SOURCES OF HINDU LAWSOURCES OF HINDU LAW1)Ancient Sources :1)Ancient Sources : a)a) Sruti :Sruti : Manu has defined Sruti as follows– “By Manu has defined Sruti as follows– “By SrutiSruti or what was or what was

heard from above (from God) is meant the heard from above (from God) is meant the VedaVeda”. ”. SrutiSruti or or VedaVeda are are believed to contain the very words of Deity (God). They are believed to contain the very words of Deity (God). They are supposed to be the divine utterances to be found in the four Vedas, supposed to be the divine utterances to be found in the four Vedas, the six vedangas and the eighteen Upanishads. the six vedangas and the eighteen Upanishads.

bb) Smriti) Smriti : : They are utterances and precepts of the Almighty, which They are utterances and precepts of the Almighty, which have been heard and remembered and handed down by the Rishis have been heard and remembered and handed down by the Rishis (sages) from generation to generation. The smrities are divided into (sages) from generation to generation. The smrities are divided into Primary and Secondary Smrities contained in Dharma Sutra (Prose) Primary and Secondary Smrities contained in Dharma Sutra (Prose) and Dharmashastras (Poetry). and Dharmashastras (Poetry).

c) c) Digests and CommentariesDigests and Commentaries : : After the Smrities, the next step in the After the Smrities, the next step in the development of Hindu Law was the composition of a number of development of Hindu Law was the composition of a number of commentaries (tika) and Digests (Nibandha) based upon the commentaries (tika) and Digests (Nibandha) based upon the Smrities. The commentaries are to interpret the law as laid down in Smrities. The commentaries are to interpret the law as laid down in the Smrities.the Smrities.

d) d) CustomCustom : : When human beings came to live in groups, it was but When human beings came to live in groups, it was but

natural that they should, for harmonious group life, conform to natural that they should, for harmonious group life, conform to certain patterns of human behaviour. certain patterns of human behaviour.

2) Modern Sources :2) Modern Sources : a) a) Judicial Decisions Judicial Decisions b)b) Legislation Legislationc)c) Equity, Justice and Good Conscience 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 Buddhist religion

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 is brought 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 to such a person

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

1. Application of Act – This Act applies – 1. Application of Act – This Act applies –

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

b) to any person who is a Buddhist, Jaina or Sikh by religion; and 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 Act c) to any other person domiciled in the territories to which this Act extends, who is not a Muslim, Christian, Parsi or Jew by religion, extends, who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been unless it is proved that any such person would not have been governed by the Hindu law or by any custom or usage as part of that governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had law in respect of any of the matters dealt with herein if this Act had not been passed. not been passed.

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

a) any child, legitimate, or illegitimate, both of whose parents are Hindus, a) any child, legitimate, or illegitimate, both of whose parents are Hindus, Buddhists, Jains or Sikhs by religion;Buddhists, Jains or Sikhs by religion;

b) any child, legitimate, or illegitimate, one of whose parents is a Hindu, 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 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 the tribe, community, group or family to which such parent belongs or belonged; and belonged; and

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

2. Notwithstanding anything contained in sub-section (1), nothing contained in 2. Notwithstanding anything contained in sub-section (1), nothing contained in this Act shall apply to the members of any Schedule Tribes within the this Act shall apply to the members of any Schedule Tribes within the meaning of clause (25) of Article 366 of the Constitution, meaning of clause (25) of Article 366 of the Constitution, unless unless the Central the Central Government, by notification in the Official Gazette, otherwise directs.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 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 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 person to whom this Act applies by virtue of the provisions contained in this section.section.

Person to whom Hindu Law Applies (Uncodified Law) :Person to whom Hindu Law Applies (Uncodified Law) :

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

2. Illegitimate children whose parents are Hindus.2. Illegitimate children whose parents are Hindus.

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

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

5. Sons of Hindu dancing girls of Naik caste converted to Mohammedanism where the sons 5. Sons of Hindu dancing girls of Naik caste converted to Mohammedanism where the sons are taken into the family of Hindu grandparents and are brought up as Hindus. are 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 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.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 8. A Hindu who has made a declaration that he is not Hindu for the purpose of Special

Marriage Act 1872, and Marriage Act 1872, and 9. A person who is born a Hindu and has not renounced the Hindu religion, does not cease 9. 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 to be a Hindu merely because he departs

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

THE HINDU MARRIAGE ACT, 1955THE HINDU MARRIAGE ACT, 1955NatureNature of Hindu Marriage - of Hindu Marriage - Sacrament or a Sacrament or a

ContractContract : : It is believed among Hindus that every Hindu is under a religious It is believed among Hindus that every Hindu is under a religious

obligation to discharge three debts– Pitri Rin, Dev Rin, and Rishi Rin.obligation to discharge three debts– Pitri Rin, Dev Rin, and Rishi Rin. Rishi Rin is discharged by getting education, Dev Rin is discharged Rishi Rin is discharged by getting education, Dev Rin is discharged

by prayer and by making gift by prayer and by making gift but for the discharge of Pitri Rin a but for the discharge of Pitri Rin a Hindu must have his own son who is supposed to perform funeral Hindu must have his own son who is supposed to perform funeral rites and to give sacred obligations to the ancestors on their death rites and to give sacred obligations to the ancestors on their death for their salvation.for their salvation. Marriage is also necessary among Hindus Marriage is also necessary among Hindus because all the religious ceremonies and rites are to be performed in because all the religious ceremonies and rites are to be performed in the companionship of his wife otherwise they will not bear any fruits.the companionship of his wife otherwise they will not bear any fruits.

From the Rig Vedic period marriage was considered as a From the Rig Vedic period marriage was considered as a

sacramental unionsacramental union. A marriage is the union of flesh with flesh and . A marriage is the union of flesh with flesh and bone with bone. It is a union which is indissoluble. As long as her 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; 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 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, (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 wife good or bad. Man is only half, not complete until he marries. The wife is the source of is the source of DharmaDharma, , ArthaArtha and and Kama,Kama, and she is also the source and she is also the source of of Moksha.Moksha.

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

According to Narada and Parasara, there are only five According to Narada and Parasara, there are only five conditions in which a wife could abandon her husband and conditions in which a wife could abandon her husband and remarry –remarry –

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

But these conditions could be allowed only in the case of But these conditions could be allowed only in the case of unapproved form of marriage. Marriage is a tie which once tied unapproved form of marriage. Marriage is a tie which once tied cannot be untied. It is sacramental union and continues to exist cannot be untied. It is sacramental union and continues to exist even after the enactment of the Hindu Marriage Act. even after the enactment of the Hindu Marriage Act.

Changes Brought About by the Hindu Marriage Act 1955 : Changes Brought About by the Hindu Marriage Act 1955 :

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

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

3. The minimum age for marriage, 21 for boy and 18 for a girl. 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 some 4. The Act does not recognise any particular form of marriage but prescribes some conditions.conditions.

5. Registration of Hindu Marriage. 5. Registration of Hindu Marriage.

6. Restitution of conjugal rights. 6. Restitution of conjugal rights.

7. The provision of judicial separation.7. The provision of judicial separation.

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

9. The provision of re-marriage. 9. The provision of re-marriage.

10. Legitimacy of a child born out of either void or voidable 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 and 11. Provision for the custody of children during the pendency of legal proceeding and even after the passing of decree.even after the passing of decree.

Hindu Marriages Act, 1955Hindu Marriages Act, 1955Section 5. Conditions for a Hindu marriageSection 5. Conditions for a Hindu marriageA marriage may be solemnized between any A marriage may be solemnized between any two Hindustwo Hindus, if the following , if the following

condition are fulfilled, namely:-condition are fulfilled, namely:-

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

(ii) at the time of marriage, neither party-(ii) at the time of marriage, neither party-(a) is (a) is incapable of giving a valid consentincapable of giving a valid consent to it in consequence of unsoundness to it in consequence of unsoundness

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

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

(c) has been subject to (c) has been subject to recurrent attacks of insanity recurrent attacks of insanity

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

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

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

Sec.2 (g) degrees of prohibited relationship”Sec.2 (g) degrees of prohibited relationship”

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

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

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

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

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

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

(i) relationship by (i) relationship by half or uterine bloodhalf or uterine blood as well as by as well as by full bloodfull blood;;(ii) (ii) illegitimate blood relationshipillegitimate blood relationship as well as as well as legitimatelegitimate ; ;(iii)  relationship by (iii)  relationship by adoption as well as by bloodadoption as well as by blood ; ; and all terms of relationship in those clauses shall be constructed and all terms of relationship in those clauses shall be constructed

accordinglyaccordingly

Prohibited degreesProhibited degrees Lineal ascendantsLineal ascendants If one was the w or h of a lineal ascendant or If one was the w or h of a lineal ascendant or

descendant of the otherdescendant of the other

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

the third generation (inclusive) in the line of ascent through the the third generation (inclusive) in the line of ascent through the mother, and the fifth (inclusive) in the line of ascent through the father, 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, the line being traced upwards in each case from the person concerned, who is to be counted as the first generation.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 (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 ascendant of the other within the limits of sapinda relationship, or if they have a common lineal ascendant who is within the limits of they have a common lineal ascendant who is within the limits of sapinda relationship with reference to each of them;sapinda relationship with reference to each of them;

Is A sapinda to his paternal great Is A sapinda to his paternal great grandfather’s son’s daughter Bgrandfather’s son’s daughter B

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

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

Is A sapinda to his grandfather’s son’s Is A sapinda to his grandfather’s son’s son’s daughterson’s daughter

Ceremonies for a Hindu Marriage (Section 7)Ceremonies for a Hindu Marriage (Section 7)

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

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

Registration of Hindu Marriages (Section 8) : Registration of Hindu Marriages (Section 8) : For the For the purpose of facilitating the proof of a Hindu Marriage, the State purpose of facilitating the proof of a Hindu Marriage, the State Government may make rules that the parties to marriage may Government may make rules that the parties to marriage may have the necessary particulars entered in a Hindu Marriage have the necessary particulars entered in a Hindu Marriage Register kept for the purpose. Register kept for the purpose.

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

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

Contravention of Sec.5(1) will render the Contravention of Sec.5(1) will render the marriage marriage void under Section 11void under Section 11, and a , and a competent Court may declare such a marriage competent Court may declare such a marriage to be a nullity on a petition presented by either to be a nullity on a petition presented by either party to such marriage. party to such marriage.

The parties to a The parties to a bigamous marriagebigamous marriage are also are also liable to be punished under Section 494 and 495 liable to be punished under Section 494 and 495 of the Indian Penal Code (Section 17 of the Act). of the Indian Penal Code (Section 17 of the Act).

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

Contravention of Sec.5(3)Contravention of Sec.5(3) will render the marriage will render the marriage validvalid but but according to according to sec.18 (a) sec.18 (a) - Every person who procures a - Every person who procures a marriage of himself or herself to be solemnized under this Act marriage of himself or herself to be solemnized under this Act in contravention of the conditions specified in clauses (iii) of in contravention of the conditions specified in clauses (iii) of section 5 shall be section 5 shall be punishable-punishable-with rigorous imprisonment with rigorous imprisonment which may extend to 2 years, or with fine which may which may extend to 2 years, or with fine which may extend to one lakh rupees, or with both;extend to one lakh rupees, or with both;

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

void under Section 11void under Section 11,, and according to and according to sec.18 sec.18 (b) in the (b) in the case of a contravention of the condition specified in case of a contravention of the condition specified in clause (iv) and (v) of section 5, with clause (iv) and (v) of section 5, with simple imprisonment simple imprisonment which may extend to 1 month, or with fine which may which may extend to 1 month, or with fine which may extend to one thousand rupees,extend to one thousand rupees, or with both. or with both.

16-Legitimacy of children of void and voidable marriages.16-Legitimacy of children of void and voidable marriages.

  (1)Notwithstanding that a marriage is (1)Notwithstanding that a marriage is null and void under section 11null and void under section 11, , any child of such marriage who would have been legitimate if the marriage any child of such marriage who would have been legitimate if the marriage had been valid, had been valid, shall be legitimate, whether such child is born before or shall be legitimate, whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976,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 (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 be that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act. void otherwise than on a petition under this Act. 

(2)Where a (2)Where a decree of nullity is granted in respect of a voidable decree of nullity is granted in respect of a voidable marriage under section 12marriage under section 12, any child , any child begotten or conceived before the begotten or conceived before the decree is made, who would have been the legitimate childdecree is made, who would have been the legitimate child of the parties to of the parties to the marriage if at the date of the decree it had been dissolved instead of the marriage if at the date of the decree it had been dissolved instead of being annulled, shall be deemed to be their legitimate child notwithstanding being annulled, shall be deemed to be their legitimate child notwithstanding the decree of nullity. the decree of nullity. 

(3)Nothing contained in sub-section (1) or sub-section (2) shall be (3)Nothing contained in sub-section (1) or sub-section (2) shall be construed as conferring upon any child of a marriage which is null and void construed as conferring upon any child of a marriage which is null and void or which is annulled by a decree of nullity under section 12, any rights in or or 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, 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 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 the possessing or acquiring any such rights by reason of his not being the legitimate child of his parents.legitimate child of his parents.

Void Marriage (Section 11) : Void Marriage (Section 11) : Any marriage Any marriage solemnized at the commencement of this Act shall be solemnized at the commencement of this Act shall be null and void and may, on a petition presented by null and void and may, on a petition presented by either party thereto against the other party be so either party thereto against the other party be so declared by a decree of nullity if it contravenes any declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and one of the conditions specified in clauses (i), (iv) and (v) of Section 5. Thus a marriage will be void ab initio–(v) of Section 5. Thus a marriage will be void ab initio–

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

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

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

Section 11 is not applicable to marriage solemnized Section 11 is not applicable to marriage solemnized before the commencement of the Hindu Marriage Act before the commencement of the Hindu Marriage Act 1955, i.e. before 18th May 1955 though such 1955, i.e. before 18th May 1955 though such marriage may be void. marriage may be void.

Section 12 (1)-Section 12 (1)-Voidable marriagesVoidable marriages:-- Any marriage solemnized, whether :-- Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may 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, be annulled by a decree of nullity on any of the following grounds, namely:-namely:-     (a) that the marriage has not been consummated (a) that the marriage has not been consummated

owing to the impotence of the respondent; or owing to the impotence of the respondent; or    (b) that the marriage is in contravention of the (b) that the marriage is in contravention of the

condition specified in clause (ii) of section 5; or condition specified in clause (ii) of section 5; or    (c) that the consent of the petitioner, or where the (c) that the consent of the petitioner, or where the

consent of the guardian in marriage of the petitioner consent of the guardian in marriage of the petitioner was required under section 5 as it stood immediately was required under section 5 as it stood immediately before the commencement of the Child Marriage before the commencement of the Child Marriage Restraint (Amendment) Act, 1978], (2 of 1978) the Restraint (Amendment) Act, 1978], (2 of 1978) the consent of such guardian was obtained by force or by consent of such guardian was obtained by force or by fraud as to the nature of the ceremony or as to any fraud as to the nature of the ceremony or as to any material fact or circumstances concerning the material fact or circumstances concerning the respondent; or respondent; or 

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

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

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

(i) the petition is presented more than one year after the force had ceased to (i) the petition is presented more than one year after the force had ceased to operate or, as the case may be, the fraud had been discovered; or  operate 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 party (ii) the petitioner has, with his or her full consent, lived with the other party to the marriage as husband or wife-after the force had ceased to operate or, to the marriage as husband or wife-after the force had ceased to operate or, as the case may be, the fraud had been discovered;as the case may be, the fraud had been discovered;

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

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

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

  (iii) that marital intercourse with the consent of the petitioner has not taken (iii) that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of the said place since the discovery by the petitioner of the existence of the said ground.ground.

JURISDICTIONJURISDICTION Court to Which Petition shall be Presented (Section 19) :Court to Which Petition shall be Presented (Section 19) : Every petition under this code shall be presented to the Every petition under this code shall be presented to the

District Court within the local limits of whose ordinary original District Court within the local limits of whose ordinary original civil jurisdiction –civil jurisdiction –

1. 1. the marriage was solemnized; or the marriage was solemnized; or 2. 2. the respondent, at the time of the presentation of the the respondent, at the time of the presentation of the

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

the date of presentation of the petition;the date of presentation of the petition; 4. 4. the petitioner is residing at the time of the presentation of the petitioner is residing at the time of the presentation of

the petition, in a case where the respondent –the petition, in a case where the respondent – a) a) is at that time residing outside the territories to which the is at that time residing outside the territories to which the

Act extends, or Act extends, or b) b) has not been heard of as being alive for a period of seven has not been heard of as being alive for a period of seven

years or more by those persons who would have naturally years or more by those persons who would have naturally heard of him if he were alive. heard of him if he were alive.

Restitution of Conjugal Rights (Section Restitution of Conjugal Rights (Section

9)9) When either the husband or the wife has, without When either the husband or the wife has, without

reasonable excusereasonable excuse, , withdrawnwithdrawn from the society of the from the society of the other, the aggrieved party may apply, by petition to the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights land the district court, for restitution of conjugal rights land the court, on being satisfied of the truth of the statements court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground made in such petition and that there is no legal ground why the application should not be granted, may decree why the application should not be granted, may decree restitution of conjugal rights restitution of conjugal rights

Explanation- Where a question arises whether there has Explanation- Where a question arises whether there has been reasonable excuse for withdrawal from the been reasonable excuse for withdrawal from the society, society, the burden of proving reasonable excuse shall the burden of proving reasonable excuse shall be on the person who has withdrawn from the society.be on the person who has withdrawn from the society.

reasonable excuse:---reasonable excuse:--- a) Grossly indecent behaviour. a) Grossly indecent behaviour. b) Extravagance of living on the part of the wife affecting b) Extravagance of living on the part of the wife affecting

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

render it impossible for the duties of married life to be render it impossible for the duties of married life to be discharged. discharged.

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

e) Refusal of marital intercourse without sufficient e) Refusal of marital intercourse without sufficient reason. reason.

f) Apprehension of violence due to development of f) Apprehension of violence due to development of insanity in the petitioner. insanity in the petitioner.

g) Agreement to live separately.g) Agreement to live separately. h) Misconduct approaching cruelty h) Misconduct approaching cruelty i) withdrawal for reasons of employmenti) withdrawal for reasons of employment Kailashwati vs Ajudhia Prakash 1971 P.&H.Kailashwati vs Ajudhia Prakash 1971 P.&H. Swaraj Garg v. K.M. Garg 1978 DehiSwaraj Garg v. K.M. Garg 1978 Dehi

Whether Section 9 of the Act is Whether Section 9 of the Act is

Unconstitutional :Unconstitutional : T. Sareetha v T. Venkata Subhaiah A.I.R1983 A.PT. Sareetha v T. Venkata Subhaiah A.I.R1983 A.P  :--  :--Holding that Holding that

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

““A decree for restitution of conjugal rights constitutes the grossest from of 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 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) also violated Article 14 of the Constitution (the right to equality)

Harvinder Kaur v Harmander Singh Choudhry A.I.R1984 Delhi:Harvinder Kaur v Harmander Singh Choudhry A.I.R1984 Delhi:--section section 9 is not violative of Articles 14 and 21 of the Indian Constitution. 9 is not violative of Articles 14 and 21 of the Indian Constitution.

Saroj Rani v Sudarshan Kumar Chandha A.I.R1984 Saroj Rani v Sudarshan Kumar Chandha A.I.R1984  S.C.:-- S.C.:-- where the where the Court expressly overruled the judgment of the Andhra Pradesh High Court, 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 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 conjugal Constitution. The Court pointed out that a decree for restitution of conjugal rights serves a social purpose as an aid to the prevention of break-up in a rights 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 marriage. Even if such an order of the Court is willfully disobeyed, the Court cannot enforce sexual intercourse between the spouses. The only Court cannot enforce sexual intercourse between the spouses. The only remedy of the other party would be to apply for attachment of the property 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.of the defaulting spouse, through Rule32 of Order 21 of the CPC.

Section 13 (1A) (ii) Either party to a marriage whether solemnized Section 13 (1A) (ii) Either party to a marriage whether solemnized before or after the commencement of this Act, may also present a before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on petition for the dissolution of the marriage by a decree of divorce on the ground-the ground- that there has been no restitution of conjugal rights as that there has been no restitution of conjugal rights as between the parties to the marriage for a period of [one year] or between the parties to the marriage for a period of [one year] or upwards after the passing of a decree for restitution of conjugal upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties rights in a proceeding to which they were parties

Section 9, in actuality, is a means of saving the marriage, it is in a Section 9, in actuality, is a means of saving the marriage, it is in a sense an extension of sub-sections (2) and (3) of section 23 of the Act sense 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 Act which encourage reconciliation by the court. It is the policy of the Act that the parties should live together and assist in the maintenance of that the parties should live together and assist in the maintenance of marriages.marriages.

By enforcing cohabitation, the court is serving this purpose of the By enforcing cohabitation, the court is serving this purpose of the Act. the Indian Legislature believes that there should not be a sudden Act. the Indian Legislature believes that there should not be a sudden break of the marriage tie. It believes in reconciliation and that that break of the marriage tie. It believes in reconciliation and that that cooling-off period is not only desirable but essential. If the marriage cooling-off period is not only desirable but essential. If the marriage cannot be saved even after passing the decree of restitution it must cannot be saved even after passing the decree of restitution it must be dissolved. A factual separation gives an easily justifiable be dissolved. A factual separation gives an easily justifiable indication of breakdown. indication of breakdown.

Further, recognizing non-consumption of marriage after 1 year of Further, recognizing non-consumption of marriage after 1 year of passing of Restitution Decree as a ground of divorce enables the passing of Restitution Decree as a ground of divorce enables the aggrieved spouse to apply to the court for maintenance under section aggrieved spouse to apply to the court for maintenance under section 25; and maintenance pendente lite may also be claimed by making out 25; and maintenance pendente lite may also be claimed by making out a case for the same as provided in section 24. This enables a wife, a case for the same as provided in section 24. This enables a wife, who does not desire disruption of the marriage or even judicial who does not desire disruption of the marriage or even judicial separation from the husband, to secure provision for her support by separation from the husband, to secure provision for her support by an order of the court under the matrimonial jurisdiction conferred on an order of the court under the matrimonial jurisdiction conferred on it, instead of filing a suit for maintenance under the law relating to it, instead of filing a suit for maintenance under the law relating to maintenance now embodied in the Hindu Adoptions and Maintenance maintenance now embodied in the Hindu Adoptions and Maintenance Act 1956.Act 1956.

The Remedy of Restitution of Conjugal Rights is archaic, barbarous The Remedy of Restitution of Conjugal Rights is archaic, barbarous and violative of the basic Human Rights. It cannot be said that this and violative of the basic Human Rights. It cannot be said that this remedy is unconstitutional. Section 9 has sufficient safeguards to remedy is unconstitutional. Section 9 has sufficient safeguards to prevent the marriage from being a tyranny.[43]In truth, it serves the prevent the marriage from being a tyranny.[43]In truth, it serves the social good purpose, by promoting reconciliation between the parties social good purpose, by promoting reconciliation between the parties and maintenance of matrimonial. It protects the society from and maintenance of matrimonial. It protects the society from denigrating. And all the years that it has been enforce it has efficiently denigrating. And all the years that it has been enforce it has efficiently played it's a role.played it's a role.

Section10-JudicialSection10-Judicial separation separation

  (1)Either party to a marriage, whether solemnized before or after the (1)Either party to a marriage, whether solemnized before or after the commencement of this Act, may present a petition praying for a decree commencement of this Act, may present a petition praying for a decree for judicial separation on any of the grounds specified in sub-section (1) 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 of section 13, and in the case of a wife also on any of the grounds specified in sub-section (2) thereof, as grounds on which a petition for specified in sub-section (2) thereof, as grounds on which a petition for divorce might have been presented.divorce might have been presented.

  (2)Where a decree for judicial separation has been passed, it shall no (2)Where a decree for judicial separation has been passed, it shall no longer be obligatory for the petitioner to cohabit with the respondent, but longer be obligatory for the petitioner to cohabit with the respondent, but the court may, on the application by petition of either party and on being the court may, on the application by petition of either party and on being satisfied of the truth of the statements made in such petition, rescind the satisfied of the truth of the statements made in such petition, rescind the decree if it considers it just and reasonable to do so.decree if it considers it just and reasonable to do so.

Section 13 (1A) (i) Either party to a marriage whether solemnized before or 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 the after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground-that there dissolution of the marriage by a decree of divorce on the ground-that there has been no resumption of cohabitation as between the parties to the has been no resumption of cohabitation as between the parties to the marriage for a period of 3[one year] or upwards after the passing of a decree marriage for a period of 3[one year] or upwards after the passing of a decree for judicial separation in a proceeding to which they were partiesfor judicial separation in a proceeding to which they were parties

Section 13. DivorceSection 13. Divorce Grounds on Fault theory:---for Husband and Wife bothGrounds on Fault theory:---for Husband and Wife both ((1) Any marriage solemnized, whether before or after the commencement of this Act, 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 by may, on a petition presented by either the husband or the wife, be dissolved by decree of divorce on the ground that the other party- decree of divorce on the ground that the other party-

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

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

(ia) after the solemnization of the marriage, treated the petitioner with cruelty(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 that The cruelty is not defined in the Act but it should be so serious and weighty that cohabitation becomes impossible.cohabitation becomes impossible.

ii)) Physical CrueltyPhysical Cruelty : It will necessarily constitute a violence of certain degree : It will necessarily constitute a violence of certain degree and such degree of violence, sufficient to constitute legal cruelty, will vary with the and such degree of violence, sufficient to constitute legal cruelty, will vary with the status of parties in each case. Where bodily injury is inflicted or where there is a status of parties in each case. Where bodily injury is inflicted or where there is a reasonable apprehension of danger to life, limb or health, bodily or mental, it is easy reasonable apprehension of danger to life, limb or health, bodily or mental, it is easy to conclude that cruelty has taken place. to conclude that cruelty has taken place.

ii)ii) Mental Cruelty :Mental Cruelty : denotes a set of circumstances, which though fall short of denotes a set of circumstances, which though fall short of actual physical violence, may yet be acts of cruelty, e.g. malicious false accusation, actual physical violence, may yet be acts of cruelty, e.g. malicious false accusation, rudeness, forcing wife to prostitution, threatening a pregnant wife, etc.rudeness, forcing wife to prostitution, threatening a pregnant wife, etc.

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

i) Actual Desertion : i) Actual Desertion :

A) The spouses must have parted or terminated all joint-living.A) The spouses must have parted or terminated all joint-living. B) The deserting spouse must have the intention to desert the other spouse.B) The deserting spouse must have the intention to desert the other spouse. C) The deserted spouse must not have agreed to the separation. C) The deserted spouse must not have agreed to the separation. D) The desertion must have been without reasonable cause; andD) The desertion must have been without reasonable cause; and E) This State of affairs must have continued for the requisite period i.e. two E) This State of affairs must have continued for the requisite period i.e. two

years.years.

ii) Constructive Desertionii) Constructive Desertion : Desertion is not only abandoning the : Desertion is not only abandoning the company of the other spouse but also abandonment of a state of things, in company of the other spouse but also abandonment of a state of things, in which one party to marriage has been compelled to leave matrimonial home which one party to marriage has been compelled to leave matrimonial home owing to repulsive behaviour of the other party and the party thus living owing to repulsive behaviour of the other party and the party thus living separately cannot be held to be deserter but the party compelling her/him separately cannot be held to be deserter but the party compelling her/him would be held to be the deserter.would be held to be the deserter.

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

((iii) has been incurably of unsound mind, or has been iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with petitioner cannot reasonably be expected to live with the respondentthe respondent..

Explanation: in this clause-Explanation: in this clause- (a) (a) the expression “mental disorder” means mental the expression “mental disorder” means mental

illness, arrested or incomplete development of mind, illness, arrested or incomplete development of mind, psychopathic disorder of any other disorder or psychopathic disorder of any other disorder or disability of mind and includes schizophrenia.disability of mind and includes schizophrenia.

(b) the expression “psychopathic disorder” means a (b) the expression “psychopathic disorder” means a persistent disorder of disability of mind (whether or not persistent disorder of disability of mind (whether or not including sub- normality of intelligence) which results including sub- normality of intelligence) which results in abnormally aggressive or seriously irresponsible in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment or.not it requires or is susceptible to medical treatment or.

(iv) (iv) has been suffering from a virulent and incurable has been suffering from a virulent and incurable form of leprosyform of leprosy..

(v)(v) has been suffering from has been suffering from venereal disease in a venereal disease in a communicable formcommunicable form; or; or

(vi)(vi) has has renounced renounced the world by entering any religious the world by entering any religious order ororder or

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

    [Explanation[Explanation : In this sub section, the expression : In this sub section, the expression

“desertion” means the desertion of the petitioner by the “desertion” means the desertion of the petitioner by the other party to the marriage without reasonable cause and other party to the marriage without reasonable cause and without the consent or against the wish of such party and without the consent or against the wish of such party and includes the wilful neglect of the petitioner by the other includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and party to the marriage, and its grammatical variations and cognate expressions shall be constructed accordingly.]cognate expressions shall be constructed accordingly.]

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

a) Bigamy [Section 13 (2)(i)] : a) Bigamy [Section 13 (2)(i)] : That in the case of a marriage solemnized That in the case of a marriage solemnized before the commencement of the Act (i.e. 18th May, 1955) the husband before the commencement of the Act (i.e. 18th May, 1955) the husband has married before such commencement or that any other wife of has married before such commencement or that any other wife of husband, married before such commencement, was alive at the time of the husband, married before such commencement, was alive at the time of the petitioner’s marriage. petitioner’s marriage.

b) Rape, Sodomy or Bestiality [Section 13(2)(ii)] : b) Rape, Sodomy or Bestiality [Section 13(2)(ii)] : That the husband has That the husband has

been guilty of rape, sodomy or bestiality after the solemnization of been guilty of rape, sodomy or bestiality after the solemnization of marriage. marriage.

c) Decree or Order Awarding Maintenance [Section 13(2)(iii)] : c) Decree or Order Awarding Maintenance [Section 13(2)(iii)] : That in That in a suit under Section 18 of the Hindu Adoptions and Maintenance Act, 1956 a suit under Section 18 of the Hindu Adoptions and Maintenance Act, 1956 or in a proceedings under Section 125 of the Cr.P.C. 1973, a decree or or 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 the order has been passed against the husband awarding maintenance to the wife (notwithstanding that she was living apart) and after passing of such wife (notwithstanding that she was living apart) and after passing of such decree or order cohabitation between the parties has not been resumed for decree or order cohabitation between the parties has not been resumed for one year or upwards. one year or upwards.

d) Option of Puberty [Section 13(2)(iv)] : d) Option of Puberty [Section 13(2)(iv)] : That the wife’s marriage was That the wife’s marriage was solemnized before she attained the age of fifteen years and she repudiated solemnized before she attained the age of fifteen years and she repudiated the marriage after attaining that age but before attaining the age of the marriage after attaining that age but before attaining the age of eighteen years, whether the marriage has been consummated or not. eighteen years, whether the marriage has been consummated or not.

Divorce on Marriage Breakdown TheoryDivorce on Marriage Breakdown Theory

Decree of Judicial Separation [Section 13(1-A)(1)]Decree of Judicial Separation [Section 13(1-A)(1)] : : That a decree for judicial separation between the That a decree for judicial separation between the parties has been passed, and there has been no parties has been passed, and there has been no resumption of cohabitation for a period of at least resumption of cohabitation for a period of at least one year after the passing of such decree.one year after the passing of such decree.

Decree of Restitution of Conjugal Rights [Section Decree of Restitution of Conjugal Rights [Section

13(1-A) (2)]13(1-A) (2)] : : That a decree for restitution of conjugal That a decree for restitution of conjugal rights between the parties has been passed, but rights between the parties has been passed, but there has been no restitution of conjugal rights for a there has been no restitution of conjugal rights for a period of at least one year after the passing of such period of at least one year after the passing of such a decree. a decree.

Divorce by Mutual ConsentDivorce by Mutual Consent

(Section 13 B (1)) : (Section 13 B (1)) : That both the parties have been living That both the parties have been living separately for a period of one year or more or that both the separately for a period of one year or more or that both the parties have not been able to live together or that both the parties have not been able to live together or that both the parties have mutually agreed that their marriage should be parties have mutually agreed that their marriage should be dissolved.dissolved.

(Section 13 B (2)) :(Section 13 B (2)) :On the motion of both the parties made On the motion of both the parties made not earlier than six months after the date of the presentation not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect of divorce declaring the marriage to be dissolved with effect from the date of the decree. from the date of the decree.

When a Divorce Petition can be When a Divorce Petition can be Presented (Section 14) :Presented (Section 14) :

Divorce has not been made easy and atleast one year should Divorce has not been made easy and atleast one year should have elapsed between the date of marriage and the have elapsed between the date of marriage and the presentation of a divorce petition. But a petition may be field presentation of a divorce petition. But a petition may be field within this period, if so permitted by the court on an within this period, if so permitted by the court on an application being made to it on the ground of–application being made to it on the ground of–

1.1. Exceptional hardship suffered by the petitioner.Exceptional hardship suffered by the petitioner. 2.2. Exceptional depravity on the part of the other party.Exceptional depravity on the part of the other party. 33. In disposing of any application under this section for . In disposing of any application under this section for

leave to present a petition for divorce before the expiration of leave to present a petition for divorce before the expiration of one year from the date of the marriage, the court shall have one year from the date of the marriage, the court shall have regard to the interests of any children of the marriage and to regard to the interests of any children of the marriage and to the question whether there is a reasonable probability of a the question whether there is a reasonable probability of a reconciliation between the parties before the expiration of the reconciliation between the parties before the expiration of the said one year. said one year.

When Divorced Persons can Re-marry When Divorced Persons can Re-marry (Section 15) :(Section 15) :

After passing the decree of divorce, the parties After passing the decree of divorce, the parties to the marriage, may marry again, if the to the marriage, may marry again, if the following conditions are satisfied–following conditions are satisfied–

1.1. When a marriage has been dissolved and When a marriage has been dissolved and there is no appeal against the decree of court. there is no appeal against the decree of court.

2.2. If there is such a right of appeal but the If there is such a right of appeal but the time has been expired without filing an appeal.time has been expired without filing an appeal.

3.3. An appeal has been filed but has been An appeal has been filed but has been dismissed. dismissed.

Contents and Verification of Petitions (Section 20)Contents and Verification of Petitions (Section 20) : : The petition for any relief must distinctly set out the nature of the case and the facts The petition for any relief must distinctly set out the nature of the case and the facts

on which the claim to relief is founded. It must also state (except in a petition under on 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. The Section 11) that there is no collusion between the parties to the marriage. The statements contained in the petition have also to be verified by the petition (or some statements contained in the petition have also to be verified by the petition (or some other competent person) in the manner in which plaints have to be verified, and other 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.such statements may be referred to as evidence at the time of the hearing.

Application of the Code of Civil Procedure (Section 21) :Application of the Code of Civil Procedure (Section 21) : Except as otherwise provided by the Act, all matters of procedure under the Act are Except as otherwise provided by the Act, all matters of procedure under the Act are

to be regulated by the C.P.C. The Act also confers on the High Court, the power to to be regulated by the C.P.C. The Act also confers on the High Court, the power to make rules regulating the procedure to be adoptedmake rules regulating the procedure to be adopted. .

Power to Transfer Petition in Certain Cases (Section 21-A) :Power to Transfer Petition in Certain Cases (Section 21-A) : Section 21A of Section 21A of the Act provides that if a Petition under the Act has been presented to a District the Act provides that if a Petition under the Act has been presented to a District Court for judicial separation (under Section 10) or for divorce (under Section 13), Court for judicial separation (under Section 10) or for divorce (under Section 13), and subsequently another petition is presented by the other party to the marriage and subsequently another petition is presented by the other party to the marriage for judicial separation or for divorce, in the same District Court, or in a different for judicial separation or for divorce, in the same District Court, or in a different District Court, in the same State or in a different State –District 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 to a) if the petitions are presented to the same District Court,– both the petitions are to be tried and heard together by that District Court;be tried and heard together by that District Court;

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

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

Section 21B provides that the trial of a petition under Section 21B provides that the trial of a petition under the Act should, as far as is practicable, consistently the Act should, as far as is practicable, consistently with the interests of justice, be continued from day to with the interests of justice, be continued from day to day until its conclusion, unless the Court finds the day until its conclusion, unless the Court finds the adjournment of the trial beyond the following day to be adjournment of the trial beyond the following day to be necessary, and records the reasons for doing so.necessary, and records the reasons for doing so.

It is further provided that all petitions and appeals are to It is further provided that all petitions and appeals are to be disposed of as expeditiously as possible, and an be disposed of as expeditiously as possible, and an endeavour is to be made to dispose of a petition within endeavour is to be made to dispose of a petition within six months from the date of service of the notice of the six months from the date of service of the notice of the petition on the Respondent, and an appeal within three petition on the Respondent, and an appeal within three months from the date of the service of the notice of the months from the date of the service of the notice of the appeal on the Respondent.appeal on the Respondent.

Section 22 -Proceedings to be in camera Section 22 -Proceedings to be in camera and may not be printed or publishedand may not be printed or published

  (1)Every proceeding under this Act shall be (1)Every proceeding under this Act shall be conducted in camera and it shall not be lawful for conducted in camera and it shall not be lawful for any person to print or publish any matter in relation any person to print or publish any matter in relation to any such proceeding except a judgment of the to any such proceeding except a judgment of the High Court or of the Supreme Court printed or High Court or of the Supreme Court printed or published with the previous permission of the published with the previous permission of the Court.Court.

  (2)If any person prints or publishes any matter in (2)If any person prints or publishes any matter in contravention of the provisions contained in sub-contravention of the provisions contained in sub-section (1), he shall be punishable with fine which section (1), he shall be punishable with fine which may extend to one thousand rupees.may extend to one thousand rupees.

Section 23-Decree in proceedingsSection 23-Decree in proceedings..

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

    (a) any of the grounds for granting relief exists and the petitioner except in (a) any of the grounds for granting relief exists and the petitioner except in cases where the relief is sought by him on the ground specified in sub-clause cases 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 in any way (a), sub-clause (b) or sub clause (c) of clause (ii) or section 5 is not in any way taking advantage of his or her own wrong or disability for the purpose of such taking advantage of his or her own wrong or disability for the purpose of such relief, and relief, and 

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

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

  (c) the petition (not being a petition presented under section 11) is not (c) the petition (not being a petition presented under section 11) is not presented or prosecuted in collusion with the respondent, and presented or prosecuted in collusion with the respondent, and 

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

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

  (2)Before proceeding to grant any relief under this Act, it shall be (2)Before proceeding to grant any relief under this Act, it shall be the duty of the court in the first instance, in every case where it is the duty of the court in the first instance, in every case where it is possible so to do consistently with the nature and circumstances possible so to do consistently with the nature and circumstances of the case, to make every endeavour to bring about reconciliation of the case, to make every endeavour to bring about reconciliation between the parties: Provided that nothing contained in this sub-between the parties: Provided that nothing contained in this sub-section shall apply to any proceeding wherein relief is sought on section shall apply to any proceeding wherein relief is sought on any of the grounds specified in clause (ii), clause (iii), clause (iv), any of the grounds specified in clause (ii), clause (iii), clause (iv), clause (v), clause (vi) or clause (vii) of sub-section (1) of section clause (v), clause (vi) or clause (vii) of sub-section (1) of section 13. 13. 

(3)For the purpose of aiding the court in bringing about such (3)For the purpose of aiding the court in bringing about such reconciliation, the court may, if the parties so desire or if the court reconciliation, the court may, if the parties so desire or if the court thinks it just and proper so to do, adjourn the proceedings for a thinks it just and proper so to do, adjourn the proceedings for a reasonable period not exceeding fifteen days and refer the matter reasonable period not exceeding fifteen days and refer the matter to any person named by the parties in this behalf or to any person to any person named by the parties in this behalf or to any person nominated by the court if the parties fail to name any person, with nominated by the court if the parties fail to name any person, with directions to report to the court as to whether reconciliation can be directions to report to the court as to whether reconciliation can be and has been, effected and the court shall in disposing of the and has been, effected and the court shall in disposing of the proceeding have due regard to the report.proceeding have due regard to the report.

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

Section 23 A.Section 23 A. Relief for respondent in divorce Relief for respondent in divorce and other proceedingsand other proceedings.:---------.:---------

In any proceeding for divorce or judicial separation In any proceeding for divorce or judicial separation or restitution of conjugal rights, or restitution of conjugal rights, the respondentthe respondent may may not only oppose the relief sought on the ground of not only oppose the relief sought on the ground of petitioner's adultery, cruelty or desertion, but also petitioner's adultery, cruelty or desertion, but also make a make a counter-claim for any reliefcounter-claim for any relief under this Act on under this Act on that ground; and if the petitioner's adultery, cruelty or that ground; and if the petitioner's adultery, cruelty or desertion is proved, the court may give to the desertion is proved, the court may give to the respondent any relief under this Act to which he or respondent any relief under this Act to which he or she would have been entitled if he or she had she would have been entitled if he or she had presented a petition seeking, such relief on that presented a petition seeking, such relief on that ground.ground.

Section 24-Maintenance Pendente lite and Section 24-Maintenance Pendente lite and expenses proceedings:---expenses proceedings:---

  Where in any proceeding under this Act it appears Where in any proceeding under this Act it appears to the court that either the wife or the husband, as to the court that either the wife or the husband, as the case may be, has no independent income the case may be, has no independent income sufficient for her or his support and the necessary sufficient for her or his support and the necessary expenses of the proceeding, it may, on the expenses of the proceeding, it may, on the application of the wife or the husband, order the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner's own such sum as, having regard to the petitioner's own income and the income of the respondent, it may income and the income of the respondent, it may seem to the court to be reasonable.seem to the court to be reasonable.

SECTION  25-Permanent alimony and maintenance.SECTION  25-Permanent alimony and maintenance.

(1) Any court exercising jurisdiction under this Act may, at the time of (1) Any court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application passing any decree or at any time subsequent thereto, on application made to it for the purpose by either the wife or the husband, as the case made 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 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 his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, 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 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 any, the income and other property of the applicant, the conduct of the parties and other circumstances of the case, it may seem to the court to parties and 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 be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent. charge on the immovable property of the respondent. 

(2) If the court is satisfied that there is a change in the circumstances of (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), 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 such it may at the instance of either party, vary, modify or rescind any such order in such manner as the court may deem just. (3)If the court is order 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 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 not this section has re-married or, if such party is the wife, that she has not remained chaste, or, if such party is the husband, that he has had remained chaste, or, if such party is the husband, that he has had sexual intercourse with any woman outside wedlock, it may at the sexual intercourse with any woman outside wedlock, it may at the instance of the other party vary, modify or rescind any such order in instance of the other party vary, modify or rescind any such order in such manner as the court may deem just.such manner as the court may deem just.

Section 26-Custody of children.Section 26-Custody of children.   In any proceeding under this Act, the court may, from time to In any proceeding under this Act, the court may, from time to

time, pass such interim orders and make such provisions in time, pass such interim orders and make such provisions in the decree as it may deem just and proper with respect to the the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, custody, maintenance and education of minor children, consistently with their wishes, wherever possible, and may, consistently with their wishes, wherever possible, and may, after the decree, upon application by petition for the purpose, after the decree, upon application by petition for the purpose, make from time to time, all such, orders and provisions with make from time to time, all such, orders and provisions with respect to the custody, maintenance and education of such respect to the custody, maintenance and education of such children as, might have been made by such decree or interim children as, might have been made by such decree or interim orders in case the proceeding for obtaining such decree were orders in case the proceeding for obtaining such decree were still pending, and the court may also from time to time revoke, still pending, and the court may also from time to time revoke, suspend or vary any such orders and provisions previously suspend or vary any such orders and provisions previously made.made.

Section 27-Disposal of property.Section 27-Disposal of property.   In any proceeding under this Act, the court may make such In any proceeding under this Act, the court may make such

provisions in the decree as it deems just and proper with provisions in the decree as it deems just and proper with respect to any property presented, at or about the time of respect to any property presented, at or about the time of marriage, which may belong jointly to both the husband and marriage, which may belong jointly to both the husband and the wife.the wife.

Section 28-Appeals from decrees and orders.Section 28-Appeals from decrees and orders.

  (1)All decrees made by the court in any proceeding under this Act shall, (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 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 every the court made in the exercise of its original civil jurisdiction, and every such appeal shall lie to the court to which appeals ordinarily lie from the such appeal shall lie to the court to which appeals ordinarily lie from the decisions of the court given in the exercise of its original civil jurisdiction. decisions 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 (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), 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 shall be appealable if they are not interim orders, and every such appeal shall lie to the court to which appeals ordinarily lie from the decisions of the lie to the court to which appeals ordinarily lie from the decisions of the court given in exercise of its original civil jurisdiction. court given in exercise of its original civil jurisdiction. 

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

  (4)Every-appeal under this section shall be preferred within a period of (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 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 any decrees and orders. All decrees and orders made by the court in any proceeding under this Act shall be enforced in the like manner as the proceeding under this Act shall be enforced in the like manner as the decrees and orders of the court made in the exercise of its original civil decrees and orders of the court made in the exercise of its original civil jurisdiction for the time being are enforced. jurisdiction for the time being are enforced.

Section29-SavingsSection29-Savings

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

  (2)Nothing contained in this Act shall be deemed to affect any right (2)Nothing contained in this Act shall be deemed to affect any right recognized by custom or conferred by any special enactment to obtain recognized by custom or conferred by any special enactment to obtain the dissolution of a Hindu marriage, whether solemnized before or after the dissolution of a Hindu marriage, whether solemnized before or after the commencement of this Act. the commencement of this Act. 

(3)Nothing contained in this Act shall affect any proceeding under any (3)Nothing contained in this Act shall affect any proceeding under any law for the time being in force for declaring any marriage to be null and law for the time being in force for declaring any marriage to be null and void or for annulling or dissolving any marriage or for judicial separation void or for annulling or dissolving any marriage or for judicial separation pending at the commencement of this Act, and any such proceeding pending at the commencement of this Act, and any such proceeding may be continued and determined as if this Act had not been passed. 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 provisions (4)Nothing contained in this Act shall be deemed to affect the provisions contained in the Special Marriage Act, 1954 (43 of 1954) with respect to contained in the Special Marriage Act, 1954 (43 of 1954) with respect to marriages between Hindus solemnized under that Act, whether before marriages between Hindus solemnized under that Act, whether before or after the commencement of this Act.30-Repealed by the Repealing 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.and Amending Act, 1960 (58 of 1960), s. 2 and the First Schedule.

Hindu Adoptions And Maintenance Act, 1956Hindu Adoptions And Maintenance Act, 1956

LAWS RELATED TO ADOPTIONLAWS RELATED TO ADOPTION

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

1. Hindu Adoption and Maintenance Act 19561. Hindu Adoption and Maintenance Act 1956 2. The Guardians and Wards Act 18902. The Guardians and Wards Act 1890 In Hindu Adoption and Maintenance Act 1956 only Hindus can take In Hindu Adoption and Maintenance Act 1956 only Hindus can take

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

Sikhism this act is applicable.Sikhism this act is applicable. b) This Act does not apply to those who are Muslims, Christians, Parsis, or b) This Act does not apply to those who are Muslims, Christians, Parsis, or

Jews by religion.Jews by religion. c) The Act also applies to the child whose biological parents is not known c) The Act also applies to the child whose biological parents is not known

or have abandoned the child and has been brought up as Hindu, or have abandoned the child and has been brought up as Hindu, Buddhist, Jain or Sikh.Buddhist, Jain or Sikh.

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

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

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

g) The Adoptive parents should not have a child who g) The Adoptive parents should not have a child who has been adopted or a child of their own or a has been adopted or a child of their own or a grandchild at the time of adoption. grandchild at the time of adoption.

h) A valid Adoption cannot be changed or cancelled.h) A valid Adoption cannot be changed or cancelled. i) All the rights of the biological parents should be i) All the rights of the biological parents should be

replaced to the adoptive parents.replaced to the adoptive parents. j) A valid adoption is the one in which the person j) A valid adoption is the one in which the person

giving and the person taking the child sign the giving and the person taking the child sign the Adoption Documents.Adoption Documents.

k) If the adopter and the adoptee are of the opposite k) If the adopter and the adoptee are of the opposite sex then the age difference between them should be sex then the age difference between them should be at least 21 years.at least 21 years.

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

2.  The Guardians and Wards Act 1890 Under this act, 2.  The Guardians and Wards Act 1890 Under this act, people belonging to communities such as Muslim, people belonging to communities such as Muslim, Christian, Parsi or Jews and who wish to adopt can only Christian, Parsi or Jews and who wish to adopt can only take up "Guardianship" of the child. This child, like the take up "Guardianship" of the child. This child, like the biological child would not be provided with the same biological child would not be provided with the same status.status.

    Christians and Parsis can take a child under the said Christians and Parsis can take a child under the said Act only under foster care. Once a child under foster Act only under foster care. Once a child under foster care becomes major, he is free to break away all his care becomes major, he is free to break away all his connections. Besides, such a child does not have legal connections. Besides, such a child does not have legal right of inheritance. right of inheritance.

Foreigners, who want to adopt Indian children have to Foreigners, who want to adopt Indian children have to approach the court under the aforesaid Act. In case the approach the court under the aforesaid Act. In case the court has given permission for the child to be taken out court has given permission for the child to be taken out of the country, adoption according to a foreign law, i.e., of the country, adoption according to a foreign law, i.e., law applicable to guardian takes place outside the law applicable to guardian takes place outside the country.country.

Section 2. Application of ActSection 2. Application of Act (1) (1) This Act applies-This Act applies- (a) (a) to any person, who is a Hindu by religion in any of its to any person, who is a Hindu by religion in any of its

forms or developments, including a Virashaiva, a Lingayat or forms or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana of Arya Samaj,a follower of the Brahmo, Prarthana of Arya Samaj,

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

(c) (c) to any other person who is not a Muslim, Christian, to any other person who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such Parsi or Jew by religion, unless it is proved that any such person would not have been governed by the Hindu law or by person would not have been governed by the Hindu law or by any custom or usage as part of the law in respect any of the any custom or usage as part of the law in respect any of the matters dealt with herein if this Act had not been passed.matters dealt with herein if this Act had not been passed.

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

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

((b) b) any child, legitimate or illegitimate, one of whose parents any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jaina, and Sikh by religion and who is is a Hindu, Buddhist, Jaina, and Sikh by religion and who is brought up as a member of the tribe, community, group or brought up as a member of the tribe, community, group or family to which such parent belongs or belonged; family to which such parent belongs or belonged;

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

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

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

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

CHAPTER II CHAPTER II ADOPTIONS ADOPTIONS 

Section 5. Adoptions to be regulated by this chapterSection 5. Adoptions to be regulated by this chapter

(1) No adoption shall be made after the commencement of (1) No adoption shall be made after the commencement of this Act by or to a Hindu except in accordance with the this Act by or to a Hindu except in accordance with the provisions contained in this Chapter, and any adoption provisions contained in this Chapter, and any adoption made in contravention of the said provision shall be void.made in contravention of the said provision shall be void.

(2)(2) An adoption which is void shall neither create any An adoption which is void shall neither create any rights in the adoptive family in favour of any person which rights in the adoptive family in favour of any person which he or she could not have acquired except by reason of the he or she could not have acquired except by reason of the adoption, nor destroy the right of any person in the family of adoption, nor destroy the right of any person in the family of his or her birth.his or her birth.

Section 6. Requisites of a valid adoptionSection 6. Requisites of a valid adoption

No adoption shall be valid unless-No adoption shall be valid unless- (i) the person adopting has the capacity, and also the (i) the person adopting has the capacity, and also the

right, to take in adoption;right, to take in adoption; (ii) the person giving in adoption has the capacity to do (ii) the person giving in adoption has the capacity to do

so;so; (iii) the person adopted is capable of being taken in (iii) the person adopted is capable of being taken in

adoption; andadoption; and (iv) the adoption is made in compliance with the other (iv) the adoption is made in compliance with the other

conditions mentioned in this Chapter i.e section 11.conditions mentioned in this Chapter i.e section 11. Where any of the requirements as laid down under s.6 Where any of the requirements as laid down under s.6

are not strictly observed, that non-observance of the are not strictly observed, that non-observance of the requisite or requisites is enough to convert the adoption requisite or requisites is enough to convert the adoption as invalid one.as invalid one.-Dhanraj v. Suraj Bai 1972 Raj LW 612-Dhanraj v. Suraj Bai 1972 Raj LW 612

Section 7. Capacity of a male Hindu to take in Section 7. Capacity of a male Hindu to take in adoptionadoption

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

PROVIDED that, if he has a wife living,PROVIDED that, if he has a wife living, he shall not adopt except with the consent of his wife he shall not adopt except with the consent of his wife

unless the wife has completely and finally renounced the unless the wife has completely and finally renounced the world orworld or

has ceased to be a Hindu orhas ceased to be a Hindu or has been declared by a court of competent jurisdiction has been declared by a court of competent jurisdiction

to be of unsound mind.to be of unsound mind. ExplanationExplanation: If a person has more than one wife living at : If a person has more than one wife living at

the time of adoption, the consent of all the wives is the time of adoption, the consent of all the wives is necessary unless the consent of any one of the them is necessary unless the consent of any one of the them is unnecessary for any of the reasons specified in the unnecessary for any of the reasons specified in the preceding proviso.preceding proviso.

The person taking in adoption must not suffer from idiocy or The person taking in adoption must not suffer from idiocy or insanity; he must have the capacity enough to understand the nature insanity; he must have the capacity enough to understand the nature of the Act and what would be the legal effects of adoption . of the Act and what would be the legal effects of adoption . Simultaneously it is not the requirement the person concerned must Simultaneously it is not the requirement the person concerned must be possessed with a very high degree of intelligence. There is a very be possessed with a very high degree of intelligence. There is a very strong presumption favouring soundness of mind.-strong presumption favouring soundness of mind.-Babubarelal v. Babubarelal v. Gulzari Devi 1979 All LJ 1333Gulzari Devi 1979 All LJ 1333

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

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

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

Section 8. Capacity of a female Hindu to take in Section 8. Capacity of a female Hindu to take in adoptionadoption

Any female Hindu :- Any female Hindu :- (a) Who is of sound mind,(a) Who is of sound mind, (b) who is not a minor, and(b) who is not a minor, and (c) (c) who is not married, or if married, whose marriage has who is not married, or if married, whose marriage has

been dissolved or whose husband is dead or has completely been dissolved or whose husband is dead or has completely and finally renounced the world or has ceased to be a Hindu and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be or has been declared by a court of competent jurisdiction to be of unsound mind,of unsound mind,

has the capacity to take a son or daughter in adoption.has the capacity to take a son or daughter in adoption.

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

Section 9. Persons capable of giving in Section 9. Persons capable of giving in adoptionadoption

(1) No person except the father or mother the guardian of a child (1) No person except the father or mother the guardian of a child shall have the capacity to give the child in adoption.shall have the capacity to give the child in adoption.

(2) Subject to the provision of [sub-section (3) and sub-section (4)],(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,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 the but such right shall not be exercised save with the consent of the

mother unless the mother has completely and finally renounced mother unless the mother has completely and finally renounced the world or has ceased to be a Hindu has been declared by a court the world or has ceased to be a Hindu has been declared by a court of competent jurisdiction to be of unsound mind.of competent jurisdiction to be of unsound mind.

(3) The mother may give the child in adoption (3) The mother may give the child in adoption if the father is dead orif the father is dead or has completely and finally renounced the world orhas completely and finally renounced the world or has ceased to be a Hindu orhas ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of has been declared by a court of competent jurisdiction to be of

unsound mind.unsound mind.   

(4) Where both the father and mother are dead or have (4) Where both the father and mother are dead or have completely and finally renounced the world orcompletely and finally renounced the world or

have abandoned the child or have abandoned the child or have been declared by a court of competent jurisdiction to have been declared by a court of competent jurisdiction to

be of unsound mind or be of unsound mind or where the parentage of the child is not known,where the parentage of the child is not known, the guardian of the child may give the child in adoption with the guardian of the child may give the child in adoption with

the previous permission of the court to any person including the previous permission of the court to any person including the guardian himself.the guardian himself.

(5) (5) Before granting permission to a guardian under sub-Before granting permission to a guardian under sub-section (4), the court shall be satisfied that the adoption will section (4), the court shall be satisfied that the adoption will be for the welfare of the child, due consideration being for be for the welfare of the child, due consideration being for this purpose given to the wishes of the child having regard this purpose given to the wishes of the child having regard to the age and understanding of the child and that the to the age and understanding of the child and that the applicant for permission has not received or agreed to applicant for permission has not received or agreed to receive and that no person has made or given or agreed to receive and that no person has made or given or agreed to make or give to the applicant any payment or reward in make or give to the applicant any payment or reward in consideration of the adoption except such as the court may consideration of the adoption except such as the court may sanction.sanction.

Explanation: For the purposes of this section-Explanation: For the purposes of this section-

(i) the expression "father" and "mother" do not (i) the expression "father" and "mother" do not include an adoptive father and an adoptive mother; include an adoptive father and an adoptive mother;

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

(a) a guardian appointed by the will of the child's (a) a guardian appointed by the will of the child's father or mother; and father or mother; and

(b) a guardian appointed or declared by a court: and](b) a guardian appointed or declared by a court: and] (ii) "court" means the city civil court or a district (ii) "court" means the city civil court or a district court within the local limits of whose jurisdiction the court within the local limits of whose jurisdiction the

child to be adopted ordinarily resides.child to be adopted ordinarily resides.

Section 10. Persons who may be adoptedSection 10. Persons who may be adopted

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

(i) (i) he or she is Hindu;he or she is Hindu;

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

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

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

  

There is a bar imposed by this s. 10 and that being a married There is a bar imposed by this s. 10 and that being a married person cannot be adopted. But the case is different where person cannot be adopted. But the case is different where there is some custom among Jats of Punjab and Haryana in there is some custom among Jats of Punjab and Haryana in having a legal sanction and judicially recognised where under having a legal sanction and judicially recognised where under the custom permits the adoption of married person-the custom permits the adoption of married person-Amar Amar Singh V.Tej Ram 1982 (84 )PunjSingh V.Tej Ram 1982 (84 )Punj LR 2387LR 2387

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

Existence of custom be it family or tribal custom having its Existence of custom be it family or tribal custom having its applicability to the parties concerned whereby the adoption of applicability to the parties concerned whereby the adoption of a person married or of the age of more than 15 years is a person married or of the age of more than 15 years is permitted, is all that is required to be established by the permitted, is all that is required to be established by the provision of section 10 so as to make adoption validprovision of section 10 so as to make adoption valid.-Maya .-Maya Ram v. Jai Narian 1989 (1) HLR 352Ram v. Jai Narian 1989 (1) HLR 352

Section 11. other conditions for a valid adoptionSection 11. other conditions for a valid adoption

In every adoption, the following conditions must be complied In every adoption, the following conditions must be complied with:with:

(i) if the adoption is of a son, the adoptive father or mother by (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's whom adoption is made must not have a Hindu son, son's son or son's son's son (whether by legitimate blood son or son's son's son (whether by legitimate blood relationship or by adoption) living at the time of adoption;relationship or by adoption) living at the time of adoption;

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

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

(iv)(iv) if the adoption is by a female and the person to be adopted is a if the adoption is by a female and the person to be adopted is a male, the adoptive mother is at least twenty -one years older than the male, the adoptive mother is at least twenty -one years older than the person to be adopted;person to be adopted;

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

(vi)(vi) the child to be adopted must be actually given and taken in the child to be adopted must be actually given and taken in adoption by the parents or guardian concerned or under their authority adoption by the parents or guardian concerned or under their authority with intent to transfer the child from the family of its birth [or in case of an with intent to transfer the child from the family of its birth [or in case of an abandoned child or child whose parentage is not known, from the place or abandoned child or child whose parentage is not known, from the place or family where it has been brought up] to the family of its adoption:family where it has been brought up] to the family of its adoption:

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

  Requirement of an age gap of 21 years between the adoptee and the Requirement of an age gap of 21 years between the adoptee and the adopted, if violated is sufficient to render the adoption invalid.-adopted, if violated is sufficient to render the adoption invalid.- Golak Golak Chandra v . Kritibas AIR 1979 Ori. 205Chandra v . Kritibas AIR 1979 Ori. 205

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

Section 12. Effects of adoptionSection 12. Effects of adoption An adopted child shall be deemed to be the child of his or An adopted child shall be deemed to be the child of his or

her adoptive father or mother for all purposes with effect her adoptive father or mother for all purposes with effect from the date of the adoption and from such date all the from the date of the adoption and from such date all the ties of the child in the family of his or her birth shall be ties of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by the deemed to be severed and replaced by those created by the adoption in the adoptive family : adoption in the adoptive family :

PROVIDED that -PROVIDED that - (a)(a) the child cannot marry any person whom he or she the child cannot marry any person whom he or she

could not have married if he or she had continued in the could not have married if he or she had continued in the family of his or her birth;family of his or her birth;

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

(c) (c) the adopted child shall not divest any person of any the adopted child shall not divest any person of any estate which vested in him or her before the adoption. estate which vested in him or her before the adoption.

Section 14. Determination of adoptive mother in certain Section 14. Determination of adoptive mother in certain casescases

(1) Where a Hindu who has a wife living adopts a child, she (1) Where a Hindu who has a wife living adopts a child, she shall be deemed to be the adoptive mother.shall be deemed to be the adoptive mother.

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

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

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

Section 13. Right of adoptive parents to dispose Section 13. Right of adoptive parents to dispose of their properties of their properties

Subject to any agreement to the contrary, an Subject to any agreement to the contrary, an adoption does not deprive the adoptive father or adoption does not deprive the adoptive father or mother of the power to dispose of his or her mother of the power to dispose of his or her property by transfer inter vivos or by will.property by transfer inter vivos or by will.

Section 15. Valid adoption not to be cancelledSection 15. Valid adoption not to be cancelled No adoption which has been validly made can be No adoption which has been validly made can be

cancelled by the adoptive father or mother or any cancelled by the adoptive father or mother or any other person, nor can the adopted child renounce other person, nor can the adopted child renounce his or her status as such and return to the family of his or her status as such and return to the family of his or her birth.his or her birth.

Section 16.Presumption as to registered documents Section 16.Presumption as to registered documents relating to adoption relating to adoption

Whenever any document registered under any law for the Whenever any document registered under any law for the time being in force is produced before any court purporting time being in force is produced before any court purporting to record an adoption made and is signed by the person to record an adoption made and is signed by the person giving and the person taking the child in adoption, the court giving and the person taking the child in adoption, the court shall presume that the adoption has been made in shall presume that the adoption has been made in compliance with the provisions of this Act unless and until it compliance with the provisions of this Act unless and until it is disproved. is disproved.

In case a challenge is thrown to the deed of adoption on the In case a challenge is thrown to the deed of adoption on the ground of its execution being by fraud, coercion or undue ground of its execution being by fraud, coercion or undue influence, it is for the party challenging the document that influence, it is for the party challenging the document that has to establish that the execution was so vitiated.-Sushil has to establish that the execution was so vitiated.-Sushil Chandra v. Bhoop Kunwar AIR 1977 All 441.Chandra v. Bhoop Kunwar AIR 1977 All 441.

Presumption as to registered documents relation to Presumption as to registered documents relation to adoption is only a rebuttable presumption.-Bhoolo Ram v. adoption is only a rebuttable presumption.-Bhoolo Ram v. Ramlal 1989 (2) HLR 162Ramlal 1989 (2) HLR 162

  

SECTION 17. Prohibition of Certain PaymentsSECTION 17. Prohibition of Certain Payments

(1) (1) No person shall receive or agree to receive any No person shall receive or agree to receive any payment or other reward in consideration of the payment or other reward in consideration of the adoption of any person, and no person shall make or adoption of any person, and no person shall make or give or agree to make or give to any other person any give or agree to make or give to any other person any payment or reward the receipt of which is prohibited by payment or reward the receipt of which is prohibited by this section.this section.

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

(3) (3) No prosecution under this section shall be No prosecution under this section shall be instituted without the previous sanction of the State instituted without the previous sanction of the State Government or an officer authorised by the State Government or an officer authorised by the State Government in this behalf Government in this behalf