Family Law - I (Hindu Law)
Family Law - I (Hindu Law)
FAMILY LAW-I
(HINDU LAW)
A wife does not have the right A wife has the right to claim maintenance in the voidable
to claim maintenance in the marriage.
void marriage.
In a void marriage, the parties Husband and wife have the status in the voidable
do not have the status of marriage.
husband and wife.
The children in a void marriage The children in a voidable marriage are treated as
are treated as legitimate. illegitimate but this distinction is deleted by the Supreme
Court and said a child cannot be said termed as
illegitimate.
Q.1 Who is Hindu? What Categories of Person there to whom Hindu Law
Applies?
Or
Define Hindu and State the Various Categories of Persons to whom
the Hindu Law Applies?
Or
State the Categories of persons to whom Hindu Law Applies. Explain
whether the members of any schedule tribe coming within the clause
(25) of Article 366 of the Constitution are governed by the codified
Hindu Law.
Ans. The term Hindu has not been defined till this date there is no precise
definition of Hindu available in any statue or in any judicial
pronouncement.
It is very significant that the term Hindu even before the codification
of some branches of Hindu Law in 1955-56 had not been defined
strictly in terms of religion. Before 1955 a person who was a Hindu
by religion was certainly a Hindu but converse was not true. There
were many persons who could hardly called as Hindu still Hindu law
applied to them and since Hindu law applied to them, they were
called Hindu. Today the term Hindu has no territorial significance
nor it is a designation of nationality.
Hindu are the person to whom Hindu Law applies. The person to
whom Hindu Laws applies may be put in the following three categories:
a. Any person who is Hindu, Jain, Sikh or Buddhist by religion i.e.
Hindu by religion;
b. Any person who is born of Hindu Parents (i.e., when both the
parents or either of the parents are is a Hindu, Jain, Sikh or
Buddhist by religion) i.e., Hindu by Birth
c. Any person who is not a Muslim, Christian, Parsi or Jew and
who is not governed by any other law.
(a) Hindu by Religion: There are two types of person’s falls under this
category:
I. Those who are originally Hindus, Jains, Sikhs or Buddhist by religion:
The Supreme Court of India in the landmark case of Shastri vs Muldas
(1966 SC 1119) expressly defined the term ‘Hindu’. This case is related
to the Swami Narayan temple in Ahmedabad. There are a group of
people called the Satsangi who were managing the temple and they
restricted non-Satsangi Harijans to enter the temple. They argued
According to syllabus of Dr. Bhimrao Ambedkar Law University, Jaipur 27
that Satsangi is a different religion and they are not bound by Hindu
Law. The Supreme Court of India held that the Satsangi, Arya Samajis
and Radhaswami, all these belong to the Hindu religion because they
are originated under Hindu philosophy
II. Those who converts or reconverts to Hindu, Jain, Sikh or Buddhist
religion: Under the codified Hindu law, any person if converted to
Hinduism, Buddhism, Jainism or Sikhism can be called as a Hindu.
In Perumal v Ponnuswami (AIR 2352 1971 SCR (1) 49) case, Perumal
was the father of Ponnuswami who got married to an Indian Christian.
In the future due to certain differences, they were living separately. In
the future, the mother of Ponnuswami asked Perumal for the share of
his properties. Perumal denied and said “marriage between a Hindu
and a Christian is void”. The Supreme Court of India held that a real
intention is sufficient evidence of conversion and no formal ceremony
of purification is needed (Conversion of Hinduism). So, it is not void
and Ponnuswami would get a share.
Condition for the conversion into Hindu:
• For conversion, the person should have a bonafide intention and
also shouldn’t have any reason to be converted.
• Reconversion basically happens, when a person is Hindu and gets
converted to a non-Hindu religion and he will again become Hindu if
he/she gets converted into any four religions of Hindu.
• If a person is born from a Hindu family, he/she is a Hindu.
• When one of the parents of a child is Hindu and he/she is brought up
as a member of the Hindu family, he/she is a Hindu.
• If a child is born from a Hindu mother and a Muslim father and he/
she is brought up as a Hindu then he/she can be considered as a
Hindu. We can explain that a child’s religion is not necessarily that
of a father.
• The codified Hindu Law lays down that a person who is not a Muslim,
Parsi, Christian or Jews is governed by Hindu Law is a Hindu.
(b) Hindu by Birth: Following persons are deemed to be Hindus by birth:
i. When both the parents are Hindu: Children born of Hindu parents are
Hindus. Such a child may be legitimate or illegitimate. It is also
immaterial that such a child does or does not profess, practice or
has faith in the religion of its parents.
ii. When one Parent is Hindu: When one of the parents of a child is
Hindu and he is brought up as a member of Hindu family, he is a
Hindu. It is clear by the explanation (b) of Section 2(1) of Hindu
Marriage Act, 1955 that child’s religion is not necessarily that of the
father. F or instance a child is born of Hindu mother and Muslim
28 FAMILY LAW -I (HINDU LAW)
father. The child is brought up as a Hindu. Subsequently, mother
converts to Islam. Nonetheless the child is Hindu. In Ram Prasad v.
Dahin Bibi, (AIR1924 Pat. 420) is a good example on the point.
(c) Persons who are not Muslims, Christians, Parsis or Jews: The codified
Hindu law lays down that a person who is not a Muslim, Christian,
Parsi or Jew is governed by Hindu law, unless it is proved that Hindu
law is not applicable to such a person. Those persons who are atheists
or who believe in all faiths or in conglomeration of faiths may fall
under this class. Under the codified Hindu law such persons will be
Hindus for the purpose of the application of Hindu law.
Application of Hindu law to the members of Schedule Tribe within
the meaning of clause (25) of Article 366 of the constitution of India:
The codified Hindu Law lays down the provision that it does not
apply to the members of Schedule Tribe within the meaning of clause
(25) of Article 366 of the constitution of India unless the central
government notifies in the official Gazette.
Q.2 Explain the different Sources of Hindu Law. State how far custom has
retained its importance as source of Hindu Law under the Codified
law.
Or
What is the various source of Hindu Law? To what extent custom still
continuous to be an important source of Hindu Law? Illustrate your
Ans.
Or
Under the Hindu system of law “Clear proof of usage will outweigh
the written text of law.’’ Comment and State whether Custom is still
a source of modern Hindu Law.
Ans. : Hindu system of law has the most ancient pedigree of the known
systems of law; it is about 6000 years old and has passed through
various phases. Originally, the sources came to sub-serve the needs
of pastoral people and now it has come to sub-serve the needs of
modern welfare society. It would be convenient to classify the various
sources under the following two heads:
(1) Ancient Sources:
a. Shruti
b. Smriti
c. Digests and Commentaries
d. Custom
(2) Modern Sources:
a. Judicial Decisions
b. Legislation
c. Equity, Justice and Good Conscience
According to syllabus of Dr. Bhimrao Ambedkar Law University, Jaipur 29
(1) Ancient Sources:
A. Shruti: Shruti, literally, means that which was heard, this word has
taken from the word ‘Sru’ i.e., to hear. Manu has defined Shruti as
follows- “By Shruti or what was heard from above (from God) is
meant the Veda”. Shruti or Vedas are believed to contain the very
words of Deity (God). It is the paramount and primary sources of
Hindu Law. They are supposed to be the divine utterances to be found
in the four Vedas, the six vedangas and the eighteen Upanishads.
They are mostly religious in character and the means of attaining
true knowledge and Moksha or Salvation. Four Vedas are - (i) Rigveda
(praise of forces of nature), (ii) Yajurveda (Rituals etc.), (iii) Samveda
(Prayers), (iv) Atharvaveda (Magic, spell and incarnation).
Six vedangas are –
I. The Siksha or orthography
II. The Kalpa or treatises dealing with rituals
III. The Vyakaran or Grammar
IV. The Chandas or prosody
V. The Jyotish or Astronomy
VI. Nirukta or Lexicon.
B. Smrities: They are utterances and precepts of the Almighty, which
have been heard and remembered and handed down by the Rishis
(sages) from generation to generation. The smrities are divided into
Primary and Secondary Smrities contained in Dharma Sutra (Prose)
and Dharmashastras (Poetry). Gautama, Baudhyana, Apastamba,
Harita, Vasistha and Vishnu are the chief Dharma Sutra writers and
Manu, Yajnyavalkya, Brihaspati and Narada belong to
Dharamashastra. The exact number of smrities is not definitely known,
but Manu Smriti is the earliest one.
Although Smrities deal with rules of morality and religion, they are
more secular than the Shruties.
C. Commentaries and Digests: After the Smrities, the next step in the
development of Hindu Law was the composition of a number of
commentaries (tika) and Digests (Nibandha) based upon the Smrities.
The commentaries are to interpret the law as laid down in the Smrities.
The writing of a particular Smriti is called commentary while the
writing on different smrities is called Digests. There are a number of
commentaries but the main are:
I. Dayabhaga by Jimutavahana
II. Mitakshara by VUnamshwara
III. Nanda Pandit on the Vishnu Dharmasutra is called the Vauayanti.
The commentaries are now considered to be more authoritative than
the original texts themselves.
D. Custom: When human beings came to live in groups, it was but natural
that they should, for harmonious group life, conform to certain
30 FAMILY LAW -I (HINDU LAW)
patterns of human behaviour. In course of time, a pattern of behaviour
emerged and is called usage or custom. There are three types of
custom namely:
I. Local Custom: Such customs belong to some particular locality, State
or District and they are binding on the inhabitants of such place.
II. Class Custom: These customs are of a caste or a sect of the community
or of the followers of a particular profession or occupation, such as
agriculture, trade, mechanical art and the like.
III. Family Custom: These customs relate to a particular family.
Essentials of Customs:
i. It should be certain
ii. Reasonable
iii. It should not be immoral
iv. Reasonable
v. Must not be opposed to public policy
vi. It must not be forbidden by any express enactment of the
legislature.
The following are examples of customs, which the courts have refused
to recognise –
a. A caste custom, authorizing a wife to abandon her husband, and
marry again without his consent.
b. A custom permitting a husband to dissolve his marriage without
the consent of the wife by paying a fixed sum of money.
c. A custom in South India, according to which a man could marry
his daughter’s daughter.
In Deivanai Achi v. Chidambaram ((1954) Mad 667)case it was held
that in order to become legally sanctioned by law and binding on the
people a custom must be continuous in practice, it should not be
vague and ambiguous and should not oppose the well-established
public policy. A customary rule must be in the complete observation
of society.
In Laxmi v. Bhagwantbuva (AIR 2013 SC 1204) case, the supreme court
stated that a custom becomes legally enforceable when the majority
of people make the continuous use of such practice.
Onus of Proof:Generally, when a custom attains judicial recognition
no further proof is required, however in certain cases where the
According to syllabus of Dr. Bhimrao Ambedkar Law University, Jaipur 31
customary practices do not attain the judicial recognition, the burden
of proving lies on the person who alleges its existence.
In Munna Lal v. Raj Kumar (AIR 1972 SC 1493)case the supreme court
stated that a custom brought before a court several times, the court
might hold that such custom has been enforced by the law with the
necessity of its proof
(2) Modern Sources:
a. Judicial Decisions: During British regime in this country Hindu law
was administered by British judges with the help of Hindu Pandits
because they interpreted the Sanskrit texts for them to apply them to
the dispute and to arrive at a decision. So the decision of the higher
courts becomes a law for the lower courts. The latest instance of it is
the Supreme Court decision in Lohar Amrit v. Doshi Jayantilal (1960),
on son’s pious obligation to pay father’s debts, where Gajindragadkar,
C.J. following certain dictas of the Privy Council held that the debt
should be tainted to the knowledge of the creditor. Today the doctrine
of Stare decisis is part of Indian Law. Supreme Court’s decisions are
binding on all courts, though Supreme Court is not bound by its own
decisions. The decisions of State High Courts are binding on all
subordinate courts of their respective states though decisions of the
one High Court are not binding on other High Courts.
b. Legislation: Legislation is the modern source of Hindu law and has a
colossal importance, in the evolution and development of Hindu law.
The Hindu law has been reformed and modified by the legislature
through various enactments in this regard. The British government
itself passed certain acts with a view to bring some reforms in certain
aspects of law. In post-independence era legislation of far-reaching
effects has revolutionized the law. Before the independence important
legislations passed were: -
1. The caste Disabilities Removal Act, 1850
2. The Hindu Widow’s Remarriage Act, 1856.
3. Inheritance (Removal of Disabilities) Act, 1928.
4. The Indian Succession Act, 1925.
5. The Child Marriage Restraint Act, 1928.The Hindu Women’s Right
to Property Act, 1937.
(c) Equity, Justice and Good Conscience: In the absence of any specific
law in the Smriti, or in the event of a conflict between the Smritis, the
principles of justice, equity and good conscience would be applied.
In other words, what would be most fair and equitable in the opinion
of the Judge would be done in a particular case. The Supreme Court
32 FAMILY LAW -I (HINDU LAW)
has observed in Gurunath v. Kamlabai (1955 SCR (1)1135)in the
absence of any clear Shastric text, the courts have the authority to
decide cases on principles of equity, justice and good conscience.
After independence following enactments of far-reaching importance
have been passed: -
1. The Hindu Married Women’s Right to Separate Residence and
Maintenance Act, 1949-The Act permitted a Hindu wife to reside
separately and to get maintenance from the husband in certain cases.
2. The Special Marriage Act, 1954. -It validated marriage between two
persons who belonged to two different religions.
3. The Hindu Marriage Act, 1955- The Act has completely overhauled the
law relating to marriage between Hindus including Jain, Sikh and
Buddhist.
4. The Hindu Minority and Guardianship Act, 1956 -lt supplemented the
existing law in the matter.
5. The Hindu Succession Act, 1956 - It introduced some remarkable
changes in the law of succession. It provided for the equal rights of
inheritance to Hindu females and granted absolute rights to them
with respect to a property acquired by them through any lawful means.
6. The Hindu Adoption and Maintenance Act, 1956 - It considerably
changed the old law of adoption and maintenance and conferred the
right on the Hindu female to adopt a child.
7. Marriage Laws (Amendment) Act, 1976 - It was meant to bring about
some changes in the Act of 1955. It introduced divorce by mutual
consent, common grounds for judicial separation and divorce and
also relaxation in the rigorous process of obtaining divorce.
8. The Child Marriage Restraint (Amendment) Act, 1978 - The Act
provides the eligibility as to the age of a male and female (21 years
and 18 years respectively) at the time of marriage.
Q.3 Discuss the main principles on which Mitakshara and Dayabhaga Schools
of Hindu Law differ from each other.
Or
What are the various Schools of Hindu Law? Differentiate Between
Mitakshara and Dayabhaga Schools
Ans. Schools of Hindu Law emerged with the emergence of the era of
commentaries and Digests. The commentator put his own glass on
the ancient texts, his authority having been received in one and
According to syllabus of Dr. Bhimrao Ambedkar Law University, Jaipur 33
rejected in another part of India. Originally Hindu Law was applied
to the whole of India but subsequently it was divided into two main
schools and some sub-schools –
1. Mitakshara
2. Dayabhaga
Parameters of
Comparison Dayabhaga Mitakshara
Spindaship
The relationship of Sapinda Under the Dayabhaga it arises utilizing Pinda
arises according to Mitakshara offerings to deceased ancestors. The spiritual
by propinquity or community of benefit is the criterion for heirship under the
blood. Dayabhaga while consanguinity (blood
relationship) is the guiding principle under the
Mitakshara
Q.4 Discuss the essentials of a valid Hindu Marriage under the Hindu
Marriage Act, 1955.
Or
What is the nature of Hindu Marriage? What is the essential Condition
of a Valid Hindu Marriage? State.
Ans. Nature of Hindu Marriage - Sacrament or a Contract: Institution of
marriage has a paramount status in the social life of Hindus. It is one
of the oldest institutions. According to Raghunandan acceptance ‘the
of bride as his wife by the bridegroom in a gift by her parents is
defined as marriage. By marriage man and woman are united into
wedlock. A Hindu marriage is looked upon as something which is
more of a religious necessity and less of a physical luxury.” The
36 FAMILY LAW -I (HINDU LAW)
purpose of marriage is generally to give birth to the successor of the
family.
There are three characteristics of the sacramental nature of marriage:
• It is an enduring bond of the husband and wife which is
permanent and tired even after death and they will remain
together after the death.
• Once it is tied cannot be untied.
• It is a religious and holy union of the bride and groom which is
necessary to be performed by religious ceremonies and rites.
Hindu marriage is considered as one of the most important
sacraments. In ancient times, there was no need for the girls’ consent.
Fathers have to decide the boy without asking for her advice or
consent. It is the sole duty of the father to find a suitable boy. If the
person was of unsound mind or minor at the time of the marriage, it
was not considered as a void marriage. But in the present world,
consent and mental soundness of the person are a very essential
part of the Hindu Marriage, without the absence of any such element
marriage will be annulled or void or no legal entity.Section 12 of the
Hindu Marriage Act 1955 lays down that when one’s consent is not
obtained, the marriage is considered void. It shows that despite the
absence of consent of the bride, the marriage is valid and legal.
The nature of modern marriage is contractual. Thus, it accepts the
idea of equality and liberty. It has been adopted due to western Ideas.
There must be an agreement of voluntarily entering into it by both
parties.
Thus, the Hindu marriage is not a contract and neither is it a
sacrament. But it can be said it is a semblance of both. Similar
observations are to be found in several cases as follows:
1. In Purshottamdas v Purshottamdas (1946) 48 BOMLR 141) case
Court observed that Marriage of Hindu children is a contract
made by their parents.
2. In Bhagwati Saran Singh v Parmeshwari Nandar Singh ((1942)
ALL. 618) case, the Court expressed the view that a Hindu Marriage
is not only a sacrament, but also a contract.
3. In Muthusami vMasilama (5 Ind Cas 42) case, A marriage,
whatever else it is, i.e., a sacrament and institution, is
undoubtedly a contract entered into for consideration, with co-
relative rights and duties.
4. In Anjona Dasi v Ghose (6 Bengal Reporter, 243) case, the suits
relating to marriage deal with that which in the eye of the law
must be treated as a civil contract, and important civil rights
arise out of that contract.
According to syllabus of Dr. Bhimrao Ambedkar Law University, Jaipur 37
On the basis of above mentioned and other cases, it can safely be
concluded that under the ancient, uncodified Hindu Law, a Hindu
marriage was not only a sacrament, but also a contract. In the present
Hindu Marriage Act, since now a provision has been made for a
divorce by mutual consent, it also indicates that marriage is a contract
dissoluble by mutual consent.
Conditions of a Valid Marriage under the Act: There are five conditions
of marriage enshrined under Section 5 of the Hindu Marriage Act, in
absence of which the marriage will not be deemed to be a valid
marriage. According to Section 5 a marriage may be solemnized
between any two Hindus, if the following conditions are fulfilled,
namely: -
1. Neither party has a spouse living at the time of the marriage;
2. At the time of the marriage, neither partya) is incapable of giving
a valid consent to it in consequence of unsoundness of mind; or
b) though capable of giving a valid consent has been suffering
from mental disorder of such a kind or to such an extent as to be
unfit for marriage and the procreation of children; or c) has
been subject to re-current attacks of insanity or epilepsy;
3. The bridegroom has completed the age of 21 years and the bride
the age of 18 years at the time of the marriage;
4. the parties are not within the degrees of prohibited relationship,
unless the custom or usage governing each of them permits of
marriage between the two;
5. the parties are not sapindas of each other, unless the custom of
usage governing each of them permits of a marriage between
the two.
If marriage contravenes anyone of the conditions under clause (i),
(iv) and (v), the marriage is null and void while contravention of the
condition under clause (ii) renders marriage voidable. The Act does
not provide for the situation where clause (iii) is violated. However, it
has been held that violation of the condition under clause (iii) does
not render a marriage either void or voidable.
i. Neither party has a spouse living at the time of marriage: Section 5(i)
recognizes the principle of monogamy and prohibits bigamy. Section
11 makes a bigamous marriage void and Section 17 makes it a penal
offence for both Hindu males and females under Section 494 and 495
of Indian Penal Code.
In Sambireddy v. Jayamma (AIR 1972 A.P) it was held that Section 5
read with Section 17 rendering a bigamous marriage void is not ultra
vires the Constitution on the ground that it contravenes Article 14, 15
or 25(1).
38 FAMILY LAW -I (HINDU LAW)
In Smt. Yamuna Bai Anand Rao Adhav v. Anant Rao Shiva Ram Adhava
((1988) 1 SCC 530), the Supreme Court held that in the event of breach
of first condition specified in Section 5 (1) the marriage is rendered
null and void under Section 11 (1) of the Act and since it is void ab
initio, the wife cannot claim maintenance under Section 125 of the
Code of Criminal Procedure. The offence of bigamy would be
constituted only when at the time of the performance of subsequent
marriage the spouse of such party to marriage was alive and that
marriage was not void or invalid. But in every case the offence would
be punishable if the essential requirements of law and religion had
not queen duly fulfilled and performed. This was confirmed by the
Supreme Court in Shanti Deo Verma v. Kanchan Prasad (AIR, 1991, S.C.
816).
ii. Lunacy: Clause (ii) of Section 5 was substituted by the Marriage Laws
Amendment Act, 1976. According to this clause one of the conditions
for a Hindu marriage is that neither party must be suffering from
unsoundness of mind, mental disorder, insanity or epilepsy at the
time of marriage. Section 12(1)(b) renders at the instance of aggrieved
party, the marriage voidable. The Madhya Pradesh High Court in Smt.
Alka Sharma v. Avinash Chandra (AIR 1991 MP 205) has laid down
that the word ‘and’ between expression unfit for marriage and
procreation of children in Section 5(2)(b) should be read as ‘and’,
‘or’. The court can nullify the marriage if either condition or both
conditions contemplated exist due to mental disorder making the
living together of parties highly unhappy. It was also held in this case
that the word “procreation” implies within it not only capacity to
give birth to children but also to look after them as well as so as to
bring them up. From the use of the expression “has been suffering”
under clause (c) it is clear that it is not necessary that a person
should be insane or suffering from epilepsy at the time of marriage.
It is sufficient if he or she had been subject to recurrent attacks of
insanity or epilepsy.
iii. Age of the Parties: Clause (iii) as amended by the Child Marriage
Restraint (Amendment) Act, 1978 prescribes the age of the bridegroom
and bride as 21 years and 18 years respectively to have capacity for
solemnizing a Hindu Marriage. But the marriage in contravention of
the age limits can neither be void nor voidable, though it is punishable
under Section 18. The Supreme Court also observed in Lila Gupta v.
Lakshminarayan (1978 S. C. 1351 at 1358), that a reference to the
Child Marriage Restraint Act would show that it was enacted to carry
forward the reformist movement of prohibiting child marriages and
while it made a marriage in contravention of the provisions of that
Act punishable, it did not render the marriage void.
According to syllabus of Dr. Bhimrao Ambedkar Law University, Jaipur 39
iv. Prohibition as to prohibited Degrees of Relationship and Sapindas:
Clause (iv) lays down the condition that the parties to a Hindu
Marriage should not be within the degrees of prohibited relationship
unless the custom or usage governing each of them permits of a
marriage between the two, whereas under clause (v) the parties should
not be sapindas of each other. The expressions ‘degrees of prohibited
relationship’ and “sapinda relationship” are to be interpreted
according to the definitions given in sub clause (f) and (g) of section
3 of the Act.
Wherever, a custom is relied upon to validate a marriage, it must be
valid custom as defined in section 3(a) of the Act. Proving one instance
where marriage took place in contravention of either of these clauses
is not sufficient to prove custom.
Q.5 Describe the various grounds of Voidable Marriage.
Or
Distinguish Between Void and Voidable Marriage.
Or
What is meant by Void and Voidable Marriage?
Ans. Void Marriages (Section 11 of Hindu Marriage Act):A marriage is
considered void under the Hindu Marriage Act if it doesn’t fulfil the
following conditions of Section 5 of the Hindu Marriage Act:
a) Bigamy: If any of the parties have another spouse living at the
time of marriage. It shall be considered as null and void.
Illustration: there are three parties ‘A’,’B’ and ‘C’ where ‘A’ has a
living spouse ‘B’, but he again marries to ‘C’ then this will be
called as bigamy and it will be void.
b) Prohibited Degree: If the parties are within a prohibited
relationship unless the customs allow it.
Illustration: there are two parties ‘A’ and ‘B’ where, ‘A’ is the
husband and ‘B’ is his wife. They both went on a relationship
which is prohibited by law. This marriage can also be called
void marriage.
c) Sapindas: A marriage between the parties who are sapindas or
in other words a marriage between the parties who are of his or
her relations or of the same family.
Illustration: there are two parties ‘A’ and ‘B’ where ‘A’ is the
husband and ‘B’ is the wife, who has blood relation or close
relation to A which can also be termed as Sapinda. So, this
process Consequences of a Void Marriage.
In Yamunabai Anantrao Adhav Vs. Anantrao Shivram Adhav (A.I.R
1988 SC 644): In this Case, It was held that a marriage which is
in contravention of section 11 of Hindu Marriage Act, 1955 Shall
be treated as null and Void from the of its inception.
40 FAMILY LAW -I (HINDU LAW)
The consequences of void marriage are:
• The parties don’t have the position of husband and wife in a
void marriage.
• Children are called legitimate in a void marriage (Section 16 of
Hindu Marriage Act, 1955).
• Mutual rights and obligations are not present in a void marriage.
Voidable Marriages (Section 12 of Hindu Marriage Act): A marriage is
voidable on either side of the party is known as voidable marriage. It
will be valid unless the petition for invalidating the marriage is made.
This marriage is to be declared void by a competent court under the
Hindu Marriage Act, 1955. The parties of such marriage have to decide
whether they want to go with such marriage or make it invalid.
The grounds where marriage can be termed as voidable:
a) The party to the marriage is not capable of giving consent due to
the unsoundness of mind. Illustration: There are two parties ‘A’
and ‘B’, where ‘A’ is the husband and ‘B’ is his wife. ‘B’ gave the
consent of the marriage when she was suffering from an unsound
mind. After some years, ‘B’ gets cured and raised that her consent
was invalid and this marriage is voidable because during the
time of the consent of ‘B’, she was in an unsound mind. So, this
is a ground of voidable marriage.
b) The party is suffering from mental disorder which makes her
unfit for reproduction of children. Illustration: There are two
parties ‘A’ and ‘B’, where ‘A’ is the husband and ‘B’ is his wife. If
‘B’ is suffering from mental disorder due to which she is unfit
for reproduction of children. Then this can be a ground for
voidable marriage.
c) If the party has been suffering from repeated attacks of
insanity. Illustration: There are two parties ‘A’ and ‘B’, where ‘A’
is the husband and ‘B’ is his wife. Anyone from ‘A’ or ‘B’ is
suffering from repeated attacks of insanity, then this can also
be a ground for voidable marriage.
d) The consent of marriage by either of the parties is done by force
or by fraud. Illustration: There are two parties ‘A’ and ‘B’ where A
is the husband and B is his wife. If either party gave consent to
the marriage by force or fraud, then it will be a voidable
marriage.
e) If either of the parties are under-aged, bridegroom under 21
years of age and bride under 18 years of age. Illustration: There
are two parties ‘A’ and ‘B’, where ‘A’ is the husband and ‘B’ is his
wife. If ‘B’ is under the age of 18 years then this marriage will be
considered as voidable or if A is under the age of 21 years then
it can also be considered as voidable marriage.
According to syllabus of Dr. Bhimrao Ambedkar Law University, Jaipur 41
f) If the respondent is pregnant with a child of someone other than
the bridegroom while marrying. Illustration: There are two parties
‘A’ and ‘B’ where ‘A’ is the husband and ‘B’ is his wife. During the
time of the marriage if ‘B’ is pregnant through another person.
Then the marriage would be voidable.
Impotency [Section 12(1)(a)]: Section 12(1) (a) can be dissected as under:
a. That the marriage has not been consummated; and
b. That the non-consummation is due to the impotence of the
respondent.
Consummation of marriages means full and normal sexual
intercourse between married people. A marriage is consummated by
sexual intercourse. It consists in the penetration by the male genital
organ into the female genital organ. Full and complete penetration is
an essential ingredient of ordinary and complete intercourse. Partial,
imperfect or transient intercourse of not Consummation. The degree
of sexual satisfaction obtained by the parties is irrelevant.
Consummation may be proved by medical evidence.
Regarding impotency, the various principles laid down by the courts
could be summarised as follows:
• Full and complete penetration is an essential ingredient of
ordinary and complete intercourse, though degree of sexual
satisfaction obtained by the parties is irrelevant. If one spouse
is oversexed and the other is not, it does not amount to
impotency.
• Impotency is usually either (a) physical, or (b) mental. Physical
impotency includes malformation of, or structural defects in
the organs, such as unduly large male organ or abnormally
small vagina.
• Mental or psychological impotency includes emotional,
psychological or moral repugnance or aversion to the sexual
act. In Shantabai v. Tara Chand(AIR 1966 MP 8)
• the wife was alleged to have an absolute repugnance towards
sexual intercourse although she had normal sexual organs. Held
that it amounts to impotency. Where immediately after marriage
the husband lived for three nights and days in the same room
with his wife and failed to consummate the marriage, it was a
fair inference that non consummation was due to husband knows
refusal arising out of incapacity, nervousness or hysteria. In
Nijhawan v. Nijhawana (AIR 1973 Delhi 200), liberal
interpretation of the word ‘impotence’ was made by the court. In
that case, the wife felt depressed and frustrated owing to the
failure of husband to perform full and complete sexual
intercourse. Held that vigorous and harmonious sexual activity
42 FAMILY LAW -I (HINDU LAW)
is the foundation of marriage and a marriage without sex is
anathema. The court considered the husband’s impotency to be
a cause of mental and physical cruelty to the wife.
• If impotency can be cured by medical treatment or surgery, it
would not amount to impotency, unless the respondent refuses
to undergo treatment. In Rajendra v. Shanti,(2 May, 1977) where
the size of wife’s vagina was after surgical operation one and
half inch, but was fit for intercourse, the court said that wife
was not impotent
• Mere barrenness or incapacity to conceive a child or sterility
does not amount to impotency. In Shewanti v. Bhaura(AIR 1971
MP 168), the wife was sterile but was capable of having sexual
intercourse held that she was not impotent.
Consent obtained by force or fraud [Section 12(1)(c)]: For marriage
the consent of the parties concerned must be free. This is not because
marriage is a contract but because the sweetness and success of a
married life depends upon harmony between both the parties. If the
consent to marriage is not free, this harmony is a remote possibility.
That is why it is quite just and reasonable that a party whose consent
is not free should be permitted to come out of the wedlock. Section
12(1) (c) allows this. It makes the marriage voidable where consent
to it was obtained by force or fraud. Section 12 (1) (c) provides that a
marriage is voidable on the ground that the consent of the petitioner
or of the guardian has been obtained by force or fraud. After the Child
Marriage Restraint Act the consent of guardian has become irrelevant
as the minimum marriageable age was set 21 years and 18 years for
bridegrooms and bride.
Provided no petition for annulling a marriage:
i) If the petition presented more than one year after the force had
ceased to operate or, as the case may be, the fraud had been
discovered [Section 12(2)(a)(i)]; or
ii) The petitioners have, 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 as the case may be the fraud had been
discovered [Section 12(2)(a)(ii)].
Pre-marriage Pregnancy [Section 12(1)(d)]: Section 12(1) (d) provides
that a marriage is voidable on the ground that the respondent was at
the time of the marriage pregnant by some person other than the
petitioner. Section 12(1)(d) is to be read with Section 12(2)(b) which
lays down three further conditions which are to be satisfied in order
to avail of the remedy under Section 12(1)(d). These are:
i) That at the time of the marriage the petitioner was ignorant of
the facts alleged;
According to syllabus of Dr. Bhimrao Ambedkar Law University, Jaipur 43
ii) That the petitioner has started proceedings under Section 12
within one year of the marriage; and
iii) That the petitioner did not have, with his consent, marital
intercourse with his wife ever since he discovered that the wife
was pregnant by some other person.
In Nishit v. Anjali (AIR 1968 Cal 105) where a bride gave birth to a
mature child within 167 days from the date of marriage, it was held
that it was for the wife to raise a reasonable doubt that she was
pregnant by the person who became her husband
Necessary conditions to be fulfilled by a petition under Section 12 for
nullity of a Voidable Marriage:
i) On the plea of fraud or application of force on marriage, a
petition can be filed before the court within one year of discovery
of such fraud or application of force.
ii) The allegation based upon which the petition is filed was beyond
the knowledge of the petitioner at the time of solemnization of
marriage.
iii) The petition on such an allegation must be presented in the
court within one year of knowledge of such facts.
iv) No sexual relationship is established after knowing about
alleged facts will be treated as void.
Difference between Void and Voidable Marriage:
Void Marriage Voidable Marriage
A wife does not have the right to A wif e has the right to claim maintenance in the voidable
claim maintenance in the void marriage.
marriage.
In a void marriage, the parties do not Husband and wife have the status in the voidable
have the status of husband and wife. marriage.
A void marriage is none in the eyes A void marriage is to be declared void by a competent
of law. court.
The children in a void marriage are The children in a voidable marriage are treated as
treated as legitimate. illegitimate but this distinction is deleted by the Supreme
Court and said a child cannot be said termed as
illegitimate.
44 FAMILY LAW -I (HINDU LAW)
Q.6 Discuss the remedy of restitution of conjugal rights under the Hindu
Marriage Act, 1955. Is the remedy Constitutionally Valid?
Or
What is the matrimonial remedy of restitution of Conjugal rights?
Discuss its Constitutional Validity.
Ans. 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 of Hindu Marriage Act talks about the Restitution of Conjugal
Rights, “When either the husband or the wife has, without reasonable
excuse, withdrawn from the society of the other, the aggrieved party
may apply, by petition to the district court, for restitution of conjugal
rights and 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 succeeds
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.
This remedy was earlier applied in England and later on implemented
by the privy council in India, for the first time in a case
namely Moonshee Bazloor v. Shamsoonaissa Begum(Privy Council (Jul
4, 1867) However, this matrimonial remedy of restitution of conjugal
rights has been removed in England way back in 1970.
According to various judicial precedents, the petitioner can file the
plea of restitution of conjugal right under section 9 of this act, if there
is a presence of these essential conditions:
• Spouse is not cohabitating: First essential condition required
for the decree of Restitution of Conjugal Rights is intentionally
the spouse is not cohabitating but if any party or spouse has to
live separately from the matrimonial house or has to remain
out from the matrimonial house due to some circumstances in
that case it would not amount to intentionally devoiding from
cohabitation. Same judgment was held in case Mirchu V Devi
(AIR 1977 Raj. 113) that Decree of restitution of conjugal rights
would be granted in a case where the spouse has intentionally
devoid applicant from cohabitating.
• No rational purpose stated by the spouse for the separation
According to syllabus of Dr. Bhimrao Ambedkar Law University, Jaipur 45
• No legitimate ground on which order of restitution of conjugal
rights cannot be granted.
In Sushila Bai v. Prem Narayan, (AIR 1986 MP 225) the court passed
the order of restitution as per the requirements stated above. In this
case, the court also mentioned some Circumstances in which the
respondent can take his/her guard in the plea filed by the petitioner:
• Another party against whom the suit was filed can claim conjugal
relief against the petitioner.
• The respondent can prove that the petitioner is at fault i.e., party
can prove the rational purpose of his/her separation.
• As a result of some acts or omissions, it is unfeasible for the
respondent to cohabitate with the petitioner.
Reasonable Cause for withdrawing from society: In Smt. Sumanbai vs
Anandrao Onkar Panpatil, 1976 case the court held that there can be
no more insulting injury to the wife than her own husband Q.ing her
chastity. And such a remark would amount to a reasonable excuse
for the wife to withdraw from the society of her husband.
In Iqbal Kaur vs Pritam Singh (AIR 1963 P H 242) A Punjab HC judgment-
the court held that allegation of unchastity was sufficient to amount
to cruelty and reasonable excuse within the meaning of Section 9 of
the Hindu Marriage Act.
In R.Natarjan vs Sujatha Vasudevan 2011, the court held that if a wife
is asking to live separately from husband’s aged parents, it does not
amount to a reasonable excuse of withdrawal and the wife can be
granted a decree for restitution of conjugal rights.
Constitutional Validity of Section 9: It is to be noted that there arises
a contention that restitution of Conjugal Rights clearly violates Right
to privacy of the wife. Although the Supreme Court is its judgment
of Kharak Singh vs. State of UP(1963 AIR 1295) has held right to
privacy “is an essential ingredient of personal liberty”. In Gobind v.
State of M.P(AIR 1975 SC 1378)again the court had to encounter the
issue raised in the case of Kharak Singh. In this case the honorable
Supreme Court came to a conclusion that right to privacy -among
other rights is included in right to liberty.
In T. Saritha Vengata Subbiah v. State (AIR 1983 AP 356)the court had
ruled that that 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. In Harvinder Kaur v. Harminder Singh (1984
Del 66) the judiciary again went back to its original approach and
help Section 9 of Hindu Marriage Act as completely valid. The ratio of
46 FAMILY LAW -I (HINDU LAW)
this case was upheld by the court in Saroj Rani Vs. S.K. Chad ((1984)
AIR 1562)
Q.7. Discuss the grounds for obtaining a decree of divorce. On what special
grounds a Hindu wife can claim a decree of divorce against her husband
under the provision of the Hindu Marriage Act, 1955?
Or
Enumerate the Various grounds upon which a party to a marriage
may present a petition for a decree for judicial separation on the
petition for divorce presented by the petitioner?
Ans. Section 13 of the Hindu Marriage Act describes the circumstances
which extend the right of divorce. Section 14 says that no petition for
divorce can be presented within one year of the marriage unless it
causes exceptional hardship to the petitioner or it becomes a case of
exceptional depravity on the part if the respondent. Section 15 of the
Act lays down the limitations on the right of divorced persons to
marry again.
The Marriage Laws (Amendment) Act, 1976 makes the grounds of
divorce and judicial separation common. An aggrieved party, if he or
she so chooses may choose for divorce or judicial separation.
Besides, by the Amendment a new mode of divorce i.e., divorce by
mutual consent has been introduced under Section 13(B). Section
13(B) is remarkable in the sense that it has substantially eroded the
sacramental character of Hindu Marriage. Besides the common
grounds enumerated under Section 13(1) and 13(b) there are some
specific grounds available only to a wife as a ground for divorce or
Judicial separation under Section 13(2).
Grounds of Divorce [Under Section 13(1)]: A lawful marriage can be
dissolved by presenting a petition for divorce by either party to
marriage on any of the following grounds: -
• Adultery: Before the coming into force of the Marriage Laws
(Amendment) Act, 1976 “living in adultery” was a ground of
divorce. On the other hand, a petitioner could obtain a decree of
judicial separation, if he could show that his spouse, after the
solemnization of the marriage, had sexual intercourse with any
person other than his spouse. Now adultery has been made
ground of divorce as well as of judicial separation. Clause (i) of
Section 13(1) runs as” has after the solemnization of the marriage
voluntary sexual intercourse with any person other than his or
her spouse”. To establish adultery, it is not necessary to prove a
continuous course of adulterous life for divorce. Only this much
is required to be established that the respondent has willfully
indulged into sexual intercourse with a person other than his or
her spouse. For instance, in Rajendra Agarwal v. Sharda Devi
According to syllabus of Dr. Bhimrao Ambedkar Law University, Jaipur 47
(1993 M.P. 142), it was said that it is sufficient to prove that the
respondent had voluntary sexual intercourse with any person
other that the spouse. It need not be proved that the respondent
has been living in adultery. In Sanjuka Padhan v. Laxmi Narayan
Padhan (AIR, 1991, Ori. 39), a charge was levelled against the
wife, that she went away with some other person one evening
from her husband’s home and was seen moving with him. At
about 1 a.m. in the night they were again seen returning together
from a lonely place. In this way she was away from her parental
home and when her father-in-law went to call her back, she
bolted herself inside a room and visited her marital home no
further. The Court under the circumstances found sufficient
circumstantial evidence for adultery and granted the decree for
divorce. In another case Chandrawati v. Kailash Nath (1995 (1)
AIR 283 (All)), the husband filed a petition for divorce on the
ground of adultery and tendered in evidence an admission letter
written by the unchaste wife dated two years earlier, the Court
held that it would amount to condonation of bad conduct of the
wife as he had later continued to live as husband and wife.
The burden of proof is on the petitioner. In Chander Prakash v.
Sudesh Kumari (AIR. 1971, Del.208). it was held that it is a
presumption in law that the respondent charged with adultery
is innocent and the burden to prove adultery lies on the party
who has alleged it.
• Cruelty: Under clause (i)(a) of Section 13(1) “cruelty” is a ground
for divorce. This provision has been inserted by the Marriage
Laws (Amendment) Act 1976. This provision provides that divorce
can be granted on the ground of cruelty if the other party has,
after the solemnization of marriage treated the petitioner with
cruelty. The expression “cruelty” is not defined in the Act. In
Russel v. Russel in the year 1897 Lopes, LJ has defined cruelty as
“there must be danger to life, limb or health, bodily or mental or
a reasonable apprehension of it. to constitute cruelty.” This
definition is still important for the purpose of the clause.
Recently, In Rajan Vasant Revan Kar v. Mrs. Shobha Rajan (AIR
1995 Bom. 246) the Court held that “cruelty” contemplated by
Section 13(1)(i)(a) is a conduct of such type that the petitioner
cannot reasonably be expected to live with the respondent or
that it has become impossible for the spouse to live together.
• Desertion: The clause was added by the Marriage Laws
Amendment) Act, 1976. It provides “Desertion” for a period of
two years, as one of the grounds for divorce. It is the total
repudiation of the obligations of marriage. It is the intentional
48 FAMILY LAW -I (HINDU LAW)
permanent forsaking and abandonment of one spouse by the
other without that other’s consent and without reasonable cause.
Desertion may be actual, constructive or it may be by willful
neglect.
Under Section 13(1) (i)(b) the petitioner has to prove:
i) that there was desertion for a continuous period of 2 years
immediately preceding the presentation of the petition; and
ii) that the desertion was without reasonable cause and without
the consent oragainst the wish of the petitioner.
• Conversion: Section 13(1) (ii) States that if a spouse has ceased to be
a Hindu, by conversion to another religion, the other spouse can
obtain divorce under this clause. The conversion of the respondent
to a non-Hindu faith does not amount to automatic dissolution of
marriage. The petitioner has to file a petition to obtain a decree of
divorce. If a petitioner chooses to continue to live with his spouse
who has converted to another religion, there is nothing to debar him
from doing so.
• Unsound mind: Under clause (iii) of Section 13(1) a petitioner may
get a decree of divorce or judicial separation if the respondent “has
been suffering continuously or intermittently from mental disorder
of such a kind and to such an extent that the petitioner cannot
reasonably be expected to live with the respondent.” The expression
“mental disorder” has been explained in the Act. Accordingly, it means
mental illness, arrested or incomplete development of mind,
psychopathic disorder or any other disorder or disability of mind
and includes schizophrenia. It was held by the Supreme Court in Ram
Narayan Gupta v. Smt. Rameshwari (AIR 1988 S.C. 2260), that the
context in which the idea of unsoundness of ‘mind’ and “mental
disorder” occurs in the section as grounds for dissolution of a
marriage require the assessment of the degree of the mental disorder.
In Smt. Alka v. Abhinesh (AIR 1991 M.P. 205), the wife was held to have
been suffering from schizophrenia therefore the husband was entitled
for divorce
• Leprosy: The Marriage Laws (Amendment) Act, 1976 has made leprosy
a ground both for judicial separation and divorce. No duration of
leprosy is specified. Under clause (iv) the petitioner is required to
show that the respondent has been suffering from virulent and
incurable leprosy, thus two conditions are necessary: it must be (i)
virulent, and (ii) incurable.
• Venereal Disease: The venereal diseases are only such diseases which
are communicated by sexual intercourse. Section 13(1) (v) requires
that the disease must be in a communicable form.
According to syllabus of Dr. Bhimrao Ambedkar Law University, Jaipur 49
• Renunciation of the World: Section 13(1) (vi) provides a right for
having divorce if the other spouse has renounced the world by entering
any religious order.
• Spouse not Heard for Seven Years: Under Section 13(1) (vii) if spouse
has not been heard of as being alive for a period of 7 years or more by
those persons who would have naturally heard of it, had that party
been alive, the other spouse is given a right to obtain divorce. This
clause is based on the rule of evidence contained in Section 107 of
Indian Evidence Act.
• Non-resumption of Cohabitation after the passing of the decree for
judicial separation: Sub-section (1 )(A) of Section 13 provides that
whether the marriage was solemnized before or after the
commencement of this Act either party to the marriage may present a
petition for dissolution of marriage by a decree of divorce provided
there has been no resumption of cohabitation between the parties
for a period of 1 year or upwards after the passing of the decree for
judicial separation and where there has been no restitution of
conjugal rights between the parties for a period of 1 year or upwards
after the passing of the decree for restitution of conjugal rights. It
was held In Tulsa Bai v. Rajendra Singh (1996 (1) HLR 241 (M.P.)), that
a divorce petition before the expiry of the statutory period is not
maintainable. The one year period has to be noted from the date the
decree becomes final. It was held in Shruti Benedee v. Tapan Kumar
Banerjee (1986 Cal. 284). that where the decree for restitution passed
by the trial court is affirmed by the appellate Court time has to be
reckoned from the date of decree of the trial court. However, in
Sukhvinder Kaur v. Dilbagh Singh, (1996 112 Punj. LR 448) it was laid
down that “‘here the trial court had dismissed the petition for
restitution of conjugal rights and the decree was passed by the
appellant court, the statutory period of one year would commence
running from the date of appellate decree.
Grounds Available to the Wife Only:
i. Bigamy [Section 13 (2)(i)]: That in the case of a marriage solemnized
before the commencement of the Act (i.e., 18th May, 1955) the husband
has married before such commencement or that any other wife of
husband, married before such commencement, was alive at the time
of the petitioner’s marriage.
ii. Rape, Sodomy or Bestiality [Section 13(2)(ii)]: That the husband has
been guilty of rape, sodomy or bestiality after the solemnization of
marriage.
iii. Decree or Order Awarding Maintenance [Section 13(2)(iii)]: That in a
suit under Section 18 of the Hindu Adoptions and Maintenance Act,
50 FAMILY LAW -I (HINDU LAW)
1956 or in a proceeding under Section 125 of the Cr.P.C. 1973, a
decree or order has been passed against the husband awarding
maintenance to the wife (notwithstanding that she was living apart)
and after passing of such decree or order cohabitation between the
parties has not been resumed for one year or upwards.
iv. Option of Puberty [Section 13(2)(iv)]: That the wife’s marriage was
solemnized before she attained the age of fifteen years and she
repudiated the marriage after attaining that age but before attaining
the age of eighteen years, whether the marriage has been
consummated or not.
Divorce by Mutual Consent (Section 13 B):
1. That both the parties have been living separately for a period of
one year or more.
2. That both the parties have not been able to live together.
3. That both the parties have mutually agreed that their marriage
should be dissolved.
Q. 8. Explain the term Desertion and cruelty as ground of divorce.
Ans. Section 13 of Hindu Marriage Act, 1955 mentions ground of the divorce.
The two of these grounds are Desertion and Cruelty mentioned under
section 13(1)(i)(b) and under section 13 (1) (i) (a) of Hindu Marriage
Act.
Cruelty: Under clause (i)(a) of Section 13(1) “cruelty” is a ground for
divorce. This provision has been inserted by the Marriage Laws
(Amendment) Act 1976. This provision provides that divorce can be
granted on the ground of cruelty if the other party has, after the
solemnization of marriage treated the petitioner with cruelty. The
expression “cruelty” is not defined in the Act. In Russel v.Russel in the
year 1897 Lopes, LJ has defined cruelty as “there must be danger to
life, limb or health, bodily or mental or a reasonable apprehension
of it to constitute cruelty.” This definition is still important for the
purpose of the clause. Recently, in Rajan Vasant Revan Kar v. Mrs.
Shobha Rajan (AIR 1995 Bom. 246)the Court held that “cruelty”
contemplated by Section 13(1)(i)(a) is a conduct of such type that the
petitioner cannot reasonably be expected to live with the respondent
or that it has become impossible for the spouse to live together.
Cruelty includes both physical and mental cruelty. So far as physical
cruelty is concerned what acts of physical violence will amount to
cruelty will differ from case to case, depending upon the susceptibility
and sensibility of the party concerned. A single act of violence may
According to syllabus of Dr. Bhimrao Ambedkar Law University, Jaipur 51
not amount to cruelty. A solitary incident of beating resulting in minor
injuries cannot be said as an act of cruelty. In Bhagatv. Bhagat(1994
AIR 710) the Supreme Court defined mental cruelty as that conduct
which inflicts upon the other party such mental pain and suffering as
would make it not possible for that party to live with the other. In
other words, mental cruelty must be of such a nature that theparties
cannot reasonably be expected to live together.
In a recent case R. Balasubramanian v. St. Vuyalakshmi Balasubramanian
(AIR. 1999, SC. 1319). The husband filed a petition for divorce against
wife on the grounds of cruelty; husband alleged that wife suspected
that he had extra-marital affairs and threatened to commit suicide.
But the court observed that as both were living together and husband
had condoned the cruelty of wife, cruelty and desertion set-up by
husband is not maintainable. In another recent case S. Hanumath
Rao v. V.S. Ramani (AIR. 1999, S.C. 1319). the Court held that mental
cruelty broadly means when either party causes mental pain, agony
or suffering of such a magnitude that it severs the bond between the
husband and wife and as a result of which it becomes impossible to
live together. Mere removal of mangalsutra by the wife does not
amount to mental cruelty within the meaning of Section 13(1)(i)(a).
1. False accusations of adultery or unchastity for instance in
Samptami v. Jagdish (1970 Cal. 272). The husband constantly
called his wife a prostitute, a woman of the street.
2. Persistent refusal to have marital intercourse amounts to cruelty.
3. Prosecution of a spouse by the other of a false criminal charge
amounts to cruelty.
4. Persistent charges of immorality against the husband and
causing injuries to the husband and filing complaints against
the husband amount to cruelty.
5. False, defamatory, malicious, baseless and unapproved
allegations made against the spouse to superior officers or
authority amount to cruelty.
6. Making false charge of adultery in the cross-examination of the
wife does not amount to cruelty.
7. Mere allegation of impotence against the wife is not cruelty.
8. The wife telling the husband on the first wedding night that he
had and that persons with ugly face have also an ugly mind,
does not amount to cruelty as understood in matrimonial law.
52 FAMILY LAW -I (HINDU LAW)
9. Outburst of temper without rancor, non-payment of interim
maintenance or desertion per-se, does not amount to cruelty.
Desertion: The clause was added by the Marriage Laws Amendment)
Act, 1976. It provides “Desertion” for a period of two years, as one of
the grounds for divorce. It is the total repudiation of the obligations
of marriage. It is the intentional permanent forsaking and
abandonment of one spouse by the other without that other’s consent
and without reasonable cause. Desertion may be actual, constructive
or it may be by willful neglect.
Under Section 13(1) (i)(b) the petitioner has to prove:
a. that there was desertion for a continuous period of 2 years
immediately preceding the presentation of the petition; and
b. that the desertion was without reasonable cause and without
the consent or against the wish of the petitioner.
In other words, two important elements are essential to constitute
desertion, viz. firstly, the fact of separation, and secondly, the intention
to bring cohabitation to an end permanently i.e., animus deserendi.
Further, the offence of desertion is complete only after the period of
two years is spent. For instance, in the case of Anand Prakash Dixit v.
Malti Dixit (1988 1 HLR 34 M. P), the petition for divorce on the ground
of desertion presented before the expiry of two years was dismissed
as premature. Desertion is not only a physical act but it also involves
essentially a mental act. Mere physical separation between the
spouses or mere intention of one to separate from the other without
any overt act would not by itself amount to desertion. Intention must
be to end cohabitation permanently.
In Sunil Kumarv. Usha (1944 M.P. 1) the wife had left the matrimonial
home due to unpalatable atmosphere in the matrimonial home and
reign of terror prevailing there drove her out. It was held that she was
not guilty of desertion.
In Teerth Ram v. Smt. Parvati Devi (AIR 1995 Raj 86) the wife living
separately only wanted that her husband should establish
independent matrimonial home where she would live with him as the
other brother of husband has done, although she had no intention to
break the matrimonial home, it was held that the wife could not be
said to have deserted the husband without sufficient reasons.
In Smt. Bhawna v. Manohar Advani (AIR 1992 M.P. 105), the wife was
guilty of neglecting her husband and on her opaque allegation of
misconduct as to demand of more dowry by her father in-law and use
According to syllabus of Dr. Bhimrao Ambedkar Law University, Jaipur 53
of taunting language in the little period of her stay in her marital
home, she started living away from her husband, it was held to be a
case of desertion by the wife.
In Madan Mohan v. Smt. Chitra Manne (AIR 1993, Cal. 33), where the
wife refuses to stay with husband as the husband was already staying
with another woman not being his relative under the same roof, but
she expressed her willingness to live with him if that woman is
removed, it was held that husband was not entitled to divorce on the
ground of desertion or cruelty.
Recently, in Rajosh v. Rukmini, (AIR 2000 MP 227), the divorce petition
was filed by the husband on the ground of desertion. Wife states that
she was driven out by the husband and she was ready to co-habit
with husband. The husband’s explanation was not satisfactory for
divorce. The Court held that husband cannot be permitted to take the
benefit of his own wrong so the decree for divorce cannot be granted
on the ground of desertion.
The Desertion may be terminated in following three situations:
i) Resuming of Marital Life
ii) Resuming of Cohabitation or,
iii) Express willingness to return back to home.
Q. 9 How a husband and wife seek divorce on mutual consent? Can either
party withdraw his or her consent after the presentation of Divorce
petition on Mutual Consent? What will be the consequences?
Ans. Divorce by mutual consent – (Section 13B): In a case where none of
the aforementioned grounds is available, but the parties decide they
do not want to remain married to each other or cannot live with one
another they can seek divorce by mutual consent under Section 13B of
the Hindu Marriage Act.
Essentials for divorce by mutual consent:
i. Parties should be living separately: Section 13(B) of the Act
prescribes that in order to mutually dissolve a marriage, the
spouses should be living separately for a period of at least 1
year before filing the petition.
This period of one year where the parties have lived separately
must be immediately before the filing of the petition. “Living
Separately” in the context of Section 13B does not necessarily
mean physically living in different places. The parties could be
living in the same house, sharing the same roof but there can
54 FAMILY LAW -I (HINDU LAW)
still be a distance between the two.If that is the case then they
are not considered to be living as husband and wife, which
qualifies as living separately.
The same was held by the Hon’ble Supreme Court in the case
of Sureshta Devi v. Om Prakash (1992 AIR 1904) Wherein it was
made clear that living separately does not necessarily mean
living in different places. The parties can be living together but
not as spouses.
ii. Parties have not been able to live together:In a marriage it so
happens that the spouses can’t stand each other and can no
longer live together happily. That is when they opt for divorce by
mutual consent.
In Pradeep Pant &Anr. v. Govt of NCT Delhi27 April, 2012 the
parties were married and had a daughter from their wedlock.
However, due to temperamental differences between them, they
were not able to live together and decided to live separately.
Despite putting their best efforts, they were unable to reconcile
their marriage and could not see themselves living together as
husband and wife ever again. A divorce petition was jointly
filed and issues such as maintenance and custody of their child
were decided and agreed upon by both.
The wife would get custody of their daughter and the husband
would reserve visitation rights, it was mutually agreed upon by
both of them. Both parties gave their free consent without any
undue influence. The court observed that there was no scope of
reconciliation and granted a decree of divorce.
After filing a petition for divorce by mutual consent, the parties
are given a waiting period of 6 months, also known as a cooling
period and it may extend up to 18 months. During this time the
parties must introspect and think about their decision.
If the parties are still not able to live together after the cooling
period, then the divorce petition shall be passed by the district
judge
iii. They have mutually agreed that marriage should be resolved:
The parties may choose to give their marriage another chance
and mutually resolve their marriage. During the waiting period,
the parties may sometimes be able to reconcile and make their
relationship work.
After the first motion has been passed, the parties have a total
of 18 months to file for second motion and if they fail to do so
According to syllabus of Dr. Bhimrao Ambedkar Law University, Jaipur 55
within those 18 months, both parties are deemed to have
withdrawn their consent mutually
Whether consent can be unilaterally withdrawn by either party: After
the first motion, if the parties are provided with the waiting period,
they may sometimes decide to change their mind. Not all cases of
divorce are irreparable and some may still have some scope of
reconciliation and the parties may choose to withdraw their consent
and give their marriage a second chance.
The waiting period proves to be very useful for some cases as the
parties get to go for mediation which may change their mind. The
consent of the parties is also deemed to be withdrawn after the expiry
of the waiting period of 18 months, wherein a decree of divorce shall
not be granted.
The phrase “Divorce by Mutual Consent” is self-explanatory, it simply
means that the consent of both parties is required in order for the
court to grant the decree of divorce. In Sureshta Devi v. Om Prakash
(AIR 1992 SC 1904), the wife’s consent was fraudulently obtained by
the husband for filing a divorce. The wife was unwilling to give her
consent for divorce and therefore she did unilaterally revoke her
consent.
Upon reading the judgement of the Supreme Court we can conclude
that a party can unilaterally withdraw their consent if the same has
not been freely given.
After the first motion has been passed the parties will have agreed to
settle on various issues such as alimony, custody of children and
other marital expenses. Now, If one of the parties unilaterally
withdraws their consent the other party may suffer prejudice that
could be irreversible.
In Rajat Gupta v. Rupali Gupta (234 (2016) DLT 693), the court says
that the agreement between the parties to settle their issues and opt
for divorce by mutual consent is a binding agreement and a form of
undertaking. If a party now unilaterally withdraws their consent,
they would be in breach of their undertaking made before the court of
law, resulting in civil contempt of court by willfully disobeying an
undertaking. If the consent has to be withdrawn unilaterally, it must
be done so on a just and reasonable ground and the other party must
not suffer prejudice.
Therefore, consent can be unilaterally withdrawn only in exceptional
cases on reasonable grounds.
56 FAMILY LAW -I (HINDU LAW)
Q. 10. Who are the heirs of a male Hindu dying intestate? How will the
property be distributed among the class first heirs?
Or
Who are the heirs of deceased Hindu Male and what are the rules of
Distribution of his separate property among them under Hindu
Succession Act, 1956?
Ans. General Rules of Succession in the Case of Males (Section 8): The
property of a male Hindu dying intestate shall devolve according to
the provisions of this chapter-
1. Firstly, upon the heirs, being the relatives specified in class I of
the Schedule;
2. Secondly, if there is no heir of Class I then upon the heirs,
being the relatives specified class II of the Schedule;
3. Thirdly, if there is not heir of any of the two classes, then
upon the agnates of the deceased; and
4. Lastly, if there is no agnate, then upon the cognates of the
deceased.
Heirs in Class I and Class II Class I:
1. Son;
2. Daughter;
3. Widow;
4. Mother;
5. Son of a predeceased son;
6. Daughter of a predeceased son;
7. Son of a predeceased daughter;
8. Daughter of a predeceased daughter;
9. Widow of a predeceased son;
10. Son of a predeceased son of a pre-deceased son.
11. Daughter of a predeceased son of a pre-deceased son.
12. Widow of a predeceased son of a predeceased son.
13. Son of a predeceased daughter of a predeceased daughter.
14. Daughter of a predeceased daughter of a predeceased daughter.
15. Daughter of a predeceased son of a predeceased daughter.
16. Daughter of a predeceased daughter of a predeceased son.
Class II:
1. Father
2. Son’s daughter’s son; (b) Son’s daughter’s daughter; (c) brother;
(d) sister.
According to syllabus of Dr. Bhimrao Ambedkar Law University, Jaipur 57
3. Daughter’s son’s son; (b) daughter’s son’s daughter; (c) daughter’s
daughter’s son;
4. daughter’s daughter’s daughter.
5. Brother’s son; (b) sister’s son; (c) brother’s daughter; (d) sister’s
daughter.
6. Father’s father; father’s mother.
7. Father’s widow; brother’s widow.
8. Father’s father; mother’s mother.
9. Mother’s father; mother’s mother.
Explanation: In this Schedule, references to a brother or sister do not
include reference to a brother or sister by uterine blood.
In N Rama Chandaran V. E. Varad Rajan (AIR 2007 NOC 2117 Madras)
it has been held that the son of deceased is considered as class one
heir and would be entitled under Section 8 of Hindu Succession Act
,1956 for the succession of property.
In case of Pati Ram V Mulla (AIR 2007 Madhya Pradesh 131) it has
been held that when there is no heir in class 1 then the property will
be distributed in class 2 heir.
Agnate: Agnate means a person related to wholly through males either
by blood or by adoption. The agnatic relation may be a male or a
female.
Cognate: Cognate means a person related not wholly through males.
Where a person is related to the deceased through one or more
females, he or she is called a cognate. Thus, son’s daughter’s son or
daughter, sister’s son or daughter, mother’s brother’s son, etc. are
cognates, whereas one’s father’s brother, or father’s brother’s son or
father’s son’s son or father’s son’s daughter are agnates.
Section 9: Among the heirs specified in the Schedule those in Cass I
shall take simultaneously and to the exclusion of all other heirs;
those in the first entry in Class II shall be preferred to those in the
second entry; those in the second entry shall be preferred to those in
the third entry, and so on in succession. Illegitimate son or daughter
is not included in the category of heirs of Class I, and in this respect
the settled old Hindu law that illegitimate children succeeded to
their putative father’s property has been abrogated.
Distribution of Property among Heirs in Class I of the Schedule (Section
10): The property of an intestate shall be divided among the heirs in
Class I of the Schedule in accordance with the following rules-
Rule 1- The intestate’s widow, or if there are more widows than one,
all the widows together, shall take one share.
58 FAMILY LAW -I (HINDU LAW)
Rule 2- The surviving sons and daughters and the mother of the
intestate shall each take one share.
Rule3- The heirs in the branch of each predeceased son or each
predeceased daughter of the intestate shall take between them one
share.
Rule 4-The distribution of the share referred to in Rule 3-
a. among the heirs in the branch of the predeceased son shall
be so made that his widow (or widows together) and the
surviving sons and daughters get equal portions; and the
branch of his predeceased sons gets the same portion;
b. among the heirs in the branch of the predeceased daughter
shall be so made that the surviving sons and daughters get
equal portions.
Illustrations -
a. A die leaving surviving him his widows Wand W1, his
mother M and two sons Sand S1 and two daughters D and D1. S,
S1, D, D1 and M will each take one share, that is one-sixth share;
and Wand W1 will together take one-sixth share. Therefore,
each widow will take one-twelfth of the property left by A.
b. A die leaving surviving him his widow W; a son B; CW
widow of a predeceased son C; XW, XS, XS1 and XD the widow,
two sons and daughters respectively of a predeceased son X; a
daughter D1 and DS, DD and DD1 the son and two daughters of
a predeceased daughter D as appears from the following diagram
LEADING CASES
FAMILY LAW-I (HINDU LAW)
1. Shastri Yagnapurushadji vs Muldas Brudardas Vaishya (AIR 1996 S.C.
119) – This is the case of section 2 and 3 of the Bombay Hindu Public
Worship Place ( Entrance Authority) Act, 1956.
Facts of The Case:
The appellants who were the followers of Swaminarayan sect also
known as Satsangis, filed a suit on behalf of themselves and on behalf
of other Satsangis of the northern diocese of the sect at Ahmedabad.
They apprehended that the respondent Muldas Brudardas Vaishya,
who was the president of the Maha Gujarat Dalit Sang at Ahmedabad
intended to assert the rights of the non- satsangi harijans to enter the
temple of Swaminarayan sect situated in Northern diocese at
Ahmedabad in exercise of the legal rights conferred on them by Section
3 of the Bombay Harijan Temple (Entry Authorization Act 1947). Section
3 of the said act provided inter alia, that every temple on which the
act applied shall be open to Harijans for worship in the same manner
and at the same extent as other Hindus in general.
Issues Raised:
• Their case was that the Swaminarayan sect represents a distinct
and separate religious sect and was connected with the Hindus
and Hindu religion, therefore their temples were outside the
purview of the said act.
• The appellants had alleged that the Swaminarayan temple of
Shree Nar Narayan Dev of Ahmedabad and all the temple’s
subordinates thereto are not within the meaning of the former
act.
Judgement Given:
While announcing their judgement, the Supreme court with a view to
elaborate the meaning of Hindu religion, copiously and freely drew
from the works of the eminent scholars and writers of Hindu religion
and philosophy such as; Radhakrishnan, Tilak, Manvir, Williams
and Max Muller and observed that, “Beneath the diversity of
philosophical thoughts, concept and ideas expressed by various
philosophers who started different philosophical school, lie certain
broad concepts which can be treated as basic. Few among them are
the acceptance of Vedas as the highest authority in religious and
philosophical matters, all the existing systems have drawn their
principles from such Vedas. The other basic concept which is common
to the six systems of Hindu philosophy given by Max Mueller is that
According to syllabus of Dr. Bhimrao Ambedkar Law University, Jaipur 119
all of them accept the view of the great world rhythm, vast period of
creation, and the belief that maintenance and dissolution follow
each other in endless succession. It may also be said that all the
systems of Hindu philosophy believe in rebirth and pre-existence.
Thus it is clear that unlike other religions and religious creeds, Hindu
religion is not tied to any definite set of philosophic concepts as
such.”
The learned judge after examining the basic tenet of the
Swaminarayan sect observed that even a cursory study of growth
and development of Hindu religion through the ages shows that
whenever a saint or a religious reformer attempted the task of
reforming Hindu religion and fought the irrational or corrupt practices
which crept into it, a sect was born which was governed by its tenets,
but was basically subscribed to the fundamental notions of Hindu
religion and its philosophy. Therefore it has never been suggested
that these sects are outside the Hindu brotherhood and the temples
they honour are not Hindu temples. The same was held to be true of
the Swaminarayan sect.
Justice Ganendragadkar quoting Bhagavad Gita said that, “Whenever
religion is on the decline and irreligion is in the ascendance, God is
born to restore the balance of religion and guide the destiny of human
race towards salvation.”, therefore even though Swaminarayan is
himself worshipped as a God, the birth of every saint and religious
reformer is taken as an illustration of the principles enunciated in
the Bhagwat Gita. Therefore, the court finally held that the High court
was right in coming to a conclusion that the Swaminarayan sect to
which the appellants belong is not a religion distinct and separate
from the Hindu religion and consequently all the temples belonging
to the Swaminarayan Sect do fall within the Ambit of section 2 of
Bombay Hindu Places Of Public Worship (Entry Authorization Act
1947). Thus the appeal failed and was dismissed with costs.
2. N.G Dastane V. Smt. Sucheta Dastane (AIR 1975 S.C 1534)
Introduction:
The present Indian society considers any matrimonial dispute as a
delicate relationship and disputes of judicial separation, divorce,
cruelty etc. are still considered inappropriate and thus many social
norms have to be followed by people. But with the changing era, the
disputes have now become part and parcel of life. Nowadays,
numerous matrimonial conflicts are reported in courts. And thus,
confirming the present situation, many laws have been amended
time and again. The Hindu Marriage Act, 1955 that governs Hindu
customs and practices has included cruelty as a ground for divorce
after the Amendment Act, 1976 and thus, the aggrieved party to the
120 FAMILY LAW -I (HINDU LAW)
dispute has to prove the infliction of cruelty. It can be both physical
and mental cruelty. The present case i.e. N.G. Dastane v. S. Dastane is
a landmark judgment after which cruelty was added as a ground of
divorce in the Hindu Marriage Act, 1955.
Facts of the Case:
In April 1956, the parents of the respondent in this case put a proposal
for marriage with the appellant. But prior to their marriage, the
respondent’s father informed the appellant through letters about the
medical health of the respondent and apprised him about the attack
of sunstroke that respondent had which had affected her mental
condition which was now recovered. The appellant was also informed
about the cerebral malaria of the respondent which was the main
cause of her deteriorating mental health. The respondent’s father
also informed him about the hospital where the respondent had been
undergoing her treatments. Consequently, the appellant confirmed
the doctor about the same and did not raise any further queries and
consented for marriage.
The respondent was three months pregnant in February 1961, when
the appellant asked for the police protection considering the
respondent as a threat to his life. Later, the respondent asked for
maintenance for herself and her 2 daughters from her husband and
also addressed a letter to the Ministry of Food and Agriculture stating
the cruel treatment and desertion by her husband and claimed
maintenance separately from the government. The relation between
the couple got so tense that the appellant moved to the court. Hence,
the proceedings got instituted in trial court in February 1962, and
appellant claimed for revocation of marriage under Section 12 (1) (c)
of Hindu Marriage Act, 1955 on the ground that his assent had been
fraudulently obtained. He subsequently requested the court for
divorce under Section 13 (1) (iii) of the said Act. Alternatively, he
claimed for judicial separation under Section 10 (1) (b).
Appellant’s Arguments
• The respondent got her treatment of Schizophrenia and her health
was fraudulently stated before the appellant to obtain his
consent.
• The respondent would lose her temper frequently and affront
the appellant and his family.
• The respondent used to behave viciously with her husband and
daughters at the workplace and at the residence.
• The respondent wrote letters to her family and husband
informing them about her disturbed condition of mind.
Respondent’s Arguments
• The letters were sent by her to her family due to the compulsion
of the appellant.
According to syllabus of Dr. Bhimrao Ambedkar Law University, Jaipur 121
• The appellant took advantage of his own wrong and did not
comply with the conditions under Section 21(1) of Hindu
Adoptions and Maintenance Act, 1956 which mentions different
dependents who can claim the maintenance.
• The appellant compelled her to behave in such manner by
expecting rigid standards of behavior from her.
• The appellant had sexual relations with respondent while
deserting her that led to the birth of their third baby and which
amounted to condoning of cruelty.
Judgment:
The respondent i.e. Sucheta Dastane was held liable for cruelty by the
Trial Court. Later, the husband was ordered to pay Rs.400 per month
as interim maintenance and also to pay the arrears.The custody of
children till the age of majority was granted to the wife considering
their interest and well being.
Appeal was again filed by the Husband i.e. N.G. Dastane in Bombay
High Court, though it was dismissed. However, he was granted special
leave to appeal that would be filed only on strict grounds of judicial
separation on the basis of cruelty. Since there was no reliable and
authentic evidence as to the cruelty and behavior of the appellant, no
conclusion could be drawn on the same. The Supreme Court observed
that the former court should not apply the principle of ‘beyond
reasonable doubt’ since the matrimonial dispute could not be
adjudged on such principle but probabilities since it was not a
criminal dispute.
Eventually, the court held that since there was no valid justification
on the part of appellant regarding their sexual life in spite of the acts
of the respondent, since the same was apparent due to the birth of
their third child that too after six months of their separation which
indicated forgiveness and restoration. Also, it was evident that the
wife was not willing to leave the house in which they lived. The court
also observed that the conduct of respondent was mere reaction to
the allegations of unsound mind by her husband and therefore, the
ground of cruelty on her part post separation did not hold good.
Justice Chandrachud, Y.V. formulated a test in order to determine the
gravity or cruelty which included the following testaments:
1. The alleged acts that amount to cruelty should be proved as per
the law of evidence.
2. The petitioner should have an apprehension in mind with respect
to the actual injury or harm from the conduct of another person.
3. There should be a reasonable apprehension related to the
condition of parties.
4. The petitioner should not take the benefit of his position.
122 FAMILY LAW -I (HINDU LAW)
5. There should be no coadunation of cruelty by the petitioner.
Hence, the court observed that these conditions were not fulfilled as
there was no proper evidence on which, the Q. of cruelty could not be
decided with any probability. Also, there was no actual apprehension
in the appellant’s mind as to any harm from the other. Further, the
alleged act of cruelty by the respondent was also condoned by the
appellant who is evident from the fact that they had given birth to a
third child post separation.
Therefore, the court held that the allegations of appellant were false
and since the respondent was willing to stay with her husband after
realizing her mistakes and that the appellant condoned her cruelty
after which she did not act adversely and thus the respondent was
not held liable for cruelty.
Analysis:
In this case, cruelty was recognized as a ground for divorce and the
wife who suffers it shall be entitled to maintenance from her husband.
The acts which cause even mental agony also constitute cruelty. The
Hindu Marriage Act, 1955 did not mention cruelty as a ground for
divorce but only for judicial separation. The same was followed in
N.G. Dastane v. S. Dastane in 1975. Later, the Amendment Act of 1976
made cruelty as a ground for divorce. Prior to this, cruelty meant any
kind of reasonable apprehension in the mind of either person so as
to cause injury to his or her life. But the court after this case stated
that it is a subjective matter whether any cruelty has been suffered by
any party and this must be determined in s specific manner.
The ground of cruelty was similar to the ground that is mentioned in
Section 10(1)(b) of the Hindu Marriage Act, 1955 i.e. judicial
separation through a point of difference among these is that words “
persistently or repeatedly” were added” and therefore this ground
has been made more severe after the amendment. Although family
disputes cannot be solved solely on the basis of allegations since it
is not always possible to determine the guild of either party due to
lack of authentic evidence, the courts are given wider power to
interpret this Q. in a subjective manner that whether the act of the
party constitutes cruelty or not. Therefore, relevant circumstances
must also be considered by the courts and they must not rely only on
a few incidents. Therefore in the present case also, there were no
continuous acts of cruelty by wife and the fact of condonation of the
same by the husband eventually led to the decision of the case wherein
the respondent was not held liable for the fabricated allegations of
the appellant.
3. Bipin Chandra V Prabhawati (AIR 1957 SC 176):
Facts of the case:
According to syllabus of Dr. Bhimrao Ambedkar Law University, Jaipur 123
• The Appellant and the Respondent were married on 20th April 1942
in Patan according to Hindu rites of the Jain Community. They had a
son who was born on 10th September 1945.
• The Appellant and the Respondent lived in a two-bedroom flat in
Bombay along with the Appellant’s parents and two sisters.
• The Appellant’s mother mostly lived in Patan as she was an asthma
patient.
• A family friend named Mahendra, after his discharge from the army,
began to live with the family from 1946 onwards.
• On 8th January 1947, the Appellant left for England on business.
• The Appellant alleged that during his absence, the Respondent became
intimate with Mahendra. When the Respondent left for Patan after
his departure to England, she continued an ‘amorous correspondence’
with Mahendra, who continued to stay with the Appellant’s family in
Bombay.
• The Respondent had written a letter to Mahendra from Patan in April
1947 while Mahendra lived with the Appellant’s family in Bombay.
• The Appellant returned to Bombay on 20th May 1947, and he was
received by his entire family, including the Respondent.
• According to the plaintiff, on his first night back, he slept away from
his wife as his bed had been made in the hall of their apartment.
• The next morning, the Appellant’s father handed him a letter, which
he immediately recognized to be written by his wife. The husband
gave the letter to a photographer to have its copies made. That very
evening, he asked his wife as to why she had written a letter to
Mahendra.
• The wife initially denied having written any letter and asked to see
the letter. Upon this, the husband said that the letter was with the
photographer for making copies.
• On receiving the letter from the photographer on 23rd May 1947, the
Appellant showed the letter to the Respondent.
• The Respondent allegedly admitted to writing the letter and told the
Appellant that Mahendra was a better man than him and that
Mahendra loved her and she loved Mahendra.
• The next morning, on 24th May, the Respondent informed the Appellant
that she was ready to go to her father’s place in Jalgaon as there was
a marriage in her father’s family. The Appellant said that since the
Respondent had made up her mind to go, he would send the car to
take her to the station and also offered Rs.100 for her expenses.
However, the Respondent refused this offer.
• The Respondent left for Jalgaon by the afternoon train while the
Appellant was at work.
124 FAMILY LAW -I (HINDU LAW)
• When the Appellant returned home in the evening, he “discovered
that she (respondent) had taken away everything with her and had
left nothing behind.”
• The Appellant’s mother had left for Patan with his son some days
previously.
• On 15th July 1947, the Appellant sent the Respondent a notice
mentioning that she had left against his wishes and that he no longer
intended to keep her in his protection and care. He also desired that
their minor son should be sent to him. No Ans. to this letter was
received by the Appellant.
• In November 1947, the Appellant’s mother came to Bombay from
Patan and informed the Appellant that the defendant might be expected
in Bombay in a few days.
• The Appellant sent a telegram to the Respondent’s father, which
mentioned that there was no need to send Respondent and that he
had posted a letter.
• On 15th November 1947, the Appellant’s father sent a letter to the
defendant’s father mentioning that it was absolutely necessary that
the plaintiff’s consent must be taken before sending the Respondent
back to Bombay.
• Three interviews took place between the Appellant and the Respondent
in the following years, but nothing fruitful happened.
• On 4th July 1951, the Appellant filed for divorce under Section 3(1)(d)
of the Bombay Hindu Divorce Act. The ground for the suit was that the
Respondent had been on desertion, since 24th May 1947, without
any reason or cause, against his will and consent, for a period of
over four years.
• At the trial held by Justice Tendolkar of the Bombay High Court, the
issue in the case was held to be affirmative, and a decree for divorce
in favour of the Appellant was granted. The learned judge observed
that the letter written by the Respondent to Mahendra read like a love
written by a girl to her paramour. He held that there was desertion
with the necessary animus deserendi and that the Respondent had
failed to prove that she had an honest and genuine interest in coming
back to her marital home.
• Following this, the Respondent preferred an appeal under the Letters
Patent, which was heard by Chief Justice Chagla and Justice Bhagwati.
The Appellate Bench held that the Respondent was not guilty of
desertion and set aside the order of the trial judge. The letter dated
15th July 1947 proved that it was the Appellant who had deserted the
Respondent.
• The Respondent obtained a special leave to appeal from the
judgement of the Appellate Bench of the High Court.
According to syllabus of Dr. Bhimrao Ambedkar Law University, Jaipur 125
Issues: –
1. Whether leaving one’s marital home physically is tantamount to
desertion?
2. Does desertion on part of the deserting party subsist when the deserted
party refuses to accept the deserting party?
The contention by the Appellant:
• The Appellant alleged that during his absence, the Respondent became
intimate with Mahendra. When the Respondent left for Patan after
his departure to England, she continued an ‘amorous correspondence’
with Mahendra, who continued to stay with the Appellant’s family in
Bombay.
• After leaving from Jalgaon, the Respondent never came back to live
with him in Bombay, nor did she write any letters to him from Jalgaon.
• His marriage with the Respondent should be dissolved, and he must
be given the custody of their minor child.
• The Respondent’s refusal for sleeping in the same room with the
Appellant upon his return from England is proof that the Respondent
had already decided to end the cohabitation.
The contention by the Respondent:
• The Appellant, by his treatment of her upon his return from England,
made her life unbearable and forced her to leave her marital home
against her wishes.
• The Respondent denied any intimacy between her and Mahendra or
that she was confronted by the Appellant with a photocopy of the
letter, or that she confessed to any such intimacy to the Appellant.
• Her paternal uncle Bhogilal (since deceased) and his son Babubhai
saw the Appellant, at her insistence, in Bombay about taking the
Respondent back, but the Appellant turned down their request.
• The Respondent had always been ready to go back to the Appellant,
but it was the Appellant who refused to keep her and cohabit with her.
• The Appellant insisted that his bed be set up in the hall on 20th May
1947.
• The Respondent’s relationship with Mahendra was along the lines of
that between a sister and a brother.
Obiter dicta:
• For desertion, the following conditions must exist:
• For the deserting spouse- a) the factum of separation and b) animus
deserendi.
• For the deserted spouse- a) the absence of consent and b) the absence
of conduct giving reasonable cause to the spouse leaving the marital
home to form the necessary intention mentioned above.
• The burden of proof to prove that all four conditions exist is on the
Appellant.
126 FAMILY LAW -I (HINDU LAW)
• The offence of desertion commences when the fact of separation and
the animus deserendi co-exist. But it is not necessary that they should
commence at the same time.
• If a deserting spouse intends to come back to the deserted spouse
with a genuine and honest to resume marital life before the period of
separation is over, as prescribed in the Act, but the deserted spouse
unreasonably refuses the offer, then the latter is said to be in desertion
and not the former.
• The reading of the letter written by the Respondent to Mahendra
clearly indicates that there was something between her and Mahendra
that she intended to keep a secret. The correspondence between the
Respondent and Mahendra was uncharacteristic of a faithful wife.
• The Respondent’s contention that she had been forced out of her
marital home by the Appellant under duress cannot be accepted as
the evidence, facts, context, and testimonies do not indicate the same.
• The reading of the Appellant’s letter to the Respondent dated 15th
July 1947 indicates that when the letter was sent, the Appellant did
not believe that the Respondent was in desertion.
• The plaintiff was not prepared to fulfil his part of the marital duties.
• The court did not find any convincing evidence supporting the alleged
desertion by the wife (Respondent).
• It is not necessarily true that the party who leaves home is said to
have committed desertion.
• Instead, the party whose actions make it absolutely clear that they
have no intention of cohabitation is said to have committed desertion.
• The statements given by the defendant’s father and cousin provide
ample corroboration that the defendant had been ready and willing
to go back to her matrimonial home.
Judgement:
• The Appeal was dismissed.
• The Respondent was not held to be in desertion.
Rationale:
• ‘Permanence’ is a quality that differentiates desertion from wilful
separation.
• Desertion is a continuing offence.
• When allowed to explain the more contentious parts of the letter, the
Respondent could not come up with anything satisfactory.
• After having her illicit, amorous relationship with Mahendra was
discovered by her husband, the Respondent could no longer face her
husband, and as a result, she fled to Jalgaon.
• The letter dated 15th July 1947 makes no mention of the Respondent
being in desertion.
According to syllabus of Dr. Bhimrao Ambedkar Law University, Jaipur 127
• To prove that the desertion of the deserting spouse, the deserted
spouse has to prove that he/she was willing to fulfill their part of the
marital duties and that the desertion was against their will.
• In an attempt to re-establish herself in her husband’s home, the
Respondent would go and live with the Appellant’s mother whenever
she was in Patan.
Conclusion:
The appellant-husband was unable to conclusively prove the
desertion by the respondent-wife. On the other hand, the respondent-
wife successfully established that she was willing to go back to her
matrimonial home. Desertion is a continuous offence. The plaintiff
must prove that the Respondent has been in constant desertion for
the statutory period mentioned in the Act.
4. Dharmendra Kumar v. Smt Usha Kumar (AIR 1977 SC 2218):
Introduction:
The Respondent, in this case, Mrs Usha Kumar, represented by
S.L.Watel, C.R. Somasekharan, R.Watel and M.S.Ganesh was granted
a decree of restitution of conjugal rights under Section 9 of The Hindu
Marriage Act,1955. But, there had been no cohabitation for more
than 2 years. Later, the Respondent has filed for a Decree of Divorce
against the Appellant, Mr Dharmendra Kumar, who was represented
by Naunit Lal, R.K. Baweja and Miss Lalita Kohli. A decree of divorce
had been granted to the wife based on Section 13(1A) (ii) of the Hindu
Marriage Act, 1955. The Appellant filed for an appeal against the
decree of divorce in the Supreme Court of India.
Background of the Case:
In this appeal filed by the Appellant, Mr Dharmendra Kumar, he argued
that the Respondent had not complied with the court’s order to
restitution of conjugal rights and had taken the benefit of it. The
restitution of conjugal rights states that “the guilty party has to stay
with the aggrieved party to resolve their marriage by cohabitation
for a period of time specified by law.”While to have a better
understanding of the appeal, the previous flow of the case has to be
also understood.
On 27th August 1973, the Respondent was granted a decree of
restitution of conjugal rights on her application by the Additional
Senior Sub-Judge, Delhi. On 28th October 1975. The Respondent
proceeded with a petition under S. 13(1A) (ii) of the Act which asked
for the dissolution of the marriage in the Court of Additional District
Judge, Delhi. A decree of divorce was petitioned stating there had
been no restitution of conjugal rights amongst the parties after the
decree was passed. Although, as claimed by the Appellant, he had
attempted to comply with the court’s order the Respondent had not
128 FAMILY LAW -I (HINDU LAW)
replied to the letters and was making capital out of her own wrong
which she was not entitled to do according to Section 23 (1) (a) of The
Hindu Marriage Act, 1955. Therewith, the Appellant filed an appeal
to the Supreme Court of India to hold his ground and get justice.
Facts of the case:
• The parties are married to each other. Usha Kumari, herein the
Respondent initially filed a petition for restitution of conjugal rights
under Section 9 of the Hindu Marriage Act, 1955 (hereinafter referred
to as the “Act”) and a decree was granted in her favour.
• After two years, she filed a petition against Dharmendra Kumar,
seeking dissolution of marriage under Section 13(1A)(ii) of the Act
and again a decree was passed in her favour.
• The Appellant Q.s the validity of the decree of dissolution of marriage
before the Court as she did not comply with the decree of restitution
which was passed in her own favour.
Part I of this case deals with the Decree of Restitution of Conjugal Rights:
According to the Hindu Marriage Act of 1955, Section 9 “When either
the husband or the wife has, without reasonable excuse, withdrawn
from the society of the other, the aggrieved party may apply, by petition
to the district court, for restitution of conjugal rights and 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.”In
this application made by the Petitioner (wife), the Additional Senior
Sub-Judge found that the application was valid and there was no
legal ground to reject the application. Thus, a decree was granted to
the wife that both the parties should cohabitate and try to resolve
their marriage.
Part II of this case deals with a decree of divorce:
More than over the two years, the husband claimed that he wrote
several registered letters to “invite” the petitioner to cohabitate and
comply with the court orders before the wife had filed for a decree of
divorce. There was an Amendment brought in Section 13 (1A) (ii) to
change the time period of 2 years of restitution of conjugal rights to
1 year. The objection taken is based on section 23 (1) (a) of the Act.
The court granted a decree of divorce.
Part III deals with an appeal- made by the Petitioner (husband) to the High
Court of Delhi regarding the dismissal of the decree of divorce which
was not granted. Mr Dharmendra Kumar later appealed to The
Supreme Court of India.
Issue: Whether mere non-compliance with decree for restitution
constitutes wrong within the meaning of Section 23 (1) (a) of the Act?
APPELLANT’S ARGUMENTS: The court agreed to hear the filed appeal.
The Appellant argued his case on two issues in the proceedings of
this decree:
According to syllabus of Dr. Bhimrao Ambedkar Law University, Jaipur 129
The Petitioner pleaded that whether the Respondent had denied
replying to the letters even after receiving them for the taking capital
advantage for the purpose of relief.
The subsequent issue raised by the Petitioner was that according to
the new Amendment, the Petitioner of the restitution of conjugal right
(in this case: the wife) could only file for a decree of divorce and still
take advantage of the relief provided to them.
RESPONDENT’S ARGUMENTS: While the respondent argued the case
on the following basis:
• The letters which the Appellant claims to have sent were never received
by her. And the few that she had received were never ignored.
• There was no proof to the claims of the Appellant in the issue of
taking undue advantage of the relief provided under the law and the
decree of divorce provided by the court.
JUDGEMENT: Whereas, both the arguments made by parties were
substantial and focused on the loopholes of the law. The judgement
delivered by J. Gupta laid out as follows:
1. The Petitioner (the wife) was entitled on her part to file a petition
for a decree of divorce after there was no restitution of the
conjugal rights followed.
2. Reference of Ram Kali vs. Gopal Das (4 (1968) DLT 503 (India))
was used in this judgement that mere non- compliance with the
decree for restitution of conjugal rights could not result in a
wrong within the meaning of Section 23 (1).
3. Another reference of Gajna Devi v. Purushotam (AIR (1977)
Delhi,178) Giri was used in this judgement stating that if an
exception was made for both the parties to file for divorce then
the provision of section 13(1A) would practically be redundant.
4. On 27th August, 1973, the Court held that the application by
Respondent (wife) was granted a decree of restitution of conjugal
rights by the Additional Senior Sub-Judge, Delhi.
5. Even after not complying with the decree of restitution of
conjugal rights, a little over the two years, The court had granted
a decree of divorce to the wife was also upheld in the Supreme
Court.
While the arguments and precedents were heard by the Court, J. Gupta
dismissed the appeal on the basis that the Respondent was entitled
to defy the decree of conjugal rights if she didn’t want to cohabitate
with the Appellant. And to file for a decree of divorce was well within
her rights. The “wrong” mentioned in the Act isn’t substantial for
defying the decree. Thus, the appeal was dismissed and the Decree of
Divorce was upheld.
130 FAMILY LAW -I (HINDU LAW)
5. Hunooman Prasad Pandey V Muss Babooi Moonraj Kanwar ( (1856) 6
MLA 393):
Introduction:
This was an appeal from a decree of the Sudder Dewanny Court of
Agra, which reversed the judgment of the Principal Sudder Ameen of
the District of Goruckpore, pronounced in favour of the Appellant, in
a suit which was brought by Lal Inderdowun Singh, since deceased,
and now represented by the Respondent, his son, against the
Appellant, the chief Defendant, and Ranee Degumber Koonweree.
The object of the suit was, first, to recover possession of certain
ancestral estates called Daree Deha, Mohundur, & c. situate in the
Pergunnah Nugger Bustee, in the District of Goruckpore, with mesne
profits and interest; and, secondly, to set aside a mortgage Bond,
dated Assar Soodee Poornumashee, Fuslee (July, 1839), and to cancel
the Appellant‘s name as mortgagee in the Collector‘s records.
Facts of the case:
The Appellant, a Banker, carrying on business in the District of
Goruckpore, was in the habit of making advances and loans to the
neighbouring landholders. His father, Buccus Panday, before him,
had been engaged in the same business, and in the course of the
latter‘s transactions he had advanced the sum of Rs. 8,002, to Raja
Tobraj Singh, the paternal ancestor of Lal Seetla Buksh Bahadur Singh,
of whom the Respondent was guardian. On the occasion of this
advance, Raja Tobraj Singh executed several deeds, conveying certain
villages, part of his estate, by way of usufruct mortgage, to the
Appellant‘s father. In 1235 Falguni Samvat (F.S.), Fuslee, after the
death of Raja Tobraj Singh, an adjustment of accounts took place
between Appellant‘s father and Raja Sheobuksh Singh, the son and
heir of Raja Tobraj Singh, when a balance of Rs. 5,252, as against
Raja Sheobuksh Singh, was agreed on. For this sum Bonds were given
and certain lands and villages were assigned to Appellant‘s father by
Raja Sheobuksh Singh by way of usufruct mortgage. Raja Sheobuksh
Singh died shortly after this transaction, leaving an only son, Lal
Inderdowun Singh, an infant, whereupon his widow, Ranee Degumber
Koonweree, assumed the proprietorship of the estates of her late
husband, and the guardianship of his infant son. Her name was
registered with that of Lal Inderdowun Singh, the infant, on the records,
until he attained his majority, when a deed of gift having been executed
by the Ranee in his favour, her name was removed from the Government
register of landowners by a petition for mutation in the ordinary way.
In 1239, Fuslee, after the death of Raja Sheobuksh Singh, another
adjustment of accounts took place between the Appellant (who had
in the meantime succeeded to the business and property of his father,
According to syllabus of Dr. Bhimrao Ambedkar Law University, Jaipur 131
then deceased) and Ranee Degumber Koonweree, as the representative
of her husband, in which a balance of Rs. 3,200 was agreed to be
debited to the Ranee. In the same year, the family estates being in
arrear of the revenue payable to Government, and in danger of
sequestration by reason of such arrear, the Appellant, under authority
of an order from Ranee Degumber Koonweree, paid into the local
Collectorate, to the account of such arrears, Rs. 3,000, for which sum
the Ranee afterwards executed three several Bonds, of Rs. 1,000 each,
and bearing date respectively Phagoon Soodee Poornumashee F. S.
1243, Assar Soodee Poornumashee F. S. 1243, and Katikbudee
Poornumashee F. S. 1244. Previous to executing the abovementioned
Bonds, the Ranee had, in consideration of Rs. 1,200 part of the balance
before found to be due to the Appellant, and of a further loan of Rs.
600 from Goordial Panday (which was afterwards repaid by the
Appellant), executed to the Appellant and Goordial Panday a Bond
and deed of mortgage, conveying to them the Mouzas Mohunder and
Dee Mar in usufruct, granting at the same time a lease of the same to
him for the whole term of the mortgage. In the month Sawun, in the
same year, the Ranee executed a mortgage to the Appellants, charging
200 beegahs of land lying in Bundeheree, in consideration of Rs.
1,000 part of the balance of Rs. 2,000, then remaining unsecured. In
F. S. 1244, the Appellant, having paid off certain incumbrances of the
amount of Rs. 4,000, which the Ranee had previously effected on the
lands of the Raj, received from her a Deed dated Teyt Soodee
Poornumashee F. S. 1244, conveying to him in usufructuary mortgage
the villages Dee Mar, Daree Deha, and Mohunder, also a pottah for
the same, bearing the same date; the consideration for the whole
being Rs. 5,000 of which sum Rs. 1,000 was the balance due on the
original account, and Rs. 4,000 the amount of incumbrance paid off
by the Appellant. In F. S. 1246 a final adjustment of accounts took
place between the Appellant and Ranee Degumber Koonweree, in which
the items stood as follows: –
Monies paid by Appellant to Tahsildah on account of Government
revenue due from the Raj, Rs. 5,186; amount of monies secured by
mortgage of Mohunder, Daree Deha, and lands in Dee Mar, Rs.. 5,000;
amount secured by mortgage of Bundeheree, Rs. 1,000; amount
secured by three several Bonds of Ranee Degumber Koonweree for Rs.
1,000 each, Rs. 3,000; amount due, being balance of Rs. 1,500 secured
by Bond, Rs. 814; making in the whole, Rs. 15,000. On this balance
having been ascertained, the Ranee and Lal Inderdowun Singh, then a
minor, by a mortgage Bond, dated Assar Soodee Poornumashee F.S.
1246, conveyed to the Appellant in usufructuary mortgage Daree Deha,
Dee Mar, Bundeheree, Raja baree, Mohunder, and Gundherea Faiz,
132 FAMILY LAW -I (HINDU LAW)
which transaction formed the subject of the present suit. In this Bond
the Ranee was described as being possessed of the mortgaged
property in proprietary right.
Apart from these transactions of loan and mortage, Raja Sheobuksh
Singh granted to the Appellant in Birt some thirty beegahs of waste
land lying in Bundeheree, in consequence of which grant Appellant
expended much money in reclaiming the waste, erecting buildings,
and otherwise improving the land. Ranee Degumber Koonweree
afterwards, finding that Appellant possessed no evidence of his Birt
title, compelled him to pay Rs. 500 for a Birt puttee, which she
executed. Besides this portion of Birt lands the Appellant had
purchased three and a half beegahs, lying in Dee Mar, from Gosain
Musan Nath Fakir, to whom they had been granted for religious services
by Raja Pirthee Pal Singh, the ancestor of the original Plaintiff.
On the 10th December, 1849, Lal Inderdowun Singh, having then
attained his majority, filed a plaint in the Zillah Court of the Principal
Sudder Ameen of Goruckpore against the Appellant and Ranee
Degumber Koonweree, for the possession of Zemindary right,
unincumbered by Birt, of Daree Deha, Mohunder, Gundherea Faiz and
of certain lands lying in Bundeheree, Dee Mar, and Rajabaree; also to
set aside the mortgage Bond before mentioned, bearing date Assar
Soodee Poornumashee F. S. 1246, and to oust the Appellant. The plaint
alleged that Ranee Degumber Koonweree had acted as the guardian
of the Plaintiff and managed his affairs for him during his minority;
that she being a Purdah Nasheen and totally ignorant of matters of
business, and been imposed on and deceived by her servants and
agents, who had, without her knowledge or authority, made contracts
of loan and mortgage with divers parties, and effected encumbrances
on the Plaintiff‘s property; that the Appellant, among others, had by
collusion and fraud obtained from them, under pretence of mortgage,
the possession of certain lands and villages; that the villages and
lands so unlawfully possessed by the Appellant were component
parts of Plaintiff‘s ancestral Raj, and inalienable by the act of a
guardian.
The Answer of the Appellant set forth the circumstances above stated
under which the debts were contracted and the mortgage Bonds
executed, and traversed the allegations respecting the Ranee‘s
ignorance of matters of business and the Appellant‘s collusion with
the Ranee‘s agents; and alleged that the Plaintiff, in F. S. 1255, after he
had attained majority, had personally acknowledged the validity of
the mortgage Bond and the debt due under it; that the Appellant in
expressing a desire to redeem Gundherea Faiz and Baree (which
second village was not included in the suit), had proposed to execute
a fresh mortgage of Mohunder, Daree Deha, and the lands in
Bundeheree, De Mar and Rajabaree, and that the Plaintiff, since
According to syllabus of Dr. Bhimrao Ambedkar Law University, Jaipur 133
attaining majority, had borrowed money on Bond from the Appellant,
and the Appellant by his Ans. finally insisted that the amount of
mesne profits was greatly exaggerated.
The Answer of the Ranee Degumber Koonweree averred ignorance of
the matters in issue, asserting that the Appellant had been for some
time employed by her in the capacity of Manager.
Lal Inderdowun Singh having died, Mussumat Babooee Munraj
Koonweree, the Respondent, was admitted by the Court to prosecute
the suit as guardian of Lal Seetla Buksh Bahadur singh, the infant son
and heir of Lal Inderdowun Singh.
One Ranee Digambar Konwari was the guardian of her son, Inderdown
Singh, during his minority. She mortgaged some ancestral estate to
the defendant Hanooman ft asad.
When Inderdown Singh attained majority he challenged the mortgage
to the defendant on the ground that his mother was deceived by the
defendant.
The defandant denied the allegation. The lower Court dis-missed the
suit but the lower appellate court decreed the suit against which the
defendant appealed to the Privy Council.
The principal points submitted to the court in the argument, were:-
a. As to the validity of the mortgage Bond, whether it was executed by
the Ranee at all, and further, as the Bond purported to be executed by
her in a beneficial character, if it constituted a valid encumbrance on
the Raj
b. Whether the incumbrance created by Raja Sheobuksh Singh entitled
the Appellant to retain possession of the villages and lands in the
mortgage Bond executed by him until such incumbrance was paid off,
or whether it was a personal charge only on the heir; and the Appellant
had not a right to stand in the place of the Ranee in respect of the
monies he had advanced.
c. Whether it was competent by the Hindoo law to the Ranee, as the
registered proprietor of the family estate and curator of the infant‘s
property, to charge ancestral estates by way of mortgage, in
consideration of the advances made for the benefit of the minor‘s
estate, to prevent a sequestration and probable confiscation.
d. Whether after the Factum of the mortgage Bond was establised, and
proof of the advances made, the presumption of law was not in favour
of the charge, and the onus probandi was not upon the heir to disprove
the necessity of the advances.
Judgment:
They held that the mortgage was, in fact, exe-cuted but the mortgagee
took the mortgage from a limited owner, so the burden of proof of
necessity lay upon him. In the opinion of their Lordships the case of
mortgage for something had been made out prima facie.
134 FAMILY LAW -I (HINDU LAW)
But they remitted the case for further enquiry with the follow-ing
general principles to be applied in the decision of the cases:
1. Under the Hindu Law, the power of a manager of an infant heir to
change the estate, is a limited and qualified power which can only be
exercised in a case of need or for the benefit of the estate. The actual
pressure on the estate, the danger to be averted or the benefit to be
conferred upon it, in the particular instance, is thing to be regarded.
2. Where in the particular instance, the charge is one that a prudent
owner will make in order to benefit the estate the bona fide lender is
not affected by the precedent mismanagement of the estate, even
though it be shown that with better management the estate might
have been kept free from debt.
3. But if the danger to the estate arisen has from any mis-conduct to
which the lender was a party, he cannot take advan-tage of his own
wrong to support a charge, in his own favour grounded on a necessity
which is wrong and has helped the cause.
4. The lender is bound to enquire into the necessities for the loan, and
to satisfy himself as well as he can, with reference to the parties with
whom he is dealing, that the manager is acting, in the particular
instance, for the benefit of the estate.
5. If the lender makes proper enquiry as to the necessity for the loan,
and acts honestly, the real existence of the alleged ne-cessity is not a
condition precedent to the validity of his charge.
6. The lender is not bound to see to the application of the money
advanced.
7. By the Hindu Law, freedom of the son from the obliga-tion to discharge
the father’s debt, has respect to the nature of the debt and not to the
nature of the estate. Unless the debt is of such a nature that it is not
the duly of the son to pay the discharge of it, even though it affects the
ancestral estate, it will still be an act of pious duly in the son.
According to syllabus of Dr. Bhimrao Ambedkar Law University, Jaipur 135
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