hindu law 2

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SOURCES OF HINDU LAW

1)Ancient Sources :

a) Sruti : Manu has defined Sruti as follows – “By Sruti or what washeard from above (from God) is meant the Veda”. Sruti or Veda are

believed to contain the very words of Deity (God). They aresupposed to be the divine utterances to be found in the four Vedas,the six vedangas and the eighteen Upanishads.

b) Smriti : They are utterances and precepts of the Almighty, whichhave been heard and remembered and handed down by the Rishis

(sages) from generation to generation. The smrities are divided intoPrimary and Secondary Smrities contained in Dharma Sutra (Prose)and Dharmashastras (Poetry).

c) Digests and Commentaries : After the Smrities, the next step in the

development of Hindu Law was the composition of a number of

commentaries (tika) and Digests (Nibandha) based upon theSmrities. The commentaries are to interpret the law as laid down inthe Smrities.

d) Custom : When human beings came to live in groups, it was butnatural that they should, for harmonious group life, conform to

certain patterns of human behaviour.

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2) Modern Sources : a) Judicial Decisions

b) Legislation

c) Equity, Justice and Good Conscience

APPLICATION OF HINDU LAW1 .Hindu by Religion : In this category two types of persons fall –

a) Those who are originally Hindus, Jains, Sikhs or Buddhist by religion, and

b) Those who are converts or reconverts to Hindu, Jain, Sikhs or Buddhistreligion

c) Converts and Reconverts to Hinduism

2. Hindu by Birth : A child whose both the parents were Hindus, Sikhs,

Jains or Buddhists at the time of his birth, is regarded as Hindu. A person will

be Hindu if at the time of his birth one of the parents was Hindu and the child isbrought up as a member of the tribe, community, group or family to which

Hindu parent belonged at the time of his birth.

3. Who are not Muslims, Christians, Parsis or Jews : Any person who is

not a Muslim, Christian, Parsi or Jew and who is not governed by any other law,

is governed by Hindu law, unless it is proved that Hindu law is not applicable tosuch a person

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Under the Codified Law : Section 2 of the Hindu Marriage Act 1955, provides that the Act applies to the persons listed below (and similar provisions are also made in the other enactments of Hindu Law) –

1. Application of Act – This Act applies –

a) to any person who is Hindu by religion in any of its forms of development, including a Virashaiva, a Lingayat or a follower of theBrahmo, Prarthana or Arya Samaj;

b) to any person who is a Buddhist, Jaina or Sikh by religion; and

c) to any other person domiciled in the territories to which this Actextends, who is not a Muslim, Christian, Parsi or Jew by religion,unless it is proved that any such person would not have been

governed by the Hindu law or by any custom or usage as part of thatlaw in respect of any of the matters dealt with herein if this Act hadnot been passed.

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Explanation – The following persons are Hindus, Buddhists, Jainas or Sikhs by

religion, as the case may be –

a) any child, legitimate, or illegitimate, both of whose parents are Hindus,

Buddhists, Jains or Sikhs by religion;

b) any child, legitimate, or illegitimate, one of whose parents is a Hindu,

Buddhist, Jaina or Sikh by religion, and who is brought up as a member of

the tribe, community, group or family to which such parent belongs or

belonged; and

c) any person who is a convert or re-convert to the Hindu, Buddhist, Jain or Sikh

religion.

2. Notwithstanding anything contained in sub-section (1), nothing contained in

this Act shall apply to the members of any Schedule Tribes within the

meaning of clause (25) of Article 366 of the Constitution, unless the Central

Government, by notification in the Official Gazette, otherwise directs.

3. The expression “Hindu” in any portion of this Act shall be construed as if it

included a person who, though not a Hindu by religion is, nevertheless, a

person to whom this Act applies by virtue of the provisions contained in this

section.

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Person to whom Hindu Law Applies (Uncodified Law) :

1. Hindus by birth and also to Hindus by conversion in any of its forms or developmentsincluding Brahmans, Arya Samajists etc.

2. Illegitimate children whose parents are Hindus.

3. Illegitimate children born of a Christian father and a Hindu mother and brought up asHindus.

4. Buddhists, Jains, Sikhs and Nambudry Brahmans except, so far such law is varied bycustom and to lingayats who are considered as Shudras.

5. Sons of Hindu dancing girls of Naik caste converted to Mohammedanism where the sonsare taken into the family of Hindu grandparents and are brought up as Hindus.

7. Brahmos and Arya Samajists, and to Santhals of Chhota Nagpur, and also to Santhals of Manbhum except so far as it is not varied by custom.

8. A Hindu who has made a declaration that he is not Hindu for the purpose of Special

Marriage Act 1872, and9. A person who is born a Hindu and has not renounced the Hindu religion, does not cease

to be a Hindu merely because he departs

10. A Hindu by birth who having renounced Hinduism, has reverted to it after performing thereligious rites of expiation and repentance, or even without a formal ritual or re-conversion when he was recognised as a Hindu by the community

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THE HINDU MARRIAGE ACT, 1955

Nature of Hindu Marriage - Sacrament or a Contract : It is believed among Hindus that every Hindu is under a religious

obligation to discharge three debts – Pitri Rin, Dev Rin, and Rishi Rin.

Rishi Rin is discharged by getting education, Dev Rin is dischargedby prayer and by making gift but for the discharge of Pitri Rin aHindu must have his own son w

ho is supposed to perform funeralrites and to give sacred obligations to the ancestors on their death

for their salvation. Marriage is also necessary among Hindusbecause all the religious ceremonies and rites are to be performed inthe companionship of his wife otherwise they will not bear any fruits.

From the Rig Vedic period marriage was considered as asacramental union. A marriage is the union of flesh with flesh and

bone with bone. It is a union which is indissoluble. As long as her husband is alive, the wife is enjoined to regard him as her God;likewise, the wife is declared to be half the body of her husband(Ardhangini) who shares with him equally the fruits of all his acts,good or bad. Man is only half, not complete until he marries. The wifeis the source of Dharma, Artha and Kama, and she is also the sourceof Moksha.

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According to Manu, the daughter is given in marriage only onceand she remains the wife of that person to whom she is givenin marriage for her whole life.

According to Narada and Parasara, there are only fiveconditions in which a wife could abandon her husband andremarry –

1.If the husband is lost; 2.dead; or 3.has renounced theworld and has become a sanyasi; or 4. has becomeimpotent; 5. has been ousted from his caste.

But these conditions could be allowed only in the case of unapproved form of marriage. Marriage is a tie which once tied

cannot be untied. It is sacramental union and continues to existeven after the enactment of the Hindu Marriage Act.

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Changes Brought About by the Hindu Marriage Act 1955 :

1. The Act has declared that marriages amongst Hindus, Jains, Sikhs and Buddhists, arevalid.

2. Monogamy has been introduced and provided punishment for bigamy.

3. The minimum age for marriage, 21 for boy and 18 for a girl.

4. The Act does not recognise any particular form of marriage but prescribes someconditions.

5. Registration of Hindu Marriage.

6. Restitution of conjugal rights.

7. The provision of judicial separation.

8. The provision of divorce and the concept of divorce by mutual consent.

9. The provision of re-marriage.

10. Legitimacy of a child born out of either void or voidable marriage.

11. Provision for the custody of children during the pendency of legal proceeding andeven after the passing of decree.

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Hindu Marriages Act, 1955Section 5. Conditions for a Hindu marriage

A marriage may be solemnized between any two Hindus, if the followingcondition are fulfilled, namely:-

(i) neither party has a spouse living at the time of the marriage

(ii) at the time of marriage, neither party-

(a) is incapable of giving a valid consent to it in consequence of unsoundnessof mind; or

(b) though capable of giving a valid consent, has been suffering from mental

disorder of such a kind or to such an extent as to be unfit for marriage andthe procreation of children; or

(c) has been subject to recurrent attacks of insanity

(iii) the bridegroom has completed the age of twenty one years and the bride, theage of eighteen years at the time of marriage

(iv) the parties are not within the degrees of prohibited relationship, unless thecustom or usage governing each of them permits of a marriage between thetwo;

(v) the parties are not sapindas of each other, unless the custom or usagegoverning each of them permits of a marriage between the two;

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Sec.2 (g) degrees of prohibited relationship”

Two persons are said to be within the “degrees of prohibited relationship”

(i) if one is lineal ascendant of the other; or

(ii) if one was the wife or husband of a lineal ascendant or descendantof the other ; or

(iii) if one was the wife of the brother or of the father’s or mother'sbrother or of the grandfather’s or grandmother’s brother of theother; or

(iv) if the two are brother and sister, uncle and niece, aunt and nephewor children of brother and sister or of two brother or of two sister;

Explanation- For the purposes of clauses (f) and (g), relationship

includes:-(i) relationship by half or uterine blood as well as by full blood;

(ii) illegitimate blood relationship as well as legitimate ;

(iii) relationship by adoption as well as by blood ;

and all terms of relationship in those clauses shall be constructedaccordingly

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Prohibited degrees

Lineal ascendants

If one was the w or h of a lineal ascendant or descendant of the other



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Sec.2 (f) “sapinda relationship” (i) “sapinda relationship” with reference to any person extends as far as

the third generation (inclusive) in the line of ascent through the

mother, and the fifth (inclusive) in the line of ascent through the father,the line being traced upwards in each case from the person concerned,

who is to be counted as the first generation.

(ii) two persons are said to be “sapindas” of each other if one is a lineal

ascendant of the other within the limits of sapinda relationship, or if they have a common lineal ascendant who is within the limits of

sapinda relationship with reference to each of them;



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Is A sapinda to his paternal greatgrandfather’s son’s daughter B



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Is A sapinda to his maternal aunt’s grand daughter

(daughter’s daughter B

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Is A sapinda to his maternal aunt’s grand daughter (son’s

daughter) B

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Is A sapinda to his grandfather’s son’s

son’s daughter

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Ceremonies for a Hindu Marriage (Section 7)

a) A marriage may be solemnised in accordance with thecustomary rites and ceremonies of either party thereto.

b) Where such rites and ceremonies include the saptapadi(that is, the taking of seven steps by the bridegroom and thebride jointly before the sacred fire) the marriage becomesbinding when the seventh step is taken.

Registration of Hindu Marriages (Section 8) : For thepurpose of facilitating the proof of a Hindu Marriage, the StateGovernment may make rules that the parties to marriage mayhave the necessary particulars entered in a Hindu MarriageRegister kept for the purpose.

The marriage is not affected in any way by the omission tohave it entered in the Hindu Marriage Register, even it iscompulsory to do so. The only consequence is that a fine notexceeding Rs. 25, may be levied.

C i f i l i f h b

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Consequences in case of violation of the aboveconditions mentioned u/s. 5 of the Act:----

Contravention of Sec.5(1) will render the marriagevoid under Section 11, and a competent Court maydeclare such a marriage to be a nullity on a petitionpresented by either party to such marriage.

The parties to a bigamous marriage are also liable tobe punished under Section 494 and 495 of the IndianPenal Code (Section 17 of the Act).

Contravention of Sec.5(2) will render the marriagevoidable under Section 12

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Contravention of Sec.5(3) will render the marriage valid but

according to sec.18 (a) - Every person who procures a

marriage of himself or herself to be solemnized under this Act

in contravention of the conditions specified in clauses (iii) of section 5 shall be punishable-with rigorous imprisonment

which may extend to 2 years, or with fine which may

extend to one lakh rupees, or with both;

And PCMA

Contravention of Sec.5(3) and (4) will render the marriage

void under Section 11, and according to sec.18 (b) in the

case of a contravention of the condition specified in

clause (iv) and (v) of section 5, with simple imprisonment

which may extend to 1 month, or with fine which may

extend to one thousand rupees, or with both.

16 L iti f hild f id d id bl i

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16-Legitimacy of children of void and voidable marriages.

(1)Notwithstanding that a marriage is null and void under section 11,any child of such marriage who would have been legitimate if the marriagehad been valid, shall be legitimate, whether such child is born before or

after the commencement of the Marriage Laws (Amendment) Act, 1976, (68 of 1976) and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to bevoid otherwise than on a petition under this Act.

(2)Where a decree of nullity is granted in respect of a voidable

marriage under section 12, any child begotten or conceived before thedecree is made, who would have been the legitimate child of the parties tothe marriage if at the date of the decree it had been dissolved instead of being annulled, shall be deemed to be their legitimate child notwithstandingthe decree of nullity.

(3)Nothing contained in sub-section (1) or sub-section (2) shall beconstrued as conferring upon any child of a marriage which is null and voidor which is annulled by a decree of nullity under section 12, any rights in or to the property of any person, other than the parents, in any case where,but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being thelegitimate child of his parents.

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Void Marriage (Section 11) : Any marriage solemnized atthe commencement of this Act shall be null and void andmay, on a petition presented by either party thereto againstthe other party be so declared by a decree of nullity if it

contravenes any one of the conditions specified in clauses(i), (iv) and (v) of Section 5. Thus a marriage will be void abinitio –

i) if any party to marriage has a spouse living at the timeof marriage [Section 5(i)];

ii) if the parties are within the decree of prohibitedrelationship unless the custom or usage governing each of them permits such a marriage [Section 5 (iv)];

iii) if the parties are sapindas of each other, unless thecustom or usage governing each of them permits such amarriage [Section 5(v)].

Section 11 is not applicable to marriage solemnized beforethe commencement of the Hindu Marriage Act 1955, i.e.

before 18th May 1955 though such marriage may be void.

S ( )

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Section 12 (1)-Voidable marriages:-- Any marriage solemnized, whether

before or after the commencement of this Act, shall be voidable and may

be annulled by a decree of nullity on any of the following grounds,

namely:-

(a) that the marriage has not been consummated owing tothe impotence of the respondent; or

(b) that the marriage is in contravention of the conditionspecified in clause (ii) of section 5; or

(c) that the consent of the petitioner, or where the consentof the guardian in marriage of the petitioner was requiredunder section 5 as it stood immediately before thecommencement of the Child Marriage Restraint(Amendment) Act, 1978], (2 of 1978) the consent of suchguardian was obtained by force or by fraud as to the natureof the ceremony or as to any material fact or circumstancesconcerning the respondent; or

(d)that the respondent was at the time of the marriagepregnant by some person other than the petitioner.

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(2)Notwithstanding anything contained in sub-section (1), no petitionfor annulling a marriage-

(a) on the ground specified in clause (c) of sub-section (1) shall beentertained if-

(i) the petition is presented more than one year after the force had ceased tooperate or, as the case may be, the fraud had been discovered; or

(ii) the petitioner has, with his or her full consent, lived with the other partyto the marriage as husband or wife-after the force had ceased to operate or,as the case may be, the fraud had been discovered;

(b) on the ground specified in clause (d) of sub-section (1) shall beentertained unless the court is satisfied-

(i) that the petitioner was at the time of the marriage ignorant of the factsalleged;

(ii) that proceedings have been instituted in the case of a marriagesolemnized before the commencement of this Act within one year of suchcommencement and in the case of marriages solemnized after suchcommencement within one year from the date of the marriage; and

(iii) that marital intercourse with the consent of the petitioner has not takenplace since the discovery by the petitioner of the existence of the said

ground.

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JURISDICTION Court to Which Petition shall be Presented (Section 19) :

Every petition under this code shall be presented to the

District Court within the local limits of whose ordinary originalcivil jurisdiction –

1. the marriage was solemnized; or

2. the respondent, at the time of the presentation of thepetition resided, or

3.a) the parties to the marriage last resided together; or b) in case the wife is the petitioner, where she is residing on

the date of presentation of the petition;

4. the petitioner is residing at the time of the presentation of the petition, in a case where the respondent –

a) is at that time residing outside the territories to which the Act extends, or

b) has not been heard of as being alive for a period of sevenyears or more by those persons who would have naturallyheard of him if he were alive.

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Restitution of Conjugal Rights (Section 9) When either the husband or the wife has, without

reasonable excuse, withdrawn from the society of the

other, the aggrieved party may apply, by petition to thedistrict court, for restitution of conjugal rights land thecourt, on being satisfied of the truth of the statementsmade in such petition and that there is no legal groundwhy the application should not be granted, may decree

restitution of conjugal rights

Explanation- Where a question arises whether there hasbeen reasonable excuse for withdrawal from thesociety, the burden of proving reasonable excuse shall

be on the person who has withdrawn from the society.

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reasonable excuse:---

a) Grossly indecent behaviour.

b) Extravagance of living on the part of the wife affecting the

financial position and prospects of the husband. c) Excessive drinking carried to such a degree as to render it

impossible for the duties of married life to be discharged.

d) Persistence in a false charge against the respondent of having committed an unnatural offence.

e) Refusal of marital intercourse without sufficient reason.

f) Apprehension of violence due to development of insanity inthe petitioner.

g) Agreement to live separately.

h) Misconduct approaching cruelty i) withdrawal for reasons of employment

Kailashwati vs Ajudhia Prakash 1971 P.&H.

Swaraj Garg v. K.M. Garg 1978 Dehi

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Whether Section 9 of the Act is Unconstitutional : T. Sareetha v T. Venkata Subhaiah A.I.R1983 A.P :--Holding that Section

9 is constitutionally void, as being violative of Article 21, the Court observed.

“A decree for restitution of conjugal rights constitutes the grossest from of violation of an individual’s right to privacy. The Court also held that Section 9

also violated Article 14 of the Constitution (the right to equality)

Harvinder Kaur v Harmander Singh Choudhry A.I.R1984 Delhi:-section

9 is not violative of Articles 14 and 21 of the Indian Constitution.

Saroj Rani v Sudarshan Kumar Chandha A.I.R1984 S.C.:-- where the

Court expressly overruled the judgment of the Andhra Pradesh High Court,

and held that Section 9 is not violative of Article 14 and 21 of the

Constitution. The Court pointed out that a decree for restitution of conjugalrights serves a social purpose as an aid to the prevention of break-up in a

marriage. Even if such an order of the Court is willfully disobeyed, the

Court cannot enforce sexual intercourse between the spouses. The only

remedy of the other party would be to apply for attachment of the property

of the defaulting spouse, through Rule32 of Order 21 of the CPC.

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Section 13 (1A) (ii) Either party to a marriage whether solemnizedbefore or after the commencement of this Act, may also present apetition for the dissolution of the marriage by a decree of divorce onthe ground- that there has been no restitution of conjugal rights as

between the parties to the marriage for a period of [one year] or upwards after the passing of a decree for restitution of conjugalrights in a proceeding to which they were parties

Section 9, in actuality, is a means of saving the marriage, it is in asense an extension of sub-sections (2) and (3) of section 23 of the Act

which encourage reconciliation by the court. It is the policy of the Actthat the parties should live together and assist in the maintenance of marriages.

By enforcing cohabitation, the court is serving this purpose of theAct. the Indian Legislature believes that there should not be a sudden

break of the marriage tie. It believes in reconciliation and that thatcooling-off period is not only desirable but essential. If the marriagecannot be saved even after passing the decree of restitution it mustbe dissolved. A factual separation gives an easily justifiableindication of breakdown.

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Further, recognizing non-consumption of marriage after 1 year of passing of Restitution Decree as a ground of divorce enables theaggrieved spouse to apply to the court for maintenance under section25; and maintenance pendente lite may also be claimed by making outa case for the same as provided in section 24. This enables a wife,

who does not desire disruption of the marriage or even judicialseparation from the husband, to secure provision for her support byan order of the court under the matrimonial jurisdiction conferred onit, instead of filing a suit for maintenance under the law relating tomaintenance now embodied in the Hindu Adoptions and MaintenanceAct 1956.

The Remedy of Restitution of Conjugal Rights is archaic, barbarousand violative of the basic Human Rights. It cannot be said that thisremedy is unconstitutional. Section 9 has sufficient safeguards toprevent the marriage from being a tyranny.[43]In truth, it serves thesocial good purpose, by promoting reconciliation between the partiesand maintenance of matrimonial. It protects the society fromdenigrating. And all the years that it has been enforce it has efficientlyplayed it's a role.

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Section10-Judicial separation

(1)Either party to a marriage, whether solemnized before or after thecommencement of this Act, may present a petition praying for a decree

for judicial separation on any of the grounds specified in sub-section (1) of section 13, and in the case of a wife also on any of the grounds specifiedin sub-section (2) thereof, as grounds on which a petition for divorcemight have been presented.

(2)Where a decree for judicial separation has been passed, it shall no

longer be obligatory for the petitioner to cohabit with the respondent, butthe court may, on the application by petition of either party and on beingsatisfied of the truth of the statements made in such petition, rescind thedecree if it considers it just and reasonable to do so.

Section 13 (1A) (i) Either party to a marriage whether solemnized before or

after the commencement of this Act, may also present a petition for thedissolution of the marriage by a decree of divorce on the ground-that therehas been no resumption of cohabitation as between the parties to themarriage for a period of 3[one year] or upwards after the passing of a decreefor judicial separation in a proceeding to which they were parties

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Section 13. Divorce Grounds on Fault theory:---for Husband and Wife both (1) Any marriage solemnized, whether before or after the commencement of this

Act, may, on a petition presented by either the husband or the wife, be dissolved bydecree of divorce on the ground that the other party-

(i) has after the solemnized of the marriage, had voluntary sexual inter course withany person other than his or her spouse;

To prove the adultery, direct evidence is not necessary and can be proved bycircumstantial evidence The sexual intercourse by either of the spouses other thanhis or her spouses must be a voluntary act. To get the matrimonial relief, the act of cohibition must be proved beyond doubt Pre-marriage unchastity of the wife or thesexual relation of husband with some other women is not a ground of divorce. Theburden of proving adultery is always on the person alleging adultery.

(ia) after the solemnization of the marriage, treated the petitioner with cruelty

The cruelty is not defined in the Act but it should be so serious and weighty thatcohabitation becomes impossible.

i) Physical Cruelty : It will necessarily constitute a violence of certain degree andsuch degree of violence, sufficient to constitute legal cruelty, will vary with thestatus of parties in each case. Where bodily injury is inflicted or where there is areasonable apprehension of danger to life, limb or health, bodily or mental, it iseasy to conclude that cruelty has taken place.

ii) Mental Cruelty : denotes a set of circumstances, which though fall short of actualphysical violence, may yet be acts of cruelty, e.g. malicious false accusation,

rudeness, forcing wife to prostitution, threatening a pregnant wife, etc.

(ib) has deserted the petitioner for a continuous period

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(ib) has deserted the petitioner for a continuous periodof not less than two years immediately preceding thepresentation of the petition;

i) Actual Desertion :

A) The spouses must have parted or terminated all joint-living.

B) The deserting spouse must have the intention to desert the other spouse.

C) The deserted spouse must not have agreed to the separation.

D) The desertion must have been without reasonable cause; and

E) This State of affairs must have continued for the requisite period i.e. twoyears.

ii) Constructive Desertion : Desertion is not only abandoning the companyof the other spouse but also abandonment of a state of things, in which oneparty to marriage has been compelled to leave matrimonial home owing torepulsive behaviour of the other party and the party thus living separately

cannot be held to be deserter but the party compelling her/him would be heldto be the deserter.

(ii) has ceased to be a Hindu by conversion to another religion; or

(iii) has been incurably of unsound mind or has been

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(iii) has been incurably of unsound mind, or has beensuffering continuously or intermittently from mentaldisorder of such a kind and to such an extent that thepetitioner cannot reasonably be expected to live withthe respondent.

Explanation: in this clause-

(a) the expression “mental disorder” means mentalillness, arrested or incomplete development of mind,psychopathic disorder of any other disorder or disability of mind and includes schizophrenia.

(b) the expression “psychopathic disorder” means apersistent disorder of disability of mind (whether or notincluding sub- normality of intelligence) which results inabnormally aggressive or seriously irresponsibleconduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment or.

(iv) has been suffering from a virulent and incurableform of leprosy.

(v) has been suffering from venereal disease in a

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(v) has been suffering from venereal disease in acommunicable form; or

(vi) has renounced the world by entering any religious

order or

(vii) has not been heard of as being alive for a period of seven years or more by those persons who wouldnaturally have heard of it, had that party been alive,

[Explanation : In this sub section, the expression

“desertion” means the desertion of the petitioner by theother party to the marriage without reasonable cause andwithout the consent or against the wish of such party and

includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations andcognate expressions shall be constructed accordingly.]

Section (13) 2 Grounds Available to the Wife Only :

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Section (13) 2. Grounds Available to the Wife Only :

a) Bigamy [Section 13 (2)(i)] : That in the case of a marriage solemnizedbefore the commencement of the Act (i.e. 18th May, 1955) the husbandhas married before such commencement or that any other wife of husband,

married before such commencement, was alive at the time of thepetitioner’s marriage.

b) Rape, Sodomy or Bestiality [Section 13(2)(ii)] : That the husband hasbeen guilty of rape, sodomy or bestiality after the solemnization of marriage.

c) Decree or Order Awarding Maintenance [Section 13(2)(iii)] : That ina suit under Section 18 of the Hindu Adoptions and Maintenance Act, 1956or in a proceedings under Section 125 of the Cr.P.C. 1973, a decree or order has been passed against the husband awarding maintenance to thewife (notwithstanding that she was living apart) and after passing of such

decree or order cohabitation between the parties has not been resumed for one year or upwards.

d) Option of Puberty [Section 13(2)(iv)] : That the wife’s marriage wassolemnized before she attained the age of fifteen years and she repudiatedthe marriage after attaining that age but before attaining the age of

eighteen years, whether the marriage has been consummated or not.

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Divorce on Marriage Breakdown Theory

Decree of Judicial Separation [Section 13(1-A)(1)] : That a decree for judicial separation between theparties has been passed, and there has been noresumption of cohabitation for a period of at leastone year after the passing of such decree.

Decree of Restitution of Conjugal Rights [Section13(1-A) (2)] : That a decree for restitution of conjugal

rights between the parties has been passed, butthere has been no restitution of conjugal rights for aperiod of at least one year after the passing of sucha decree.

Di b M t l C t

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Divorce by Mutual Consent

(Section 13 B (1)) : That both the parties have been living

separately for a period of one year or more or that both theparties have not been able to live together or that both theparties have mutually agreed that their marriage should bedissolved.

(Section 13 B (2)) :On the motion of both the parties madenot earlier than six months after the date of the presentationof the petition referred to in sub-section (1) and not later thaneighteen months after the said date, if the petition is notwithdrawn in the meantime, the court shall, on beingsatisfied, after hearing the parties and after making suchinquiry as it thinks fit, that a marriage has been solemnizedand that the averments in the petition are true, pass a decreeof divorce declaring the marriage to be dissolved with effect

from the date of the decree.

Wh Di P titi b

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When a Divorce Petition can be

Presented (Section 14) :

Divorce has not been made easy and atleast one year shouldhave elapsed between the date of marriage and thepresentation of a divorce petition. But a petition may be fieldwithin this period, if so permitted by the court on anapplication being made to it on the ground of –

1. Exceptional hardship suffered by the petitioner. 2. Exceptional depravity on the part of the other party.

3. In disposing of any application under this section for leave to present a petition for divorce before the expiration of one year from the date of the marriage, the court shall haveregard to the interests of any children of the marriage and tothe question whether there is a reasonable probability of areconciliation between the parties before the expiration of thesaid one year.

Wh Di d P R

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When Divorced Persons can Re-marry

(Section 15) :

After passing the decree of divorce, the partiesto the marriage, may marry again, if thefollowing conditions are satisfied –

1. When a marriage has been dissolved and

there is no appeal against the decree of court.

2. If there is such a right of appeal but the timehas been expired without filing an appeal.

3. An appeal has been filed but has beendismissed.

Contents and Verification of Petitions (Section 20) :

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Contents and Verification of Petitions (Section 20) :

The petition for any relief must distinctly set out the nature of the case and the factson which the claim to relief is founded. It must also state (except in a petition under Section 11) that there is no collusion between the parties to the marriage. Thestatements contained in the petition have also to be verified by the petition (or someother competent person) in the manner in which plaints have to be verified, and

such statements may be referred to as evidence at the time of the hearing.

Application of the Code of Civil Procedure (Section 21) :

Except as otherwise provided by the Act, all matters of procedure under the Act areto be regulated by the C.P.C. The Act also confers on the High Court, the power tomake rules regulating the procedure to be adopted.

Power to Transfer Petition in Certain Cases (Section 21-A) : Section 21A of the Act provides that if a Petition under the Act has been presented to a DistrictCourt for judicial separation (under Section 10) or for divorce (under Section 13),and subsequently another petition is presented by the other party to the marriagefor judicial separation or for divorce, in the same District Court, or in a differentDistrict Court, in the same State or in a different State –

a) if the petitions are presented to the same District Court, – both the petitions are tobe tried and heard together by that District Court;

b) if the petitons are presented to different District Courts, – the subsequent petitionis to be transferred to the District Court in which the earlier petition was presented,and both the petitions are to be heard and disposed of by the District Court in whichthe earlier petition was presented

S i l P i i R l ti t T i l &

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Special Provisions Relating to Trial &Disposal of Petitions under the Act(Section 21B) :

Section 21B provides that the trial of a petition under the Act should, as far as is practicable, consistentlywith the interests of justice, be continued from day today until its conclusion, unless the Court finds the

adjournment of the trial beyond the following day to benecessary, and records the reasons for doing so.

It is further provided that all petitions and appeals are tobe disposed of as expeditiously as possible, and an

endeavour is to be made to dispose of a petition withinsix months from the date of service of the notice of thepetition on the Respondent, and an appeal within threemonths from the date of the service of the notice of theappeal on the Respondent.

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Section 22 -Proceedings to be in camera

and may not be printed or published

(1)Every proceeding under this Act shall beconducted in camera and it shall not be lawful for

any person to print or publish any matter in relation

to any such proceeding except a judgment of the

High Court or of the Supreme Court printed or published with the previous permission of the

Court.

(2)If any person prints or publishes any matter incontravention of the provisions contained in sub-

section (1), he shall be punishable with fine which

may extend to one thousand rupees.

Section 23-Decree in proceedings.

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p g

(1)In any proceeding under this Act, whether defended or not, if the court issatisfied that-

(a) any of the grounds for granting relief exists and the petitioner except incases where the relief is sought by him on the ground specified in sub-

clause (a), sub-clause (b) or sub clause (c) of clause (ii) or section 5 is not inany way taking advantage of his or her own wrong or disability for thepurpose of such relief, and

(b) where the ground of the petition is the ground specified or in clause (i) of sub-section (1) of section 13, the petitioner has not in any manner beenaccessory to or connived at or condoned the act or acts complained of, or

where the ground of the petition is cruelty the petitioner has not in anymanner condoned the cruelty, and

(bb)when a divorce is sought on the ground of mutual consent, suchconsent has not been obtained by force, fraud or undue influence, and

(c) the petition (not being a petition presented under section 11) is not

presented or prosecuted in collusion with the respondent, and

(d) there has not been any unnecessary or improper delay in instituting theproceeding, and

(e) there is no other legal ground why relief should not be granted, then,and in such a case, but not otherwise, the court shall decree such relief accordingly.

(2)Before proceeding to grant any relief under this Act it shall be

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(2)Before proceeding to grant any relief under this Act, it shall bethe duty of the court in the first instance, in every case where it ispossible so to do consistently with the nature and circumstancesof the case, to make every endeavour to bring about reconciliationbetween the parties: Provided that nothing contained in this sub-

section shall apply to any proceeding wherein relief is sought onany of the grounds specified in clause (ii), clause (iii), clause (iv),clause (v), clause (vi) or clause (vii) of sub-section (1) of section13.

(3)For the purpose of aiding the court in bringing about suchreconciliation, the court may, if the parties so desire or if the courtthinks it just and proper so to do, adjourn the proceedings for areasonable period not exceeding fifteen days and refer the matter to any person named by the parties in this behalf or to any personnominated by the court if the parties fail to name any person, withdirections to report to the court as to whether reconciliation can beand has been, effected and the court shall in disposing of the

proceeding have due regard to the report.

(4)In every case where a marriage is dissolved by a decree of divorce, the court passing the decree shall give a copy thereof freeof cost to each of the parties.

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Section 23 A. Relief for respondent in divorce

and other proceedings.:---------

In any proceeding for divorce or judicial separationor restitution of conjugal rights, the respondent may

not only oppose the relief sought on the ground of

petitioner's adultery, cruelty or desertion, but also

make a counter-claim for any relief under this Act onthat ground; and if the petitioner's adultery, cruelty or

desertion is proved, the court may give to the

respondent any relief under this Act to which he or

she would have been entitled if he or she hadpresented a petition seeking, such relief on that

ground.

Section 24 Maintenance Pendente lite and

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Section 24-Maintenance Pendente lite and

expenses proceedings:---

Where in any proceeding under this Act it appears

to the court that either the wife or the husband, asthe case may be, has no independent income

sufficient for her or his support and the necessary

expenses of the proceeding, it may, on the

application of the wife or the husband, order the

respondent to pay to the petitioner the expenses of

the proceeding, and monthly during the proceeding

such sum as, having regard to the petitioner's ownincome and the income of the respondent, it may

seem to the court to be reasonable.

SECTION 25-Permanent alimony and maintenance.

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y

(1) Any court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on applicationmade to it for the purpose by either the wife or the husband, as the case

may be, order that the respondent shall pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as,having regard to the respondent's own income and other property, if any,the income and other property of the applicant, the conduct of the partiesand other circumstances of the case, it may seem to the court to be just,and any such payment may be secured, if necessary, by a charge on

the immovable property of the respondent.

(2) If the court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under sub-section (1),it may at the instance of either party, vary, modify or rescind any suchorder in such manner as the court may deem just. (3)If the court is

satisfied that the party in whose favour an order has been made under this section has re-married or, if such party is the wife, that she has notremained chaste, or, if such party is the husband, that he has hadsexual intercourse with any woman outside wedlock, it may at theinstance of the other party vary, modify or rescind any such order insuch manner as the court may deem just.

Section 26-Custody of children

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Section 26-Custody of children.

In any proceeding under this Act, the court may, from time totime, pass such interim orders and make such provisions inthe decree as it may deem just and proper with respect to the

custody, maintenance and education of minor children,consistently with their wishes, wherever possible, and may,after the decree, upon application by petition for the purpose,make from time to time, all such, orders and provisions withrespect to the custody, maintenance and education of suchchildren as, might have been made by such decree or interimorders in case the proceeding for obtaining such decree werestill pending, and the court may also from time to time revoke,suspend or vary any such orders and provisions previouslymade.

Section 27-Disposal of property.

In any proceeding under this Act, the court may make suchprovisions in the decree as it deems just and proper withrespect to any property presented, at or about the time of marriage, which may belong jointly to both the husband andthe wife.

Section 28-Appeals from decrees and orders

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Section 28-Appeals from decrees and orders.

(1)All decrees made by the court in any proceeding under this Act shall,subject to the provisions of sub-section (3), be appealable as decrees of

the court made in the exercise of its original civil jurisdiction, and everysuch appeal shall lie to the court to which appeals ordinarily lie from thedecisions of the court given in the exercise of its original civil jurisdiction.

(2)Orders made by the court in any proceeding under this Act under section 25 or section 26 shall, subject to the provisions of sub-section (3),be appealable if they are not interim orders, and every such appeal shalllie to the court to which appeals ordinarily lie from the decisions of thecourt given in exercise of its original civil jurisdiction.

(3)There shall be no appeal under this section on the subject of costsonly.

(4)Every-appeal under this section shall be preferred within a period of thirty days from the date of the decree or order. 28A.Enforcement of decrees and orders. All decrees and orders made by the court in anyproceeding under this Act shall be enforced in the like manner as thedecrees and orders of the court made in the exercise of its original civil

jurisdiction for the time being are enforced.

Section29-Savings

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Section29 Savings

(1)A marriage solemnized between Hindus before the commencementof this Act, which is otherwise valid, shall not be deemed to be invalid or ever to have been invalid by reason only of the fact that the partiesthereto belonged to the same gotra or pravara or belonged to differentreligions, castes or sub-divisions of the same caste.

(2)Nothing contained in this Act shall be deemed to affect any rightrecognized by custom or conferred by any special enactment to obtainthe dissolution of a Hindu marriage, whether solemnized before or after

the commencement of this Act.

(3)Nothing contained in this Act shall affect any proceeding under anylaw for the time being in force for declaring any marriage to be null andvoid or for annulling or dissolving any marriage or for judicial separationpending at the commencement of this Act, and any such proceeding

may be continued and determined as if this Act had not been passed.

(4)Nothing contained in this Act shall be deemed to affect the provisionscontained in the Special Marriage Act, 1954 (43 of 1954) with respect tomarriages between Hindus solemnized under that Act, whether before or after the commencement of this Act.30-Repealed by the Repealing and

Amending Act, 1960 (58 of 1960), s. 2 and the First Schedule.

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Hindu Adoptions And Maintenance Act, 1956

LAWS RELATED TO ADOPTION

Adoption has no uniform law in India, but there are some legislation relatedto adoption that is divided into two categories:

1. Hindu Adoption and Maintenance Act 1956

2. The Guardians and Wards Act 1890

In Hindu Adoption and Maintenance Act 1956 only Hindus can take

advantage of this act as personal law governs it. a) To any person who is a Hindu inclusive of Buddhism, Jainism and

Sikhism this act is applicable.

b) This Act does not apply to those who are Muslims, Christians, Parsis, or Jews by religion.

c) The Act also applies to the child whose biological parents is not knownor have abandoned the child and has been brought up as Hindu, Buddhist,Jain or Sikh.

d) The Hindu female who is not a minor and not married but is of soundmind can adopt. She cannot be a joint petitioner with her husband but canonly be a consenting party in the child's adoption.

e) A Hindu male who is not a minor and is of sound mind can

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e) A Hindu male who is not a minor and is of sound mind canadopt.

f) A Male Hindu can adopt only by the consent of his wife,unless and until she has given up Hinduism or is of unsound

mind. g) The Adoptive parents should not have a child who has

been adopted or a child of their own or a grandchild at thetime of adoption.

h) A valid Adoption cannot be changed or cancelled.

i) All the rights of the biological parents should be replaced tthe adoptive parents.

j) A valid adoption is the one in which the person giving andthe person taking the child sign the Adoption Documents.

k) If the adopter and the adoptee are of the opposite sex

then the age difference between them should be at least 21years.

l) Only the child's parents or guardian can give the child inadoption.m) Nobody should be awarded or paid in relation toadoption.

2. The Guardians and Wards Act 1890 Under this act,

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,people belonging to communities such as Muslim,Christian, Parsi or Jews and who wish to adopt can onlytake up "Guardianship" of the child. This child, like thebiological child would not be provided with the samestatus.

Christians and Parsis can take a child under the saidAct only under foster care. Once a child under foster care becomes major, he is free to break away all hisconnections. Besides, such a child does not have legalright of inheritance.

Foreigners, who want to adopt Indian children have toapproach the court under the aforesaid Act. In case thecourt has given permission for the child to be taken out

of the country, adoption according to a foreign law, i.e.,law applicable to guardian takes place outside thecountry.

Section 2. Application of Act

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Section 2. Application of Act

(1) This Act applies-

(a) to any person, who is a Hindu by religion in any of itsforms or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana of Arya Samaj,

(b) to any person who is a Buddhist, Jaina or Sikh by religionand

(c) to any other person who is not a Muslim, Christian,

Parsi or Jew by religion, unless it is proved that any suchperson would not have been governed by the Hindu law or byany custom or usage as part of the law in respect any of thematters dealt with herein if this Act had not been passed.

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

(a) any child, legitimate or illegitimate, both of whose parentsare Hindus, Buddhists, Jainas or Sikhs by religion;

(b) any child, legitimate or illegitimate, one of whose parents is

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( ) y , g g , pa Hindu, Buddhist, Jaina, and Sikh by religion and who isbrought up as a member of the tribe, community, group or family to which such parent belongs or belonged;

(bb) any child, legitimate or illegitimate who has beenabandoned both by his father and mother or whose parentageis known and who in either case is brought up as a Hindu,Buddhist, Jaina or Sikh; and

(c) any person who is convert or reconvert to the Hindu,Buddhist, Jaina or Sikh religion.

(2) Notwithstanding anything contained in sub-section (1),nothing contained in this Act shall apply to the members of anyScheduled Tribe within the meaning of clause (25) of article 366of the Constitution unless the Central Government, bynotification the Official Gazette, otherwise directs.

(3) The expression "Hindu" in any portion of this Act shall beconstrued as if it included a person who, though not a Hinduby religion, is, nevertheless, a person whom this Act applies byvirtue of the provisions contained in this section.

CHAPTER II ADOPTIONS

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CHAPTER II ADOPTIONS

Section 5. Adoptions to be regulated by this chapter

(1) No adoption shall be made after the commencement of

this Act by or to a Hindu except in accordance with the

provisions contained in this Chapter, and any adoption

made in contravention of the said provision shall be void.

(2) An adoption which is void shall neither create any rights

in the adoptive family in favour of any person which he or

she could not have acquired except by reason of theadoption, nor destroy the right of any person in the family of

his or her birth.

Section 6 Requisites of a valid adoption

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Section 6. Requisites of a valid adoption

No adoption shall be valid unless-

(i) the person adopting has the capacity, and also theright, to take in adoption;

(ii) the person giving in adoption has the capacity to doso;

(iii) the person adopted is capable of being taken inadoption; and

(iv) the adoption is made in compliance with the other conditions mentioned in this Chapter i.e section 11.

Where any of the requirements as laid down under s.6are not strictly observed, that non-observance of therequisite or requisites is enough to convert the adoptionas invalid one.-Dhanraj v. Suraj Bai 1972 Raj LW 612

Section 7 Capacity of a male Hindu to take in

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Section 7. Capacity of a male Hindu to take inadoption

Any male Hindu who is sound mind and is not a minor has the capacity to take a son or a daughter in adoption:

PROVIDED that, if he has a wife living,

he shall not adopt except with the consent of his wife

unless the wife has completely and finally renounced theworld or

has ceased to be a Hindu or

has been declared by a court of competent jurisdictionto be of unsound mind.

Explanation: If a person has more than one wife living atthe time of adoption, the consent of all the wives isnecessary unless the consent of any one of the them isunnecessary for any of the reasons specified in thepreceding proviso.

The person taking in adoption must not suffer from idiocy or insanity; he must have the capacity enough to understand the nature

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insanity; he must have the capacity enough to understand the natureof the Act and what would be the legal effects of adoption .Simultaneously it is not the requirement the person concerned mustbe possessed with a very high degree of intelligence. There is a verystrong presumption favouring soundness of mind.-Babubarelal v.

Gulzari Devi 1979 All LJ 1333

Deaf and dumb but possessed with the capacity to express throughsigns and gestures, though not clearly, is to be taken as a person of sound mind.-Ambrish Kumar v. Hatu Prasad 1981 HLR 781

Proviso places a restriction as concerned to right to take in adoptionthat makes the consent of the wife a necessity so as to make theadoption valid. The consent must be obtained prior to the civiladoption takes place and not later on where the proviso isdisregarded adoption is not valid.-Badrilal v. Bheru 1986 (1) HLR 81.

In the case of divorce the consent is not necessary but in the case of judicial separation, consent would be necessary. In case of twowives, consent must be of both the wives despite the fact that one of them was not living under the same roof for a big job of twenty or thirty years.-Bhooloo Ram v. Ram Lal 1989 (2) HLR 162

Section 8. Capacity of a female Hindu to take in

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p yadoption

Any female Hindu :-

(a) Who is of sound mind,

(b) who is not a minor, and (c) who is not married, or if married, whose marriage has

been dissolved or whose husband is dead or has completelyand finally renounced the world or has ceased to be a Hinduor has been declared by a court of competent jurisdiction to be

of unsound mind, has the capacity to take a son or daughter in adoption.

After the completion of the age of eighteen, a woman gets thecapacity to adopt even though. she herself is unmarried.Where after the adoption, she is married, her husband wouldbe step-father and she herself would remain adoptive mother as earlier. Adoption by an unmarried can also take placedespite the fact that she is having an illegitimate child. - Ashoka Naidu v. Raymond AIR 1976 Cal 272.

Section 9. Persons capable of giving in

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p g gadoption

(1) No person except the father or mother the guardian of a child

shall have the capacity to give the child in adoption.

(2) Subject to the provision of [sub-section (3) and sub-section (4)],

the father, if alive, shall alone have the right to give in adoption,

but such right shall not be exercised save with the consent of themother unless the mother has completely and finally renouncedthe world or has ceased to be a Hindu has been declared by a courtof competent jurisdiction to be of unsound mind.

(3) The mother may give the child in adoption

if the father is dead or

has completely and finally renounced the world or has ceased to be a Hindu or

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

(4) Where both the father and mother are dead or havecompletely and finally renounced the world or

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completely and finally renounced the world or

have abandoned the child or

have been declared by a court of competent jurisdiction tobe of unsound mind or

where the parentage of the child is not known,

the guardian of the child may give the child in adoption withthe previous permission of the court to any person includingthe guardian himself.

(5) Before granting permission to a guardian under sub-section (4), the court shall be satisfied that the adoption willbe for the welfare of the child, due consideration being for this purpose given to the wishes of the child having regard

to the age and understanding of the child and that theapplicant for permission has not received or agreed toreceive and that no person has made or given or agreed tomake or give to the applicant any payment or reward inconsideration of the adoption except such as the court maysanction.

Explanation: For the purposes of this section

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Explanation: For the purposes of this section-

(i) the expression "father" and "mother" do not

include an adoptive father and an adoptive mother;

(ia) "guardian" means a person having the care of the person of a child or of both his person and

property and includes- (a) a guardian appointed by the will of the child's

father or mother; and

(b) a guardian appointed or declared by a court: and]

(ii) "court" means the city civil court or a district

court within the local limits of whose jurisdiction thechild to be adopted ordinarily resides.

Section 10. Persons who may be adopted

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Sect o 0 e so s o ay be adopted

No person shall be capable of being taken in adoptionunless the following conditions are fulfilled, namely:-

(i) he or she is Hindu;

(ii) he or she has not already been adopted;

(iii) he or she has not been married, unless there is acustom or usage applicable to the parties which permitspersons who are married being taken in adoption;

(iv) he or she has not completed the age of fifteen years,unless there is a custom or usage applicable to theparties which permits persons who have completed theage of fifteen years being taken in adoption.

There is a bar imposed by this s. 10 and that being a married

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person cannot be adopted. But the case is different wherethere is some custom among Jats of Punjab and Haryana inhaving a legal sanction and judicially recognised where under

the custom permits the adoption of married person- Amar Singh V.Tej Ram 1982 (84 )Punj LR 2387

The person above the age of 15 years cannot be given inadoption and if there is some custom permitting that the samemust be strictly pleaded and proved-Mahalingam v.Kannayyar AIR 1990 Mad. 333. 1989 (2) MLJ 3441

Existence of custom be it family or tribal custom having its

applicability to the parties concerned whereby the adoption of a person married or of the age of more than 15 years ispermitted, is all that is required to be established by theprovision of section 10 so as to make adoption valid.-MayaRam v. Jai Narian 1989 (1) HLR 352

Section 11 other conditions for a valid adoption

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Section 11. other conditions for a valid adoption

In every adoption, the following conditions must be complied

with: (i) if the adoption is of a son, the adoptive father or mother by

whom adoption is made must not have a Hindu son, son'sson or son's son's son (whether by legitimate bloodrelationship or by adoption) living at the time of adoption;

(ii) if the adoption is of a daughter, the adoptive father or mother by whom the adoption is made must not have a Hindudaughter or son's daughter (whether by legitimate bloodrelationship or by adoption)living at the time of adoption;

(iii) if the adoption is by a male and the person to be adoptedis a female, the adoptive father is at least twenty one yearsolder than the person to be adopted;

(iv) if the adoption is by a female and the person to be adopted is a male,th d ti th i t l t t t ld th th t

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the adoptive mother is at least twenty -one years older than the person tobe adopted;

(v) the same child may not be adopted simultaneously by two or more

person;

(vi) the child to be adopted must be actually given and taken in adoptionby the parents or guardian concerned or under their authority with intent totransfer the child from the family of its birth [or in case of an abandonedchild or child whose parentage is not known, from the place or family

where it has been brought up] to the family of its adoption:

PROVIDED that the performance of datta homam shall not be essential tothe validity of adoption.

Requirement of an age gap of 21 years between the adoptee and the

adopted, if violated is sufficient to render the adoption invalid.- Golak Chandra v . Kritibas AIR 1979 Ori. 205

Where the case is, one child is given to the family of other so that the childis brought up, this giving of the child does not constitute adoption. Theremust be an intention to give and to take the child in adoption.-Kewal Singhv. Bakshish Singh 1975 (77) Punj LR 321

Section 12. Effects of adoption

A d d hild h ll b d d b h hild f hi

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An adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effectfrom the date of the adoption and from such date all theties of the child in the family of his or her birth shall bedeemed to be severed and replaced by those created by theadoption in the adoptive family :

PROVIDED that -

(a) the child cannot marry any person whom he or shecould not have married if he or she had continued in thefamily of his or her birth;

(b) any property which vested in the adopted child beforethe adoption shall continue to vest in such person subject tothe obligations, if any, attaching to the ownership of suchproperty, including the obligation to maintain relatives in thefamily of his or her birth;

(c) the adopted child shall not divest any person of any

estate which vested in him or her before the adoption.

Section 14. Determination of adoptive mother in certain

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cases

(1) Where a Hindu who has a wife living adopts a child, she

shall be deemed to be the adoptive mother.

(2) Where an adoption has been made with the consent of more than one wife, the senior-most in marriage among themshall be deemed to be the adoptive mother and the other to be

step mothers

(3) Where a widower or a bachelor adopts a child, any wifewhom he subsequently marries shall be deemed to be stepmother of the step mother of the adopted child.

(4) Where a widow or an unmarried woman adopts a child, anyhusband whom she marries subsequently shall be deemed tobe the step father of the adoptive child.

Section 13 Right of adoptive parents to dispose

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Section 13. Right of adoptive parents to dispose

of their properties

Subject to any agreement to the contrary, an

adoption does not deprive the adoptive father or

mother of the power to dispose of his or her

property by transfer inter vivos or by will.

Section 15. Valid adoption not to be cancelled

No adoption which has been validly made can be

cancelled by the adoptive father or mother or any

other person, nor can the adopted child renounce

his or her status as such and return to the family of

his or her birth.

Section 16.Presumption as to registered documentsrelating to adoption

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relating to adoption

Whenever any document registered under any law for the

time being in force is produced before any court purportingto record an adoption made and is signed by the persongiving and the person taking the child in adoption, the courtshall presume that the adoption has been made incompliance with the provisions of this Act unless and until itis disproved.

In case a challenge is thrown to the deed of adoption on theground of its execution being by fraud, coercion or undueinfluence, it is for the party challenging the document thathas to establish that the execution was so vitiated.-Sushil

Chandra v. Bhoop Kunwar AIR 1977 All 441. Presumption as to registered documents relation to

adoption is only a rebuttable presumption.-Bhoolo Ram v.Ramlal 1989 (2) HLR 162

SECTION 17. Prohibition of Certain Payments

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(1) No person shall receive or agree to receive anypayment or other reward in consideration of the

adoption of any person, and no person shall make or give or agree to make or give to any other person anypayment or reward the receipt of which is prohibited bythis section.

(2) If any person contravenes the provision of sub-section (1), he shall be punishable with imprisonmentwhich may extend to six months, or with fine, or withboth .

(3) No prosecution under this section shall be institutedwithout the previous sanction of the State Government or an officer authorised by the State Government in thisbehalf