Question _ section 9 of the hindu marriage act

Restitution of the conjugal rights. It is a matrimonial right which husband and wife have towards
each other’s society. It is an express condition of the nuptial vow that each party is to become life
associate of each other and enjoy the pleasures and consortium of each other.

The section 9 of the hma puts forth that when either of the husband or the wife has withdrawn from
the society of the other, the aggreived party can file a petition in the district court, for the restitution
of conjugal rights and the court on being satisfied of the truth of the statements made in the petition
and if there is no legal ground to not grant the application, then the court may pass the decree of
restitution of conjugal rights.

So the basic essentials are:-

1) Has withdrawn from the society of the other

2) Without any reasonable excuse,
3) The court is satisfied of the truth of the statement made in the petition.
4) There is no legal ground to reject such a plea.

Meaning of withdrawal from society_

Case:- leela sharma vs keshav sharma 1980_ temporarily leaving the house would not
amount to the withdrawal under the meaning of this section.
The withdrawal here is more of a mental process apart from the physical separation .

But it is necessary that such withdrawal is without a reasonable cause or excuse. The burden of proof
for proving reasonable excuse of withdrawal from society of the spouse is on the respondent.

This decree can only be passed in the case of valid marriages, if the same comes to dispute then it is
upon the petitioner to prove the same. Case: smt ranjana vinod kumar kejriwal vs. Vinod kumar
kejriwal. In this case the wife filed the petition, she had admittedly married a man who already had a
wife. No valid marriage, thus no restitution.

If the partner doesnot comply to such a decree, then under order XXI rule 32 and 33, the property of
the other could be attached.

When even after the passing of this decree the respondent does not comply even after a year, then
the petitioner is entitled to divorce under 13(1-A). Case:- sohan lal vs. Pratibha mehra.

Significance

Prof. Derrett believes that the remedy for restitution of conjugal rights is of great value in the hindu
society. According to him, the india people often separate due to misunderstanding, failure of
communication, intrigues of relatives thus this remedy serves well. Although dr. R.K Agarwal and SP
sharma pleaded for the ouster of this remedy from the act as according to them it has become
“fossilized and redundant”.

Ouestion _ what are void and voidable marriages?

Distinction between void and voidable marriages

Void marriage are the marriages which donot have any legal effect whatsoever. These marriages are
void from the very inception.

While voidable marriages are those marriages wherein the choice is upon one of the partners to get
the marriage subsequently declared void. These marriages are not void from inception, Such
marriages would cease to have legal effect only after the annulment of such marriages. Would be
treated as a valid marriage before the decree of annulment.

Void marriages

Section 11 lays down that a marriage would be void if, as per section 5 of hma:-

1) The party to the marriage has a living spouse. [5(1)]

2) The parties to marriage are within the decree of prohibited relationship unless a custom or
usage allows so. [5(iv)]
3) The parties to the marriage are ‘sapinda’ of each other unless a custom or usage allows so.
[5(v)]
Sapindas are counted 3 generation upwards from the mother’s side and 5 generations
upwards from the fathers side.

If any marriage contravenes the above three conditions, on petition presented by either party
thereto against the other, shall be declared null and void by a decree of nullity. Although passing of
such decree is not a necessity (leela v. laxmi 1968) since these marriages are void ab initio that is
they donot exist in the eyes of law. By doing so This section aims at providing relief to the parties of
such marriage. And also provides for a clearance.

But these rules are only applicable on the marriages solemnized after the enforcement of hma 1955.

The void marriages have no duties that arise from it, but the maintenance could still be claimed
under section 125 of crpc.

Punishments

Voidable marriages

Under section 12, any marriage solemnized after or Before the commencement of the hindu
marriage act 1955, shall be voidable at the option of the aggrieved party and maybe annulled by the
decree of nullity. The conditions for such a marriage are given in section 5(vi) and section 6 of the
hma.

a) Impotency
b) Either party suffers from unsoundness at the time of marriage
c) Consent obtained from force or fraud.
[ no petition on the above would be entertained if_ 1. Petition is after more than a year.
2. The petitioner chose to live with spouse even after the force was inoperative or the fraud
was discovered]
d) The respondent was at the time of marriage pregnant by some person other than the
petitioner.

The children born out of such marriages are as per the section 16 of the act are legitimate. Thus they
have all the rights that they would have had , if the marriage had been valid.
Question _ section 13

Historical context_

Manu does not approve of dissolution of marriage in any condition. He declared, “let mutual fidelity
continue till death, this in brief may be understood to be the highest dharma of husband and wife.
The duty of a wife continues even after her death. She can never have a second husband”. But on the
other hand we find some texts in narada and parashar codes of law, which permit divorce to wife if
certain conditions of life.

Grounds of divorce under 13(1)

1) Adultery – earlier, it was required to establish that at the time of presentation of petition the
respondent was living in adultery the time of presentation of petition. Now the term ‘living
in adultery’ has been replaced by the expression voluntary sexual Intercourse.
2) Cruelty – in the shobha rani v. Madhukar reddi, the supreme court observed that the word
‘Cruelty’ has not been defined in the act, the word is used in here is with reference to human
conduct or behaviour in relation to or in respect of matrimonial duties or obligations. It
involves a course of conduct of one which is adversely affecting the other.
Cruelty complained of must satisfy the conscience of the court to believe that relations
between the parties had been deteriorated to such an extend due to the conduct of one of
the spouse that it has become impossible to live together.
3) Desertion- Only if the desertion is for a term of not less than two years immediately
preceding the presentation of such petition. Recently in the case of malati Ravi versus BU
Ravi the Supreme Court further observed that there is no sufficient evidence to establish
that the wife deserted husband with intention to bring matrimonial relationships to end the
divorce on the ground of this desertion cannot be filed. Thus, the desertion should be with
the intention of permanently forsaking or abandoning one’s spouse without the consent
without any reasonable cause.
4) Conversion if the respondents eases to be a Hindu by change of religion the petition for
divorce can be granted on the score. conversion to another religion does not ipso facto
dissolve the marriage the petitioner is required to obtain a degree of divorce on that ground
from a competent court.
Conversion merely is not change of religion but it is when he or she embraces another
religion after renunciation of Hinduism then the degree of divorce on this ground can be
obtained.
5) Unsoundness of mind. An incurable unsoundness of mind is either to the marriage
constitutes a ground for divorce. It may be continuous or intermittent and to such an extent
that the petitioner cannot reasonably be expected to cohabit with the respondent.
6) Leprosy earlier clause four of section 13 clause one provided leprosy as a ground for divorce
however after the amendment of 2019 this ground has been removed since there are
available treatments due to modern medicines etc
7) veneral diseases where the respondent has been suffering from veneral diseases in a
communicable form a decree of divorce will be granted in favour of the petitioner
8) Renunciation of the world this clause lays down that a husband or wife can seek dissolution
of marriage by a decree of divorce on grounds that the person cannot be said to have
 adopted a religious order by merely declaring himself to belong to such order.he must have
performed the requisite ceremonies and Formalities off the particular religious order.
9) Presumptive death this clause provides that where there are reasonable grounds for
supposing the other party to marriage to be dead the petitioner may seek divorce on the
ground. This supposition could be drawn where the other party has not been heard of as
being alive for a period of seven years or more by persons who would naturally have heard
from him or her had that party been alive.
10) Non resumption of cohabitation after the decree of judicial separation according to this
clause either party to marriage whether solemnise before or after the commencement of the
ACT, may present a petition for dissolution of marriage by Decree of divorce if there has been
no resumption of cohabitation as between the parties for a period of one year or upwards
after the passing of the degree of judicial separation in a proceeding to which they were
parties.
11) Failure to comply with the decree of restitution of conjugal rights either party would be
entitled to a decree of divorce also when a decree of restitution of conjugal rights has been
passed and it has not been complied with within one year of passing of such decree.

Additional grounds for divorce in favour of wife as mentioned in section 13 clause 2

A) Husband’s bigamy- in the case where the marriage was solemnised before the
commencement of the act that is 18th may 1955 the husband had married again
before such commencement or that any other wife of the husband before such
commencement was alive at the solemnization of the petitioner marriage there is
however one condition that in either case at the time of presentation of the petition
the there is however one condition that in either case at the time of presentation of
the petition the other wife should be alive wife should be alive.
B) rape ****** or beastality – It lays down that the wife may present a petition for
divorce if the husband is after the solemnization of marriage, guilty of rape, ******
or bestiality. Where the husband was guilty of any of the offences, prior to the
petitioners marriage, the petitioner cannot claim a divorce. The offence of rape,
****** or bestiality must be subsequent to the petitioner’s marriage with the
respondent.
C) Non resumption of cohabitation for one year or a words after passing off
maintenance order under section 18 of the Hindu adoption and maintenance act
1956 or under section 125 of the code of criminal procedure
D) Redemption of marriage this clause has been added by the marriage laws
amendment act 1976 under this clause a wife whose marriage was solemnised
before she attained the age of 15 years can repudiate the marriage after attending
the age of 15 but before attaining the age of 18. it is immaterial whether the
marriage was consummated or not this clause applies to all, whether the marriage
was solemnised before or after the commencement of marriage laws amendment
act 1976.

Section 13B of the act put forth provisions for mutual consent divorce. The provision related to the
divorce by mutual consent has been added by marriage laws amendment act 1976. It provides for
divorce by mutual consent of both the parties to the marriage. This provision has been given a
retrospective effect so as to make it applicable to marriages whether solemnised before or after the
commencement of the marriage laws amendment act 1976. It is necessary for the parties to be living
separately for a period of one year or more and that they have not been able to live together and
also that they have agreed that the marriage is to be dissolved with effect from the date of the
decree.

After Filing such petition the parties must wait for a period of six months after which they have to
move the court once again under subsection two of the section. If the parties do not move the court
in the matter after six months and before 18 months from the date of presenting of such petition,
the petition for mutual divorce would lapse. Either party can withdraw the petition during the
period.

If the divorce petition is filed jointly and withdrawal of the same was done by one party, it amounts
to withdrawal of the petition within the meaning of subsection 2 of 13 B of the act.

Question_ who is a hindu ?

HHindu under the ambig of this act is _

Section two of the Hindu Marriage Act puts forth as to who is a Hindu – Section 2 clause one clause
a

1. Follower of Hindu faith that is –

A. Virashaiva
B. Lingayat
2. Followers of the Association –
A. brahma samaj
B. Prarthana samaj
C. Arya samaj

Section 2 clause one sub clause B

Any person who is budhhist, jain or sikh by religion.

Section 2 clause one sub Clause C any person who is not a Muslim Christian parsi or Jew who is
domiciled in India is a Hindu.

Further,_

1. Both parents are Hindus.

2. One parent is a Hindu and the upbringing is Hindu.
3. Who converts or re converts to Hinduism
Mohandas v. Dewaswan board
4. Who would recognise themselves as Hindus.

Case : shastri yagya purushdasji vs. Muldas.

Question what is hiba? Essential elements of hiba.

Hiba or gift in Muslim personal law is Gratuitous transfer of property. That means Transfer of
Property without any consideration from one person to another a company by offer(ijab)
acceptance(kabool) and delivery of possession(kabza).
Baillie has defind hiba as “ the conferring of a right in something specific without an exchange”.

Parties:-2 parties,

1. Donor Competent parties-

Age of majority.
Sound mind.
Muslim.
With free consent.
Should be the owner of the property he is gifting.
2. Donee Competent parties
Any person but he must be in existence during the formulation of gift.
Transfer to not existing person to create life interest, is not valid here since the section 129 of
TPA, says that chapter 7 of tpa is not applicable here.

Subject matter of gift

Any property over which he enjoyes proprietary right.

Two kinds of transfer:-

a)hiba – absolute transfer+ unconditional

b) ariyat- limited interest transferred+ conditional

Extend

No limited with respect to quantity.

Gift on deathbed ( marz ul maut) _ only 1/3 rd of his property but not to the legal heir.

Formalities

1. Ijab – offer
Specific declaration stating the intention to gift
2. Qubul- acceptance
Donee must accept but if he is yet not competent to contract ..his guardians must accept.
3. Delivery of possession- qabza
A. Movable _ at that very moment.
B. Immovable _ through benefit test ... when the donee would start utilizing the
benefits from the property then it is considered to be delivered.

Questions_ what is nikah essential? elements of nikah. Types of nikah.

Definition

The arabic word Nikaah marriage literally means the union of the sexes and in law this term means
the marriage. According to bailey's digest marriage has been defined to be a contract for the purpose
of legalising sexual intercourse and Pro creation of children. All though in India it is defined as
“Nikaah in its primitive sense, means carnal conjunction. Some have said that it signifies conjunction
generally in the language of law it implies a particular contract use for the purpose of legalising
generation”
The leading case of abdul kadir v. Salima supported the view that the muslim marriages are clearly
just contracts. Having the following essentials:-

1. Capacity to contract- sound mind+ age of puberty(the gaurdians still can)

*a woman cannot marry a non muslim.

* a sunni muslim can marry a non muslim women only if she is kitabia.

* shia muslims cannot marry a non muslim.

* one can marry one after conversion.

2. Proposal and Acceptance

*Ijab and qubul
* free consent
*In the presence of 2 male witnesses or one male and 2 female witnesses.
*Clear proposal+ clear acceptance
*Both in one meeting
3. No impediments to the marriage.
*Valid marriage is ‘sahih’
*void marriage is ‘batil’
* An irregular marriage is ‘fasid’

Consequences ~

Consumation of marriage becomes legal, children are legal, wife gets dower nd maintence, iddat
period to be observed, mutual rights of inheritance are established.

A. Void /batil marriage

i. A married woman cannot contract another marriage while her husband is
alive.
ii. Bar of Consanguinity – man cannot marry his
_ ascendents
_descendent
_ sister( full, Consanguine, uterine)
_ neice how lowsoever
_ aunt how highsoever
iii. On grounds of affinity
_ wife's mom..
_ wife’s daughter... unless the is not consummated
_fathers wife..
_ his son’s wife..
iv. Relations through Fosterage (breast feeded)

B. Fasid/irregular marriage
i. Without witness- but if you marry again with witness it will work.
ii. Fifth marriage – by divorcing one of the 4 wives.
iii. With a women undergoing iddat- by expiration of iddat period.
iv. Prohibited by difference of religions- coversion
 v. With a women so related to the previous wife that if one of them had been a
male, they could not have married- by divorcing the wife who is the obstacle.
C. Muta marriage is the temporary form of marriage.
Recognized by ithna asharia shia school.

Question _ maintainence under crpc 125.