F I - Google Docs

1
UNIT ­1 MARRIAGE AND KINSHIP
1.1 Evolution of the institution of marriage and family
1.2 Role of religion, rituals, and practices in moulding the rules regulating marital
relations.
1.3 Types of family based upon:
Lineages ­ Partrilineal matrilineal
Authority structure ­ patriarchal and matriarchal
Location patrilocal and matrilocal
Number of conjugal units nuclear, extended, joint and composite
1.4 Applicability of law
Who is a Hindu
who is a Muslim
who is a Christian
Sources of Hindu law
Muslim law
Christian law
UNIT ­2 CUSTOMARY PRACTICES AND THE STATE
2.1 Polygamy
2.2 Concubinage
2.3 Child marriage
2.4 Sati
2.5 Dowry
UNIT ­3 CONVERSION AND ITS EFFECT ON FAMILY
3.1 Marriage
3.2 Adoption
3.3 Guardianship
3.4 Succession
UNIT­4 MATRIMONIAL REMEDIES
4.1 Non­Judicial resolution of marital conflict problems
(a) Customary dissolution of marriage­unilateral divorce, divorce by mutual
consent and other modes of dissolution
(b) Divorce under Muslim Personal law ­ Talaq and talaq­e­tafweez
4.2 Judicial resolution of marital conflict problems: a general perspective of
matrimonial fault theory and the principle of irretrievable breakdown of marriage
4.3 Nullity of marriage
4.4 Option of puberty
4.5 Restitution of conjugal rights
4.6 Judicial separation
4.7 Desertion: a ground for matrimonial relief
4.8 Cruelty : a ground for matrimonial relief
4.9 Adultery : a ground for matrimonial relief
4.10 Other grounds for matrimonial relief

2
4.11 Divorce by mutual consent under Special Marriage Act, 1954
4.12 Bars to matrimonial relief
4.12.1 Doctrine of strict proof
4.12.2 Taking advantage of one's own wrong or disability
4.12.3 Accessory
4.12.4 Connivance
4.12.5 Collusion
4.12.6 Condonation
4.12.7 Improper or unnecessary delay
4.12.8 Residuary clause ­ no other legal ground exist for refusing the matrimonial
relief
UNIT­6 CHILD AND THE FAMILY
6.1 Legitimacy
6.2 Adoption
6.3 Custody, maintenance
6.4 Guardianship
UNIT­7 FAMILY AND ITS CHANGING PATTERN
7.1 New emerging trends
7.1.1 Attenuation of family ties
7.3 Process of social change in India
Sanskritization
Westernization
Secularization
Universalization and Parochialization
Modernization
Industrialisation
Urbanization
UNIT ­8 ESTABLISHMENT OF FAMILY COURTS
UNIT­9 SECURING OF A UNIFORM CIVIL CODE
9.1 Religious pluralism and its implications
9.2 connotations of the directive contained in Article 44 of the constitution
9.3 impediments to the formulation of the Uniform Civil Code

3
UNIT ­1 MARRIAGE AND KINSHIP
1.1 Evolution of the institution of marriage and family
Transformations in Families and Marriages Families were gradually reshaped by the
discovery of agriculture; for example, the right to own land and pass it on to heirs meant that
women’s childbearing abilities and male domination became more important. Rather than
kinship, marriage became the center of family life and was increasingly based on a formal
contractual relationship between men, women, and their kinship groups. The property and
gender implications of marriage are evident in the exchange of gifts between spouses and
families and clearly defined rules about the rights and responsibilities of each marital partner.
During the Middle Ages, economic factors influenced marital choices more than affection,
even among the poor, and women’s sexuality was treated as a form of property (Coltrane
and Adams 2008:54). Wealth and power inequalities meant that marriages among the elite
and/or governing classes were based largely on creating political alliances and producing
male children (Coontz 2005). Ensuring paternity became important in the transfer of property
to legitimate heirs, and the rights and sexuality of women were circumscribed. Ideologies of
male domination prevailed, and women, especially those who were married to powerful men,
were typically treated like chattel and given very few rights. The property­like status of
women was evident in Western societies like Rome and Greece, where wives were taken
solely for the purpose of bearing legitimate children and, in most cases, were treated like
dependents and 8——Families: A Social Class Perspective confined to activities such as
caring for children, cooking, and keeping house (Ingoldsby 2006). The marriage trends of the
elites were often embraced, at least ideologically, by the other social classes, even when
they lacked the resources to conform to such ideologies. The focus on legalizing marriage
and male domination became common among all classes, although among the less affluent
there was less property to transfer to legitimate heirs, and patriarchy was mediated by the
contributions of women to the family income.
1.2 Role of religion, rituals, and practices in moulding the rules
regulating marital relations.
The growing emphasis on formal marriage contracts and patriarchy was reinforced in
Western societies by the influence of Christianity and the law. Christianity was initially seen
as a sect of Judaism, but with the conversion of Emperor Constantine in AD 313, it became
the established religion and rose to dominate European social life for centuries (Goldthorpe
1987). Christianity may have helped foster monogamy, but it distinguished itself from its
forebearer, Judaism, by breaking away from Jewish traditions— which had celebrated
married life, marital sexuality, and especially procreation—and providing a more circumspect
view of marriage. The exposure of early Christians to the overt sexuality and eroticism that
was common in Rome (Coltrane and Adams 2008:49), along with the Apostle Paul’s
denunciation of marriage and the belief that the return of Jesus was imminent, led church

4
leaders to eschew marriage and teach that celibacy was a higher, more exalted way of life.
For many, there was an inherent conflict between pursuing the spirit and satisfying the flesh,
and marriage led to the latter. Marriage was allowed, but commonly seen as a union created
as the result of original sin. Thus, in most cases, marriage ceremonies had to be held
outside the church doors, and a sense of impurity surrounded even marital sex and
childbearing (Coltrane and Adams 2008). The marginalization of family life and marriage by
early Christianity reinforced traditions that were unique to Western Europe and enhanced the
wealth of the Church. Goldthorpe (1987) points out that bilateral kinship, consensual
marriages, singleness as a viable option, and the nuclear family structure were common in
Western Europe even before the influence of Christianity. But this restricted sense of kinship
helped the Church become immensely wealthy, as its teachings discouraged marriage,
stated that Christians should put the needs of the Church before family loyalties, and
encouraged them to leave their property to the Church rather than to relatives (pp. 12–13).
Around AD 1200, however, there was a reversal of this doctrine. Both Christian leaders and
the state began to assume a larger role in defining and governing marriages, and within a
century they had declared marriage a sacrament of the Christian Church and an indissoluble
union (Yalom 2001; Thornton et al. 2007). Not all Christians accepted the notion of marriage
as a sacrament, which essentially placed entering and dissolving marital unions under the
control of the Church. Protestantism especially rejected this teaching, and the numerous
sects it fostered drew on the Bible to justify a variety of marriage practices, including
polygamy. Over time, however, mainstream Christian teachings supporting monogamy, non
marital chastity, and marital fidelity were seen as strengthening the nuclear family, although
they did little to elevate the position of women (Ingoldsby 2006). As the state and Church
initiated efforts to regulate marriage, it became the core of the family; however, the debate
over how one entered a legal marriage continued in most Western nations through the early
1900s. People often rejected the idea of religious and state control over marriage or, more
practically, simply ignored such rules about licenses and ceremonies because they lived in
remote areas that made it difficult for them to avail themselves of bureaucratic procedures.
The long tradition of informal marriages— described as “self­marriages” or “living
tally”—continued, and it was common for poor people to live as married without benefit of
legal ceremony (Cherlin 2009). As Nancy Cott (2000:28) explains, the federal government
had few ways to enforce its views on marriage, and state laws varied, often only specifying
that marriages could not be bigamous, incestuous, or easily terminated. Thus, although
states and religious authorities had been given the authority to perform marriage
ceremonies, there was ambiguity over exactly what constituted a legal marriage. The most
common bases for declaring marriages valid were mutual consent, cohabitation, and sexual
consummation of the relationship, although not all of these criteria had to be met for a legally
recognized marriage to exist (Thornton et al. 2007:60).
1.3 Types of family based upon:
Lineages ­ Partrilineal matrilineal
Patrilineality, also known as the male line, the spear side, or agnatic kinship, is a common
kinship system in which an individual's family membership derives from and is traced

5
through his or her father's lineage. It generally involves the inheritance of property, rights,
names, or titles by persons related through male kin.
The fact that human Y­chromosome DNA (Y­DNA) is paternally inherited enables patrilines,
and agnatic kinships, of men to be traced through genetic analysis.
Y­chromosomal Adam (Y­MRCA) is the patrilineal most recent common ancestor from whom
all Y­DNA in living men is descended. An identification of a very rare and previously
unknown Y­chromosome variant in 2012 led researchers to estimate that Y­chromosomal
Adam lived 338,000 years ago, judging from molecular clock and genetic marker studies.
Before this discovery, estimates of the date when Y­chromosomal Adam lived were much
more recent, estimated to be tens of thousands of years.
Matrilineality is the tracing of descent through the female line. It may also correlate with a
societal system in which each person is identified with their matriline – their mother's lineage
– and which can involve the inheritance of property and/or titles. A matriline is a line of
descent from a female ancestor to a descendant (of either sex) in which the individuals in all
intervening generations are mothers – in other words, a "mother line". In a matrilineal
descent system, an individual is considered to belong to the same descent group as her or
his mother. This matrilineal descent pattern is in contrast to the more common pattern of
patrilineal descent from which a family name is usually derived.
Authority structure ­ patriarchal and matriarchal
Patriarchy is a social system in which males hold primary power , predominate in roles of political
leadership, moral authority , social privilege and control of property. In the domain of the family,
fathers or father­figures hold authority over women and children. Some patriarchal societies are
also patrilineal , meaning that property and title are inherited by the male lineage and descent is
reckoned exclusively through the male line, sometimes to the point where significantly more
distant male relatives take precedence over female relatives.
Matriarchy is a social system in which females hold primary power, predominate in roles of
political leadership, moral authority, social privilege and control of property at the specific
exclusion of men, at least to a large degree.
Location patrilocal and matrilocal
In social anthropology, patrilocal residence or patrilocality, also known as virilocal residence
or virilocality, are terms referring to the social system in which a married couple resides with
or near the husband's parents. The concept of location may extend to a larger area such as
a village, town or clan territory. The practice has been found in around 70 percent of the
world's cultures.

6
In social anthropology, matrilocal residence or matrilocality (also uxorilocal residence or
uxorilocality) is a term referring to the societal system in which a married couple resides with
or near the wife's parents. Thus, the female offspring of a mother remain living in (or near)
the mother's house, thereby forming large clan­families, typically consisting of three or four
generations living in the same place.
Number of conjugal units nuclear, extended, joint and composite
A nuclear family or elementary family is a family group consisting of a pair of adults and their
children.This is in contrast to a single­parent family, to the larger extended family, and to a
family with more than two parents. Nuclear families typically centre on a married couple; the
nuclear family may have any number of children.
An extended family is a family that extends beyond the nuclear family, consisting of aunts,
uncles, and cousins all living nearby or in the same household. An example is a married
couple that lives with either the husband or the wife's parents. The family changes from
immediate household to extended household. [1] In some circumstances, the extended
family comes to live either with or in place of a member of the immediate family. These
families include, in one household, near relatives in addition to an immediate family. An
example would be an elderly parent who moves in with his or her children due to old age.
Historically, for generations India had a prevailing tradition of the joint family system or
undivided family. The system is an extended family arrangement prevalent throughout the
Indian subcontinent, particularly in India, consisting of many generations living in the same
home, all bound by the common relationship. A patrilineal joint family consists of an older
man and his wife, his sons and daughters and his grandchildren from his sons and
daughters.
1.4 Applicability of law
Who is a Hindu
The term Hindu is derived from Greek word Indoi. Greeks used to call inhabitants of the
indus valley as Indoi. The law which governs Hindus is called Hindu Law.
Hindus may be subdivided into following Categories
1. Hindu by Birth ­ One or Both Parents are Hindus at the time of the Birth
2. Hindu by Religion ­ Hindus, Jains, Sikhs, Buddhists by Religion
3. Hindu by Conversion ­ Converts or Reconverts to Hindu, Jain, Buddhist

7
who is a Muslim
Muslim is a person who believes that Allah is the only God and Mohammed Prophet is his
messenger. Also he believes that Quran is the compilations of words directly revealed by
God to Mohammed Prophet.
Muslims may be subdivided into following Categories
1. Muslim by Birth ­ Both the parents are Muslims and he is brought up as Muslim
2. Muslim by Religion ­ Sunnis and Shias
3. Muslim by Conversion ­ One who converts as Muslim by accepting Allah, Quran and
Prophet. He can go to Majid and can sign register with Imam to become a Muslim.
who is a Christian
Sources of Hindu law
1. Ancient Sources
a. Sruti ­ Vedas
b. Smriti ­ Manu smriti
c. Commentaries and Digests ­ Manu Bhashyam
d. Custom ­ Achara or Usage ­ Achara Paramodharmaha
i. Local Custom
ii. Family Custom
iii. Caste Custom
2. Modern Sources
a. Equity, Justice and good conscience
b. Precedent
c. Legislation
Muslim law
Christian law

8
UNIT ­2 CUSTOMARY PRACTICES AND THE
STATE
2.1 Polygamy
Polygamy (from Late Greek polygamia, "state of marriage to many spouses") involves
marriage with more than one spouse. When a man is married to more than one wife at a
time, it is called polygyny. When a woman is married to more than one husband at a time, it
is called polyandry.
Thus Polygamy became illegal in India in 1956, uniformly for all of its citizens except for
Hindus in Goa where bigamy is legal, and for Muslims, who are permitted to have four wives.
In a polygamous Hindu marriage is null and void.
(1) The offence known as ‘bigamy’ is committed when a person having a husband or wife
living, (2) marries in any case in which marriage is void, (3) by reason of it taking place
during the life of such husband or wife. Such person is punishable with imprisonment of
either description upto seven years and fine. (Section 494)
2.2 Concubinage
Concubinage is an interpersonal relationship in which a person engages in an ongoing
sexual relationship with another person to whom they are not or cannot be married to the full
extent of the local meaning of marriage. The inability to marry may be due to multiple factors
such as differences in social rank status, an existent marriage, religious prohibitions,
professional ones (for example Roman soldiers) or a lack of recognition by appropriate
authorities. The woman in such a relationship is referred to as a concubine.
The prevalence of concubinage and the status of rights and expectations of a concubine
have varied between cultures as well as the rights of children of a concubine. Whatever the
status and rights of the concubine, they were always inferior to those of the wife, and
typically neither she nor her children had rights of inheritance. Historically, concubinage was
frequently entered into voluntarily (by the woman or her family) as it provided a measure of
economic security for the woman involved. Involuntary or servile concubinage sometimes
involved sexual slavery of one member of the relationship, usually the woman.
Keeping a concubine is a good ground for divorce. Under the ancient hindu law, a hindu can
keep as many wives as his physical and monetary capacity permitted him to do so. This
defect of ancient hindu law is removed and now husband can marry only one wife and
cannot keep concubine.
On the other hand, Muslim law is very strict about Concubinage. It permits a man to keep 4
wives but not a concubine. It is specifically provided in the Islamic law that a concubine

9
doesn’t have any right of inheritance nor the children of concubine will have any right of
inheritance. They will be treated as Bastards.
2.3 Child marriage
Child marriage in India, according to the Indian law, is a marriage where either the woman is
below age 18 or the man is below age 21. Most child marriages involve underage women,
many of whom are in poor socio­economic conditions.
The Child Marriage Restraint Act of 1929
The Child Marriage Restraint Act, also called the Sarda Act, was a law to restrict the practice
of child marriage. It was enacted on 1 April 1930, extended across the whole nation, with the
exceptions of the states of Jammu and Kashmir, and applied to every Indian citizen. Its goal
was to eliminate the dangers placed on young girls who could not handle the stress of
married life and avoid early deaths. This Act defined a male child as 21 years or younger, a
female child as 18 years or younger, and a minor as a child of either sex 18 years or
younger. The punishment for a male between 18 and 21 years marrying a child became
imprisonment of up to 15 days, a fine of 1,000 rupees, or both. The punishment for a male
above 21 years of age became imprisonment of up to three months and a possible fine. The
punishment for anyone who performed or directed a child marriage ceremony became
imprisonment of up to three months and a possible fine, unless he could prove the marriage
he performed was not a child marriage. The punishment for a parent or guardian of a child
taking place in the marriage became imprisonment of up to three months or a possible fine.
It was amended in 1940 and 1978 to continue raising the ages of male and female children.
The Prohibition of Child Marriage Act, 2006
In response to the plea (Writ Petition (C) 212/2003) of the Forum for Fact­finding
Documentation and Advocacy at the Supreme Court, the Government of India brought the
Prohibition of Child Marriage Act (PCMA) in 2006, and it came into effect on 1 November
2007 to address and fix the shortcomings of the Child Marriage Restraint Act. The change in
name was meant to reflect the prevention and prohibition of child marriage, rather than
restraining it. The previous Act also made it difficult and time consuming to act against child
marriages and did not focus on authorities as possible figures for preventing the marriages.
This Act kept the ages of adult males and females the same but made some significant
changes to further protect the children. Boys and girls forced into child marriages as minors
have the option of voiding their marriage up to two years after reaching adulthood, and in
certain circumstances, marriages of minors can be null and void before they reach
adulthood. All valuables, money, and gifts must be returned if the marriage is nullified, and
the girl must be provided with a place of residency until she marries or becomes an adult.
Children born from child marriages are considered legitimate, and the courts are expected to
give parental custody with the children's best interests in mind. Any male over 18 years of
age who enters into a marriage with a minor or anyone who directs or conducts a child
marriage ceremony can be punished with up to two years of imprisonment or a fine.

10
2.4 Sati
Sati is an obsolete Hindu funeral custom where a widow immolated herself on her
husband's pyre, or committed suicide in another fashion shortly after her husband's death.
Mention of the practice can be dated back to the 4th century BC,while evidence of practice
by wives of dead kings only appears beginning between the 5th and 9th centuries AD. The
practice is considered to have originated within the warrior aristocracy on the Indian
subcontinent, gradually gaining in popularity and spreading to other groups. The practice
was particularly prevalent among some Hindu communities.
THE COMMISSION OF SATI (PREVENTION) ACT
Sati (Prevention) Act, 1987 is law enacted by Government of Rajasthan in 1987. It became
an Act of the Parliament of India with the enactment of The Commission of Sati (Prevention)
Act, 1987 in 1988. The Act seeks to prevent Sati practice or the voluntary or forced burning
or burying alive of widows, and to prohibit glorification of this action through the observance
of any ceremony, the participation in any procession, the creation of a financial trust, the
construction of a temple, or any actions to commemorate or honor the memory of a widow
who committed sati.
2.5 Dowry
The Dowry system refers to the durable goods, cash, and real or movable property that the
bride's family gives to the bridegroom, his parents, or his relatives as a condition of the
marriage. It is essentially in the nature of a payment in cash or some kind of gifts given to the
bridegroom's family along with the bride and includes cash, jewellery, electrical appliances,
furniture, bedding, crockery, utensils and other household items that help the newlyweds set
up their home.
The dowry system is thought to put great financial burden on the bride's family. In some
cases, the dowry system leads to crime against women, ranging from emotional abuse,
injury to even deaths. The payment of dowry has long been prohibited under specific Indian
laws including, the Dowry Prohibition Act, 1961 and subsequently by Sections 304B and
498A of the Indian Penal Code.
Dowry Prohibition Act, 1961
The Dowry Prohibition Act, 1961 consolidated the anti­dowry laws which had been passed
on certain states. This legislation provides for a penalty in section 3 if any person gives,
takes or abets giving or receiving of dowry. The punishment could be imprisonment for a
term not less than 5 years and a fine not less than ₹15,000 or the value of the dowry
received, whichever is higher. Dowry in the Act is defined as any property or valuable
security given or agreed to be given in connection with the marriage. The penalty for giving
or taking dowry is not applicable in case of presents which are given at the time of marriage
without any demand having been made.

11
UNIT ­3 CONVERSION AND ITS EFFECT ON
FAMILY
The effects of conversion from one religion to another under Hindu Law are described
below:(A) Law Applicable: The effect of conversion from one religion to another on the law
applicable to the convert was considered by the Privy Council in Abraham v. Abraham,
1863 (9) MIA 195. M.Abraham’s ancestors were Hindus who were converted into
Christianity. On the death of M. Abraham his widow brought the suit for recovery of his
property. This suit was resisted by his brother F. Abraham who contended that his ancestors
continued to be governed by the Hindu Law in spite of conversion. He accordingly claimed
that he was entitled to the entire property according to the Hindu Law of survivorship
applicable to a joint Hindu family. The Privy Council held: — (1) The effect of conversion of a
Hindu to Christianity is to sever his connection with the Hindu family. (2) Such a person may
renounce the Hindu Law but is not bound to do so. He may elect “to abide by the old law,
notwithstanding that he has renounced the old religion” (3) The course of conduct of the
convert after his conversion would show by what law he had elected to be governed. Under
the third principle it was found that M. Abraham had married a Christian woman who was
born to an English father and a Portuguese mother, that he adopted English dress and
manner. It was clear, therefore, that he had elected against the Hindu Law and so the
defendant’s contention based upon the Hindu Law of survivorship was rejected. In 1865 the
Indian Succession Act was passed and it regulated succession to the property of Christian.
The question arose whether even after the passing of this Act; it was open to a Christian
convert from Hinduism to elect to be governed by the Hindu Law of Succession. It was held
by the Privy Council in Kamuwati v. Digbijai Singh, 43 All. 525 (PC), that after the coming
into force of the Act of 1865 the rule in Abraham’s case ceased to be applicable so far as law
of the inheritance is concerned. The plaintiff in that case who was the sister of the deceased
owner, who was a Christian convert from Hinduism, was held to be entitled to succeed to
1/12th of his property under the Act of 1865 and the defendant’s (brother’s) claim based
upon Hindu Law to succeed to the entire property was rejected. But in spite of the Act of
1865, a Hindu convert to Christianity could elect to be governed by the rule of survivorship in
a joint family: Francis Ghosal v. Grabri Ghosal, 31 Bom. 251 (PC).So the rule of electing to
be governed by Hindu Law was applicable to a limited extent to Christian converts even after
1865. In the case of conversion to Mohammedanism also the old rule was that by custom
the convert had an option to be governed by the old Hindu Law. Thus Khojas and Cutchi
Memons of Bombay State were governed in matters of succession by Hindu Law though
they had been converted to Islam. The Shariat Act, 1937, has put an end to this. Under that
Act converts to Islam are governed by Mahomedan Law only and not by the law to which
they were subject prior to the conversion.

12
3.1 Marriage
Conversion of one of the parties to a marriage has certain effect under the law applicable
prior to conversion. If a Mahomedan husband renounces Islam and embraces
another religion, the marriage is immediately treated as dissolved: If a Mahomedan wife
embraces another religion, the same consequence followed under the Mahomedan Law but
the law has been modified by the Dissolution of Muslim Marriage Act, 1939. Under that Act
the wife canon her conversion seek a divorce on any of the grounds mentioned in that Act.
Under the Hindu Marriage Act, 1955, conversion of either party is per se a ground for
seeking divorce to the other party. Thus if the wife renounces Hinduism the husband can
seek a divorce and vice versa [Sec. 13 clauses (1) sub­clause (ii)]. In Vilayat v. Sunila, AIR
1983 Delhi 351, the question has arisen whether a Hindu husband,who has embraced Islam
subsequent to the marriage, can file a petition for divorce under the Hindu Marriage Act. It
was held by Leila Seth. J., that he could do so for under s. 13 “at the time of presentation of
the petition, the parties need not be Hindus”. In this view the person allaw according to which
the marriage took place will govern the rights of the parties as to the dissolution of the
marriage. Suppose both the parties to the marriage embrace Islam. The view of Leila Seth.
J., would still subject the parties to the remedies available under the Hindu Law in regard to
the dissolution of the marriage. But such a view is opposed to the rule laid down in
Khambatta v.Khambatta, 1934 (36) Bom. LR 1021, where in such a situation divorce by
Talak under the Mahomedan Law was upheld.Thus the view of Leila Seth, cannot be
pressed to its logical conclusion. It should be restricted to the facts of that case. If one of the
parties to a Hindu marriage becomes a convert to another religion, he is not according to this
view, disabled from filing a petition under s. 13of the Hindu Marriage Act, 1955.(D) Effect of
Conversion on Right to Maintenance: Under the Hindu Law conversion from Hinduism
operates as a forfeiture of the right of the convert to claim maintenance (see s. 24 the Hindu
Adoptions and Maintenance Act, 1956).When the husband renounces Hinduism, his Hindu
wife becomes entitled to claim a right to separate residence and maintenance from him
Hindu Adoption and Maintenance Act [s. 18(2) (f)]. Conversion from Islam affects a forfeiture
of the pre­existing maintenance rights. When the husband renounces Islam, the marriage is
at an end and so maintenance can be claimed by the wife during the period of iddat.
3.2 Adoption
3.3 Guardianship
The paramount consideration in regard to guardianship is the welfare of the minor. So when
the parent having guardianship changes his or her religion, it is a factor to be taken into
account in considering the fitness of the parent to continue as guardian. This was decided by
the Privy Council in Helen Kinner v. Sophia, 14 МIA 309

13
3.4 Succession
Under the Hindu Law a convert from Hinduism could not inherit to the Hindu
relations.Similarly under the Mahomedan Law a convert from Islam to some other religion is
excluded from inheritance. This rule has been abrogated by the Caste Disabilities Removal
Act, XXI of 1850. This Act is also called the Freedom of Religion Act. It has abolished the
customary law which entails forfeiture of rights inheritance consequent upon conversion or
deprivation of caste.

14
UNIT­4 MATRIMONIAL REMEDIES
4.1 Non­Judicial resolution of marital conflict problems
(a) Customary dissolution of marriage­unilateral divorce, divorce by
mutual consent and other modes of dissolution
(1) By Mutual Consent:
The custom of obtaining divorce by mutual consent is prevalent among certain castes in
Bombay, Madras, Mysore and Kerala. In Madhya Pradesh it has been held that divorce by
mutual consent is a valid custom among the Patwas of that State.
A customary form of divorce by agreement (chuttam­chutta) amongst the Barai Chaurasiyas
of Uttar Pradesh has been declared valid by the Allahabad High Court. These are only a few
illustrations to indicate the existence of divorce by mutual consent.
(2) Unilateral Divorce:
According to the custom prevailing in Manipur (Khaniaba), it has been stated that a husband
can dissolve the marriage without any reason or at his pleasure.
Among the Rajpur Gujaratis in Khandesh, and in the Pakhali Community marriage is
dissolved if the husband abandons or deserts the wife.
Among the Vaishyas of Gorakhpur in Uttar Pradesh a husband may abandon or desert his
wife, and dissolution takes place even without reference to the caste tribunal.
(3) Divorce by Deed:
This form is prevalent among certain castes in South India, also in Himachal Pradesh and
the Jat community. Recently the Supreme Court has upheld a deed executed by the
husband divorcing his wife.
Usually customary divorces are through the intervention of the traditional Panchayats of
caste tribunals. Therefore, in States where this has not been customary, the courts have not
permitted Panchayats to take upon themselves the right to dissolve a marriage. Once the
custom is proved, however, the courts will not interfere.
The courts have exercised a lot of judicial scrutiny and discretion in upholding or rejecting
such customary divorce practices. In doing so they have applied the strict test for the validity
of such customs.

15
When the existence of a custom was not proved, or where the custom could be regarded as
running counter to the spirit of Hindu Law, or was against public policy or morality, courts
have declared such customary forms of divorce as invalid.
Under customary law there is no waiting period after divorce to remarry. But if divorce is
obtained under the Hindu Marriage Act, then either party to the marriage can lawfully
remarry only after a lapse of one year after the decree of divorce (Sec. 15).
Retention of customary forms of divorce under the Hindu Marriage Act is advantageous
because this process of dissolving the marriage saves time and money in litigations. The
only difficulty that may arise is if the divorce according to customary law is brought at some
stage to the notice of the court and the latter decrees that particular form of divorce to be
against public policy or morality. If one or both parties have remarried, such a marriage will
be void and the status of the children will be affected.
To minimize this, it has been suggested that the Ministry of Law should prepare an
exhaustive record of customs relating to divorce found in different States and set up a panel
of socio­legal experts to determine if any of these customs are invalid. Copies of the record
should be made freely and easily available to the people and the Panchayats.
With the enactment of the Hindu Marriage Act of 1955, divorce became a part of the law
governing all Hindus. The ground for this had been already prepared by the passing of the
Hindu Women’s Right to Separate Residence and Maintenance Act in 1946, which inter alia
permitted the wife to separate from her husband on the ground that he had married again.
Following this, some of the States took the initiative and as with monogamy, legislated to
permit divorce for Hindus.
(b) Divorce under Muslim Personal law ­ Talaq and talaq­e­tafweez
Talaq In the ṭalāq divorce, the husband pronounces the phrase "I divorce you" (in Arabic,
talaq) to his wife. A man may divorce his wife three times, taking her back after the first two
(reconciling). After the third talaq they can't get back together until she marries someone
else. Some do a "triple ṭalāq", in which the man says in one sitting "I divorce you" three times
(or "I divorce you, three times", "you're triple divorced"). Many Islamic scholars believe there
is a waiting period involved between the three talaqs, pointing to Quran and various hadiths.
However the practice of "triple ṭalāq" at one sitting has been "legally recognized historically
and has been particularly practiced in Saudi Arabia."
The talaq has three steps:
1. Initiation
2. Reconciliation
3. Completion

16
Talaq­e­tafweez
Where husband delegate the power to give divorce to the wife or to a third person,either
absolutely or conditionally, and either for a particular period or permanently. The delegate
may then pronounce the divorce accordingly; such a divorce is known as “Talaq by Tafweez”
or “ Talaq­e­Tafweez”.
Although the power to give divorce belongs to the husband, yet he may delegate the power
to the wife or to a third person,either absolutely or conditionally, and either for a particular
period or permanently. The person to whom the power is thus delegated may then
pronounce the divorce accordingly. Such a divorce is known as “Talaq by Tafweez”. The
delegation of option called “Tafweez” by the husband to his wife, confers on her the power to
divorce herself. Tafweez is of three kinds:
Kinds of Talaq­e­Tafweez :
Tafweez is of three kinds,
(a)Ikhtiar, giving her the authority to divorce herself.
(b)Amr­ba­yed, leaving the matter in her own hand.
(c)Mashiat, giving her the option to do what she likes.
All these when analyzed, resolve themselves into one, viz, leaving it in her or somebody else
to option to do what she or he likes.
4.2 Judicial resolution of marital conflict problems: a general
perspective of matrimonial fault theory and the principle of
irretrievable breakdown of marriage
There are basically three theories for divorce­fault theory, mutual consent theory &
irretrievable breakdown of marriage theory.
Under the Fault theory or the offences theory or the guilt theory, marriage can be dissolved
only when either party to the marriage has committed a matrimonial offence. It is necessary
to have a guilty and an innocent party, and only innocent party can seek the remedy of
divorce. However the most striking feature and drawback is that if both parties have been at
fault, there is no remedy available.
Another theory of divorce is that of mutual consent. The underlying rationale is that since two
persons can marry by their free will, they should also be allowed to move out of their
relationship of their own free will. However critics of this theory say that this approach will
promote immorality as it will lead to hasty divorces and parties would dissolve their marriage
even if there were slight incompatibility of temperament.
The third theory relates to the irretrievable breakdown of marriage. The breakdown of

17
marriage is defined as “such failure in the matrimonial relationships or such circumstances
adverse to that relation that no reasonable probability remains for the spouses again living
together as husband & wife.” Such marriage should be dissolved with maximum fairness &
minimum bitterness, distress & humiliation.
Some of the grounds available under Hindu Marriage Act can be said to be under the theory
of frustration by reason of specified circumstances. These include civil death, renouncement
of the world etc
4.3 Nullity of marriage
What Is Annulment of Marriage
In strict Legal terminology, annulment refers only to making a voidable marriage null; if the
marriage is void ab initio, then it is automatically null, although a legal declaration of nullity is
required to establish this.
Annulment is a legal procedure for declaring a marriage null and void. With the exception of
bigamy and not meeting the minimum age requirement for marriage, it is rarely granted. A
marriage can be declared null and void if certain legal requirements were not met at the time
of the marriage. If these legal requirements were not met then the marriage is considered to
have never existed in the eyes of the law. This process is called annulment. It is very
different from divorce in that while a divorce dissolves a marriage that has existed, a
marriage that is annulled never existed at all. Thus unlike divorce, it is retroactive: an
annulled marriage is considered never to have existed.
Grounds for Annulment
The grounds for a marriage annulment may vary according to the different legal jurisdictions,
but are generally limited to fraud, bigamy, blood relationship and mental incompetence
including the following:
1) Either spouse was already married to someone else at the time of the marriage in
question;
2) Either spouse was too young to be married, or too young without required court or
parental consent. (In some cases, such a marriage is still valid if it continues well beyond the
younger spouse's reaching marriageable age);
3) Either spouse was under the influence of drugs or alcohol at the time of the marriage;
4) Either spouse was mentally incompetent at the time of the marriage;
5) If the consent to the marriage was based on fraud or force;
6) Either spouse was physically incapable to be married (typically, chronically unable to have
sexual intercourse) at the time of the marriage;
7) The marriage is prohibited by law due to the relationship between the parties. This is the
"prohibited degree of consanguinity", or blood relationship between the parties. The most
common legal relationship is 2nd cousins; the legality of such relationship between 1st
cousins varies around the world.
8) Prisoners sentenced to a term of life imprisonment may not marry.
9) Concealment (e.g. one of the parties concealed a drug addiction, prior criminal record or
having a sexually transmitted disease).

18
Basis of an Annulment
In Section 5 of the Hindu Marriage Act 1955, there are some conditions laid down for a
Hindu Marriage which must be fulfilled in case of any marriage between two Hindus which
can be solemnized in accordance with the requirements of this Act.
Section 5 Condition for a Hindu Marriage ­ A marriage may be solemnized between any two
Hindus, if the following conditions are fulfilled, namely:
(i) Neither party has a spouse living at the time of the marriage;
(ii) At the time of the marriage, neither party,­
(a) is incapable of giving a valid consent of 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 recurrent attacks of insanity or epilepsy;
(iii) The bridegroom has completed the age of twenty one years and the bride the age of
eighteen years at the time of the marriage;
(iv) The parties are not within the degrees of prohibited relationship unless the custom or
usage governing each of them permits of a marriage between the two;
(v) The parties are not sapindas of each other, unless the custom or usage governing each
of them permits of a marriage between the two:
An annulment may be granted when a marriage is automatically void under the law for public
policy reasons or voidable by one party when certain requisite elements of the marriage
contract were not present at the time of the marriage.
Void Marriages
A marriage is automatically void and is automatically annulled when it is prohibited by law.
Section 11 of Hindu Marriage Act, 1955 deals with:
Nullity of marriage and divorce­ Void marriages ­ Any marriage solemnized after the
commencement of this Act shall be null and void and may, on a petition presented by either
party thereto, against the other party be so declared by a decree of nullity if it contravenes
any one of the conditions specified in clauses (i), (iv) and (v), Section 5 mentioned above.
Bigamy ­ If either spouse was still legally married to another person at the time of the
marriage then the marriage is void and no formal annulment is necessary.
Interfamily Marriage. A marriage between an ancestor and a descendant, or between a
brother and a sister, whether the relationship is by the half or the whole blood or by adoption.
Marriage between Close Relatives. A marriage between an uncle and a niece, between an
aunt and a nephew, or between first cousins, whether the relationship is by the half or the
whole blood, except as to marriages permitted by the established customs.
Voidable Marriages
A voidable marriage is one where an annulment is not automatic and must be sought by one

19
of the parties. Generally, an annulment may be sought by one of the parties to a marriage if
the intent to enter into the civil contract of marriage was not present at the time of the
marriage, either due to mental illness, intoxication, duress or fraud.
4.4 Option of puberty
When a minor’s marriage is contracted by any guardian other than the father or father’s
father, the minor has the option to repudiate the marriage on attaining puberty . This option
is legally called as khyar­ul­bulugh or ’option of puberty’ . The right to exercise the option
of puberty is different , in different circumstances , in the case of Mahomedan male and
female .
a) In the case of a female, if after attaining puberty and after being informed of the
marriage and her right to repudiate it, she does not repudiate without unreasonable delay ,
the right of repudiating the marriage is lost,. But according to the Dissolution of Muslim
Marriages Act, 1939, if the marriage has not been consummated , she enjoys the right to
repudiate the marriage before attaining the age of eighteen years .
b) In the case of male, the right continues until he has ratified the marriage either expressly
or impliedly as by payment of dower or by cohabitation.
The Dissolution of Muslim Marriages Act, 1939, has removed all restrictions on the exercise
of option of puberty in the case of a minor girl whose marriage has been arranged by a
father or grandfather .
According to sec.2 (vii) of the Act a wife is entitled to the dissolution of her marriage if she
proves the following facts …..
I) that the marriage has not been consummated
2) that the marriage took place before she attained the age of 15 years and
3) that she has repudiated the marriage before attaining the age of 18 years .
A decree of Court to invalidate the marriage is necessary.
Shia law differs than that of the Sunni law in this respect . According to the Shia law, if a
marriage of minor is brought about by a person other than a father or grandfather the
marriage is wholly ineffective until it is ratified by the minor on attaining puberty .
As regards effects of the exercise of the opinion of puberty , the mere repudiation does not
operate as a dissolution of the marriage. The Court must confirm the repudiation . Uptil
confirmation of the repudiation by the Court the marriage subsists . In the event of death of
either party to the marriage, before confirmation of the repudiation by the Court , the other
will inherit from him or from her, as the case may be.

20
4.5 Restitution of conjugal rights
Section 1 of the Hindu Marriage Act, 1955 embodies the concept of Restitution of Conjugal
Rights under which after solemnization of marriage if one of the spouses abandons the
other, the aggrieved party has a legal right to file a petition in the matrimonial court for
restitution of conjugal rights. This right can be granted to any of the spouse.
This section is identical to section 22 of the Special Marriage Act, 1954. The provision is in
slightly different wordings in the Parsi Marriage and Divorce Act, 1936, but it has been
interpreted in such a manner that it has been given the same meaning as under the Hindu
Marriage Act, 1955 and the Special Marriage Act, 1954. However, the provision is different
under the section 32 Indian Divorce Act, 1869 but efforts are being made to give it such an
interpretation so as to bring it in consonance with the other laws. The provision under Muslim
law is almost the same as under the modern Hindu law, though under Muslim law and under
the Parsi Marriage and Divorce Act, 1936 a suit in a civil court has to be filed and not a
petition as under other laws.
The constitutional validity of the provision has time and again been questioned and
challenged. The earliest being in 1983 before the Andhra Pradesh High Court[4] where the
Hon'ble High Court held that the impugned section was unconstitutional. The Delhi High
Court in Harvinder Kaur v Harminder Singh, though had non­conforming views. Ultimately
Supreme Court in Saroj Rani v. Sudharshan, gave a judgment which was in line with the
Delhi High Court views and upheld the constitutional validity of the section 9 and over­ruled
the decision given in
4.6 Judicial separation
Judicial separation is an instrument devised under law to afford some time for introspection
to both the parties to a troubled marriage. Law allows an opportunity to both the husband
and the wife to think about the continuance of their relationship while at the same time
directing them to live separate, thus allowing them the much needed space and
independence to choose their path.
Judicial Separation and Divorce in India as per Hindu Marriage Act
Judicial separation is a sort of a last resort before the actual legal break up of marriage i.e.
divorce. The reason for the presence of such a provision under Hindu Marriage Act is the
anxiety of the legislature that the tensions and wear and tear of every day life and the strain
of living together do not result in abrupt break – up of a marital relationship. There is no
effect of a decree for judicial separation on the subsistence and continuance of the legal
relationship of marriage as such between the parties. The effect however is on their
co­habitation. Once a decree for judicial separation is passed, a husband or a wife,
whosoever has approached the court, is under no obligation to live with his / her spouse .
The provision for judicial separation is contained in section 10 of the Hindu Marriage Act,

21
1955. The section reads as under:
A decree for judicial separation can be sought on all those ground on which decree for
dissolution of marriage, i.e. divorce can be sought.
Hence, judicial separation can be had on any of the following grounds:
1. Adultery
2. Cruelty
3. Desertion
4. Apostacy (Conversion of religion)
5. Insanity
6. Virulent and incurable form of leprosy
7. Venereal disease in a communicable form
8. Renunciation of world by entering any religious order
9. Has not been heard of as being alive for seven years
If the person applying for judicial separation is the wife, then the following grounds are also
available to her:
Remarriage or earlier marriage of the husband but solemnised before the commencement of
Hindu Marriage Act, 1955, provided the other wife is alive at the time of presentation of
petition for judicial separation by the petitioner wife.
Rape, sodomy or bestiality by the husband committed after the solemnization of his marriage
with the petitioner.
Non­resumption of co­habitation between the parties till at least one year after an award of
maintenance was made by any court against the husband and in favour of the petitioner
wife.
Solemnization of the petitioner wife’s marriage with the respondent husband before she had
attained the age of 15 years provided she had repudiated the marriage on attaining the age
of 15 years but before attaining the age of 18 years.
It is on all the above grounds that judicial separation can be sought. The first 9 grounds are
available to both the husband and the wife but the last four grounds are available only to the
wife. It is to be noted that it is on these grounds that divorce is also to be granted. It has
been held that unless a case for divorce is made out, the question of granting judicial
separation does not arise. Therefore, the Courts while dealing with the applications for
judicial separation shall bear in mind the specific grounds raised for grant of relief claimed
and insist on strict proof to establish those grounds and shall not grant some relief or the
other as a matter of course. Thus on a petition for divorce, the Court has discretion in
respect of the grounds for divorce other than those mentioned in section 13 (1A) and also
some other grounds to grant restricted relief of judicial separation instead of divorce
straightway
if it is just having regard to the facts and circumstances.

22
Another question that arises is of decree of maintenance vis­à­vis decree for judicial
separation. Where a decree for judicial separation was obtained by the husband against her
wife who had deserted him, the wife not being of unchaste character nor her conduct being
flagrantly vicious, the order of alimony made in favour of the wife was not interfered with by
the Court.
4.7 Desertion: a ground for matrimonial relief
In explanation to sub­section (1) of Section 13, Hindu Marriage Act, Parliament has thus
explained desertion: “The expression ‘desertion’ means the desertion of the petitioner by the
other party to the marriage without reasonable cause and without the consent or against the
wish of such party, and includes the willful neglect of the petitioner by the other party to
marriage, and its grammatical variations and cognate expressions shall be construed
accordingly.” [4] In its essence desertion means the intentional permanent forsaking and
abandonment of one spouse by the other without that other’s consent and reasonable
cause. It is a total repudiation on the obligations of the marriage.[5]
For the offence of desertion, so far as the deserting spouse is concerned, two essential
conditions are required: (1) the factum of separation, and (2) the intention to bring
cohabitation permanently to an end (animus deserendi). In actual desertion, it is necessary
that respondent must have forsaken or abandoned the matrimonial home. Suppose, a
spouse every day, while he goes to bed resolves to abandon the matrimonial home the next
day but continues to stay there, he had formed the intention but that intention has not been
translated to action. He cannot be said to have deserted the other spouse.[6] On the other
hand, if a spouse leaves the matrimonial home for studies or business and goes to another
place for some period, with the clear intention that, after completion of studies or work he
would return home but is not able to return because of illness or other work. In this case the
factum of separation is there but, but his intention to desert is lacking, therefore this will not
constitute desertion.
Similarly, two elements are essential so far as the deserted spouse in concerned: (1) the
absence of the consent, and (2) absence of conduct giving reasonable cause to the spouse
leaving the matrimonial home to form the necessary intention . If one party leaves the
matrimonial home with the consent of the other party, he or she is not guilty of desertion. For
instance, if husband leaves his wife to her parent’s house, it is not desertion as husband’s
consent is present. Again, a pregnant wife who goes to her father’s place for delivery without
the consent of the husband cannot be treated in desertion.[7] Desertion is a matter of
inference to be drawn from the facts and circumstances of each case.[8] The offence of
desertion commences when the fact of separation and the animus deserendi co­exist. But it
is not necessary that both should commence at the same time. The de facto separation may
have commenced without the necessary animus or it may be that the separation and the
animus deserendi coincide in point of time.. However it is not necessary that the intention
must precede the factum. For instance, a husband goes abroad for studies, initially he is
contact with wife but slowly he ceases that contact. He develops attachment with another
woman and decides not to return. From this time onwards both factum and animus co­exist
and he becomes a deserter. A mere separation without necessary animus does not
constitute desertion.[9] Both factum of physical separation and animus deserendi must be
proved.[10] It is also necessary that there must be a determination to an end to marital

23
relation and cohabitation. There is nothing like mutual desertion under the Act. One party
has to be guilty.
Burden of proof
In case of desertion, the burden of proof lies upon the petitioner.[30] The petitioner is
required to prove the four essential conditions namely, (1) the factum of separation; (2)
animus deserendi; (3) absence of his or her consent (4) absence of his/her conduct giving
reasonable cause to the deserting spouse to leave the matrimonial home. The offence of
desertion must be proved must be proved beyond any reasonable doubt and a rule of
prudence the evidence of the petitioner shall be corroborated.[31] In short the proof required
in a matrimonial case is to be equated to that in a criminal case.
Constructive desertion
Where a situation or circumstances are created either by actual use of force or by the
conduct of one spouse that the other spouse is compelled to leave the matrimonial home, it
constitutes constructive desertion of the creator of the situation or circumstances. It is not
necessary for the husband in order to desert his wife to actually turn his wife out of doors; it
is sufficient if by his conduct he compelled her to leave the house.[32] It is now well settled
that the matrimonial court has to look at the entire conspectus of the family life and if one
side by his or her words or conduct compels the other side to leave the matrimonial home,
the former would be guilty of desertion, though it is the latter who is seemingly separated
from the other.[33] But where the husband does not take any steps to effect reconciliation,
he is not guilty of constructive desertion.[34]
The ingredients of both actual and constructive desertion are the same: both the elements,
factum and animus must co­exist, in former there is actual abandonment and in the latter,
there is expulsive conduct. Under constructive desertion, the deserting spouse may continue
to stay in the matrimonial home under the same roof or even in the same bedroom. In our
country, in many homes husband would be guilty of expulsive conduct towards his wife to the
extent of completely neglecting her, denying her all marital rights, but still the wife because of
social and economic conditions, may continue to live in the same house.[35]
Willful neglect
It connotes a degree of neglect, which is shown by an abstention from an obvious duty,
attended by knowledge of the likely result of the abstention. However, failure to discharge, or
omission to discharge, every material obligation will not amount to willful neglect. Failure to
fulfill basic marital obligations, such as denial of company or denial of marital intercourse, or
denial to prove maintenance will amount to willful neglect.[43]
Without the consent
If one party leaves the matrimonial home with the consent of the other party, he or she is not
guilty of desertion. When the parties are living apart from each other under a separation
agreement, or by mutual consent, it is a clear consent of living away with the consent of the
other. Wife when living away from the husband, husband sends a telegram ‘must not send
wife’ to wife’s father expressed his wish to live separate.[45]
Desertion must be for a continuous period of two years
To constitute a ground for judicial separation or divorce, desertion must be for the entire

24
statutory period of two years,[46] preceding the date of presentation of the petition.[47]
Desertion is an continuing offence; it is an inchoate offence. This means that once desertion
begins it continues day after day till it is brought to an end by the act or the conduct of the
deserting party. It is not complete even if the period of two years is complete. It becomes
complete only when the deserted spouse files a petition for a matrimonial relief. Wife’s act of
withdrawing jewellary from the locker and remaining away from her husband for two years
clearly proved her desertion.[48]
Offer to return
If a deserting party spouse genuinely desires to return to his or her partner, that partner
cannot in law refuse to reinstate him or her.[49] An offer to resume cohabitation must be
genuine or bona fide for which two elements must be present. First, an offer to return
permanently, if accepted, must be implemented; secondly, it must contain an assurance as
to the termination of the conduct by the deserting party which caused the separation.[50] A
refusal to such an offer would convert the deserted party to the deserting party. The offer to
return to resume married life by the deserting spouse before the expiry of the statutory
period of desertion must not be stratagem. The deserting spouse must be ready and anxious
to resume married life.[51]
Defences to desertion
The following are the main defences to desertion:­
v Agreement to separation does not amount to separation. But such agreement may be
changed to desertion without resumption of cohabitation. Separation in such cases loses its
consensual element.[52]
v There may be animus deserendi without a separation.
v Physical inability to end desertion, such as imprisonment.
v Absence of just cause of separation.
v Absence of animus deserendi.
Termination of desertion
Desertion is a continuing offence. This character and quality of desertion makes it possible to
bring the state of desertion to an end by some act or conduct on the part of deserting
spouse. It may be emphasized that the state of desertion may be put to an end not merely
before the statutory period has run out, but also at any time, before the presentation of the
petition.
Desertion may come to an end by the following ways:
(a) Resumption of cohabitation.
(b) Resumption of marital intercourse.
(c) Supervening animus revertendi, or offer of reconciliation.
Resumption of cohabitation – if parties resume cohabitation, at any time before the
presentation of the petition, the desertion comes to an end. Resumption of cohabitation must
be by mutual consent of both parties and it should imply complete reconciliation. The
desertion ends only when the deserting parties goes to the matrimonial home mentally
prepared to end the cohabitation. It is necessary to prove that marital intercourse was also
resumed.
Resumption of marital intercourse – Resumption of marital intercourse is an important

25
aspect of resumption of cohabitation. Sometimes resumption of marital intercourse may
terminate desertion. If resumption of marital intercourse was a step towards the resumption
of cohabitation, it will terminate desertion even if the deserted spouse backs out.
Supervening animus revertendi – if the party in desertion expresses an intention to return,
this would amount to termination of desertion. Animus revertendi means intention to return.
Desertion may be brought to an end by the deserting spouse’s genuine and bonafide offer of
reconciliation. It should not be just to forestall or defeat the impending judicial proceedings.
4.8 Cruelty : a ground for matrimonial relief
Every matrimonial conduct, which may cause annoyance to the other, may not amount to
cruelty. Mere trivial irritations, quarrels between spouses, which happen in day­to­day
married life, may also not amount to cruelty. Cruelty in matrimonial life may be of unfounded
variety, which can be subtle or brutal. It may be words, gestures or by mere silence, violent
or non­violent.
To constitute cruelty, the conduct complained of should be "grave and weighty" so as to
come to the conclusion that the petitioner spouse cannot be reasonably expected to live with
the other spouse. It must be something more serious than "ordinary wear and tear of married
life". The conduct taking into consideration the circumstances and background has to be
examined to reach the conclusion whether the conduct complained of amounts to cruelty in
the matrimonial law. Conduct has to be considered, as noted above, in the background of
several factors such as social status of parties, their education, physical and mental
conditions, customs and traditions. It is difficult to lay down a precise definition or to give
exhaustive description of the circumstances, which would constitute cruelty. It must be of the
type as to satisfy the conscience of the Court that the relationship between the parties had
deteriorated to such extent due to the conduct of the other spouse that it would be
impossible for them to live together without mental agony, torture or distress, to entitle the
complaining spouse to secure divorce. Physical violence is not absolutely essential to
constitute cruelty and a consistent course of conduct inflicting immeasurable mental agony
and torture may well constitute cruelty. Mental cruelty may consist of verbal abuses and
insults by using filthy and abusive language leading to constant disturbance of mental peace
of the other party.
Historical Position:
Hindu marriage is a holy sacrament in the life of a Hindu with other various sacraments,
which are known as important for the complete life. Marriage is the valid way for male and
female to live together and perform their duties and husband­wife are considered to be one
in law. In 1869 the Indian Divorce Act was passed but it had remained in applicable to the
Hindus and after the Independence on 18th may 1955 The Hindu Marriage Act has been
passes which governs all the matters and situations related to Hindu marriages.
Impact of Physical and Mental Cruelty in Matrimonial Matters;
Prior to the 1976 amendment in the Hindu Marriage Act, 1955 cruelty was not a ground for

26
claiming divorce under the Hindu Marriage Act. It was only a ground for claiming judicial
separation under Section 10 of the Act. By 1976 Amendment, the Cruelty was made ground
for divorce. The words, which have been incorporated, are "as to cause a reasonable
apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner
to live with the other party".
Legal Provisions:
The Hindu Marriage Act­1955 has given the legal provision for divorce on basis of cruelty
under section – 13(1)(ia) as follows;
“Any marriage solemnized, whether before or after the commencement of this Act, may, on a
petition presented by either the husband or the wife, be dissolved by a decree of divorce on
the ground that the other party has, after the solemnization of the marriage, treated the
petitioner with cruelty”.
On basis of this section we can explain this legal basis for the divorce as anybody who is
getting suffer from the other party in physical manner or a mental torture or any other type of
harassment then the other can reach to the court with this base and claim for the divorce.
And there are various cases where courts held that the intention to be cruel is not an
essential element of cruelty as envisaged under this section.
4.9 Adultery : a ground for matrimonial relief
Either party to the marriage may present a petition for divorce under cl. (i) of sub­sec. (1) of
s. 13, on the ground of adultery of the respondent. The expression 'living in adultery' used in
old s. 13(I)(i) meant a continuous course of adulterous life as distinguished from one or two
lapses from virtue. It would not be in consonance with the intention of the Legislature to put
too narrow and too circumscribed a construction upon the words 'is living' in (old) cl. (i) of
sub­sec. (1) of s. 13 of the Act. On the other hand, it was clear that too loose a construction
must also not be put on these words. For attracting the operation of these words, it would not
be enough if the spouse was living in adultery sometime in the past, but had seceded from
such life for an appreciable duration extending to the filing of the petition. It is not possible to
lay down a hard and fast rule about it since the decision of each case must depend upon its
own merits and turn upon its own circumstances. But it is clear that for invoking the
application of (old) cl. (i) of sub­sec. (1) of s. 13, it must be shown that the period during,
which the spouse was living an adulterous life was so related from the point of proximity of
time, to the filing of the petition that it could be reasonably inferred that the petitioner had a
fair ground to believe that, when the petition was filed, the respondent was living in adultery.
By using the words 'is living in adultery' the Legislature did not intend to make such living
co­extensive with the filing of the petition. The identical expression of 'living in adultery' is to
be found in s. 488(4) the Code of Criminal Procedure (old) and in s. 125(4) of the Code of
Criminal Procedure (new). This expression implies that a single lapse from virtue even if true
will not suffice, and it must be shown that the respondent was actually living in adultery with
someone else at the time of the application. Living in adultery is different from failing to lead
a chaste life.

27
The expression 'living in adultery' refers to an outright adulterous conduct and the
respondent lived in a quasi­permanent union with a person other than the petitioner or the
purpose of committing adultery. illicit conception, living as concubine or kept as mistress
does not mean living in adultery. After the commencement of the marriage Laws
(Amendment) Act 1976, even a single act of voluntary, sexual act by either party to the
marriage with any person other than his or her spouse will constitute ground for divorce for
the other spouse. But under the old law an isolated act of adultery did not attract the
provision of s. 13(1)(i) of the Act, but provided a ground for judicial separation. To maintain a
distinction between divorce and judicial separation ­ e court should even in the context of the
Marriage Laws (Amendment) Act 1976, put suitor construction for granting the decree of
divorce than the decree of judicial separation. It is because the relation of the husband and
wife has to be considered not only from the point of view of the welfare of the husband and
wife but also of the children of the marriage.
In case of adultery direct proof is difficult to get and one has to rely for proof thereof on
circumstantial evidence and the same may be sufficiently proved from which adultery maybe
inferred. The burden of proving adultery in a matrimonial case is on the person who makes
the allegation. The standard of proof in "proceedings under the Act being initially of a civil
nature is by preponderance of, probabilities and not by proving it beyond reasonable doubt.
General evidence of the ill­repute of the husband or of the lewd company that he keeps, or
even that he knows the addresses of prostitutes and was seen with doubtful women, would
neither prove nor probabilise adultery. Adulter , as a general rule, is proved by presumptive
proof based on:
(i) circumstantial evidence,
(ii) evidence 0 non­access and the birth of children,
(iii) Contracting venereal disease,
(iv) evidence of visit to houses of ill­repute,
(v) admissions made In previous proceedings,
(vi) confessions and admissions of the parties Mere suspicion is not sufficient.
There must be circumstances amounting to proof that opportunities could be used, such as
the association of the parties was so clear that adultery might reasonably be assumed as the
result of an opportunity for its occurrence.
4.10 Other grounds for matrimonial relief
Under the Hindu Marriage Act, there are nine major grounds on which the marriage may be
dissolved by a decree of divorce1.
The first of these is marital infidelity in which case the petitioner can seek divorce on the
basis that his/her spouse who is the respondent had voluntary sexual intercourse with any
person other than the spouse after the marriage.
The second important ground for divorce is infliction of cruelty. In case the petitioner can

28
show that the respondent has treated him/her with cruelty, divorce can be granted to the
petitioner.
Long period of desertion is another valid ground for divorce under which divorce can be
granted if the respondent has deserted the petitioner for a continuous period of not less than
two years.
Another variation of the above ground is long term disappearance. If the respondent has not
been not heard of as being alive for a period of seven years or more, then the petitioner has
just cause for seeking a divorce.
Conditions where the mental and physical illness of a spouse are significantly hampering the
well­being of the petitioner or that of the marriage are also justifiable grounds for seeking
divorce under the Hindu Marriage Act. One of these is that a situation where the respondent
has been incurably of unsound mind and in such a case, a decree of divorce may be granted
to the petitioner.
Sixthly, if the respondent has been suffering from virulent and incurable form of leprosy, the
petitioner may again be granted divorce.
Since sexual relations are an essential part of marriage, a divorce may be granted to the
petitioner if it can be proved that the respondent has been suffering from venereal disease in
a communicable form.
Again because a marriage implies conjugal responsibility on both parties, a petitioner can be
granted a divorce if respondent has renounced the world by entering any religious order.
Lastly, a petitioner can also seek a divorce if the respondent has ceased to be a Hindu.
4.11 Divorce by mutual consent under Special Marriage Act,
1954
Section 13B of the HMA Act 1955 provides for divorce by mutual consent. period of
separation is 1 year)
Section 28 of the Special marriage Act, 1954 provides for divorce by mutual consent.
Section 10A of the Divorce Act, 1869, provides for divorce by mutual consent (period of
separation is 2 years)
The Conditions required under section 13B of the Hindu Marriage Act are as follows:
(i) Husband and wife have been living separately for a period of one year or more,
(ii) That they are unable to live together,
(iii) And that both husband and wife have mutually agreed that the marriage has totally
collapsed, Hence marriage should be dissolved.
Under these circumstances a Divorce by Mutual consent can be filed.

29
Advantages of mutual divorce
Divorce By Mutual consent saves time, money and energy for both,
Leaves no room for unnecessary quarrel and most importantly avoid washing your dirty linen
in public.
With the increasing no of Divorce application being filed and the demand for quick divorce
has become growing demand, Mutual consent divorce is the best option.
What is Divorce by mutual consent?
Divorce By Mutual Consent is as the name suggests is when both parties ie husband and
wife come to a mutual understanding that the marriage be dissolved amicably.
How does it work:
In all there are two court appearances in a mutual divorce
Divorce in delhi First A joint petition signed by both parties is filed in court .
Divorce in delhi Secondly In the first motion statement of both parties are recorded and then
signed on paper before the Hon'ble Court.
Divorce in delhi Thirdly The 6 month period is given for reconciliation, (the hon'ble court
gives a chance to the couple to change their mind)
Divorce in delhi Fourthly 6 months after the first motion or at the end of the reconcile period
if both parties still don't agree to come together. Then the parties may appear for the second
motion for the final hearing.
Divorce in delhi. Finally Divorce decree will be granted as the Hon'ble Court may deem fit.
Mutual Consent Divorce between Hindu Couple
Mutual Consent Divorce between Hindu Couple is governed by The Hindu Marriage Act,
1955, under Section l3B.
Which states that.­ A petition for dissolution of marriage by a decree of divorce may be
presented to the District Court by both the parties to a marriage together, on the ground that
they have been living separately for a period of one year or more, that they have not been
able to live together and that they have mutually agreed that the marriage should be
dissolved.
Secondly on the motion of both the parties made not earlier than six months after the date of
the presentation of the petition referred to in sub­section (1) and not later than 18 months
after the said date, if the petition is not withdrawn in the meantime, the court shall on being
satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a
marriage has been solemnized and that the averments in the petition are true, pass a decree
of divorce declaring the marriage to be dissolved with effect from the date of decree.
Mutual Consent Divorce in case of Court Marriage
Mutual Consent Divorce in case of Court marriage is governed by The Special Marriage Act,
1954 under Section 28.
Which states that.­ A petition for divorce may be presented to the District Court by both the
parties together on the ground that they have been living separately for a period of one year
or more, that they have not been able to live together and that they have mutually agreed

30
that the marriage should be dissolved.
Secondly on the motion of both the parties made not earlier than six months after the date of
the presentation of the petition referred to it in sub­section (1) and not later than 18 months
after the said date, if the petition is not withdrawn in the meantime, the District Court shall,
on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that
a marriage has been solemnised under this Act, and that the averments in the petition are
true, pass a decree declaring the marriage to be dissolved with effect from the date of the
decree.
Mutual Consent Divorce in case of Christian Couple
Mutual Consent Divorce in case of Christian Couple is governed by The Divorce Act, 1869,
under Section lOA.
Which states that.­ A petition for dissolution of marriage may be presented to the District
Court by both the parties to a marriage together, on the ground that they have been living
separately for a period of two years or more, that they have not been able to live together
and they have mutually agreed that the marriage should be dissolved.
Secondly on the motion of both the parties made not earlier than six months after the date of
presentation of the petition referred to in sub­section (1) and not later than 18 months after
the said date, if the petition is not withdrawn by both the parties in the meantime, the Court
shall, on being satisfied hearing the parties and after making such inquiry as it thinks fit, that
a marriage has been solemnized and that the averments in the petition are true, pass a
decree of divorce declaring the marriage to be dissolved with effect from the date of decree.
There are three other requirements for Mutual Consent Divorce under section 13(B) as
follows:
1) The couple have been living separately for a period of one year or more
2) The couple not been able to live together and
3) The couple mutually agreed that the marriage be dissolved.
4.12 Bars to matrimonial relief
Under the modern English law, collusion is not a bar to divorce but under the Indian law,
collusion is still an absolute bar. Ordinarily, collusion cannot be abar to a divorce by mutual
consent, since collusion in fact, implies divorce by mutual consent. But the consent must be
free and not obtained by fraud or force or undue influence.
4.12.1 Doctrine of strict proof
The doctrine of strict proof is recognized under all the matrimonial laws. Just like in an
ordinary civil case proceedings, in matrimonial cases also there are three situations which
usually arises –i.The defendant appears in the courts and contents the claim of the plaintiff
ii.The defendant, even after the summons, does not appear before the court and the court,
therefore, proceeds in his absence.
The defendant puts up appearance in the court and admits the claim of the plaintiff.In a

31
normal civil proceeding, it is only in the first situation that the plaintiff has to establish his
case by adducing oral and documentary evidence, asmay be necessary and the case will be
decided accordingly. However, in a matrimonial proceeding, the petitioner must establish the
ground of matrimonial remedies beyond all reasonable doubts in all the three situations.
Mukheji J. summed up the position thus:
“An action for divorce, a civil proceeding without doubt, becomes ina trice a criminal
proceeding, all because of the application of the yardstick of proof beyond reasonable doubt,
which has in fact been the standard of proof in a criminal case.”
No petition can be decreed merely on the basis of admissions of parties. In
Hirakali v Avasthy , the court refused to recognize a consent decree for judicial separation
since it felt it was violative of the requirement of doctrine of strict proof enacted in section
23(1). The Supreme Court in its early cases had expressed the view that the petitioner must
prove beyond all reasonable doubts. However, in
Dastane v.Dastane,it was decided that the standard of proof need not be of beyond all
reasonable doubts; guilt may be proved my balance of probabilities.
4.12.2 Taking advantage of one's own wrong or disability
This bar has not been enacted in all Indian personal laws. It has been enacted only in the
Hindu Marriage act. Even though the other statutes don’t mention it, it is submitted it will be
included in the residuary clauses which these statutes contain. Under the Hindu Marriage act
this bar applies to all matrimonial causes but a petition for annulment of marriage on the
grounds of incapacity to give consent. This bar lays down that if the petitioner is, directly or
indirectly, responsible for respondent’s wrong, the petition cannot be granted.
4.12.3 Accessory
This bar is applicable when a petition is filed based on the ground of respondent’s adultery
under Hindu Marriage Act
It is a general bar; in any suit for any matrimonial cause the plaintiff has to show that he has
not connived at or been accessory to the said act or omission”, constituting the ground for
matrimonial relief. Accessory is usually a term used in criminal law. It implies an active
participation by the petitioner in the crime of the respondent. ‘Being an accessory’ to the act
of the respondent implies a knowing active participation in the act, and if such a participation
is established, the petitioner cannot get a decree of divorce or judicial separation even if he
has been able to prove respondent’s guilt beyond all reasonable doubts. Till date, there
hasn’t been an Indian case where this bar had to be applied.
4.12.4 Connivance
connivance is a bar to the matrimonial offence of adultery alone. But in the Parsi Marriage
and Divorce Act, connivance is a general bar.
Connivance is derived from the word “connive” which means “to wink at.”Accessory and

32
connivance are of the same quality but in the former there is an active participation by the
petitioner whereas in the latter, there is corrupt intention but not active participation.
Consent, either expressed or implied, is necessary to constitute connivance. In
K.J. v K , it was said that when a spouse by voluntary deliberate conduct encourages the
other spouse to commit a matrimonial offence it amounts to connivance.
Once consent is established for the first act, it is no defence that he did not consent to its
repetition. However, mere intention, negligence, folly, dullness or apprehension or
imprudence does not amount to connivance.
4.12.5 Collusion
Under the modern English law, collusion is not a bar to divorce but under the Indian law,
collusion is still an absolute bar. Ordinarily, collusion cannot be abar to a divorce by mutual
consent, since collusion in fact, implies divorce by mutual consent. But the consent must be
free and not obtained by fraud or force or undue influence.
Under the Indian law divorce by consent can be obtained on the fulfillment of certain
conditions, one of which is that prior to the presentation of the petition for divorce by mutual
consent, parties must show that they have been living separately for a period f one year.
Parties may state that they have been so living, though in fact it is not so. This will amount to
collusion.
4.12.6 Condonation
Condonation applies to the matrimonial offences of adultery and cruelty. Under the Divorce
Act, condonation applies only to adultery.
Under the Parsi marriage and Divorce Act, condonation is a general bar and applies to all
the matrimonial offences.
Condonation can be defined as follows:Condonation is the reinstatement of a spouse who
has committed matrimonial offence in his or her former matrimonial position in this
knowledge of all the material facts of that offence which the intention of remitting it, that is to
say, with the intention of not enforcing the rights which accrue to the wronged spouse
inconsequence of the offence.
Condonation has two essential elements: forgiveness and reinstatement. The innocent
spouse must forgive and reinstate the guilty spouse. Forgiveness must be followed by
resumption of cohabitation.
In Dastante v. Dastante, the husband continued to suffer the ill treatment from the wife and
continued to cohabit with her and a few months before the presentation of the petition for
judicial separation on the grounds of wife’s cruelty, a child of marriage was born. The
Supreme Court observed that the continuance of sexual intercourse was evidence that both

33
forgiveness and reconciliation and raised a presumption of condonation.Any condonation
procured by fraud will be of no consequence and therefore it will not amount to condonation
if husband condoned her adultery on her misrepresentation that she was seduced while
drugged or that she was not pregnant by the co­respondent.
lays down that condonation once given cannot be revoked. The exception to this rule is that
in every condonation, there is an implied condition that the offering spouse will behave in the
future and if this is violated, the old matrimonial offence will revive. An example for this can
be seen in the case of Yaduraj v. Sunder Bai where the wife could seek relief on the basis of
the condoned offence after he misbehaved.However, the doctrine of revival of condoned
offence does not continue for all times to come. In Candy v. Candy, the court observed that
the revival of the condoned offence depends upon the circumstances of the offence, the time
which has elapsed since it was committed, the behaviour of the spouse in the meantime, the
seriousness of the conduct alleged to have revived the offence and its circumstances
including the manner and custom of the grade of society to which the parties belong. A time
will come when the offence is completely obliterated so that no future misconduct of any sort
will revive it.
4.12.7 Improper or unnecessary delay
Improper or unnecessary delay is a bar to relief in respect of all matrimonial causes under
the Hindu Marriage Act, the Special Marriage act, and the Parsi Marriage and Divorce Act,
unreasonable delay is a bar only to the matrimonial relief of divorce. In Deoki Nandan J said
that the matrimonial bar of delay should not apply when marriage is void. A marriage which
is null and void is no marriage and a decree of nullity is merely a formal judicial declaration
of an existing fact. The period within which a petition must be presented is laid down in some
of the grounds such as in cases of a petition for nullity on the ground of pre­marriage
pregnancy or on the ground that consent was obtained by fraud or force. The Parsi Marriage
and Divorce Act specifically lays down that bar of unreasonable delay applies only to those
cases where definite period of
limitation is not laid down in the Act. Even though no specific provision hasbeen enacted in
the other Indian matrimonial statutes, it still exists.In
Nand Kishore v Munni,
it was made clear that the Indian Limitation Act does not apply to petitions under the
matrimonial causes. To determine the period the equitable doctrine of laches has been made
applicable. It broadly means that any delay which can be reasonably or properly explained is
not a bar to any matrimonial relief. The burden of proof that there has not been any improper
or unreasonable delay is on the petitioner.Under the modern English law, delay is no longer
a bar to the matrimonial reliefs of divorce and judicial separation. There is no bar of delay is
marriage is void, but a three year period of limitation has been laid down for petitions for
annulment of marriage on the ground that a marriage is voidable.

34
The basic assumption underlying this provision is that if delay has led the others pouse
reasonably to believe that the petitioner does not want to seek annulment of marriage, the
marriage cannot be annulled. However, this isnot applicable to Indian law as seen earlier,
there is no limitation period and the principle of laches applies to voidable marriages.
4.12.8 Residuary clause ­ no other legal ground exist for refusing the
matrimonial relief
Hindu Marriage Act, the Special Marriage act, and the Parsi Marriage and Divorce Act,
there is a residuary clause which lays down there should be no other legal ground for
refusing the petition. This is a general bar applicable to all matrimonial remedies. There is no
such clause under the Divorce Act.
This residuary clause has not yet come up for interpretation before the Indian courts.
However, the editor of Mulla’s Hindu law is of the view that this clause has been added as ‘
ex abundant cautela’
and it deals with the various grounds of matrimonial causes. According to Derrett, this clause
authorizes the court to apply the learning accumulated in India and abroad which modifies
the bare rights to seek matrimonial relief set out in Sections 9 to 13of the Hindu Marriage
Act. According to Paras Diwan, this clause has been enacted to cover some hard cases
where the relief has to be refused on account of some principle of public policy.

35
UNIT­5 ALIMONY AND MAINTENANCE 1.1.1 Maintenance of neglected wives, divorced
wives, minor children, disabled children, and parents who are unable to support themselves
under the code of criminal Procedure, 1973 5.2 Alimony and maintenance as an
independent remedy ; a review under different personal laws. 5.3 Alimony and maintenance
as an ancillary relief Alimony pendente lite and permanent maintenance. 5.4Maintenance of
divorced Muslim women under the (protection of Rights on Divorce Act, 1986) a Critical
review.

36
UNIT­6 CHILD AND THE FAMILY
6.1 Legitimacy
Section 16 protects the interests of children begotten or conceived before the decree is
made in case of void and voidable marriages under Sections 11 and 12 of the Act. The
children of such marriages have been declared to be legitimate under this section.
Legitimacy and Fallibility in Child Welfare Services ...
Image Source: uib.no
This section has been recasted by the Marriage Laws (Amendment) Act, 1976 with intent to
remove difficulties in its interpretation. Prior to the above amendment, the language of the
section showed that a decree of nullity of marriage was necessary under Sections 11 and 12,
before a child begotten or conceived before that decree could be given the status of
legitimate child.
Where a decree was not granted under Section 11 of the Act, the provisions of Section 16 of
the Act did not confer legitimacy on the child and if a third party successfully challenged the
validity of the marriage in other proceedings on the ground that it was void, the children of
such marriage would still be illegitimate.
In Thrumurthi Ranayammal v. Thrumurthi Muthamal, the Madras High Court observed, “the
wordings of Section 16 of the Hindu Marriage Act, in so far as it is relevant to a marriage
void under Section 11, leads to an anomalous and startling position which could not have
been contemplated by the legislature. The position and status of a child of void marriage
should obviously be the same whether the marriage is declared a nullity under Section 11 or
otherwise.
Though the language of the section is more appropriate to voidable marriage, it has been
applied to void marriages as well, presumably with the object of ensuring that where a
marriage is in fact solemnised but was void for any of the reasons mentioned, in Section 11,
the children of such marriages should not be bastardised whether a decree of nullity is
passed or not. But this obvious intention of the legislature has not been carried out.
The section is so plain and unambiguous and it would be stretching the language beyond
permissible limits to say that children born of void marriages are legitimate even in cases
where a decree of nullity had not been granted. It is not possible for the court to construe the
same in a different manner having in mind the presumed intention of the legislature even if it
appears to be obvious.
This casualness which the court cannot reach for no cannon of construction would permit
court to supply what is clearly a lacuna in the statute and it is for the legislature to set right
the matter by suitable amendment of the section.

37
The lacuna has now been removed by the Marriage laws (Amendment) Act, 1976. The
section now provides:
(1) Notwithstanding that a marriage is null and void under Section 11, and child of such
marriage who would have been legitimate if the marriage had been valid, shall be legitimate,
whether such child is born before or after the commencement of the Marriage Laws
(Amendment) Act, 1976, and whether or not a decree of nullity is granted in respect of the
marriage under this Act and whether or not the marriage is held to be void otherwise than on
petition under this Act.
(2) Where a decree is granted in respect of a voidable marriage under Section 12, any child
begotten or conceived before the decree is made, who would have been the legitimate child
of the parties to the marriage, if at the date of the decree it had been dissolved instead of
being annulled shall be deemed to be their legitimate child notwithstanding the decree of
nullity.
(3) Nothing contained in sub­section (1) or sub­section (2) shall be construed as conferring
upon any child of marriage which is null and void or which is annulled by a decree of nullity
under Section 12, any rights in or to the property of any person, other than the parents, in
any case where, but for the barring other Act, such child would have been incapable of
passing or acquiring any such rights by reason of his not being the legitimate child of his
parents.
Now, under the section any child of a void marriage, who had been legitimate if the marriage
had been valid, shall be legitimate, whether or not a decree of nullity of marriage is granted
in respect of that marriage under this Act and whether or not the marriage is held to be void
otherwise than on petition under this Act.
As regards the legitimacy of the children of voidable marriages, the position is the same as it
was prior to the Marriage Laws (Amendment) Act, 1976. Where a decree of nullity is granted
with respect to a voidable marriage under Section 12, the position is clear. Such a child be
deemed to be a legitimate child.
But where the validity of marriage is challenged by either party and decree of nullity is not
granted, it would be a valid marriage and the children of the parties to such marriages would
undoubtedly be legitimate.
There is a distinction between the above two positions. Where the marriage is annulled at
the instance of either party, the children born of such marriage are by the operation of this
section to be deemed to be the legitimate children for all intents and purposes except that by
virtue of this proviso to the section they cannot claim any right in or over property of any
person other than the parents.
But if the decree of nullity is refused or it is not opted by either party, the children of the
parties to marriage would be still legitimate and they would not be subjected to the limitations

38
of clause (3) of the Act, i.e., they would be entitled to inherit the property of their parents as
well as of any collaterals of the parents or descendants of the parents either:
“A voidable marriage can only be challenged at the instance of either party to the marriage
and cannot be challenged after the death of one of the parties to the same. So if the
marriage though voidable was not challenged during the life time of the spouse, it could not
be challenged thereafter and the issue of such marriage would be legitimate and no question
would arise of the applicability of the rule laid down in the section.”
Children of void marriage shall be regarded as legitimate whether such children had been
born before or after the amendment of Section 16 under the Marriage Laws (Amendment)
Act, 1976.
Sub­section 3 of Section 16 of the Act lays down that the children born of void and voidable
marriage, who have acquired the status of legitimate children by virtue of the provisions of
sub­sections (1) and (2) of this section, cannot claim to succeed to persons other than the
parents. They have no right to succeed to the collaterals of the parents or ascendants of the
parents either.
In Shanta Ram v. Smt. Dargubai, the Bombay High Court observed that the children of void
marriages would be deemed legitimate, irrespective of the decree of nullity although they
would not acquire the right to succession to the same extent as is available to the children of
valid marriage.
But the legitimacy conferred upon such children under Section 16(3) entitles them to claim
right only in the property of their parents which must be separate property of the parents not
the coparcenary property in which father is allotted only one share. Such children would not
be treated as coparceners and they would not acquire the right of partition.
In Bhogadi Kannababu & others v. Vaggina Pydamma & others, the Supreme Court held that
the children of void marriage would be deemed legitimate because Section 16 of the Act
deals with legitimacy of children of void and voidable marriage, and sub­section (1) of
Section 16 of the Act clearly says that under these circumstances the illegal children are
entitled to inherit the property with first wife.
Where a child was found to be at the time of marriage with the contact of a person other than
the husband and the husband later on obtains a decree of nullity on this account under
Section 12 of the Act, such child cannot be given the benefit of Section 16 of the Act. Only
the child concerned and born of void and voidable marriages with the contact of the husband
could be deemed to be legitimate child of such parents.
The constitutionality of Section 16 of the Act which confers status of legitimacy to the
illegitimate children has been upheld by the Supreme Court in P.E.K. Kalliani Amma v. K.
Devi. The Court observed that the words “notwithstanding that a marriage is null and void
under Section 11 employed in Section 16(1) indicate undoubtedly the following:—

39
(a) Section 16(1) stands delinked from Section 11.
(b) Mischief of the vice which was the basis of unconstitutionality of unamended Section 16
has been effectively removed by the amendment.
(c) Section 16(1) now stands on its own strength and operates independently of other
sections with the result that is constitutionally valid as it does not discriminate between
illegitimate children in similar circumstance and classifies them as one group for conferment
of legitimacy. Section 16 in its present form, is, therefore not ultra vires of the Constitution.
6.2 Adoption
To have a son is considered a 'must' for every Hindu and begetting a son is one of the three
debts that a Hindu was required to discharge in this world. In Hindu religion, it is believed
that a son delivers his father from the hell (called 'put') hence he is called a 'putra'. [1]
Hindus have always desired to have a natural born son (an 'aurasa') for the spiritual benefit
and the continuation of family. Yet, secondary sons have been recognized right from the
Vedic age to this date. Some of the illegitimate sons were also fitted into the system of
sonship and those who were left out were never denied maintenance. It was believed that
the one who was responsible, either directly or indirectly, for the birth of a child had to
provide for maintenance of it. According to Hindu sages, the number of sons is twelve or
thirteen.
According to Manu, sons are classified into two categories. The sons in category 1 are
kinsmen as well as heirs while the sons in category 2 are only kinsmen. During the Raj, most
of sons in above categories became obsolete and there remained only one natural born son
and the adopted son.
who can adopt?[edit]
Under this act only Hindus may adopt subject to their fulfilment of certain criteria. The first of
these asserts that the adopter has the legal right to (under this Act that would mean they are
a Hindu). Next, they have to have the capacity to be able to provide for the adopted child.
Thirdly the child must be capable of being adopted. Lastly, compliance with all other
specifications (as outlined below) must be met to make the adoption valid.[3]
Men can adopt if they have the consent of their wife or of all of their wives. The only way of
getting around obtaining the permission of the wife or of the wives is if she or if they are
unsound, if they have died, if they have completely and finally renounced the world, and if
they have ceased to be a Hindu. Men who are unmarried can adopt as well as long as they
are not a minor. However, if a man were to adopt a daughter, the man must be twenty one
years of age or older.[4]
Only unmarried Hindu women can legally adopt a child. A married woman can only give her
consent to adoption by her husband. A married woman whose husband adopts a child is to
be considered the mother. [5] If the child is adopted and there are more than one wife living

40
in the household, then the senior wife is classified as the legal mother of the adopted
child.[6]
Who can be adopted?[edit]
The adopted child can be either male or female. The adopted child must fall under the Hindu
category. The adoptee also needs to be unmarried; however, if the particular custom or
usage is applicable to the involved parties then the adoptee can be married. The child
cannot be the age of sixteen or older, unless again it is custom or the usage is applicable to
the involved parties. An adoption can only occur if there is not a child of the same sex of the
adopted child still residing in the home. In particular, if a son were to be adopted then the
adoptive father or mother must not have a legitimate or adopted son still living in the
house.[7]
Legal implications for an adopted child[edit]
From the date of the adoption, the child is under the legal guardianship of the new adopted
parent(s) and thus should enjoy all the benefits from those family ties. This also means that
this child, therefore, is cut off from all legal benefits (property, inheritance, etc.) from the
family who had given him or her up for adoption.[8]
6.3 Custody, maintenance
Category: Home \ Family law \ Family law
Latest Articles | Articles 2013 | Articles 2012 | Articles 2011 | Articles 2010 | Articles 2009 |
Articles 2008 | Articles 2007 | Articles 2006 | Articles 2000­05
Child custody is a term used in family law courts to define legal guardianship of a child under
the age of 18. During divorce or marriage annulment proceedings, the issue of child custody
often becomes a matter for the court to determine. In most cases, both parents continue to
share legal child custody but one parent gains physical child custody. Family law courts
generally base decisions on the best interests of the child or children, not always on the best
arguments of each parent.
In general, courts tend to award PHYSICAL child custody to the parent who demonstrates
the most financial security, adequate parenting skills and the least disruption for the child.
Both parents continue to share legal child custody until the minor has reached the age of 18
or becomes legally emancipated. Legal custody means that either parent can make
decisions which affect the welfare of the child, such as medical treatments, religious
practices and insurance claims. Physical child custody means that one parent is held
primarily responsible for the child's housing, educational needs and food. In most cases, the
non­custodial parent still has visitation rights. Many of the religions practicing in India have
their own personal laws and they have their different notion of custody.'

41
Custody Under Hindu Law:
All the personal law matrimonial statutes make provisions for dealing with the issue of child
custody. The provisions in the matrimonial Acts can, however, be invoked only when there
are some proceedings pending under the Act. Hindus have an additional Act, viz the Hindu
Minority and Guardianship Act 1956 (HMGA). Apart from this, there is the Guardians and
Wards Act 1890 (GWA). This is a secular law for appointment and declaration of guardians
and allied matters, irrespective of caste, community or religion, though in certain matters, the
court will give consideration to the personal law of the parties. The provisions of the HMGA
(and other personal laws) and the GWA are complementary and not in derogation to each
other, and the courts are obliged to read them together in a harmonious way. In determining
the question of custody and guardianship, the paramount consideration is the welfare of the
minor. The word `welfare' has to be taken in its widest sense, and must include the child's,
moral as well as physical well­being, and also have regard to the ties of affection.''
The English and Indian decisions are replete with such statements that : (i) the children of
tender years should be committed to the custody of the mother, (ii) older boys should be in
the custody of the father, and (iii) older girls in the custody of the mother. But these are
judicial statements of general nature and there is no hard. and fast rule. As to the children of
tender years it is now a firmly established practice that mother. should have their custody
since father cannot provide that maternal affection which are essential for their proper
growth. It is also now ac for proper psychological development of children of tender years
ma is indispensable.'
The Hindu Minority and Guardianship Act, 1956 contains a provision which lays down that
custody of a child upon the age of five should ordinarily be with the mother. Under other
personal laws, though it is no such statutory provision, the Indian courts have consistently
taken view. The following observation of Beaumont, CJ. represents the judicial knew ......if
mother is a suitable person to take charge of the child quite impossible to find an adequate
substitute for her for the child.'
In Re Kamal Rudra Das J. expressed the same view vividly thus:
I have no doubt in my mind that the mother's lap is God's own cradle for a child of this age,
and that as between father and mother, other things being equal, a child of such tender age
should remain with mother.''
But a mother who neglects the infant child as she does not want to sacrifice the type of life
she leading can be deprived of custody.
In respect of older children our courts take the view that the male children above the age of
sixteen years and female children above the age of fourteen years, should not ordinarily be
compelled to live in the custody to which they object.' However, even the wishes of the
mature children will be given consideration only if they are consistent with their welfare! In
'Venkataramma v.. Tulsi',' the court disregarded the wishes of the children as it found these
to induced by wholesale persuasion and were even tortured.'
Custody to third persons. ­Ordinarily, custody should be given to either of the parents. But
where welfare so requires, custody may be given to a third person. In 'Baby v., Vijay'
granting custody of two minor children to maternal grandfather, the court observed that even

42
if the father was not found unfit, custody might be given to a third person in the welfare of the
child.
Maintenance of a wife[edit]
A Hindu wife is entitled to be provided for by her husband throughout the duration of her
lifetime. Regardless of whether the marriage was formed before this Act was instated or
after, the Act is still applicable. The only way the wife can null her maintenance is if she
renounces being a Hindu and converts to a different religion, or if she commits adultery.[9]
The wife is allowed to live separately from her husband and still be provided for by him. This
separation can be justified through a number of different reasons, including if he has another
wife living, if he has converted to a different religion other than Hinduism, if he has treated
her cruelly, or even has a violent case of leprosy.[10]
If the wife is widowed by her late husband, then it is the duty of the father­in­law to provide
for her. This legal obligation only comes into effect if the widowed wife has no other means of
providing for herself. If she has land of her own, or means of an income and can maintain
herself then the father­in­law is free from obligation to her. Additionally, if the widow
remarries then her late husband's father­in­law does is not legally bound by this Act anymore
as well.[11]
Maintenance of a child or of aged parents[edit]
Under this act, a child is guaranteed maintenance from his or her parents until the child
ceases to be a minor. This is in effect for both legitimate and illegitimate children who are
claimed by the parent or parents. Parents or infirmed daughters, on the other hand, must be
maintained so long as they are unable to maintain for themselves.[12]
Amount of maintenance provided[edit]
The amount of maintenance awarded, if any, is dependent on the discretion of the courts.
Particular factors included in the decision process include the position or status of the
parties, the number of persons entitled to maintenance, the reasonable wants of the
claimants, if the claimant is living separately and if the claimant is justified in doing so, and
the value of the claimant's estate and income. If any debts are owed by the deceased, then
those are to be paid before the amount of maintenance is awarded or even considered.[13]
6.4 Guardianship
Introduction[edit]
This act is one of four Hindu Code Bills that were codified by the Nehru Administration in
1956. The other three Acts include the Hindu Succession Act, Hindu Adoptions and
Maintenance Act, and Hindu Marriage Act. The Hindu Minority and Guardianship Act
delineates the policies regarding minorities according to Indian Hindu personal law.
Important definitions[edit]

43
A. A minor is a person under the age of 18
B. A guardian is the caretaker of a minor, his or her property, or both. Categories of
guardians include: a natural guardian; a guardian chosen by the mother or father; a guardian
appointed by the court; and a person who qualifies as a guardian according to the Court of
Wards.[1]
Extent of Act[edit]
This Act extends to all of India with the exception of the state of Jammu and Kashmir.[2]
This Act is intended to be an addendum to the Guardians and Wards Act of 1890, not its
replacement.[3]
Overriding quality[edit]
Any former law that is inconsistent with this law is declared legally void. This law supersedes
all other relevant laws.[4]
Application[edit]
This Act applies to all Hindus, meaning those who belong to the Hindu religion or any of its
developmental forms. These include the Lingayat, Virashiva, and those who follow Brahmo,
Prarthana or Arya Samaj. Those who practice the religions of Buddhism, Sikhism, and
Jainism are also considered Hindus. Finally, those who are not Muslim, Christian, Parsi or
Jewish are governed by this Act unless they can prove that prior to its passage, they were
not governed by Hindu law.[5]
Both legitimate and illegitimate minors who have at least one parent that meets the
stipulations outlined above fall under the jurisdiction of this Act.[6]
Natural guardians[edit]
The father is the primary guardian for a legitimate boy and unmarried girl and their property,
while the mother is the secondary guardian. However, the mother is the primary guardian for
all children under the age of five. For illegitimate children, the mother is the primary
guardian, while the father is the secondary guardian. A married girl’s husband becomes her
guardian. For an adoptive son, the adoptive father is the primary guardian, then the adoptive
mother.[7]
Each of these, if they chose, may appoint guardians of their child’s person or property.[8]
Should a parent cease being a Hindu or become a renouncer, hermit, or ascetic, that parent
will lose his or her guardian rights.[9]
Abilities of natural guardians[edit]
Natural guardians can take actions that will benefit and protect the minor and his or her
property. However, the guardian cannot sign a personal covenant for the minor. The
guardian cannot sell, mortgage or give away any part of the minor’s immovable property,
lease this property for more than five years, or lease the property for more than one year

44
after the child becomes eighteen.[10]
Minors and property[edit]
A child cannot act as a guardian of property of minors.[11]
For a minor who possesses an undivided interest in joint family property that is already
controlled by an adult in that family, a guardian shall not be appointed to manage that
undivided interest.[12]
Welfare of minor[edit]
The welfare of the minor will be the primary consideration in the appointment of a
guardian.[13]

45
UNIT­7 FAMILY AND ITS CHANGING PATTERN
7.1 New emerging trends
7.1.1 Attenuation of family ties
In India the family is the most important institution that has survived through the ages. India,
like most other less industrialized, traditional, eastern societies is a collectivist society that
emphasizes family integrity, family loyalty, and family unity. C. Harry Hui and Harry C.
Triandis (1986) defined collectivism, which is the opposite of individualism as, "a sense of
harmony, interdependence and concern for others" (p. 244). More specifically, collectivism is
reflected in greater readiness to cooperate with family members and extended kin on
decisions affecting most aspects of life, including career choice, mate selection, and
marriage (Hui and Triandis 1986; Triandis et al. 1988).
The Indian family has been a dominant institution in the life of the individual and in the life of
the community (Mullatti 1992). For the Hindu family, extended family and kinship ties are of
utmost importance. In India, families adhere to a patriarchal ideology, follow the patrilineal
rule of descent, are patrilocal, have familialistic value orientations, and endorse traditional
gender role preferences. The Indian family is considered strong, stable, close, resilient, and
enduring (Mullatti 1995; Shangle 1995). Historically, the traditional, ideal and desired family
in India is the joint family. A joint family includes kinsmen, and generally includes three to
four living generations, including uncles, aunts, nieces, nephews, and grandparents living
together in the same household. It is a group composed of a number of family units living in
separate rooms of the same house. These members eat the food cooked at one hearth,
share a common income, common property, are related to one another through kinship ties,
and worship the same idols. The family supports the old; takes care of widows,
never­married adults, and the disabled; assists during periods of unemployment; and
provides security and a sense of support and togetherness (Chekki 1996; Sethi 1989). The
joint family has always been the preferred family type in the Indian culture, and most Indians
at some point in their lives have participated in joint family living (Nandan and Eames 1980).
With the advent of urbanization and modernization, younger generations are turning away
from the joint family form. Some scholars specify that the modified extended family has
replaced the traditional joint family, in that it does not demand geographical proximity or
occupational involvement and does not have a hierarchal authority structure (Nandan and
Eames 1980; Mullatti 1995; Shangle 1995). This new family form encourages frequent visits;
financial assistance; aid and support in childcare and household chores; and involvement
and participation in life­cycle events such as births, marriages, deaths, and festival
celebrations. The familial and kinship bonds are thus maintained and sustained. Even in the
more modern and nuclear families in contemporary India, many functional extensions of the
traditional joint family have been retained (Nandan and Eames 1980), and the nuclear family
is strongly embedded in the extended kinship matrix. In spite of the numerous changes and

46
adaptations to a pseudo­Western culture and a move toward the nuclear family among the
middle and upper classes, the modified extended family is preferred and continues to prevail
in modern India (Chekki 1996; Mullatti 1995; Segal 1998).
7.3 Process of social change in India
Sanskritization
:­The term sanskritization was introduced into Indian Sociology by Prof. M.N. Srinivas.The
term refers to a process whereby people of lower castes collectively try to adopt upper caste
practices and beliefs, as a preliminary step to acquire higher status. Thus, this indicates a
process of cultural mobility that took place in the traditional social system of India.
Meaning of
sanskritization is not a new phenomenon. It has been a major process of cultural change in
Indian history, and it has occurred in every part of the Indian sub­continent. It denotes the
process in which the lower castes try to imitate the life­styles of upper castes in their attempt
to raise their social status. The process seems to be associated with the role of local
“dominant caste”.
Definition of sanskritization
The definition of sanskritization was given by M.N. Srinivas in his “Social Change in
Modern
India” published in 1971. It means “a process by which a low caste or a tribe or other
group changes its customs, rituals, ideology, and a way of life in the direction of a high and
frequently, twice born caste.”
Impact of sanskritization
Modern education, Western literature and philosophy of people widened, and as a resul tthe
mental horizons and visionary of people changed. They welcomed rationality and other good
features of and made good use of liberal, and humanitarian ideas and thoughts.
Vedas has been conceived through intellectual contemplation and empirical observation and
used Upnishads (speculative interpretation of Vedas or Mythology) for the creation of human
imagination.
Reformists and their organizations had purely an economic and social thrust. They aimed at
establishing a social order based on Vedic teachings and practices. They criticized the
mumbo­jumbo of rituals and superstitions created by some selfish people to entangle the
ignorant and poor masses. They laid emphasis on interpreting Vedas ina rational and
scientific way.

47
It reduced or removed the gap between the ritual and secular rankings. It also helped
upliftment of weaker persons. The lower caste group which successfully got into the seat of
secular power also tried to avail of the services of Brahmins especially at the time of
observing rituals, worshipping and offering things to God.
Criticisms of sanskritization:­
According to J.F Stall, sanskritization as used by Srinivas and other anthropologists is a
complex concept or a class of concepts. The term itself seems to be misleading, since its
relationship to the term Sanskrit is extremely complicated.
Yogendra Singh opines that sanskritization fails to account for many aspects of cultural
change in past and contemporary India as it neglects the non­sanskritic traditions.
Sanskritic influence has not been universal to all parts of country. In most of northern India,
especially in Punjab, it was the Islamic tradition which provided a basis for cultural imitation.
When we try to interpret certain changes that have taken place in the field of socialmobility in
the light of sanskritization, we face certain paradoxes. According to Dr.Srinivas, political and
economic forces are normally favourable for sanskritization. But the “policy of reservation” a
poltico­constitutional attempt to elevate the status of lower caste, and class people, presents
here a different picture. Theoretically, the policy of reservation must be supportive of
sanskritization. But paradoxically it goes against it.
Westernization
According to M.N. Srinivas, “Westernisation” refers to “the changes brought about in
the Indian society and culture as a result of over 150 years of British rule and the term
subsumes changes occurring at different levels ­ technology, institutions, ideology and
values.”
Meaning of Westernisation
:­In comparison with sanskritization, Westernisation is a simpler concept. It explains the
impact of Western contact (particularly of British rule) on the Indian society and culture.
M.N. Srinivas used the term “Westernisation” to describe the changes that a non­western
country had undergone as a result of prolonged contact with the western one. It implies,
according to Srinivas, “certain value preferences”, which in turn subsumes several values,
such as “humanitarianism”. It implies an active concern for the welfare of all human beings
irrespective of caste, economic position, religion, age and sex.
Impact of Westernisation

48
:­
Opened up the doors of the knowledge
–
Modern education opened up the doors of the knowledge flourished in Europe after
Renaissance movement of Middle Ages. It had widened the mental horizons of Indian
intelligentsia.
Education for all ­
During second half of the nineteenth century, British government in India opened the doors
of education to all the sections of Indian society, irrespective of caste or creed. Still, very few
amongst the general public could avail the advantages of formal modern education.
Education remained confined within a small section of society.
Highlighted evil practices
–
Modern education had highlighted the evil practices and weaknesses developed into the
system like rigidity and harshness of many social customs and practices prevalent at that
time for the weaker sections of the society i.e.un­touch­ability and inhuman treatment to
women, Sati, Polygamy, child marriage etc.etc. prevalent at that time.
Attracted attention of social reformers
–
Modern education had attracted the attention of intellectuals and social reformers towards
real issues evils caused by ignorance,irrationality of mumbo­jumbo of rituals and
superstitions created by some selfish people to entangle the ignorant and poor masses.
They suggested remedies for social, political and economic ills of the country. They took
upon themselves the responsibility to build a modern, open, plural, culturally rich, prosperous
and powerful India out of a fragmented, poverty stricken, superstitious, weak, indifferent,
backward and inward looking society. As a result of such efforts, it led to the
abolition of Sati System and slavery
. Female infanticide practice lowered to a great extent.
Secularization
With the 42nd Amendment of the Constitution of India enacted in 1976,[1] the Preamble to
the Constitution asserted that India is a secular nation. However, neither India's constitution
nor its laws define the relationship between religion and state. The laws implicitly require the
state and its institutions to recognize and accept all religions, enforce parliamentary laws

49
instead of religious laws, and respect pluralism.[2][3] India does not have an official state
religion. The people of India have freedom of religion, and the state treats all individuals as
equal citizens regardless of their religion. In matters of law in modern India, however, the
applicable code of law is unequal, and India's personal laws ­ on matters such as marriage,
divorce, inheritance, alimony ­ varies with an individual's religion. Muslim Indians have
Sharia­based Muslim Personal Law, while Hindus, Christians, Sikhs and other non­Muslim
Indians live under common law. The attempt to respect unequal, religious law has created a
number of issues in India such as acceptability of child marriage,[4] polygamy, unequal
inheritance rights, extrajudicial unilateral divorce rights favorable to some males, and
conflicting interpretations of religious books.[5][6]
Secularism as practiced in India, with its marked differences with Western practice of
secularism, is a controversial topic in India. Supporters of the Indian concept of secularism
claim it respects Muslim men’s religious rights and recognizes that they are culturally
different from Indians of other religions. Supporters of this form of secularism claim that any
attempt to introduce a uniform civil code, that is equal laws for every citizen irrespective of
his or her religion, would impose majoritarian Hindu sensibilities and ideals, something that
is unacceptable to Muslim Indians.[7][8] Opponents argue that India's acceptance of Sharia
and religious laws violates the principle of equal human rights, discriminates against Muslim
women, allows unelected religious personalities to interpret religious laws, and creates
plurality of unequal citizenship; they suggest India should move towards separating religion
and state.[9][10]
Secularism is a divisive, politically charged topic in India.
Universalization and Parochialization
arochialisation and universalisation are supplementary to the con cepts of little and great
traditions. These are processes of cultural change. When the great tradition, i.e., the tradition
of epics and sacred books undergoes change at the local or village level, it is
parochialisa tion or localisation of great tradition or civilisation. Parochialisation, therefore, is
the cultural change made at the village level.
Universalisation, on the other hand, is a cultural change from lit tle tradition to great tradition.
Both these processes are related to the interaction between little tradition and great tradition.
Interpreting the process of universalisation, Yogendra Singh observes that when the little
tradition moves upward to the great tradition, it is the proc ess of universalisation. And, when
the great tradition moves downward to the local or village level, it is parochialisation.
His inter pretation runs as below:
Elements of the little tradition, indigenous customs, duties and rites circulate upward to the
level of the great tradition and are identified with its legitimate forms. This process Marriott
calls ‘universalisa tion’. Likewise, some elements of the great tradition also circulate
downward to become organic past of the little tradition, and lose much of their original form
in the process. He (McKim Marriott) used the term ‘parochialisation’ to denote this kind of
transaction be tween the two traditions.
In the process of parochialisation, obviously, there is some loss of the elements of great
tradition. Whatever is laid down as elements of great tradition is reduced at village level or

50
interpreted differently by local leaders of priestly castes. In this process there is
de­sanskritization.
Modernization
The term modernisation “does not denote any philosophy or movement, but it only
symbolises a process of change”. In fact, “modernisation” is understood as a process which
indicates the adoption of the modern ways of life and values.” The term was being used to
previously to refer only “to change in economy and its related effect on social values and
practices.” Today, the term ‘modernisation’ is understood as an attempt, on the part of the
people, particularly who are custom­bound, to adopt themselves to the present time,
conditions,styles and ways in general.
Definition of modernisation:­
According to Smelser, “Modernisation is a complex set of changes that place almost in every
part of society as it attempts to be industrialised. Modernisation involves ongoing change in
a society’s economy, politics, education,traditions and religion.”
According to Alatas,
“Modernisation is a process by which modern scientific knowledge is introduced in the
society with the ultimate purpose of achieving a better and amore satisfactory life in the
broadest sense of the term as accepted by the society concerned”
Meaning of Modernisation
The term modernisation does not denote any philosophy or movement, but it only
symbolises a process of change. In fact, Modernisation is understood as a process which
indicates the adoption of modern ways of life and values. The term was being used
previously to refer only to change in economy and its related effect on social values and
practices.
Industrialisation
Industrialization changed the family by converting it from a unit of production into a unit of
consumption, causing a decline in fertility and a transformation in the relationship between
spouses and between parents and children. This change occurred unevenly and gradually,
and varied by social class and occupation. Through the nineteenth century industrial workers
continued to have relatively large families; women tended to have children about every two
years from marriage to age forty. Most types of workers had little motivation for limiting family
size because children continued to contribute to the family economy and infant and child
mortality rates remained high in industrial cities, sometimes reaching fifty percent in the first
year of life. Usually women stopped working outside the home once they became mothers,
but often their husbands' wages were too low to support a family, so they took in tasks such
as sewing to supplement the family income; but earnings were so low, and hours so long,
that households suffered even more than they did when women left the home to work
(Accampo, Fuchs, and Stewart 1995). In France especially, the practice of sending children
out to wet­nurses continued to be widespread, and hygiene reports blamed infant mortality
on women who did not breastfeed their own children (Fuchs 1992; Cole 2000).

51
Industrialization disrupted the traditional relationship between generations, as well as the
relationship between spouses. Fathers could no longer pass on skills to their children—often
the only patrimony workers had—when skills became obsolete. During times when the father
was unemployed, family roles could be dramatically reversed: children and wives would
bring home wages while the husband tended to the household. In conditions of severe
poverty, "family life" could barely exist when multiple families and individuals crowded into
tiny dwellings to save on rent.
Urbanization
It is now widely accepted that urbanization is as much a social process as it is an economic
and territorial process. It transforms societal organizations, the role of the family,
demographic structures, the nature of work, and the way we choose to live and with whom. It
also modifies domestic roles and relations within the family, and redefines concepts of
individual and social responsibility.
As a result, families become smaller relatively quickly, not only because parents have fewer
children on average, but also because the extended family typical of rural settings is much
less common in urban areas. Children are clearly less useful in urban settlements, as units
of labor and producers, than in rural settings, and are more expensive to house and feed. In
fact, fertility levels in developed countries have dropped so low that cities are seldom
capable of reproducing their own populations. They grow, if at all, largely through
in­migration from other cities or from rural areas—the latter is now a largely depleted source
of population in Western countries—and increasingly through immigration.
Ironically, overpopulation in the Third World and historically low fertility levels in developed
countries have combined to produce a massive immigration into those cities in the latter
countries that serve as contemporary immigrant gateways or world cities (Sassen 2001;
Castles and Miller 1998). Those cities, in turn, have been transformed, in social and
ethno­cultural terms, as a result of this immigration (Polese and Stren 2000).
Families and living arrangements. The evolution to an urban society is also frequently
equated with a decline in the status of the family, and with a proliferation of nontraditional
family forms and new types of households. By nontraditional we mean those families without
two parents and/or without children. This trend is in part a reflection of an increasing diversity
in "choices of living arrangements." This concept is used in the scholarly literature to refer to
the myriad of ways in which individuals in an urban society combine to form collective units
(i.e., households). Those combinations may follow from marriage, the traditional
arrangement, or from any other association of individuals within the housing system whether
those individuals are related by marriage or blood, or are unrelated.

52
UNIT ­8 ESTABLISHMENT OF FAMILY COURTS
The Family Courts Act 1984 was enacted on 14 September 1984 to provide for the family
courts with a view to promoting conciliation in and secure speedy settlement of disputes
relating to marriage and family affairs. According to Section 2 (d) of the act, "Family Court"
means a family court established under section 3. Section 3 describes the establishment of
Family Courts and says that the State Government after consultation with the High Court
and by notification shall establish a Family Court for every area of the state consisting of a
city or town whose population exceeds ten lakhs and for other areas in the state as it may
deem necessary. Family courts are subordinate to the High Court, which has power to
transfer the case from one family court to the other.[6]
The matters which are dealt in the Family Court in India are matrimonial relief which includes
nullity of marriage, judicial separation, divorce, restitution of conjugal rights, declaration as to
the validity of marriage and matrimonial status of the person, property of the spouses or any
of them and declaration as to the legitimacy of any person, guardianship of a person or
custody of any minor, maintenance including the proceeding under the Cr. P.C.

53

54

55
UNIT­9 SECURING OF A UNIFORM CIVIL CODE
9.1 Religious pluralism and its implications
Religious pluralism, to paraphrase the title of a recent academic work, goes beyond mere
toleration. Chris Beneke, in Beyond Toleration: The Religious Origins of American Pluralism,
explains the difference between religious tolerance and religious pluralism by pointing to the
situation in the late 18th century United States. By the 1730s, in most colonies religious
minorities had obtained what contemporaries called religious toleration:[2] "The policy of
toleration relieved religious minorities of some physical punishments and some financial
burdens, but it did not make them free from the indignities of prejudice and exclusion. Nor
did it make them equal. Those 'tolerated' could still be barred from civil offices, military
positions, and university posts."[2] In short, religious toleration is only the absence of
religious persecution, and does not necessarily preclude religious discrimination. However,
in the following decades something extraordinary happened in the Thirteen Colonies, at least
if one views the events from "a late eighteenth­century perspective".[3] Gradually the
colonial governments expanded the policy of religious toleration, but then, between the
1760s and the 1780s, they replaced it with "something that is usually called religious
liberty".[2] Mark Silka, in "Defining Religious Pluralism in America: A Regional Analysis",
states that Religious pluralism "enables a country made up of people of different faiths to
exist without sectarian warfare or the persecution of religious minorities. Understood
differently in different times and places, it is a cultural construct that embodies some shared
conception of how a country's various religious communities relate to each other and to the
larger nation whole."[1]
Religious pluralism can be defined as "respecting the otherness of others". Freedom of
religion encompasses all religions acting within the law in a particular region. Exclusivist
religions teach that theirs is the only way to salvation and to religious truth, and some of
them would even argue that it is necessary to suppress the falsehoods taught by other
religions. Some Protestant sects argue fiercely against Roman Catholicism, and
fundamentalist Christians of all kinds teach that religious practices like those of paganism
and witchcraft are pernicious. This was a common historical attitude prior to the
Enlightenment, and has appeared as governmental policy into the present day under
systems like Afghanistan's Taliban regime, which destroyed the ancient Buddhas of Bamyan.
Giving one religion or denomination special rights that are denied to others can weaken
religious pluralism. This situation was observed in Europe through the Lateran Treaty and
Church of England. In modern era, many Islamic countries have laws that criminalize the act
of leaving Islam to someone born in Muslim family, forbid entry to non­Muslims into
Mosques, and forbid construction of Church, Synagogue or Temples inside their countries
Hinduism is naturally pluralistic. A well­known Rig Vedic hymn says: "Truth is One, though
the sages know it variously" (Ékam sat vipra bahudā vadanti).[16] Similarly, in the Bhagavad

56
Gītā (4:11), God, manifesting as an incarnation, states: "As people approach me, so I
receive them. All paths lead to me" (ye yathā māṃ prapadyante tāṃs tathāiva bhajāmyaham
mama vartmānuvartante manuṣyāḥ pārtha sarvaśaḥ).[17] The Hindu religion has no
theological difficulties in accepting degrees of truth in other religions. Hinduism emphasizes
that everyone actually worships the same God, whether one knows it or not.[18] Just as
Hindus worshiping Ganesh is seen as valid by those worshiping Vishnu, so someone
worshiping Jesus or Allah is accepted. Many foreign deities become assimilated into
Hinduism, and some Hindus may sometimes offer prayers to Jesus along with their
traditional forms of God.
Religious pluralism is a controversial subject in Islam. The primary sources that guide Islam,
namely Quran and Hadiths, offer contradictory positions on religious pluralism.[19][20] Some
verses support religious pluralism, while others discourage it. The acceptability of religious
pluralism within Islam remains a topic of active debate.
Although it seems like a debate today in Islamic world against the favor of the topic, one of
the most important building blocks of Islam, the Quran, has some parts mentioning and
recognizing the cultural pluralism which might be examplified in the verse: "Another of His
signs is the creation of the heavens and earth, and the diversity of your languages and
colors(30:22)." This is a clear sign of diversity acknowledgment in the Quran. Adding to that,
it is stated in the verse “And We did not send any messenger except [speaking] in the
language of his people to state clearly for them, and Allah sends astray [thereby] whom He
wills and guides whom He wills. And He is the Exalted in Might, the Wise(14:4).”that all
Prophets and Messengers were sent to their people to tell them about the Islam in their own
language which is also a clear indication of diversity both stated in the book and applied in
real world. Giving a really effective emphasis on diversity in the eyes of the creator, the Allah
in Islam, the verse "If God had so willed, He would have made you one community...(5:48)."
clearly shows the existence of pluralism in Islam with the aspects of culture, economy,
politics, etc. are the core of human civilization in all times.[21]
Proponents of religious pluralism in Islam commonly refer to a hadith where Muhammad said
that:
There are as many paths to God as there are human breaths
9.2 connotations of the directive contained in Article 44 of the
constitution
Uniform Civil Code, Common civil code, the words remind more of a political bedlam than a
legal question. Utterly unfortunate as the situation is, it demands an immediate attention.
The question is a legal question because it is a mandate addressed to the ‘State’ by Art. 44
of the Constitution of India. In India, however, legal questions are often politicized and
thereby confused,­ particularly when the issue relates to the election prospects of each
political party as there is always the luring vote­bank of minorities in sight.

57
Article 44 of the Constitution pledges for a uniform civil code. It runs as­ “The State shall
endeavor to secure for the citizens a uniform civil code throughout the territory of India”.
While many parts of the civil law have already been codified in enactments applicable to the
entire population of India, such as the Civil Procedure Code, the Evidence Act, the Transfer
of Property Act, and the like, the controversy has arisen in case of unification of personal &
family laws of the parties such as marriage, divorce, adoption, wills, intestate succession etc.
(The word ‘personal law’ has been clarified in Entry 5 of List III of 7th Schedule).
It would not be impertinent to observe the circumstances under which the Article was
incorporated in our Constitution. A Hindu­Muslim lady ‘Aruna Asaf Ali’ in her book
‘Resurgence of Indian Women’ points out at the background that gave birth to the concept of
non­interference in personal laws of minorities. She rightly observes, “…in the early years of
freedom, non­interference in personal laws of minority religious communities was
understandable; it was designed to assure them, especially the Muslims, that though the
sub­continent had been partitioned at the instance of Muslim League, India was not a Hindu
State and that the identity of the minorities would be respected. But over the years, political
parties have come to treat the minorities as vote­banks to be wooed through their traditional
leaders…”
The basic reason for asking a separate nation at the time of independence was that the
Muslim League argued that the Muslims do have a separate Personal Law which can be
effectively incorporated & implemented in an altogether different nation only. This resulted
into deplorable partition of India. Thus, separate personal law was underlying reason behind
offering a separate nation. That in turn implies that in the concept of ‘different personal law’
lies the bug of theory of ‘two nations’. The framers of the Constitution had seen this all and
had in their minds an urge to not let this happen again. Hence in the Constituent assembly, it
was made clear that in a secular nation, personal laws relating to such matters as marriage,
succession and inheritance could not depend upon religion, but must rest on the law of the
land. A uniform civil code was accordingly necessary for achieving the unity & solidarity of
the nation, which was envisaged by the very Preamble to the Constitution.
All these circumstances were, however, forgotten by the national leaders after independence
so much so that they even forgot that separatism contained in the theory of personal identity
of Muslims was nothing but a relic of the same old ‘two­nation’ theory, which the framers of
the Constitution had themselves fought against.
Whether Art. 44 implies one thing or the other is not a thing of interpretation for any scholars
of any religion or political dignitaries. It is the Judiciary that has been vested with the sole &
final power of interpreting the provisions of the Constitution. So it would be noteworthy to see
the stand of the Judiciary on this issue. In the case of Mudgal v. Union of India (1995), which
is one of the most recent cases, amongst many others, in this context, the observations of
the Honourable Apex Court would prove to be eye­openers to the general public as well as
the Government. The Court observed that it was altogether unjustifiable for the Government
to discriminate between Hindus & Muslims. Personal Laws of the Hindus relating to
marriage, succession and inheritance have sacramental origin similar to those of the
Muslims & Christians. Still, replacing the traditional Hindu sacramental personal law, Hindu
personal law was codified by various enactments in 1955­56. So why to keep Muslims away
from such enactments? The Court added that “there is no justification to ignore Art. 44 in
deference to Muslim sentiments in particular”.
It goes further to opine that­

58
“Art. 44 is based on the concept that there is no necessary connection between religion &
personal law in a civilized society. Article 25 guarantees religious freedom whereas Art. 44
seeks to divest religion from social relations and personal law. Religious practices violative of
human rights & dignity and sacerdotal suffocation of essentially civil & material freedoms are
not autonomy but oppression. A unified code is imperative both for protection of the
oppressed & promotion of national unity & solidarity. In the Indian Republic there was to be
only one Nation­Indian Nation­and no community could claim to remain a separate entity on
the basis of religion”.
If we now examine all the arguments advanced against the implementation of Uniform Civil
Code, it will be evident that none of these hold water. The first such contention is that Art. 44
of the Constitution should be repealed because it hurts the sentiments of Muslims, or at
least, the Muslims should be exempted from its operation, to be governed exclusively by the
Shariyat as their personal law. This demand, however, seeks to put the clock back. At the
time when the Constitution was framed, all such claims, counter­claims were considered and
rejected on the grounds that (a) matters such as marriage, inheritance and the like, falling
under the category of ‘personal law’, are secular matters having no essential relation to
religion and that (b) without a uniform civil code, inter alia, the people of India belonging to
heterogeneous elements, could never be united into a Nation. The provision in Art. 44 is
nothing but an implementation of the objective of ‘fraternity, unity and integrity of the Nation’,
which is not only enshrined in the Preamble to the Constitution, but also in the Fundamental
Duties in Art. 51A(c), (e). To assert in the face of these provisions, that the Muslims should
remain a separate entity on the basis of religion is an overt act under S. 2(f)(ii) of the
Unlawful Activities (Prevention) Act, 1967. It is a pity that those who are responsible for
enforcing the laws in India, do not even think of prosecuting anybody for such offence, either
because of ignorance or because of the lure of the ‘vote bank’.
Art. 25 of the Constitution, which prescribes Secularism, implies that all religions shall be
equal in the eye of the State and that the followers of every religion shall have the same
rights to profess and practice their respective religions. Hence saying that uniform civil code
should only be applied to majority of the population and not to any particular religion is not
secularism, but naked communalism.
Articles 25­27 guarantee to all citizens, including Muslims freedom to practice & propagate
his own religion. However, Articles 25­27 do not provide any protection to the Muslim
personal law against Art. 44. Because if that was the intention of the makers of the
Constitution, then Art. 44 should have added—‘excepting in respect of Muslims’. As per the
rules of interpretation, even a Court has no power to add a word, not to speak of an
Exception or Proviso, where the language of a provision is clear & unambiguous. Article 44
is absolutely clear & unambiguous in its every connotation.
Another defense taken against Art. 44 is of Art. 29, which guarantees right as to ‘culture’ and
it is contended that personal law forms a part of ‘culture’. The word ‘culture’ is not defined in
Art. 29. However, one thing is certain that it has to be read with Article 44 & 51A(f). Firstly, it
has to be noted that Articles 25­28 are grouped under the heading ‘freedom of religion’ and
thereafter, comes the heading ‘Cultural & Educational rights’ including thereunder Articles 29
& 30. it would follow that the ‘culture’ referred to in Art. 29(1) is something which is not
founded on religion and which may belong to any section of the citizens’ which may not be
necessarily be a religious minority. Hence, even if it is conceded that Muslim Personal Law is
founded on religion it does not follow that it is a part of the ‘culture’ of the Muslims within the

59
meaning of Art. 29(1). Distinction between culture & religion needs to be taken into
consideration. The best illustration of this proposition would be a saying of Justice Chagla, –
“I am Muslim by religion, but a Hindu by culture”. If this proposition be true, a Muslim’s claim
to be governed by a different personal law, alleged to be founded on religion, cannot be
defended as a fundamental right under Article 29(1). It would not be out of place here to
quote what Justice Chagla has to say regarding Art. 44, “The Constitution was enacted for
the whole country, it is binding on the whole country; and every section and community must
accept its provisions & its directives including the Art. 44”.
A fear is expressed that if Art. 44 is implemented, it would wash away the separate identity
of Minority communities. This fear is totally unfounded as there are Articles 25­27 to protect
one’s own religion, religious beliefs & sentiments.
Justice Beg, former Chief Justice of India, during his lecture on ‘Impact of Secularism on Life
& Law’, has made remarkable observations in context of present issue. He concludes that
questions of personal law, such as marriage or succession, are not matters of religion. It
maintains that the very Provision in the Hindu Succession Act, 1956, that it is applied to
Buddhists, Jains & Sikhs, but not to Muslims, Christians, Parsis & Jews, is inconsistent with
the Directive Principle laid down in Art. 44 of the Constitution.
If we are to compare the status of present controversy in India with other nations,
observations of European Chief Justice in a Division Bench of Mauritius (in case of Bhewa v.
Govt. of Mauritius), would be noteworthy­ “We never had in our country, whether during
French or British administration, any personal law in spite of the fact that the major religions
of the world have been present here for generations; a uniform civil code has always been in
force”.
Thus, the whole nation needs to get out of the controversy surrounding this issue of ‘uniform
civil code’. Uniform Civil Code, as dreamed by Art. 44 of the Constitution, is need of the hour.
If we are to stand as one nation, if secularism is to be honored & followed in its real sense,
there is no alternative to uniform civil code. The next question is in what way we are to
implement the same. It is true that a Uniform Civil Code for the whole of India cannot be
drafted or brought into force all at once. It should be progressive i.e. to be applied in stages
and part by part, having regard to realities.
Preparing a comprehensive code through an expert body like Law Commission in
consultation with the Minorities Commission can be looked at as a long term measure. Such
code shall have due regard to the modern day concept of human rights of women. Second
option is to adopt certain immediate measures which would ‘pave the way’ for a unified civil
code. These includea)
To appoint a Committee to enact a Conversion of Religion Act, to check the abuse of
religion by any person, and to make it applicable to every person, whether he is a Hindu, a
Muslim, a Christian or the follower of any other religion.
b) Such law may provide that every citizen who changes his religion cannot marry another
wife unless he divorces his first wife.
c) Such law may also provide for maintenance, succession etc of the parties concerned in
the conversion, to avoid any clash of interest after death.
d) The next stage would be to pinpoint those vulnerable points which call for reforms. These
include issues like Triple Talak, Polygamy, lack of dowry prohibition in certain religions
(‘dowr’ needs to be distinguished from ‘dowry’), loopholes in the Child Marriage Restraint
Act, 1929, no provision for compulsory registration of all marriages (similar provisions are

60
there in countries like Iran, Algeria, Malaysia; then why not in India?). Legislation as regards
to all these issues should be aimed at ironing out all the inter­community differences.
Thus, the issue under Art. 44 today is not whether the provision under Art. 44 is undesirable
but only whether its implementation should be started now. The quotation of Hassan Imam, a
member of Constituent Assembly, would be a befitting climax to this long discussion—
“Talk of making India strong; ….it is all right and a very desirable thing to have a uniform law.
It is a must thing because otherwise we would be guilty of making a nation within a nation, a
community within a community”.
9.3 impediments to the formulation of the Uniform Civil Code
The Supreme Court’s lament about the country’s failure to adopt a uniform civil code as
enjoined by Article 44 has revived a debate that will hopefully not again be swept under the
carpet. The entire issue has unfortunately been distorted and misdirected from its very
inception. Ideologues have deliberately used it as a stick with which to beat the minorities,
and Muslims in particular, through the threat of a majoritarian homogenising principle
destructive of the precious identity markers seen in the existing diversity of personal laws.
The bogey that a uniform civil code (UCC) necessarily entails the repeal of personal laws
needs to be laid to rest. This is simply not so. The existence of the Indian Special Marriage
Act or Indian Succession Act has not extinguished personal laws in this regard. On the
contrary, the Special Marriage Act, a uniform marriage code for all Indians, was regressively
amended in 1976 to provide that Hindus marrying under it would continue to be governed by
the Hindu Succession Act.
Per contra, the Supreme Court’s latest obiter on the virtues of a uniform civil code occurs in
a ruling that strikes down certain discriminatory provisions in the Indian Succession Act
barring Christians from bequeathing property to religious and charitable trusts. Again, Goa’s
uniform civil code, a welcome legacy of Portuguese colonial rule, now happily co­exists with
a variety of personal codes available to followers of particular faiths. But it makes available
an option and underlines the point that a uniform civil code and personal laws do not
represent an either/or choice and that the one does not mandate the obliteration of the other.
The bogey that a Uniform Civil Code necessarily entails the repeal of personal laws needs to
be laid to rest
If enacted, a UCC will be one code among many and, like the Special Marriage Act, an
option. This is guaranteed by the constitutional provisions pertaining to the right to freedom
of religion. Both Article 25 (the right freely to profess, practice and propagate religion) and
Article 26 (freedom to manage religious affairs) are, however, “subject to public order,
morality and health” and to the values enshrined in all other fundamental rights such equality
and social justice. Article 29 separately the cultural rights of minorities.

61
Article 25, while protecting religious freedom, also empowers the State to regulate or restrict
“any economic, financial, political or other secular activity which may be associated with
religious practice”. This introduces an important distinction between sacred and secular.
Thus practices such as witchcraft, superstition, ordeals, sati, child marriage, prohibitions
against widow remarriage, caste discrimination, casual triple talaq and polygamy may be
and have been barred or regulated. However, whether and where a boundary is to be drawn
could be contentious.
While religious ideologues have been responsible for derailing rational debate on a uniform
code, secularists have done the nation grave disservice by opposing movement towards a
uniform code or reform of personal law. A touch­me­not secularism has resulted in stalling
the process of modernisation and social reform by pushing large sections of emotionally
besieged and ghettoised Muslims and even Christians into the arms of the religious
orthodoxy. One needs to be wary of the liberal secular ideal becoming a narrow and hollow
“ism”.
A uniform code has been wrongly posited as an assault on religion and religious identities.
What it essentially aims at is secular reform of property relations in respect of which all
religious traditions have grossly discriminated against women. UCC is, therefore, foremost a
matter of gender justice. But male chauvinism and greed have joined with religious
conservatism to forge an unholy alliance to perpetuate a major source of gender
discrimination thereby impeding the modernisation of social relations and national
integration.
There is a larger reason for a uniform code. With the slow but steady empowerment,
modernisation and even globalisation of Indian society, the country’s real diversity is
becoming manifest. Cohort after cohort of the long suppressed and submerged underclass is
thrusting up from below to claim its place in the sun as equal citizens who will not be denied
their fundamental human rights. In the process, they are breaking traditional barriers of
community, caste, race, region, language and gender, challenging the old and increasingly
outmoded social order of which conservative personal laws are a part. Iniquitous social
prohibitions and restraints that earlier kept everybody, including women, in their “proper
place” are now being falsely portrayed as religious verities to thwart secular reform.
Today, with growing education, migration and economic and social mobility, unknown and
earlier socially prohibited relationships (eg, inter­caste, inter­regional, inter­community
marriages and divorce and the acquisition and disposal of self­acquired property by women)
are becoming increasingly common. In the circumstances, there could be social breakdown,
heartburn and strife even among couples of the same community without a uniform civil
code. Traditional personal codes do not accommodate emerging multicultural realities and
aspirations. On the other hand, suppressing them could engender violence or deviant
behaviour, undermining public order. The Special Marriage Act fortunately provides a safety
valve. But it is absurd and regressive that Muslim and Christian Indians cannot legally adopt
a child for lack of a uniform code on adoption.
Clerics should be heard but must not prevail on issues of secular life that are beyond their

62
province
These inhibitions and barriers apply across the board. Despite some reform and codification
of Hindu law, there is a long way to go. Try touching the Hindu Undivided Family, once a
relevant social concept but now largely a tax haven, and a huge outcry may be expected.
There is today extant not one but several Hindu, Muslim, Christian and other personal
codes. Therefore, quite apart from legislating an optional uniform civil code, it is necessary to
codify and reform the many prevailing personal laws to bring them in line with the values and
principles of the Constitution and the realities of contemporary social life. This applies
equally to customary tribal laws and religious practice that variously enjoy constitutional
protection.
The country therefore needs a twin strategy. An optional uniform civil law should be
promoted by the State. Clerics, among others, should be heard but must not prevail on
issues of secular life that are beyond their province. This is essential if we are to invest new
meaning in India’s secular ideal and rescue Muslims from malicious accusations of hindering
national integration. At the same time, all religious communities must be encouraged to
debate and support codification and reform of their personal laws. If, Egypt, Iraq, Pakistan
and Indonesia have reformed Muslim personal law, there is no reason why Muslim Indians
should not follow suit. But if Muslims are to move in this direction there must be no more
“Gujarats” with State connivance and the Best Bakery variety of “justice”.
A uniform civil code will focus on rights, leaving the rituals embodied in personal law intact
within the bounds of constitutional propriety. Being optional, it will provide free choice and
facilitate harmonisation of social relationships across the country in keeping with the
changing contours of emerging societal realities. The UCC should not be constructed, as
sometimes suggested, by putting together “the best elements” from various existing personal
codes. This will invite contention. Far better that a UCC be framed de novo by some body
like the Law Commission, in consultation with relevant experts and interests, as a citizen’s
charter governing family relations.
A liberal, forward­looking uniform civil code may be expected to win many adherents,
especially from those with cross­cultural backgrounds. This could in time induce custodians
of faith to look inwards and seek to codify and reform age­old personal laws in conformity
with current modernising and integrative tendencies or risk losing their flock.
If the Centre is unwilling to move forward, there is no reason why some progressive States
should not take the lead as they have done in the case of legislating Freedom of Information
Acts. A national UCC could follow. Goa has shown the way and there is absolutely no
reason for delay. A secular India needs a uniform civil code. To mark time is to march with
the communalists.