1.

Guardianship under Hindu law- Kinds of Guardians under Hindu law

Introduction:-
In the premature stage of one’s life, a child is incapable of taking care of himself or herself,
they cannot be expected to take care of themselves as well as their property. A child cannot
handle their matters and cannot understand what is right and wrong for them. So,
therefore, Hindu law has codified the Hindu Minority and Guardianship Act, 1956. The act
deals with minors, their guardian, and the provisions related to the same.
Minor as per Section 4(a)
“who has not completed the age of 18 years. “

Guardian as per Section 4(b)

“a person who has completed the age of 18 years and can take proper care of a minor and
his property. “

Types of guardians:- There are three types of guardians

1. Natural guardian
2. Testamentary guardian
3. Guardian appointed by the court

1. NATURAL GUARDIAN:-

A natural guardian is a person having the care of a person of a minor or of his property or
both, by virtue of his natural relationship with the minor.

According to section 6 of the act, the father is the natural guardian of the person and the
separate property of his minor children, and next to him is the mother. The meaning of the
words “Father” and “Mother” does not include a stepfather and a stepmother.
So, Hindu law recognizes three persons as natural guardians: Father, Mother, and Husband.

FATHER- The father is the natural guardian of a boy and unmarried daughter, and after him,
it’s the mother. But the custody of a child less than the age of 5 years will be with the
mother.
MOTHER- For an illegitimate son or daughter, the mother is said to be the natural guardian
and after her, it’s the father.

HUSBAND- For a minor wife his husband is the natural guardian. However, according to
Section 13 of the act, a court may revert the guardianship to the father or mother
depending on the best interests of the minor.
Section 6 of the act also mentions that the father nor the mother shall not be considered to
be the natural guardian of the child if,

a) he or she ceased to be Hindu, or

b) he or she has renounced the world and has become an ascetic or sanyasi.

Power Of Natural Guardian

Section 8 of the act, prescribes the powers of the natural guardian which are as follows:
1. The natural guardian of a Hindu minor has the power to do all work, which is
compulsory and which is beneficial for the minor’s interest.
2. The natural guardian should bring prior permission from the Court, for the use of the
gift transferred to him, mortgage, or any other valuable things of the minor.
3. For the lease of any part of the minor’s property for about exceeding 5 years or for a
term of extending one year beyond the date on which the minor attains the
majority. Prior permission from the Court is necessary for doing so.
4. Violation of any disposal of the immovable property by a natural guardian, will be
voidable in the case of the minor or any other person claiming on the behalf of him.
5. The court shall allow the guardian to transfer or lease the property only when it finds
it necessary to do so in the interest or advantage of the minor.

2. TESTAMENTARY GUARDIAN (Sec 9):-

A testamentary guardian is a guardian who is appointed by will or a testament of a person.

This is to ensure that the child will have supervision even after the death of the natural
guardian. Under the act, both father and mother can choose a testamentary guardian.

There are some circumstances:

▪ If the father of the child is dead and the mother is still alive, she will be the natural
guardian, not the testamentary guardian.

▪ If the mother chooses a testamentary guardian, her chosen guardian will become the
testamentary guardian, and the father’s appointment will be void.

▪ If the mother does not want to choose any guardian, then the father’s appointee will
become the guardian.

▪ The father of an illegitimate child is not a natural guardian of him/her. The mother is the
natural guardian of an illegitimate child and she has the right to choose a testamentary
guardian
▪ After the death of the father or mother, the person appointed as the guardian shall act as
the natural guardian of children

The right of the guardian appointed by the will shall cease after the marriage of a girl.

Powers Of a Testamentary Guardian :-

According to Section 9 (5), a Testamentary guardian is said to have the same powers as the
natural guardian and can exercise all the powers that are vested with the Natural Guardian.

3. GUARDIAN APPOINTED BY THE COURT:-

In the absence of the first two kinds of guardians, the guardian appointed by the court
comes into play. In this, the court appoints a guardian concerning the minor or
minor’s property or both. The guardian appointed by the court is called a certificated
guardian.
Section 13 states that the welfare of the minor should be a “paramount
consideration” while appointing a minor. Hence, the welfare of the minor is taken into
account as a paramount consideration while appointing a guardian.
Powers Of Certificated Guardian:-

The Guardians and Wards Act of 1890 regulates the authority of Certified Guardians. The
powers of the guardian appointed by the court and the control imposed by the Act over
such powers are the same as that of a natural or testamentary guardian.

DE FACTO GUARDIAN:-

A de facto guardian of a minor is neither a legal guardian, a testamentary guardian, nor a

guardian appointed by the court, but he is a person, who himself takes over the
management of the affairs of the minor as if he was a natural guardian. He does not
intermeddle, nor does an isolated act of any person regarding a child's property make him a
de facto guardian.
He may be any person like the elder brother or elder sister or uncle or aunt of the child or
anybody who provides necessities to the minor child.

CONCLUSION :-

In the old Hindu law, there was no guardianship law as all the family members stayed
together and if the parents were not there, then the other members of the family would
take guardianship of the child. That is why there was a need for a proper guardianship law in
our country and therefore, the parliament enacted the Hindu Minority and Guardianship Act
in 1956. So, a guardian is very necessary for a minor for the welfare of him and to protect
him physically or mentally and secure from any danger.
 Q.2 Adoption- Essentials, Effect of Adoption

Definition of Adoption:-

Adoption is the legal and permanent transfer of Parental rights from a person or couple
to another person or couple. Adoptive Parents have the same legal rights and
obligations as the biological Parents.

What is Adoption?
It is a process whereby a person assumes the parenting of another. In this process,
permanently transfer all the rights and responsibilities from the original parent or
parents.

Two fold objects of Adoption:-

Firstly, to secure spiritual benefits to adopter and his ancestor by having a son
Secondly, to secure a heir and and perpetuate the adopter’s name.

Requirements Of Valid Adoption (Section 6)

For making the adoption valid:

A. The person adopting has the capacity and also the right to take in adoption
B. The person giving in adoption has capacity to do so.
C. The person adopted is capable of being taken in adoption
D. The adoption is completed by actual giving and taking
E. The ceremony called Datta Homam is performed.

Capacity of Hindu Male to Adopt: (Sec 7)

1. Any male Hindu of sound mind, and
2. who is not a minor, can take a son or a daughter in adoption.
3. If he has a wife who is alive, he cannot adopt without her consent, unless the wife has
completely and finally renounced the world; or has ceased to be a Hindu; or has been
declared to be of unsound mind by a Court of competent jurisdiction.

If such a person has more than one wife living at the time of adoption the consent of all the
wives is necessary. It may be noted that the consent of the wife need not be express
consent, i.e.it can also be spelt out from the facts and circumstances of the case. Thus, if the
wife has taken a prominent part in the adoption ceremonies. Such an inference can validly
be made.

Capacity of Hindu female to adopt: (Sec 8)

1. Any female Hindu who is of sound mind and
2. is not a minor, has the capacity to take a son or a daughter in adoption.
3. If she has a husband who is alive, she cannot adopt without the consent of her husband,
unless the husband has completely and finally renounced the world; or has ceased to be a
Hindu or has been declared to be of unsound mind by a Court of competent jurisdiction.

Person Who Can Give The Child-Giving In Adoption:- (Sec 9)

Only three categories of persons, namely, the father, the mother and the guardian are given
this right.
The terms father and mother do not include the adoptive father and the adoptive mother.
Both father and the mother have an equal right to give a son or daughter in adoption. Even
so, either of them cannot exercise this right except with the consent of the other spouse,
unless such other spouse has completely and finally renounced the world; or has ceased to
be a Hindu or has been declared to be of unsound mind by a Court of competent
jurisdiction.

Power of Guardian:
The guardian means a person having the care of the minor's person, or of both his person
and property, and includes. The guardian of the child has also been given the power to give
a child in adoption, with the previous permission of the Court, in cases where:
1.both the father and mother are dead; or
2. Have completely and finally renounced the world; or
3. Have abandoned the child; or
4. Have been declared to be of unsound mind by a Court of competent jurisdiction;
5. The parentage of the child is not known.

It may be noted that a child can be given in adoption to any person, including the guardian
himself.
A guardian appointed by the will of child's father or mother, and
A guardian appointed or declared by a Court

The Person Who Is Adopted Should Be Capable Of Being Taken In Adoption

(Section 10) “No person shall be capable of being taken in adoption, unless the following
four conditions are satisfied, viz.
1. He or she is a Hindu
2. He or she has not already been adopted;
3. He or she is not married unless there is a custom or usage applicable to the parties, which
permits married persons being taken in adoption; and
4. He or she has not completed the age of fifteen years unless there is a custom or usage
applicable to the parties, which permits persons over fifteen years being taken in adoption.

Conditions For A Valid Adoption: (Sec 11)

The following conditions must be met:-
1. if the adoption is of a son, the adoptive father or mother by whom the adoption is made
must not have a Hindu son, son's son or son's son's son (whether by legitimate blood
relationship or by adoption) living at the time of adoption;
2.if the adoption is of a daughter, the adoptive father or mother by whom the adoption is
made must not have a Hindu daughter or son's daughter (whether by legitimate blood
relationship or by adoption) living at the time of adoption;
3.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 older than the person to be adopted;
4.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 person to be adopted;
5.the same child may not be adopted simultaneously by two or more persons
6.the child to be adopted must be actually given and taken in 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 abandoned child or a child whose parentage is not known, from
the place or family where it has been brought up) to the family of its adoption;
Provided that the performance of datta homam shall not be essential to the validity of an
adoption.

Effects of adoption.— (Sec 12)

1.An adopted child shall be deemed to be the child of his or her adoptive father or mother
for all purposes with effect from the date of the adoption
2. From such date all the 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 adoption in the adoptive family:
Provided that—
(a)the child cannot marry any person whom he or she could not have married if he or she
had continued in the family of his or her birth;
(b)any property which vested in the adopted child before the adoption shall continue to vest
in such person subject to the obligations, if any, attaching to the ownership of such
property, including the obligation to maintain relatives in the family of his or her birth;
(c)the adopted child shall not divest any person of any estate which vested in him or her
before the adoption.

Conclusion:-
The adoption involves the feeling emotions between the adopted family and adopted child.
By the act of adoption the adopted child is uprooted from his natural family and
transplanted in to adoptive family like a natural son.

The adoptive child severs his ties from the family of his birth and becomes a regular member
of the family in which the child has been adopted. The adopted child becomes the child of
his adoptive family from the date of adoption for all the purposes like a natural child and
thereby get all rights like birth in that family.
Maintenance Under Section 125 of CrPC

Introduction

Section 125 of CrPC provides a speedy, inexpensive and effective remedy against persons
who refuse or neglect their duty to maintain persons dependent on them. The section
discharges a social function in order to achieve and maintain societal balance. It is also
aimed at preventing starvation and vagrancy leading to the commission of crimes.

Scope of Section 125 of CrPC

Maintenance :- an amount of money paid to a dependent person such as a wife, child or

parent so that they can support themselves financially.

Section 2(b) of the Maintenance and Welfare of Parents and Senior Citizen Act, 2007:-
term that “includes provision for food, clothing, residence and medical attendance and
treatment.”

This section is applicable to all religions and the personal law under it holds no value in
terms of authority
The purpose of the section is social in nature

Who Can Claim Maintenance Under Section 125 of CrPC

1.Wife

1. Any wife, whether of major or minor age, who is unable to maintain herself is entitled to
maintenance under Section 125 (1)(a).
2.According to Explanation (b), the term ‘wife’ under this section included an un-remarried
divorced wife.
Until Shah Bano Begum case, a divorced wife was not entitled to maintenance and this
caused a lot of injustice to women, especially of the Muslim community.
3.The marriage in any of these cases has to be valid according to law.

4.A woman despite the unfortunate situation, is in a relationship with a married man is not
entitled to maintenance, this may cause injustice but the Supreme Court stated such
inadequacy can only be cured by the legislature

5. Strict proof of marriage is not absolutely essential, since this section is meant to be a tool
for social justice and therefore given to a broader interpretation

6.A man and a woman living together as husband and wife for a reasonably long period of
time, maybe considered under this section as a valid proof for married life and shall be
treated as such for matters of maintenance.

7. If a husband remarries, the first wife still comes under the definition, is entitled to
maintenance even if the second marriage is valid under personal law, even if she has
consented to the marriage. Proof of neglect in such a case is not necessary for the wife to
make her case for maintenance.

Exceptions:-

1. Under subsection (4) of Section 125 the court need to ensure that the husband has
sufficient means to maintain his wife, if he doesn’t, then this section does not apply.

2. The wife should not be living in adultery separately, unless according to the court her
refusal to live with her husband is justified. This applies even if the separation is mutual.

3,If a marriage is void or annulled under Section 12 of the Hindu Marriage Act, a wife is not
entitled to maintenance.

Child

1. A child who is still a minor according to the Indian Majority Act, 1875, i.e. a person who
has not attained the age of 18 years, whether they are legitimate or illegitimate, or married
or unmarried, are entitled to claim maintenance under Section 125 (1)(b).
2. If a minor girl’s husband is unable to support her, then the father of such a girl is required
to maintain her according to the Provisions in this section.

3. The child has to have been born for such a claim to exist, maintenance of a fetus when
the woman is still pregnant does not come under this section.

4. Even in a case where the child is under someone else’s custody, the father of such a child
still has the obligation to maintain them.

5. The maintenance of a child under this section is based on the Paternity. This is
irrespective of the legitimacy or illegitimacy of the child, therefore a child whose parents are
not legally wedded is still entitled to maintenance by law.

6. If paternity cannot be established then the child has no claim. The child may be adopted
or natural-born.

7.After attaining majority, a child, whether legitimate or illegitimate as long as they are not a
married daughter can claim maintenance under Section 125 (1)(c), by reason of physical or
mental abnormality or injury and the child is unable to maintain themselves pertaining to
such reason.

7. A major unmarried daughter not suffering from any mental or physical ailment cannot
claim maintenance under Section 125 CrPC.

Parents

1. According to Section 125 (1) (d), a mother or a father who is unable to support
themselves is entitled to claim maintenance under this section from their children.

2. Although the word ‘his’ is used, it applies to both male and female children of the
parents. Indian society casts a duty on the children to maintain the parents and this social
obligation applies equally to a daughter.

3.It is not clear whether the interpretation of the words ‘father’ and ‘mother’ include
adoptive father and mother, and stepfather and mother, or not.

4. Supreme Court in a judgment liberally construed the section and stated that a
stepmother with no child of her own and whose husband has expired, or if her husband is
living, is unable to support her then she is too is unable to support herself, can claim
maintenance from her stepson.

5. Only a legitimate child has the obligation to maintain their parent and the parent may
claim against the unfulfillment of such obligation against any child if there are more than
one.

Features of Section 125 of CrPC

The maintenance claim is based on the following conditions, listed as follows:

1. Sufficient means to maintain:- It is the most fundamental condition that order of

maintenance against a person can be passed only if he or she themselves have “sufficient
means to maintain” the person who has the claim, and neglect or refuses to do so.

2. Neglect and Refusal to maintain:-

‘Neglect’ is used to mean a failure to maintain even when no such demand is made against
the maintainer, the term basically means a disregard of duty which could be either willful or
intentional.The ‘refusal’ to maintain is when there is a clear intentioned refusal to perform
his duty, this refusal may be expressed or even implied by the conduct of the husband. The
burden of proof for this lies with the claimant.

3. The claimant must be unable to maintain himself/herself:-

One of the essentials for a wife to claim maintenance is her inability to maintain herself. She
does not have to specifically plead that she is unable to maintain herself

4. Quantum of maintenance:-

There is no limit set for a maximum amount, it’s left up to the Magistrate to fix a monthly
rate as he or she may deem fit for the case. The rate has to be fixed and determinate and
not progressively increasing, however, it can be altered from time to time according to
Section 127. If the wife and child are both claimants against the same person, each one has
a separate claim which may be awarded as such.

Enforcement of Section 125 of CrPC

There are two modes of enforcement of the section listed under sub-section (3) which are

1. Warrant for Fines. Warrants are only issued if an application for the same is made to
the court within a period of one year from when this amount becomes due.
2. Imprisonment may extend to one month until payment is made, if after the warrant
if part or whole of the amount remains unpaid. Its not alternative to the liability of
the payment of the maintenance.

Conclusion:-

The object of Section 125 of CrPC is to protect the rights of a dependent person, who find
themselves in a harsher position than others and do not have the means and resources to
maintain themselves. It has usually been the wives, children, and parents in such matters.
However, since the societal aspect weighs heavy on the instrumentality of this section, it
becomes important for the courts to consider the facts on a case-to-case basis, and
ultimately remain vigilant that justice is done to all parties. It is important that the changing
cultural facts and dynamics be taken into consideration while moving forward.
Question No 4.Restitution of Conjugal Rights Under the Hindu Marriage Act

Introduction
Marriage as an institution gives rise to a relationship between two partners: The Husband
and the wife, which further gives rise to more relations. This relationship also gives birth to
different sets rights and obligations. These rights and obligations cumulatively constitute’
Conjugal rights’ and can be termed as essence of the marital union. The term ‘Conjugal
Rights’ in literal sense means ‘Right to stay together.

Section 9 – The Hindu Marriage Act, 1955

Restitution of Conjugal Rights,

1.When either the husband or the wife has, without reasonable excuse, withdrawn from the
society of the other,

2. the aggrieved party may apply, by petition to the district court, for restitution of conjugal
rights and
3. the court, on being satisfied of the truth of the statements made in such petition and that
there is no legal ground why the application should not be granted, may decree restitution
of conjugal rights accordingly.

When a spouse is guilty of staying away without any reasonable or a just cause and if the
suit of restitution of conjugal rights succeed than the couple would be required to stay
together. Thus it can also be inferred that section 9 is the marriage saving clause or section

There are three important requisites to be fulfilled for Section 9

 Spouses must not be staying together.

 Withdrawal of a party from the other must have no reasonable ground for such
withdrawal.
 The aggrieved party must apply for restitution of conjugal rights

Constitutional Validity of Section 9

The restitution of Conjugal Rights clearly violates Right to privacy of the wife.

Kharak Singh vs. State of UP has held

right to privacy “is an essential ingredient of personal liberty”.

Gobind v. State of M.P.

again the court had to encounter the issue raised in the case of Kharak Singh. In this case
the honourable Supreme Court came to a conclusion that right to privacy -among other
rights is included in right to liberty.

T. Saritha Vengata Subbiah v. State

S.9 of Hindu Marriage Act relating to restitution of conjugal rights as unconstitutional

because this decree clearly snatches the privacy of wife by compelling her to live with her
husband against her wish.

Harvinder Kaur v. Harminder Singh

The judiciary again went back to its original approach and help Section 9 of Hindu Marriage
Act as completely valid. The ratio of this case was upheld by the court in Saroj Rani Vs. S.K.
Chadha

Restitution of Conjugal Rights Violates

 Freedom of Association – Article 19 (1) (c)

 Freedom to reside and settle in any part of India – 19(1) (e).
 Freedom to practice any profession – 19 (1) (g)

Infringement of Freedom of Association

In our country every citizens have a fundamental right to associate with anyone according to
his/her wish, By the matrimonial remedy of restitution of conjugal rights is freedom is
violated as a wife is compelled to have a association against her will, with her husband.

Infringement of Freedom to reside and to Practice any Profession

We live in a society where there is complete freedom as to which profession to choose. At

times under the restitution of conjugal rights a person is forced to live with the partner with
no general wish or interest. And thus, this freedom to freely reside and practice any
profession of choice, seems to be violated.

Suggestions for Improvement

Restitution of Conjugal Rights is a highly debatable and a controversial subject. Some people
feel it is to preserve the marriage while some say that there is no meaning in forcing the
other party to stay with the aggrieved party as they are not at all interested. However, there
is always a scope of improvement by tweaking something. The concept
of Reconciliation may be tried in place of the rigid conjugal rights. To implement this the
judiciary should not be intervened as the function of the Court is to settle disputes not
reconciliation. What can be done is a separate committee should be formed and the sole
function of this specially formed committee will be to administer and solve the matrimonial
disputes. The idea of reconciliation is also very effective as it is fast, effective and practical.
Conclusion:-
Thus, restitution of conjugal rights is such a matrimonial remedy, which will force the person
to save the marriage but it cannot guarantee its effectiveness. Some section of people also
say that it is against the concept of natural law theory.

Question 5. Comparative analysis of marriage and matrimonial Reliefs in Different Law

( Hindu Marriage Act 1955 and Special Marriage Act 1954)

Comparative analysis of marriage and matrimonial reliefs under the Hindu Marriage Act
1955 (HMA) and the Special Marriage Act 1954 (SMA):

1. *Applicability and Scope:*

- *HMA:* Applicable to Hindus, including Sikhs, Jains, and Buddhists. It primarily focuses
on regulating marriages within these communities.
- *SMA:* Applicable to all citizens regardless of religion, providing a secular framework for
marriage.

2. *Eligibility and Conditions for Marriage:*

- *HMA:* Emphasizes adherence to Hindu customs and rituals. Parties must be Hindus by
religion.
- *SMA:* Allows marriages between individuals of different religions or castes. The
emphasis is on a secular and more inclusive approach.

3. *Ceremonial Requirements:*
- *HMA:* Specifies traditional Hindu marriage rituals like 'Saptapadi' and 'Saath Phere.'
- *SMA:* No specific religious ceremonies are mandated; parties can choose to have a
ceremony according to their preferences.
4. *Grounds for Divorce:*
- *HMA:* Recognizes specific grounds like cruelty, adultery, desertion, conversion, mental
disorder, and incurable diseases.
- *SMA:* Grounds for divorce are broader and include cruelty, adultery, desertion,
conversion, mental disorder, and the existence of venereal diseases.

5. *Maintenance and Alimony:*

- *HMA:* Specifies provisions for maintenance, including alimony for the wife.
- *SMA:* Similar provisions for maintenance, applicable to both spouses, with no gender-
specific bias.

6. *Child Custody:*
- *HMA:* Decisions related to child custody are guided by the welfare principle,
considering the child's best interests.
- *SMA:* Follows a similar welfare-based approach in determining child custody matters.

7. *Void and Voidable Marriages:*

- *HMA:* Recognizes void and voidable marriages, such as those involving prohibited
degrees of relationship or if either party is incapable of giving valid consent.
- *SMA:* Has provisions for void and voidable marriages, with similar considerations as
the HMA.

In summary, the Hindu Marriage Act is more specific to Hindu traditions, while the Special
Marriage Act offers a more secular and inclusive framework, accommodating marriages
across different religions and castes. The grounds for divorce, maintenance, and child
custody provisions are generally aligned but may have nuanced differences. Understanding
these distinctions is crucial for individuals navigating marriage and matrimonial issues in
India.

Que. 5 Classification of marriage under Muslim Law

Generally, there are four kinds of Muslim marriages: Sahih, Batil and Fasid and muta.
Sahih (valid) marriage

Sahih marriage, also known as Nikah, is the most common kind of marriage under Muslim
law. It is considered the only valid and lawful form of marriage, as it is in accordance with
the principles of Islam.

 It is a permanent and stable union, which is intended to last for the rest of the
parties’ lives.
 It is based on mutual consent and agreement and both parties must freely and
voluntarily consent to the marriage.
 The marriage must be conducted in accordance with the principles of Islam, which
include the presence of witnesses, the payment of a dower (mahr) to the wife and
the recitation of certain formulae.

Legal Requirements

 A proposal made by one party and accepted by the other.

 The marriage takes place in front of witnesses. Under Sunni law, the presence of two
males or one male and two females who are sane, adult and Muslim is required.
Under Shia law, the presence of witnesses is not essential at the time of marriage.
 The proposal and acceptance take place in the same meeting.
 The parties are capable of marrying, meaning they should be of sound mind and at
the age of puberty. According to Hedaya, the age of puberty for girls is nine years
and for boys is 12 years.
 The parties are capable of giving free consent. In the case of minors or lunatics, the
consent of a guardian on their behalf is admissible.
 There should not be any legal disability, whether absolute (consanguinity, affinity,
fosterage) or temporary (unlawful conjunction, polygamy, absence of proper
witnesses, marriage with a woman undergoing iddat, different religions).
Consequences
After fulfilling all of these conditions, the marriage becomes valid, meaning it gives rise to
mutual duties and obligations that the husband and wife must follow during the course of
their marriage. Sexual intercourse becomes lawful and children born out of a valid marriage
are considered legitimate.

The parties become entitled to inherit each other’s property and the wife is entitled to
dower and is obligated to observe iddat in case of dissolution of marriage or death of the
husband.

Batil Nikah

A void marriage, also known as a Batil Nikah, is a marriage that fails to meet the necessary
conditions for a valid marriage. In such a marriage, no legal rights or obligations are
recognised. The following types of marriages are considered void:

 Marriages between parties who are closely related by blood.

 Marriages that are prohibited by reason of affinity.
  Marriages with a foster mother or foster sister. Sunni law recognises an exception
for marriages with the foster mother of one’s sister or foster sister’s mother, foster
son’s sister or foster brother’s sister.
 Marriages with a woman who is undergoing iddat (the period of waiting after divorce
or death of the husband) under Shia law.
 Marriages with a fifth wife.
 Marriages with someone else’s wife, provided her marriage is still valid.

Consequences

The consequences of a void marriage are that it does not confer any legal obligations or
rights on the parties involved. The wife is not entitled to dower or maintenance and any
children born out of the marriage are considered illegitimate and have no right to inherit
property. The parties are not required to follow legal divorce procedures and can simply
separate and marry someone else without any legal formalities.

Fasid Nikah

An irregular marriage, also known as a fasid marriage, is considered an invalid marriage

because it does not fulfil all of the necessary conditions for a valid marriage.

However, this type of marriage in Islam can be converted into a valid marriage by removing
the irregularities. The concept of irregular marriage is recognised only under Sunni law, as
Shia law does not offer a middle path between valid and void marriages.

Under Sunni law, the following marriages may be considered irregular:

 Marriage without witnesses. The parties may remarry in the presence of witnesses
to make their marriage valid.
 Marriage with a fifth wife. It will be valid if the husband divorces one of his four
wives and then marries the fifth one.
 Marriage with a woman in her iddat period. The marriage will be valid if contracted
after the expiration of the iddat period.
If an irregular marriage has been consummated, the wife is entitled to dower and must
undergo iddat under Islamic Law. The children born from such a marriage are legitimate. If
the irregular marriage has not been consummated, the wife is not entitled to dower and the
parties can separate without legal formalities.

Temporary Marriage (Muta Marriage)

Muta marriage is a temporary marriage contract that is prevalent in Shia Islam, although it is
not recognised by Sunni Muslims. This kind of Muslim marriage is a fixed-term marriage
contract that specifies the length of the marriage, which can range from a few hours to
several years. The marriage is automatically dissolved when the term of the contract
expires, without the need for a formal divorce.

The main significance of Muta marriage is that it provides a way for individuals to engage in
a temporary marital relationship without violating Islamic law. In situations where a
permanent marriage is not feasible, such as when a man is travelling or when a woman is in
need of financial support, a temporary marriage can be a solution.

It is important to note that Muta marriage is not considered equivalent to permanent

marriage and the rights and responsibilities of the parties to a Muta marriage are different
from those in a permanent marriage.

Legal Requirements for a Valid Muta Marriage

Consent: Like all other forms of marriage under Muslim law, the parties to a Muta marriage
must have the capacity to consent to the marriage. This means that they must be of sound
mind, free from coercion and must have reached the age of puberty.

Offer and Acceptance: The marriage contract must be made through an offer and
acceptance by the parties involved. The offer must be made by the man and the acceptance
must be made by the woman.

Mahr: The man must pay a fixed amount of money or property to the woman as a gift or
dowry. This is known as the Mahr and it is a mandatory requirement for all types of Muslim
marriages.

Witnesses: Like in all other types of Muslim marriages, the Muta marriage must be
witnessed by two male witnesses or one male and two female witnesses who are of sound
mind and of Muslim faith.

Characteristics
There are some specific characteristics of Muta marriage that distinguish it from other forms
of marriage under Muslim law. These include:

Fixed-term contract: The marriage is for a specified period, which is agreed upon by the
parties involved.

No automatic right to inheritance: Unlike permanent marriages, the parties to a Muta

marriage do not have an automatic right to inherit from each other.

No automatic custody of children: The mother does not have an automatic right to the
custody of any children born out of the Muta marriage.

Conclusion:-
There are four types of Muslim marriage that are recognised in Islamic law. Each of these
types of marriage has its own unique characteristics and requirements and is subject to
different rules and regulations under Islamic law. While some of these forms of marriage
have been controversial and subject to criticism, they continue to be practised in various
parts of the Muslim world.
 Que 7. Divorce under special Marriage Act 1954

Divorce puts an end to marriage; the parties return to their unmarried status and are free to
marry again. The grounds for divorce are set out in Section 27 of the Special Marriage Act.

Grounds for Divorce

A petition for divorce may be presented to the district court either by the husband or the
wife on the ground that the respondent―

1. Adultery:- Respondent had voluntary sexual intercourse with any person other than his
or her spouse. In the case of adultery, the court must be satisfied that adultery has been
committed, beyond a reasonable doubt.
2. Desertion:- The respondent must have deserted the petitioner without cause for at least
2 years before the petition was submitted. In essence, desertion means intentional
permanent forsaking and abandonment of one spouse by the other without the consent of
the other and without reasonable cause.
3. Imprisonment:- The respondent is undergoing a sentence of imprisonment for seven
years or more for an offence as defined in the Indian Penal Code.
4. Cruelty:- Since the marriage solemnization, the petitioner must have been treated with
cruelty by the respondent.
5. Unsoundness of mind:- The respondent must be of unsound mind, which is incurable.
The burden of proof lies with the petitioner that the respondent is of unhealthy mind or has
suffered from such a kind of mental disorder continuously or intermittently and to such an
extent that it is not reasonable to expect the petitioner to live with the respondent.
6. Venereal Disease:- The respondent has been suffering from venereal disease in a
communicable form.
7. Leprosy:- The respondent should have been suffering from leprosy and the disease must
not be contracted from the petitioner. Proving the disease have a communicable nature is
not necessary.
8. Not heard being alive:- The respondent has not been heard by people who are closely
related to the respondent as being alive for not less than seven years. If the person is not
heard of for 7 years by those people who would naturally have heard of him being alive,
then it is presumed that the person is dead. The burden of proving that the respondent is
alive lies with the person who asserts it.
Grounds available only to wife

1.The wife can make a petition at the District Court on the ground that her husband has
been guilty of rape, sodomy, and bestiality since the solemnization of marriage.

2. The wife can also file a divorce petition on the ground that she has obtained a decree or
maintenance order and since the passing of such decree or order, she has been living apart
and has not resumed the cohabitation between her and her husband.

3. The parties have not resumed cohabitation for at least one year after the passing of a
decree of judicial separation. The legislature’s intention to give such space and time to the
parties so there would be a possibility of reconciliation between the parties.

4.There has been no restitution of conjugal rights between the parties for a period of not
less than one year after the decree of restitution of conjugal rights has been passed.

Alternative relief in divorce proceedings

Divorce by Mutal Consent

Under section 28 of the Act, which deals primarily with provisions relating to obtaining a
divorce by mutual consent in respect of a marriage solemnized and/or registered under the
Act, a petition for divorce may be filed with the District Court by mutual consent. The
following are some key points to consider when seeking a divorce by mutual consent:

1. Both parties must present a petition for divorce to the District Court together.
2. There must be a petition on the grounds that A. They lived separately for a period
of one year or more. B.That they were not able to live together. C. That they
agreed to dissolve the marriage mutually.

3. Only after one year from the date of entering the wedding certificate in the
Marriage Certificate Book then only the petition can be presented. However, in
instances where the petitioner suffers extraordinary hardship or in instances of
extraordinary depravity on the part of the respondent, relaxation may be provided.

4.The petition seeking divorce by mutual consent could be submitted to a district

court within its jurisdiction.
 5. Between 6 months after and within 18 months, the date of filing of the petition for
seeking divorce by mutual consent, both parties must make a motion together for
seeking a decree of divorce.

6. Among other aspects, the District Court considers the following, before passing a
divorce decree,

 That the petition has not yet been withdrawn.

 That under the Act, marriage has been solemnized.
 That the petitioner’s averments are true.
 The divorce consent was not obtained through force, fraud or undue influence.
 That there was no unnecessary or inappropriate delay in commencing the
proceedings.

Note:- In cases of divorce by mutual consent, the parties may agree on the terms
relating to the payment of alimony or maintenance and the same may be
incorporated in the pleadings before the Court.