it in trust for the *enefit of the woman.

0! +f any (erson fails to transfer any (ro(erty as re)uired *y su*'section ! within the timelimit s(ecified therefore or as re)uired *y su*'section 3!, he shall *e (unisha*le with

im(risonment for a term which shall not *e less than si/ months, *ut which may e/tend to two

years or with fine which shall not *e less than five thousand ru(ees, *ut which may e/tend to

ten thousand ru(ees or with *oth.

I"#IA" P%"A& C2#% 8ACT "2.+- 2*;/=9

)ection 4=+. #owry #eath6 ! here the death of a woman is caused *y any

*urns or *odily in&ury or occurs otherwise than under normal circumstances within

seven years of her marria-e and it is shown that soon *efore her death she was

su*&ected to cruelty or harassment *y her hus*and or any relative of her hus*and

for, or in connection with any demand for dowry, such death shall *e called ;dowrydeath< and such hus*and or relative shall *e deemed to have caused her death.

L/(lanation ' For the (ur(ose of this su*'section IdowryJ shall have same meanin-

as in %ection 0 of the Dowry 8rohi*ition Act, 6 0 of 6!.

0! hoever commits dowry death shall *e (unished with im(risonment for a term

which shall not *e less than seven years *ut which may e/tend to im(risonment for

life.

)ection 4=/. Aetment of suicide6 +f any (erson commits suicide, whoever a*ets the

commission of such suicide, shall *e (unished with im(risonment of either

descri(tion for a term which may e/tend to ten years, and shall also *e lia*le to

fine.

)ection +5; A. (usand or relative of husand of a woman su7ecting her to

cruelty ' hoever, *ein- the hus*and or the relative of the hus*and of a woman



su*&ects such woman to cruelty, shall *e (unished with im(risonment for a term

which may e/tend to three years and shall also *e lia*le to fine.

L/(lanation' For the (ur(ose of this section, IcrueltyJ means'

a! any willful conduct which is of such a nature as is li#ely to drive the

woman to commit suicide or to cause -rave in&ury or dan-er to life, lim* or

health whether mental or (hysical! of the woman2 or

*! harassment of the woman where such harassment is with a view to

coercin- her or any (erson related to her to meet any unlawful demand for any

(ro(erty or valua*le security, or is on account of failure *y her or any (erson

related to her to meet such demand.

)%CTI2" **4 %1I#%"C% ACT, *;<0

)ection **4. Presumption as to dowry death6 hen the )uestion is whether a

(erson has committed the dowry death of a woman and it is shown that soon *efore

her death such woman has *een su*&ected *y such (erson to cruelty or harassment

for, or in connection with, any demand for dowry, the Court shall (resume that

such (erson had caused the dowry death.

L/(lanation' For the (ur(oses of this section I dowry deathJ shall have the same meanin- as

in %ection 3?5'B of the +ndian 8enal Code 5: of ?!.

LIST OF CASES

ABETMENT OF SUICIDED1. 9. Prea S. ao & Another vs. a,a Srinivasa ao & OthersD2. Asha Shuk,a vs. State of '. P. & Another

ANTICIPATOR! BAILD3. <harat Chauhary & Another vs. State of <ihar & Another

APPEAL AGAINST AC&UITALD". State of 9arnataka vs. 9. Go+a,akrishna

APPRECIATION OF EVIDENCED(. State of 9arnataka vs. M.#. Man$unathe*oa & Another.

CRUELT!D0. 9a,iya+erua, & Another vs.State of Tai, )auD4. State by 9aakshi+a,ya Po,ie= <an*a,ore vs. Mare*oa & Others

DISAPPEARANCE OF EVIDENCED7. Dhain Sin*h & Another vs. State of Pun$ab

DELA! IN FILING FIRD:. a 9ishan Jain & Others vs. State of Mahya Praesh

DOWR! DEMANDD1;. The State of Anhra Praesh vs. a$ Go+a, Asaa & Another

D11. The Pub,i Proseutor= !i*h Court of Anhra Praesh vs.)ese Ji,ara Sreerau,u

DOWR! DEATHD12. ashoa & Another vs. State of Mahya PraeshD13. Dhain Sin*h & Another vs. State of Pun$abD1". Satvir Sin*h & Others vs. State of Pun$ab & Another D1(. 9a,u a vs. State of a$asthan

D!ING DECLARATIOND10. Muthu 9uty & Another vs. State by /ns+etor of Po,ie= Tai, )auD14. Moh. Moein vs. State of De,hiD17. )a,,a #eera Stay anana & Others vs. The Pub,i +roseutor= !i*h Court of A.PD1:. St.%a8i vs. O Prakash & OthersD2;. Arvin Sin*h vs. State of <ihar

EVIDENCE

D21. 9ans a$ vs. State of Pun$ab & Others

&UASHING OF FIR



D22. <. S. Joshi & Others vs. State Of !aryana & Another

MEDICAL WITNESSD23. Dhana+ani vs. State by The /ns+etor of Po,ie

OMISSION OR DEFECT IN FRAMING CHARGED2". 9. Prea S. ao & Another vs. a,a Srinivasa ao & Others

PUNISHMENTD2(. 9. Prea S. ao & Another vs. a,a Srinivasa ao & Others

SOON BEFORED20. 9aesh Pan$iyar & 9a,esh Pan$iyar vs. State of <iharD24. The State of Anhra Praesh vs. a$ Go+a, Asaa & Another

SUICIDE NOTED27. State by 9aakshi+a,ya Po,ie= <an*a,ore vs. Mare*oa an Others

VALIDIT! OF MARRIAGE IN CHALLENGED2:. eea A**ara, vs. Anu+a & Others

Chapter 7. PROPERTY

The male control over property or wealth in society has necessarily tended to

concentrate power in the hands of men as decision ma#ers. The inverse andinescapable consequence of economic dependance of women is that women have

been socially vulnerable and unable to resist any e&cesses by men. mpowerment of

women, leading to an equal social status in society hinges, among other things, on

their right to hold and inherit property. 'c#nowledging this causal relationship the

legislature brought about amendments in the /indu Succession 'ct thereby amending

/indu law and vesting women or female heirs with rights in ancestral property. These

developments have caused social regeneration and ushered in an atmosphere of

greater equality and respect for women.

In fact women owning property are less li#ely to encounter physical violence. *hen a

married woman owns property it reduces violence against her significantly. vensome access to an asset, land or house, dramatically reduces the ris# of violence.

/ence, many state governments provide for a lower registeration charges when the

property is registered in the name of a woman. Ket, gender bias e&ists in many state

laws and equal status for women remains illusive. In the !elhi Hand eforms 'ct,

modelled after a similar law in 2ttar %radesh and %un"ab, a woman)s chance to

inherit a piece of agricultural land after the death of her husband is difficult and if she

is unmarried the tas# is ne&t to impossible. This is because her claim can only stand if

no one in a long list of claimants sta#es a claim.

%roperty can be divided into two principal categories, one is ancestral property which

has devolved upon an individual after the death of an ancestor, and the other is selfacquired property which is the self earned property of an individual.

Hi#e right to maintenance, custody and spousal rights, the right to property is also a

function of the personal law that a woman is governed by.

A H,'- /*0a'3) r,8ht t* pr*pert9 ,) 8*:er'e- ;9 the H,'- S((e)),*' A(t#

1$%7.

%rior to the enactment of the /indu Succession 'ct, <=+@ a female /indu only had a

right to maintenance from ancestral property and a widow had a limited estate which

she was disentitled to part with. The amendment in the act has gone a long way to

ma#e the law far more egalitarian.



6ow, as an heir a daughter is identically placed to a son as far as inheritance of

ancestral property is concerned. The only disability put on a female heir under Section

B of the /indu Succession 'ct is that a female heir cannot see# partition of the

dwelling house till the male members choose to have such a partition even though if

the female heir is single or widowed she has a right of residence and maintenance.

/owever, there is a substantial difference in the right to succession of the property of

a woman. *hile a man)s property devolves upon his children, wife and mother at the

first instance and upon his e&tended family at the second, the property of a woman

devolves upon her children at the first instance, her husband at the second and his

relatives at the third. 7nly in the event that her husband does not have any family

does any right accrue to the family of the women. The only e&ception to this rule is

that her family inherits property, which devolves upon a woman from her family.

The /indu Succession 0'mendment 1 Jill > proposes to remove the

discrimination as contained in section @ of the /indu Succession 'ct, <=+@ by giving

equal rights to daughters in the /indu (ita#shara coparcenary property as the sons

have. It is based on the recommendations of the Haw Commission of India ascontained in its <F>th eport on :%roperty ights of *omen8 %roposed eform under

the /indu Haw;.

The amendment which will have far reaching implications is the proposal to omit

Section B so as to remove the disability on female heirs contained in that section.

Section B of the 'ct disentitles a female heir to as# for partition in respect of a

dwelling house wholly occupied by a "oint family until the male heirs choose to divide

their respective shares therein.

Chr,)t,a' a'- Par), /*0e'3) r,8ht t* pr*pert9 ,) 8*:er'e- ;9 the I'-,a'

S((e)),*' A(t# 1$!%.Chapter , Sections B< to >? of the Indian Succession 'ct, <=+ provide rules of

succession for Christians. Joth Christian men and women have identical right of

succession to ancestral property. If a man or a women dies intestate the property will

devolve such that the spouse will get a <B rd share and the children will get a B rd

share. If the parties have no children then the property will be divided such that the

spouse will get half a share and the #indred descendants or relatives will get half a

share. /owever, if the property is not worth more than + - the whole amount will

go to the widow.

Christians are entitled to bequeath their estate by will. Joth men and women en"oy

this right. 2nder the law applicable to children the mother of a deceased can only geta share in the property where there are no lineal descendants.

Chapter B, Section + to +@ of the Indian Succession 'ct, <=+ provide special rules

for %arsis dying intestate. 7n the death of a party the entire estate is divided equally

among the widow or widower, whoever survives the deceased and the children. If the

deceased is spouseless the property is divided equally among the children. If the

deceased is survived by parents, each parent will get a share equal to half a share of

each child.

R,8ht t* pr*pert9 *+ a M),0 /*0a'

(uslims are governed by the (uslim %ersonal Haw Shariat 'pplication 'ct. 2nder

the (uslim %ersonal Haw there is no concept of self-acquired or ancestral property.'ll property is deemed to be owned by an individual in whom it vests completely.



*omen under Islam are considered competent heirs and inherit property absolutely in

there own right. There is no concept of a limited estate of a widow in Islam and the

rights of women are not restricted merely to that of maintenance.

The Luranic rule of li'a#ari misli ha'il'unsayain 0for the male the share of twofemales1 applies to competing heirs of an equal degree in most cases but not to

parents and uterine brothers and sisters. It has been argued that this, however, is based

on the respective family responsibilities of the males and females and is not merely a

gender based discrimination.

The Luran stipulates the shares to which each individual is entitled, and the quantum

of the share to which an heir is entitled increases or decreases depending on the

number of heirs at the time of the death of the deceased. ' surviving wife invariably

inherits from her deceased husband and is entitled to a <>th share of the property if he

has not left a child or son)s or grandson)s child5 and if he has she gets <?th share. If, a

person has left behind two wives they have to share this entitlement equally. *hereas

a surviving husband is entitled to a < share of his wife)s estate if she has not left achild or son)s or grandson)schild5 and <>th share if she has.

The mother of every deceased person always inherits. She gets <B rd if the deceased

has left a child, or son)s or grandson)s child5 and <@ th otherwise.

!aughters of a deceased will become Luranic heirs in the absence of any son5 in the

presence of a son they will be non-Luaranic heirs placed with him in the preferential

class of the agnates.

Islam does not permit the right of inheritance of an individual to be ta#en away by any

action of even the property holder. Therefore, though a (uslim is empowered

entitled to ma#e a wasiat 0will1 to avoid discord between heirs, Islam mandates thatthe testator obtain a :no ob"ection; from the other heirs upon the will of the testator. It

is only with such a no ob"ection that the will shall be valid.

I"#IA" )!CC%))I2" ACT, *50-

)ection 44. @here intestate has left widow and lineal descendants, or widow and

kindred only, or widow and no kindred.B

here the intestate has left a widowN

a! if he has also left any lineal descendants, one'thirds of his (ro(erty

shall *elon- to his widow, and the remainin- two'thirds shall -o

tohis lineal descendants, accordin- to the rules hereinafter contained2*! save as (rovided *y section 33A if he has left no lineal descendant,

*ut has left (ersons who are of #indred to him, one'half of his

(ro(erty shall *elon- to his widow, and the other half shall -o

to those who are #indred to him, in the order and accordin- to the

rules hereinafter contained2

c! if he has left none who are of #indred to him, the whole of his

(ro(erty shall *elon- to his widow.

)pecial Rules or Parsi Intestates

)ection -=. 'eneral principles relating to intestate succession.B

For the (ur(ose of intestate succession amon- 8arsisN



a! there is no distinction *etween those who were actually *orn in the

lifetime of a (erson deceased and those who at the date of his death were only

conceived in the wom*, *ut who have *een su*se)uently *orn alive2

*! a lineal descendant of an intestate who has died in the lifetime of

the intestate without leavin- a widow or widower or any lineal

descendant or a widow or widower of any lineal descendant7

shall not *e ta#en into account in determinin- the manner in

which the (ro(erty of which the intestate has died intestate

shall *e divided2 and

c! where a widow or widower of any relative of an intestate has

married a-ain in the lifetime of the intestate, such widow or

widower shall not *e entitled to receive any share of the

(ro(erty of which the intestate has died intestate, and such

widow or widower shall *e deemed not to *e e/istin- at

the intestateJs death.

)ection -*. #ivision of intestateEs property among widow, widower, children and

parents.B ! %u*&ect to the (rovisions of su*'section 0!, the (ro(erty of which a

8arsi dies intestate shall *e divided,N a! where such 8arsi dies leavin- a widow or widower and children,

amon- the widow or widower, and children so that the widow

or widower and each child receive e)ual shares2

*! where such 8arsi dies leavin- children, *ut no widow or widower,

amon- the children in e)ual shares.

0! here a 8arsi dies leavin- one or *oth (arents in addition to children or

widow or widower and children, the (ro(erty of which such 8arsi dies intestate shall

*e so divided that the (arent or each of the (arents shall receive a share e)ual to half

the share of each child.

T(% (I"#! )!CC%))I2" ACT, *5-/

)ection *+. Property of a female (indu to e her asolute property. N! Any

(ro(erty (ossessed *y a female >indu, whether ac)uired *efore or after thecommencement of this Act, shall *e held *y her as full owner thereof and not as a

limited owner.

L/(lanation.N+n this su*'section, ;(ro(erty< includes *oth movea*le and

immovea*le (ro(erty ac)uired *y a female >indu *y inheritance or devise, or at a

(artition, or in lieu of maintenance or arrears of maintenance or *y -ift from any

(erson, whether a relative or not, *efore, at or after her marria-e, or *y her own

s#ill or e/ertion, or *y (urchase or *y (rescri(tion, or in any other manner

whatsoever, and also any such (ro(erty held *y her as stridhana immediately

*efore the commencement of this Act.

0! 1othin- contained in su*'section ! shall a((ly to any (ro(erty ac)uired *y

way of -ift or under a will or any other instrument or under a decree or order of a

Civil Court or under an award where the terms of the -ift, will or other instrument

or the decree, order or award (rescri*e a restricted estate in such (ro(erty.

)ection *-. 'eneral rules of succession in the case of female (indus N ! The

(ro(erty of a female >indu dyin- intestate shall devolve accordin- to the rules set

out in %ec. ,N

a! firstly, u(on the sons and dau-hters includin- the children of any (re'

deceased son or dau-hter! and the hus*and2

*! secondly, u(on the heirs of the hus*and2

c! thirdly, u(on the mother and father2

d! fourthly, u(on the heirs of the father2 and

e! lastly, u(on the heirs of the mother,

0! 1otwithstandin- anythin- contained in su*'section !,N



a! any (ro(erty inherited *y a female >indu from her father or mother shall

devolve, in the a*sence of any son or dau-hter of the deceased includin- the

children of any (re'deceased son or dau-hter! not u(on the other heirs

referred to in su*'section ! in the order s(ecified therein, *ut u(on the heirs

of the father2 and

*! any (ro(erty inherited *y a female >indu from her hus*and or from her

father'in'law shall devolve, in the a*sence of any son or dau-hter of the

deceased includin- the children or any (re'deceased son or dau-hter! not

u(on the other heirs referred to in su*'section ! in the order s(ecified

therein, *ut u(on the heirs of the hus*and.

)ection*/. 2rder of succession and manner of distriution among heirs of a female (indu. N The order of succession amon- the heirs referred to in %ec.:,

shall *e and the distri*ution of the intestateJs (ro(erty amon- those heirs shall

ta#e (lace accordin- to the followin- rules, namely@

Rule *. NAmon- the heirs s(ecified in su*'section ! of %ec.:, those in one

entry shall *e (referred to those in any succeedin- entry and those includin- in

the same entry shall ta#e simultaneously.

Rule 0. N+f any son or dau-hter of the intestate had (re'deceased the intestateleavin- his or her own children alive at the time of the intestateJs death, the

children of such son or dau-hter shall ta#e *etween them the share which such

son or dau-hter would have ta#en if livin- at the intestateJs death.

Rule 4. NThe devolution of the (ro(erty of the intestate on the heirs referred to

in Cls. *!, d! and e! of su*'section ! and su*'section 0! of %ec.: shall *e in

the same order and accordin- to the same rules as would have a((lied if the

(ro(erty had *een the fatherJs or the motherJs or the hus*andJs, as the case may

*e, and such (erson had died intestate in res(ect thereof immediately after the

intestateJs death.

LIST OF CASES

CHRISTIANP1. John #a,,aatto & Another vs. 'nion of /nia

HINDUP2. <. Chanrashekhar ?D@ by %s. vs. State of Anhra PraeshP3. St. Dhanistha 9a,ita vs. aakanta 9a,ita an OthersP". eana++a Dua++a Marve & Others vs. St. e,,ubai & OthersP(. <ha*at a ?D@ by %s. vs. Te$a Sin*h ?D@ by %s.P0. Sitaben vs. <hanabhai MaaribhaiP4. #iya ?St@ vs. )an a a,ias Asoo+ a ?Dea@ by %s.P7. #e,auri #enkata Siva+rasa vs. 9othuri #enkatesar,u

MUSLIMP:. Mohebhai asu,bhai Ma,ek & Others vs. Airbhai ahibhai Ma,ek

Part II CHILDChapter <. CHILD RIGHTS

India has the largest child population in the world. 'round > million children are

under the age of eighteen constituting >R of the population, of which around <+

million children, constituting <F.+R of India)s population, are below the age of @

years. ' large number of them live in economic and social environment that impede

the child)s physical and mental development. These conditions include poverty, poor

environmental sanitation, disease, infection, inadequate access to primary health care,

inappropriate child caring and feeding practices. These ma#e them vulnerable preys to

Child labour and Traffic#ing.



'n emphasis on child rights is important not only because it is the duty of adults

ta#ing care of a child to ensure its care and protection, but also because it is only

when such rights are ta#en care of will the children grow up to be productive adults.

CONSTITUTIONAL SAFEGUARDS

The best interests of the child are guaranteed in %art III of the Constitution of India by

way of 4undamental ights and in %art IA by way of !irective %rinciples.

'rticle <+ 0B1 guarantees that the State can ma#e special provisions for children. 6o

child below the age of <> years shall be employed to wor# in a factory, mine or any

other haardous employment 0'rticle >1.

'rticle B= 0f1 provides that the tender age of children is not abused and that citiens

are not forced by economic necessity to enter avocations unsuited to their age or

strength E'rticle B= 0e1G, and that children are given opportunities and facilities to

develop in a healthy manner and in conditions of freedom and dignity and that youth

are protected against e&ploitation and against moral and material abandonment.

'rticle >+ provides the State shall endeavour to provide early childhood care and

education for all children until they complete the age of si& years.

'ccording to 'rticle +<' it is a 4undamental !uty of a parent or guardian to provides

opportunities for education to his child or ward between the ages of si& and fourteen

years.

(ost important of all is the amendment in 'rticle < wherein the right of life includes

the right to education. 'rticle <' guarantees that the State shall provide free and

compulsory education to all children of the age of si& to fourteen years. It is hoped

that the induction of 'rticle <' and the national policy of Sarvashi#sha 'bhiyan willgo a long way in eliminating child labour and ensuring quality life to the millions of

children.

LEGAL DEFINITION OF CHILD

!ifferent statutes define a child differently. The /indu 'doption and (aintenance

'ct governing the right to maintenance of a child defines a child as one who has not

attained the age of <?. /owever under the /indu (arriage 'ct the marriageable age

for two consenting adults is <? for a girl and < for a boy. The age prescribed for the

applicability of the Child (arriage estraint 'ct, which ma#es the marriage of

children criminally culpable is also <? for a girl and < for a boy. /oweverappropriate amendment has not been made in Indian %enal Code according to which

the age for statutory rape i.e. age below which a child is considered incapable of

giving consent is delineated as <@, while for a married woman the age of statutory

rape is defined as <+. This illustration reflects the arbitrary manner in which a child

has been defined in law.

/owever despite its shortcomings the law ac#nowledges that persons below the age

of <? years are a special interest group, and on account of their young age are

vulnerable emotionally, mentally and physically and are less able to fend for

themselves and therefore require the care and protection of elders.

INTERNATIONAL CONENTIONS



It is a well-settled principle of international law that children require special care and

assistance because of their vulnerability, their dependence on adults and their

developmental needs. India is signatory to the Convention on the ights of the Child

which has been ratified by over <?+ countries. The Convention emphasises social re-

integration of child victims, to the e&tent possible without resorting to "udicial

proceedings. The most important rights are enshrined in 'rticle :the right to be protected from discrimination; and 'rticle B : the right to have his or her best

interest ta#en into account in all actions which concern him or her;.

India being a signatory to the aforementioned convention has ratified the convention

by incorporating the provisions of the said Convention in its municipal law and hence

the amendment in the 3uvenile law. The introduction of the 3uvenile 3ustice 0Care and

%rotection of Children1 'ct, , specifically state that several provisions of the

Constitution including Clause 0B1 of 'rticle <+, clauses 0e1 and 0f1 of 'rticle B=,

'rticles >+ and >F also impose on the State a primary responsibility of ensuring that

all the needs of children are met and that their basic human rights are fully protected.

Since the Convention emphasises social re-integration of child victims, to the e&tent possible without resorting to "udicial proceedings, the $overnment of India has found

it e&pedient to re-enact the e&isting law relating to "uveniles bearing in mind the

standards prescribed in the Convention of the ights of the Child, the 2nited 6ations

Standard (inimum ules for 'dministration of 3uvenile 3ustice, <=?+ 0The Jei"ing

ules1, the 2nited 6ations ules for the %rotection of 3uveniles !eprived of their

Hiberty 0<==1 and all other relevant international instruments.

The present statute is a remedial statute actuated by a policy and beneficial ob"ect

behind it. 's 3ustice Drishna Iyer has said :They are liberally interpreted in favour of

the class of citiens 0in the present case the children1 for the benefit of whom such

legislation are passed.Their legitimate purpose is to advance human rights and

relationships.; Thus special protection for minors is provided under different laws.

CRIMINAL LAW

The criminal law treats both child offenders and child victims separately from their

adult counter parts. The Indian %enal Code recognises the inability of a child to bear

criminal intent. Section ? of the Criminal %rocedure Code provides that, : 6othing is

an offence which is done by a child under seven years of age;. *hile Section ?B

provides that, :6othing is an offence which is done by a child above seven years and

under twelve, who has not attained sufficient maturity to understand to "udge the

nature and consequences of his conduct on that occasion<.The Indian %enal Code, raises a presumption in favour of children where the child is a

victim or complainant and the accused is an adult the burden of proof, which lies on

the complainant to prove the allegation against the accused beyond reasonable doubt

is transferred upon the accused.

It is however relevant to mention here that child se&ual abuse which is rampant,

remains a neglected issue in India. Joth male and female children are a sub"ect of

se&ual abuse and the law and the legal system are both inadequate to cope with this

issue.

CIIL LAW



Civil law also recognises the inability of a minor to #now hisher best interest

and provides the right to repudiate any action done in the name of a minor once heshe

attains the age of ma"ority which is <? years 0 Indian (a"ority 'ct, <?F+1. Civil law

also provides the minor a right to sue through a guardian. /owever, no contract or

agreement is enforceable against a minor since the minor is held under the law of

contract to be incapable of giving informed consent.

GUARDIANSHIP AND CUSTODY

This brings us to the concept of guardianship. The determination of guardianship of a

child is a function of the religion to which the child is #nown to belong as it is

governed by personal law. Issues of child custody often arise where the parents of a

child see# to separate or be divorced, or where either or both parents of the child dies

while the child is still a minor i.e. below <? years of age. The concept of maintenance

of a minor also arises from the need to protect a minor and provide for his basic needs

for survival and the onus to maintain a minor has been squarely fastened on the

parents of the minor by personal law.

2nder the /indu and Christian personal law the father is considered the natural

guardian of the child and it is only after the father that the mother is considered the

guardian. In (uslim personal law the mother is considered the natural guardian of a

minor below the age of + while the father is considered the guardian above that age.

7ver time the parameters of determining custody of the child have undergone a

drastic change. *hereas earlier, child custody issues were determined #eeping in

mind the rights of the parents wherein the minor was considered chattel of the parents.

Jy and large, courts considered the father as the preferred guardian and custodian of

the minor children. /owever today the rights approach, ushered in by several

international conventions and child rights movements, has changed the criteria of

determining custody issues from the rights of the parents to the welfare of the child.

The welfare approach has brought into focus the ac#nowledgement of the identity of

the child as an individual and the wishes e&pressed by a child are ta#en into

consideration as criteria to determine the welfare of the child.

The Courts have often ta#en an activist approach. In the case of 9aurav Eain

vs.Union of +ndia and Others E0<==F1? Supreme Court Cases <<>G the Supreme Court

answered the question as to what procedure is efficacious to prevent e&ploitation of

se& wor#ers and to bring them and their children into the social mainstream by giving

care, protection and rehabilitation.

It held that the three MCs), vi, counseling ca"oling and correction, are necessary and

passed an order to set up an 'dvisory Committee to ma#e suggestions for eradicating

child prostitution and to point out social aspects for the care, protection treatment,

development and rehabilitation of the young victims, children)s and girl prostitutes

from re-light area, and get them freed from the abuses of prostitution to amend the

e&isting law or to enact a new law, if so warranted5 to prevent se&ual e&ploitation of

children and to ta#e various measures for effective enforcement thereof.

In the $ita /ariharan case the Supreme Court diluted the severity of the /indu

'doption and (aintenance 'ct which declares a father as the sole natural guardian by

e&panding the definition of 6atural $uardian and declaring the circumstances in

which a /indu (other could also be treated as a natural guardian.



CASE LAW

The case law summarised in this section of the directory has sought to collate

"udgements of the various /igh Courts and the Supreme Court, pertaining mainly to

the rights of a minor as a ward, to maintenance and to succession.

These "udgements reflect the changing approach to custody from that of parents rightto welfare of the minor. They also reflect the right of maintenance of a minor both

under personal law and under Section <+ of the Code of Criminal %rocedure. The

criteria of determination of maintenance has also changed from that of bare e&istence

or subsistence to the right to en"oy the same standard as en"oyed by the parent held

liable to pay such maintenance.

LIST OF CASES

ADOPTIONC!1. )aev #yankat Gha*e & Others vs Chanrakant Gan+at Cha*e & OthersC!2. 9abia Dusahin vs. Seak Dusah & OthersC!3. #i$aya,akshaa & Another vs. <. T. Shankar

CHILD BORN TO SECOND WIFE

C!". <aby Devi & Others vs. Arun 9uar Aan

CHILD TAKES CASTE OF FATHERC!(. Sobha !yavathi Devi vs. Setti Gan*aharara Say & Others

CUSTOD!C!0. 9uar #. Jah*irar vs. Chetana 9. aatheerthaC!4. Govin Sin*h Ata, vs. Mankirat 9aur Ata,C!7. Pau, Mohiner Gahun vs. State of )CT of De,hi & OthersC!:. Sye Sa,eeuin vs. Dr. ukhsana & OthersC!1;. Gian Chan vs. Suha & Another

DECLARATION AS REGARDS THE ILLEGITIMAC! OF THE CHILDC!11. enuba,a Moharana & Another vs. Mina Mohanty

DIVORCE SUB"ECT TO PA!ING MAINTENANCE FOR FEMALE CHILD

C!12. Susita Aharya vs. Dr. abiner 9uar Mishra

FATHER$S OBLIGATIONC!13. )ishat 9arii vs. /ftekhar A. 9ariiC!1". Mathe #ar*hese vs. osaa #ar*heseC!1(. )oor Saba 9hatoon vs. Moh. Iuasi

GIFTC!10. 9. <a,akrishnan #. 9. 9aa,a & OthersC!14. M. #i$ayakuari & Another vs. #.9. Devaba,an & Others

GRANDFATHER$S RIGHT TO CUSTOD!C!17. Mahenra Moi vs. Gobarhan %a,C!1:. Ait <eri & Another vs. St. Sheeta, <eri ife of Ait <eri

HABEAS CORPUS

C!2;. <. 9asa,a vs. <oi= The /ns+etor of Po,ie & The Su+erintenent of Po,ieC!21. Surabhai avikuar Minaa,a vs. State of Gu$arat

INTERIM CUSTOD!C!22. St. Anaitra Dutta Gu+ta vs. Souey Duta Gu+ta

"URISDICTIONC!23. Manohan Suri & Another vs. Suni, 9uar Arora & OthersC!2". )avin Sin*h vs. St. Jyoti Parashar & Another

MAINTENANCEC!2(. ). Sreerauu= so. ). )arayanavs. 9u. ). %ahariC!20. Ait 9uar Shara vs. #/th Ai= <i$nor & Others

MOTHER AS GUARDIANC!24. 9eshav so Gan+atrao !eau vs. Daohar so 'ara$i 9anrikar

C!27. #ivek 9uar vs. AshokC!2:. <a,bir 9aur vs. St. Jit 9aur & Others



PARENTAGE OF CHILDC!3;. Mrs. 9anhan <ei & Another vs. Gur+reet Sin*h <ei

PATERNIT! OF CHILDC!31. 9anti Devi & Another vs. Poshi a

PREFERENCE OF CHILDC!32. <uta a vs. #eeru a

SEXUAL ABUSEC!33. Pavan 9uar Jha vs. Sa+na Mou*i, Jha

WELFARE OF THE CHILDC!3". <i,a vs. Daya a & OthersC!3(. Chetnaben o Mukunhanra <a,krishna <hatt vs. )atar,a, >oo,shanker JoshiC!30. <hu+iner Sin*h vs. St. 9anhan ani !iaha,C!34. Sarita Shara vs. Sushi, SharaC!37. Jai Prakash 9haria vs. Shya Suner A*ara,,a

WITNESS CHILD0C!3:. Meenu Shara & Another vs. State & Others

Disposing off Mohammad Naseem Bhat Versus Bilquees Akhter, a petition formaintenance, Mr Justice Hasnain Masoodi of the J&K High ourt ruled that

Muslim man!s po"er to di#orce his "ife is not $unrestricted or unqualified% 'he

()*page +udgment is #ital to the con+ugal litigations and the Muslim ersonal

-a" .n pu/lic interest, Kashmir Life reproduces the entire +udgment

deli#ered on April )0, (01(

Hon`ble Mr. Justice Hasnain Masoodi

HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR

561-A No. 158/2009

IA No. 6/2009

!ate o" order# 0 / 0$ /2012

%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%

Mohammad Naseem Bhat

http://kashmirlife.net/wp-content/uploads/2012/11/HASNAIN-MASOODI.jpg



Versus

Biluees A!hter a"d a"r#

%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%

Coram$ Ho"%&le Mr# Justi'e Has"ai" Massodi( Jud)e

%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%

A**eari") Cou"sel$

&or t'e a((ellant)s*# Mr. H. I. Hussain+ Ad,ocate

&or t'e res(ondent)s*# Mr. . H. 'aur+ Ad,ocate

%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%

%%%%%

i. 'et'er a((ro,ed "or re(ortin in ress/Media# 3es/No/4(tional

ii. 'et'er to be re(orted in !iest/Journal# 3es/No

%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%

%%%%%

1. etitioner sees uas'ent o" 7e,isional ourt order dated 15.10.2009 in

riinal 7e,ision etition No. /2009 titled :iluees Nasee ;s. Nasee

A'ad :'at <'ereb= t'e 7e,isional ourt 'as re,ersed t'e "indin recorded b=

t'e rial ourt t'at :iluees Nasee <as di,orced b= 'er 'usband Mo'aad

Nasee :'at disentitlin 'er "ro claiin aintenance under ection $88 r.

. . 'e aditted and undis(uted "acts are as under#-

2. Mo'aad Nasee :'at and :iluees A'ter alias :iluees Nasee>

(etitioner and res(ondent No. 1 in t'e (resent (etition+ contracted arriae on

2$.08.2002 and out o" <edloc :ab= ?areena Nasee- res(ondent No. 2 in t'e

(etition+ <as born on 06.06.200. 'e= 'o<e,er+ soe tie a"ter res(ondent No.

2 <as born+ "ell a(art. 'e (arties 'a,e t'eir o<n ,ersions as reards reasons "or

t'eir se(aration.

. :e t'at as it a=+ res(ondent No. 1 on 'er be'al" and on be'al" o" 'er inor

dau'ter-res(ondent No. 2 on 0.01.2006 "iled an a((lication under ection $88

r. . . in t'e ourt o" JMI/rd Additional Munsi"" rinaar. 'e res(ondent@s

case be"ore t'e rial Maistrate <as t'at t'e (resent (etitioner not 'a((= t'at

res(ondent No. 1 'ad beotten a "eale c'ild+ subected 'er to in'uan

treatent and t're< 'er out alon-<it' :ab= ?areena Nasee "ro 'er arital

'oe+ lea,in 'er <it'out an= source to "all bac u(on. It <as insisted t'at t'e

(etitioner <as a an o" substance+ 'ad an incoe o" 7s. 0+000/- (er ont' and

'ad su""icient resources to aintain t'e res(ondents. 'e res(ondents ased "or7s. 000/- (er ont' to eac' o" t'e+ as aintenance allo<ance. 'e (etitioner



resisted t'e a((lication on t'e rounds t'at 'e 'ad di,orced res(ondent No. 1 on

22.12.2005 and 'e <as not under an= obliation to (a= aintenance allo<ance to

res(ondent No. 1. 'e (etitioner denied t'at t'e res(ondents <ere t'ro<n out

and insisted t'at t'e res(ondent No. 1 le"t 'is 'ouse on 'er o<n+ tain <it' 'er

all 'er belonins includin ornaents and a((arel and e,en ot "alse and"ri,olous case reistered aainst 'i at oen@s olice tation+ 7aba'+

rinaar.

$. Bearned rial Maistrate on (erusal o" (leadins and a((reciation o"

e,idence brou't on t'e "ile+ 'eld res(ondent No. 1 to 'a,e been di,orced b=

(etitioner be"ore res(ondent No. 1 a((roac'ed t'e rial Maistrate <it' 'er

a((lication under ection $88 r. . . and t'us not entitled to recei,e an=

aintenance "ro t'e (etitioner. Ho<e,er+ t'e (etitioner <as directed to (a= an

aount o" 7s. 1800/- (er ont' to res(ondent No. 2 "ro t'e date o" "ilin o"t'e a((lication.

5. 'e res(ondent arie,ed <it' t'e order o" t'e rial Maistrate dated

0.06.2009+ <'ereb= 'er clai "or aintenance <as reected+ uestioned it

t'rou' ediu o" a re,ision (etition be"ore 1st Additional essions Jude+

rinaar. Bearned 7e,isional ourt on (erusal o" t'e record and a"ter ain a

sur,e= o" la< on t'e subect+ set aside t'e rial Maistrate order dated

0.06.2009 'oldin it to be (er,erse+ illeal and (assed in a ec'anical anner.

'e 7e,isional ourt ased t'e rial Maistrate to deterine t'e uantu o"

aintenance allo<ance to <'ic' res(ondent <as entitled in t'e "acts and

circustances o" t'e case.

6. 'e order o" 7e,isional ourt is uestioned in t'e (etition on 'and on t'e

rounds set out in t'e (etition. It is insisted t'at t'e rial ourt order is <ell

reasoned+ in con"orit= <it' la< and does not su""er "ro an= error+ illealit= or

i(ro(riet= so as to <arrant inter"erence under ection $5 r... 'e

7e,isional ourt order+ accordin to (etitioner+ aounts to abuse o" (rocess o"

ourt and deser,es to be uas'ed in eCercise o" in'erent (o<ers ,ested in t'e

ourt under ection 151-A r..

. I 'a,e one t'rou' t'e (etition as also rial ourt and 7e,isional ourt

record. I 'a,e 'eard ounsel "or t'e (arties.

8. 'et'er a Musli 'usband 'as an absolute and unuali"ied (o<er to

(ronounce di,orce on 'is <i"e and <rile out o" 'is obliations under t'e

arriae contractD 'e "ate o" t'e (resent re,ision (etition 'ines on ans<er to

t'is uestion. It needs to be (ointed out at t'e outset t'at a Musli in t'e atters

o" arriae+ di,orce+ ado(tion+ aintenance and in'eritance etc. is in ters o"

Jau and ?as'ir 'ariat Act+ 200+ o,erned b= t'e 'ariat Ba<. 'e

(riar= sources o" 'ariat Ba< are Euran+ and unna-(ractice and sa=ins o"



ro('et. Ia+ Ei=as and Iti'aad su((leent t'e (riar= sources. o "ind out

t'e ans<er to t'e uestion+ and anner in <'ic' t'e arriae a= be dissol,ed

or t'e arriae contract a= coe to an end+ <e 'a,e to o to t'e "undaental

sources o" 'ariat Ba< and to understand t'e conce(t o" arriae in Isla+ t'e

ri'ts o" t'e (arties to t'e arriae contract i.e. 'usband and <i"e+ and t'e odeand anner t'e arriae contract is dissol,ed.

9. 'e arriae is a social institution t'at "ors bedroc o" "ail= and ociet=.

'e u(ree ourt in F.;.7ao ;s. B.H.; rasad and ot'ers )2000* 69

called arriae Gsacred cereon=+ t'e ain (ur(ose o" <'ic' is to enable t'e

=oun (eo(le to settle do<n in li"e and li,e (eace"ull=. In eda Na(al ;s.

tate o" !el'i and ot'ers )2000* 9 $5+ t'e u(ree ourt 'oldin t'at

Gbasic unit o" ociet= is a "ail=+ obser,ed t'at Garriae creates t'e ost

i(ortant relation in li"e+ <'ic' in"luences oralit= and ci,iliation o" (eo(le+t'an an= ot'er institution. 'e conce(t o" arriae in Isla is no di""erent.

Marriae in Isla is a Gsolen co,enant. It is union o" lo,e+ a""ection+ utual

res(ect+ lo=alt= and obedience. 'e Institution o" arriae in Euran is described

as sin o" erc= o" Ali't= Alla' <it' t'e obect to brin (eace and tranuillit=

to t'e 'usband and t'e <i"e. Euran>'a(ter 0 ,erse 21 ordains.

GAnd aonst His sins is t'at 'e created "or =ou s(ouses "ro aon =oursel,es+

t'at =ou a= "ind (eace in t'e+ and 'e (ut bet<een =ou a""ection and erc=.

;eril= in t'at t'ere are sins "or t'ose <'o re"lect.10. In Isla arriae+ is not onl= eans to ac'ie,e eotional and bioloical

rati"ication but also Ibada' as b= contractin arriae+ t'e (arties to t'e

arriae dis(la= obedience to Alla' and to t'e unna'. 'ere is no celibac= in

Isla. 'e arriae is a reliious dut=+ a oral sa"euard and a social necessit=

as it enables t'e arr=in cou(le to establis' a "ail= as a "undaental unit o"

t'e societ=. 'e ro('et is re(orted to 'a,e said Garriae is = tradition

<'osoe,er ee(s a<a= t'ere "ro is not "ro aonst e.

11. ince t'e arriae is based on utual lo,e+ a""ection and lo=alt=+ Isla does

not i,e (re"erence to eit'er o" t'e (arties to a arriae. 'e essae in 'a(ter

0 ;erse 21 is not ender s(eci"ic. It does not address a Musli an or Musli

<oan. It does not sa= t'at Ali't= Alla' created "or a an+ <oan as 'is

s(ouse or ,ice-,ersa. It+ on t'e ot'er 'and+ addresses bot' en and <oen

sa=in t'at He created s(ouses and it is a sin o" His erc=. 'is clearl= indicates

t'at a an and <oan are eual (artners in a arriae. Aain Euran uses

eC(ression Ga< "or bot' 'usband and <i"e. It eans eit'er o" t'e (air.

'ere,er Euran aes ention o" ideal (artners in a arriae+ it re"ers to t'e

as Ga< and not 'usband or <i"e. 'is aain aes it clear t'at 'usband and

<i"e in Isla are eual (artners and 'a,e eual status.



12. it' t'e abo,e baseline+ Isla does not (re"er or encourae a (articular

(attern o" li"e "or a arried cou(le. It i,es t'e co(lete "reedo to decide on

li"e (attern and assin roles as lon as suc' (atterns or roles are not in con"lict

<it' "undaental (rinci(les o" Isla. 'e 'usband and <i"e+ at t'e tie t'e

arriae is contracted+ ust be co(etent to enter into a contract. 'e contractis to be based on utual consent i.e. o""er and acce(tance. 'is "urt'er rein"orces

t'e (ro(osition t'at a an and <oen 'a,e eual ri'ts+ eual role and eual

(o<er <'ile contractin arriae. 'e (arties a"ter t'e= contract arriae

retain t'eir (ersonal ri'ts as aainst eac' ot'er and as aainst ot'ers. Ha,in

reard to t'e obect o" t'e arriae and its basis+ it does not reuire an=

e('asis+ t'at arriae in Isla is not te(orar= "eature. It is eant to continue

and reain intact "or t'e entire s(an o" li"e.

1. In Isla 'usband and <i"e (rotect eac' ot'er. Euran calls t'e Garents"or eac' ot'er. 'e ,erse is to indicate t'e le,el o" (roCiit= or intiac=

bet<een t'e s(ouses. Here aain Euran does not ae an= di""erence bet<een

<i"e and 'usband. A arent does not onl= (rotect a (erson "ro 'eat and cold

or bodil= inur= but also is soet'in close to t'e bod= o" a (erson. 'e

eC(ression Garents "or eac' ot'er t'ere"ore+ eans t'at no ot'er (erson can

be as (rotecti,e and close to 'usband or <i"e as 'is or 'er s(ouse. 'e lo,e+

a""ection+ care and (rotection t'at arriae creates bet<een s(ouses 'a,e

(ositi,e s(ill o,er "or t'e "ail=+ t'e societ=+ t'e <orld and t'e uni,erse. 'e

arriae in Isla t'ere"ore "ors buildin bloc "or t'e uni,ersal lo,e and (eace.

1$. 'ou' Isla does not treat arriae as a te(orar= relation and eC(ects

it to create an eternal bond bet<een t'e s(ouses based on lo,e+ a""ection+

"idelit=+ and utual res(ect+ =et it does not rule out a situation <'ere because

o" reasons be=ond control o" t'e (arties arriae a= brea do<n. Isla

reconises t'ree odes o" dissolution o" arriae. It a= be dissol,ed b= )i*

utual consent o" t'e s(ouses>?'ula+ )ii* di,orce b= t'e 'usband>alaa or )iii*

b= inter,ention o" t'e ourt>udicial di,orce. Ila+ e'er+ ubara@at are ot'er

odes o" dissolution o" arriae. In t'e (resent case <e are concerned <it'

di,orce b= 'usband>alaa. It a= tae t'ree "ors#

)i* alaa a'san>sinle (ronounceents o" di,orce ade durin a tu'r )(eriod

bet<een enstruations* "ollo<ed b= abstinence "ro seCual intercourse "or t'e

(eriod o" iddat.

)ii* alaa 'asan>t'ree (ronounceents o" di,orce ade durin successi,e

tu'rs+ <it'out an= intercourse durin an= o" t'e t'ree tu'rs+

)iii* alaa bid@i>t'ree (ronounceents>o" di,orce ade durin a sinle

tu'r eit'er in one sentence or in t'ree sentences or an= ot'er "or lie in



<ritin+ indicatin intention o" t'e 'usband to irre,ocabl= dissol,e t'e

arriae.

15. It is i(ortant to note t'at alaa a'san+ <'ereb= a 'usband (ronouncin

di,orce durin tu'r i.e. (eriod o" (urit=+ be"ore 'a,in an= seCual relations <it'

'is <i"e+ is onl= "or o" di,orce t'at "inds a((ro,al o" Euran. 'is is t'e

a((ro,ed "or o" di,orce+ as it lea,es roo "or reconciliation. alaa a'san+ in a

<a=+ is a ec'anis o" eC(eriental te(orar= se(aration+ <'ere s(ouses "allin

a(art 'a,e adeuate o((ortunit= to (roceed on an on<ard ourne= and

understand neati,e s(ill o,er o" se(aration on t'e and t'ose around t'e.

alaa 'asan is neCt to alaa a'san in t'e deree o" acce(tabilit=. Ho<e,er a"ter

di,orce is (ronounced t<ice i.e. in t<o consecuti,e (eriod o" tu'r+ t'e (arties

t'erea"ter 'a,e a c'oice to eit'er li,e toet'er as 'usband and <i"e "ore,er or to

se(arate "ore,er ne,er t'inin o" reunion. 4nce t'e t<o consecuti,eeC(erients o" reconciliation "ail+ t'ird di,orce o(erates as alaai bai@n. Euran

in 'a(ter 2 ,erse 229 coands Ga di,orce is onl= (ronounced t<iceK a"ter t'at

t'e (arties eit'er to 'old toet'er on euitable ters or se(arate <it' indness.

alaai bid@i is a later inno,ation and does not "ind a((ro,al o" 'ariat Ba<. It is

a edicine t'at <as concei,ed to cure t'e enace o" ulti(le di,orces at one

tie+ but turned out to be ore let'al t'an t'e disease it <as to cure. It

nonet'eless+ o(erates iediatel=+ dissol,es arriaes+ lea,in t'e di,orcee

<it' ri'ts+ lie ri't to clai aintenance and ri't to s'elter durin t'e

(eriod o" iddat. Most des(ised and discouraed o" all "ors o" talaa+ t'e talaa bid@i is "reuentl= used de,ice to dissol,e arriae.

16. In case o" irre,ocable di,orce <'ere 'usband (ronounces di,orce t<ice i.e.

t<o consecuti,e tu'r@s and t'erea"ter decides not to li,e <it' 'is <i"e or

(ronounces a t'ird di,orce+ t'e 'usband (ronounces tri(le di,orce or uses an=

ot'er "or o" di,orce to ae it clear t'at it is to o(erate irre,ocabl=+ 'e cannot

rearr= t'e di,orcee. Euran in 'a(ter 2 ,erse 220 ordains Gso i" a 'usband

di,orces 'is <i"e irre,ocabl=+ 'e cannot a"ter t'at rearr= 'er until a"ter s'e is

arried to anot'er (erson and 'e 'as di,orced 'er. 'ere is no suc' bar in case

o" alaa a'san. 'a(ter 2 ,erse 22 (ro,ides G<'en =e di,orce <oen+ and t'e=

"ul"ill t'e ter o" t'eir )iddat*+ do not (re,ent t'e "ro arr=in t'eir )"orer

'usbands* i" t'e= utuall= aree on euitable ters. Ho<e,er+ as t'e alaa

bid@i is t'e ost "reuentl= used et'od o" di,orce+ t'e discussion is to reain

"ocused on t'e said "or o" alaa.

1. 'ou' Isla ,isualises a situation <'ere a arriae a= run into rou'

<eat'er+ "or reasons be=ond control o" t'e (arties to t'e arriae and (ro,ides

"or a ec'anis to end or dissol,e t'e relations'i( in suc' case+ =et e('asis

reains on ain e,er= e""ort to 'el( t'e arriae <or+ and to reuire t'e



(arties to arriae realie+ t'at t'e <e"t and <ar( o" arriae is lo,e+ a""ection+

lo=alt=+ care+ accoodation and understandin and di""erences are to be

resol,ed on t'e basis o" said (rinci(le. 'e de,ice o" di,orce is to be used as a last

o(tion <'en t'e arital relations 'a,e irretrie,abl= broen do<n and onl= <a= in

t'e interest o" bot' t'e (arties and t'e societ= is to 'el( t'e se(arate+ to ae ane< beinnin and start a ne< li"e+ so t'at t'e= are in a (osition to (la= t'e roles

"or t'eir <ell bein and betterent o" ot'er ebers o" t'e ociet=. In ot'er

<ords+ Isla is stronl= aainst t'e di,orce and <ants it to be a,oided unless

t'ere is no alternati,e+ eCce(t se(aration.

18. A closer loo at t'e Euranic ,erses dealin <it' t'e subect o" di,orce+ as

also unna rele,ant to t'e subect+ aes it abundantl= clear t'at t'e di,orce is

discouraed and an e""ort is ade to ae it di""icult and incon,enient "or a

'usband to (ronounce alaa. 4n t'e ot'er 'and e,er= e""ort is ade to "acilitatereconciliation+ <'ere t'e relations'i( is arred b= dis(utes and disareeents.

'a(ter 65 ,erse 1 and 2+ re"erence to <'ic' <ould be ade durin course o"

t'is udent+ (lace restrictions on di,orce and at t'e sae tie ensure t'at

conditions are created "or reconciliation. 'e <i"e e,en a"ter alaa is

(ronounced is to sta= in t'e 'ouse o" t'e 'usband. 'e 'usband is under

coand not turn out t'e di,orcee "ro 'is 'ouse. 'e obect is to ae t'e

cou(le li,e under sae roo"+ durin t'e <aitin (eriod and 'el( t'e realie

t'eir i(ortance "or eac' ot'er and <'at t'e= ean to eac' ot'er+ so t'at t'e

'usband is (ro(ted to i,e a second loo to 'is decision and tae bac 'is <i"e in arital "old.

19. 'e ro('et is re(orted to 'a,e said GJabra@il )Fabriel* so uc'

coended t'e cause o" t'e <oen+ and so counselled e as to i,e e t'e

i(ression t'at+ eCce(t in t'e case o" adulter=+ t'e <i"e does not deser,e to be

di,orced. Ia Ja@"ar adi uotes t'e ro('et as sa=in#

Go Fod no 'ouse is dearer t'an t'e 'ouse <'ere t'ere is t'e union o" arriae+

and no 'ouse eCists <'ic' deser,es His <rat' ore t'an t'at in <'ic' t'e union o"

arriae is broen b= di,orce. Accordin to Ia as-adi# G'e <ord ala

)di,orce* occurs re(eatedl= in t'e Eur@an+ and t'at t'e details o" t'e atter o"

di,orce 'a,e been 'onoured <it' t'e attention o" t'e Hol= Eur@an. 'e reason "or

t'is is t'at Fod is an ene= o" se(aration. abarasi in Maariu @l-a'la uotes

t'e Hadit' GFet arried+ but do not di,orce because t'e t'rone o" Alla' s'udders

<'en t'ere is di,orce. Ia as-adi sa=s# GNo la<"ul t'in is t'e obect o" so

uc' <rat' and 'ate in t'e e=es o" Alla' as di,orce is. Alla' considers t'e an

<'o re(eatedl= di,orces as His ene=. Abu !a<ud in ?itab unna' uotes

Hadit' GAlla' declared la<"ul not'in so aboinable to Hi as di,orce. Jalalu-



!in-7ui re"ers to t'e tradition o" ro('et+ Gas "ar as (ossible do not ste( into

se(aration+ "or t'e ost detestable t'in to e is di,orce.

20. 'e ro('et <as once in"ored t'at Abu A==ub Al-Ansari <as deterined to

di,orce L A==ub>'is <i"e. 'e ro('et no<in t'at t'e di,orce o" L

A==ub <as not rounded in a enuine cause said G;eril= t'e di,orce o" L

A==ub is t'e reat sin. It "ollo<s t'at 'usband ust 'a,e a enuine and ,alid

reason to di,orce 'is <i"e. 'e (o<er or ri't to (ronounce di,orce is not to be

used arbitraril=+ at <'i and ca(rice and in absence o" a ,alid and enuine

reason.

21. &ro t'e abo,e brie" o,er,ie< o" Euran and unna rele,ant to t'e subect>

t'e "undaental sources o" 'ariat Ba< o,ernin t'e Muslis in t'e atter o"

arriae+ di,orce and ot'er "ail= atters+ it eeres t'at t'ou' 'usband

under 'ariat la< 'as (o<er to di,orce 'is <i"e =et t'is (o<er is not absolute+unuali"ied and unbridled. 'e (ro(osition is "urt'er rein"orced b= EDran

'a(ter $ ;erse 5 o" ura' Nisa. It reads#

GI" =e "ear a breac' bet<een t'e t<ain+ a((oint )t<o* arbiters+ one "ro 'is

"ail=+ and t'e ot'er "ro 'ersK i" t'e= see to set t'ins alri't+ Alla' <ill cause

t'eir reconciliation# "or Alla' lo,et' not t'e arroant+ t'e ,ainloriousK

22. 'e Euran ordains t'at <'ere,er and <'ene,er t'ere a((ear "issures in t'e

arital relations'i( and t'ere is disareeent bet<een t'e s(ouses+ t'e 'usband

does not 'a,e an absolute and unuali"ied (o<er to di,orce 'is <i"e so as to etout o" relations'i(+ bruised b= discontent. As t'e "irst ste(+ t<o arbiters are to be

a((ointed one "ro t'e 'usband@s "ail= and one "ro t'e <i"e@s "ail= and t'e

t<o arbiters so a((ointed are to be i,en an adeuate o((ortunit= to resol,e t'e

dis(ute and i,e t'eir ,erdict. 'e ,erdict <'ate,er i,en b= t'e t<o arbiters is

eC(ected to be "ollo<ed b= t'e s(ouses. It is (ertinent to ention t'at Euran uses

t'e <ord GHa or Garbiter and not Gediator. 'e arbiters t'ere"ore+ 'a,e

not to si(l= ediate but to i,e t'eir ,erdict so as to redress t'e rie,ances+ and

suc' ,erdict is eC(ected to be "ollo<ed b= t'e s(ouses. It is i(ortant to note t'at

a"ter insistin on Ga((ointent o" arbiters+ GEuran reinds us t'at GAlla' lo,et'

not t'e arroant+ t'e ,ainlorious. It is to eC'ort t'e (arties to a arriae

(laued b= dis(utes+ to abide b= t'e ,erdict i,en or course suested b= t'e

arbiters and not to be rude+ obstinate or recalcitrant.

2. 'e Euran in c'a(ter 65 ;erses 1 and 2 ordains#

1.G 4 ro('et <'en =e do di,orce <oen+ di,orce t'e at t'eir (rescribed

(eriods+ and count )accuratel=* t'eir (rescribed (eriods# and "ear Alla' =our Bord#

and turn t'e not out o" t'eir 'ouses+ nor s'all t'e= )t'esel,es* lea,e+ eCce(t in

case t'e= are uilt= o" soe o(en le<dness+ t'ose are liits set b= Alla'# and an=



<'o transresses t'e liits o" Alla'+ does ,eril= <ron 'is )o<n* soul# t'ou

no<est not i" (erc'ance Alla' <ill brin about t'erea"ter soe ne< situation.

2. 'us <'en t'e= "ul"il t'eir ter a((ointed+ eit'er tae t'e bac on euitable

ters or (art <it' t'e on euitable tersK and tae "or <itness t<o (ersons "ro

aon =ou+ endued <it' ustice+ and establis' t'e e,idence "or t'e sae o" Alla'.

uc' is t'e adonition i,en to 'i <'o belie,es in Alla' and t'e Bast !a=. And

"or t'ose <'o "ear Alla'+ He )e,er* (re(ares a <a= out.

'e abo,e uoted ,erses+ ob,iousl= (lace+ certain restrictions on t'e (o<er o"

'usband to (ronounce di,orce. 'e restrictions are t'at t'e 'usband+ e,en

<'ere 'e 'as a ,alid reason to di,orce 'is <i"e+ 'as to di,orce 'er at t'e

(rescribed (eriod. 'e di,orce is to be (ronounced a"ter end o" enstrual c=cle

but be"ore t'e 'usband indules in seCual intercourse <it' 'is <i"e. In case a"ter

enstrual c=cle t'e 'usband and <i"e co(ulate durin t'e (eriod o" (urit= ortu'r+ t'e 'usband cannot (ronounce alaa durin t'at tu'r and 'as to <ait till

tu'r coes to an end+ and t'e second enstrual disc'are ends and t'erea"ter

(ronounce alaa in neCt tu'r. Aain di,orce is to be (ronounced in (resence o"

t<o <itnesses <'o are endued <it' ustice. 'ere is no sco(e "or

disareeent <it' t'e leal (ro(osition t'at as Euran and unna re"er to

alaa a'san+ restrictions (laced on use o" said de,ice+ as laid do<n in 'a(ter

65 ,erse 1 and 2 and else<'ere in Euran and unna 'a,e re"erence to alaa

a'san. Ho<e,er+ t'ere is no reason to conclude t'at t'e said restrictions

a((licable to t'e ost a((ro,ed "or o" di,orce+ s'ould not be a((licable to

t'e ost des(ised and discouraed "or o" alaa i.e. alaa bid@i. 4n t'e ot'er

'and restrictions <arrant strict en"orceent in case o" alaa bid@i.

2$. 'e di,orce+ )alaa* to be ,alid and in accordance <it' Euran and unna'+

ust be (ronounced durin tu'r. &urt'erore+ in case 'usband a"ter t'e

enstrual c=cle coes to an end and t'e (eriod o" (urit= or tu'r coences+

'as seCual intercourse <it' 'is <i"e+ 'e is "orbidden to di,orce 'is <i"e in t'at

tu'r and i" 'e (ersists <it' 'is resol,e to (ronounce alaa+ 'e 'as to <ait till

neCt enstruation and (ronounce alaa in tu'r t'erea"ter. 'e leal (osition isade clear b= t'e case o" Abdulla'- bin Lar re(orted b= all t'e treatise on

Hadit'. Abdulla'-bin Lar di,orced 'is <i"e Aina-binti Fa""ar <'en s'e <as

in iddle o" enstrual c=cle. Ler-bin ?'atab>"at'er o" Abdulla'-bin Ler

re(orted t'e atter to t'e ro('et. 'e ro('et disa((ro,ed t'e di,orce

(ronounced b= Abdulla'- bin Lar+ ased 'i to restore relations <it' 'is <i"e

ain it clear t'at in case Ler bin Abdulla' <as adaant in 'is resol,e to

di,orce 'is <i"e+ 'e a= do so durin neCt tu'r. It "ollo<s t'at t'e

(ronounceent o" di,orce durin enstrual c=cle is strictl= (ro'ibited and an=

,iolation or disreard renders di,orce )talaa* non-est and inconseuential. '=

does Euran ordain t'at alaa to be ,alid ust be (ronounced durin tu'r



and unna insist on it@s co(liance+ as is e,ident "ro ,erdict rendered in

Abdulla'-bin-Lar@s case+ is not di""icult to understand. 'e 'usband as (er t'e

dictates o" Euran is to sta= a<a= "ro 'is <i"e durin t'e (eriod o"

enstruation. In suc' circustances t'e 'usband+ <'en 'e 'as no access to 'is

<i"e+ a= not be in a (osition to a((reciate in ri't (ers(ecti,e t'e "allout o"di,orce on 'is li"e and t'at o" 'is "ail=. He <ould be in a better (osition to

realie t'e i(ortance o" 'is <i"e i" 'e 'as access to 'er and t'e= are in a

(osition to relis' t'eir arital relations and (er"or arital obliations. 'e

'usband in suc' situation a= "eel dissuaded "ro (ronouncin alaa on 'is

<i"e. 'e restrictions on (ronounceent o" alaa a"ter t'e 'usband and <i"e

co(ulate+ in t'at tu'r+ is to ser,e t'e sae (ur(ose. 'e obect is to+ as "ar as

(ossible dela= t'e di,orce+ so t'at 'usband 'as su""icient tie to i,e a "res'

loo to 'is decision. 4nce (eriod o" tu'r in <'ic' 'usband 'as seCual

intercourse <it' 'is <i"e coes to an end+ and t'e <i"e does not 'a,e t'e

enstrual disc'are indicatin t'ereb= t'at s'e 'as concei,ed+ t'e 'usband

realiin t'at 'e 'as "at'ered a c'ild a= no ore be interested in (ronouncin

alaa and a= ,er= <ell abandon t'e idea. 'e end ae is to "acilitate and

ensure continuation o" arriae and to a,oid t'e "ail= breado<n.

25. o ae di,orce>)alaa* ,alid+ it is not enou' t'at it is (ronounced in

(resence o" t<o <itnesses. 'e Euran (rescribes uali"ications o" suc' <itnesses.

It e('asises t'at t'e <itnesses ust be endued <it' ustice. 'e (ur(ose is to

ensure t'at t'e <itnesses+ (ro(ted b= t'eir sense o" ustice+ a= reuest+i(lore and (ersuade t'e s(ouses on t'e ,ere o" se(aration+ to cal do<n+

resol,e t'eir dis(utes and lead a (eace"ul arital li"e.

26. &ro t'e abo,e discussion+ it eeres t'at a 'usband to <rile out o" 'is

obliations under arriae includin one to aintain 'is <i"e+ claiin to 'a,e

di,orced 'er 'as not erel= to (ro,e t'at 'e 'as (ronounced alaa or

eCecuted di,orce deed to di,orce 'is <i"e but 'as to co(ulsoril= (lead and

(ro,e#

)i* t'at e""ort <as ade b= t'e re(resentati,es o" 'usband and <i"e tointer,ene+ settle dis(utes and disareeents bet<een t'e (arties and t'at suc'

e""ort "or reasons not attributable to t'e 'usband did not bear an= "ruit.

)ii* t'at 'e 'ad a ,alid reason and enuine cause to (ronounce di,orce on 'is

<i"e.

)iii* t'at alaa <as (ronounced in (resence o" t<o <itnesses endued <it'

ustice.



)i,* t'at alaa <as (ronounced durin t'e (eriod o" tu'r )bet<een t<o

enstrual c=cles* <it'out indulin in seCual intercourse <it' t'e di,orcee

durin said tu'r.

2. It is onl= a"ter t'e 'usband (leads and (ro,es all t'e abo,e inredients t'at

di,orce>alaa+ <ould o(erate and arriae bet<een t'e (arties <ould stand

dissol,ed so as to enable 'usband to esca(e obliations under t'e arriae

contract+ includin one to aintain 'is <i"e. 'e ourt in all suc' cases <ould

i,e a 'ard loo to t'e case (roected b= t'e 'usband and insist on strict (roo".

28. In t'e (resent case t'e (etitioner "ailed to (ro,e t'e abo,e inredients to

ae t'e alaa claied to 'a,e been (ronounced b= 'i o(erational and result

in dissolution o" arriae. 'ou' a "eeble atte(t a((ears to 'a,e been ade to

(ro,e t'at t'ere <as soe ind o" inter,ention b= t'e elders be"ore alaa <as

(ronounced b= t'e (etitioner+ =et t'is is o" no a,ail to 'i+ as all t'e abo,e

reuireents or inredients o" a ,alid di,orce )talaa* are not (ro,ed.

29. &or t'e reasons discussed+ t'e (etition is disissed. 'e order o" t'e

7e,isional ourt is u('eld and Bearned Maistrate directed to deal <it' t'e

atter a"res' a"ter issuin notices to t'e (arties. 'e trial Maistrate as a "irst

ste( s'all deterine on t'e basis o" t'e (leadins+ t'e aount o" t'e interi

aintenance to be (aid b= t'e (resent (etitioner to t'e res(ondent and ensure

t'at t'e interi aintenance is (aid <it' e""ect "ro t'e date suc' aintenance

is directed+ <it'in "our <ees "ro t'e date o" t'e order.

+Has"ai" Massodi,

Jud)e

Sri"a)ar

-.#./#0.10

Documents

Directory of Sc-hc Judgements