family law 1 assignment

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Family Law 1 Notes: BA LLB Hons

Family Law 1 Notes primarily deal with personal laws concerning marriage and divorce, adoption and maintenance, minority and guardianship and surrogacy, etc of different communities residing in India.

Table of Contents

S.5 conditions for hindu marriages, s.7 ceremonies for a hindu marriage, s.9 restitution of the conjugal rights, s.10 judicial separation, s.11 void marriages, s.12 voidable marriages-, s.13 divorce, s.13b-  divorce by mutual consent, s.15 when divorced persons may marry again, s.17 punishment for bigamy (494-495 of crpc), s.24- maintenance. ancillary relief. maintenance pendent lite and expense of proceedings., statutory provisions-, udhr- article- 3, 16, pre 2015 position, types of surrogacy-, consequences of marriage under this act, restitution of conjugal rights, indian christian marriage act, theory of relation back, maintenance, hindu minority and guardianship act 1956, muslim personal law (shariat) application act 1937, dissolution of muslim marriage act 1939, muslim women(protection of rights on divorce act 1986, whether family courts can hear cases on 1986 act, joint hindu family.

This page contains Family Law 1 Notes of the 5 Year BALLB Hons Course in Law Schools.

These notes briefly deal with various aspects of the Personal Laws of different communities in India concerning marriage and divorce, adoption and maintenance, guardianship and surrogacy, etc as described in the syllabus outline below.

Use the search box (Press Ctrl + F (Windows) or ⌘ Command + F (Mac) to navigate to different topics.

Kindly note, that these notes might not be covering all topics of Family Law I. We do not take any guarantee of their exhaustiveness. So, don’t take these notes as a substitute for your law school classes.

If you have any doubts about any of the topics discussed in these class notes, don’t hesitate to consult your Professors and other standard books for a better understanding and clarity.

Also note that since these notes were hastily written during offline classes, they might contain grammatical errors. We regret the inconvenience.

HINDU MARRIAGE ACT 1955

S.2- 1) Application of the Act- 1. Who are Hindu by religion in any of its forms and development including Vaishnava, lingayat or the follower of Brahma, Prarthana or Arya Samaj. 2. Who is buddhist, Sikh or Jain by religion 3. Any other person domiciled in the territories to which this act extend who is not a muslim, christian, Parsi or jew by religion, unless it is proved that he is not governed by Hindu law by any custom and usage Explanation- following persons are Hindu, Buddhist, Jain or Sikh by religion 1. Any child legitimate or illegitimate both of whose parents were Hindus 2. Any child legitimate or illegitimate, one of whose parents were Hindus 3. Convert or reconvert to to the Hindu, Buddhist, Jain or Sikh religion

S.3 Definitions- 1. CUSTOM AND USAGES- any rule that has been continuously and uniformly observed for a long time and has obtained the force of law among Hindus in any local area, tribe, community, group or family. Provided that it must be- 1. Certain 2. Reasonable 3. Not opposed to public policy 4. If applied to a family, it has not been discontinued by the family. c) Full blood- same father but different wives d) Uterine blood- same mother but different fathers f) Sapind relation extends to third-generation (including him) in the line of ascent through mother and fifth-generation through father.

1. Neither party has living spouse at the time of the marriage 2. Not incapable of consent in consequence of unsoundness of mind 3. Unfit for procreation because of some mental disorder 4. Insane or subject to the recurrent attack of insanity 5. Attained the age of marriage as proscribed by the law 6. Parties are not within the degrees of prohibited relationship unless their custom/usage permits such relationship 7. They are not sapindas of each other unless custom/usage permits For a valid marriage, all the conditions above must be satisfied and complied with and solemnized as per section 7.- Ravinder Kumar v Kamal Kanta

In accordance with customary rites and ceremonies of either party Where such rites include saptapadi, marriage becomes complete only after the seventh step of the saptapadi.

Kanwal Ram v Himachal Pradesh Marriage is not proved unless the essential ceremonies required are proved to have performed-

S.8 prescribes for the registration of the Hindu marriages for the purpose of the proof of the marriage but any omission in registering the marriage will not affect the validity of the marriage. Krishna Paul v Ashok Paul Also merely because the marriage is registered does not necessarily mean the existence of complete and lawful marriage

When either party without any reasonable excuse has withdrawn from the society of another party, the aggrieved party may apply for the decree of restitution of conjugal rights in District court. The burden of proving a reasonable excuse for withdrawing shall be on the party that has withdrawn. S.9 is not violative of 19 of the Indian constitution- Sumitra Devi v Narender Singh.

Either party can apply for judicial separation on the following grounds- In judicial separation, it is no longer for a party to cohabit with the other party. 1. Sub-section 1 of S.13 which are 2. Other party had voluntary sexual intercourse with any other person 3. Treated the petitioner with cruelty 4. Has deserted the petitioner for not less than two years (without reasonable cause and wish and consent of petitioner and includes willful neglect) 5. Has ceased to be Hindu by conversion to other religion (has to be read with 23(1)(a) 6. Incurable unsound mind or mental disorder of such kind that the petitioner can not be reasonably be expected to live with the respondent. 7. Suffering from a virulent and incurable form of leprosy 8. Suffering from venereal disease in a communicable form 9. Has renounced the world by entering into any religious order 10. Has not been heard of living for a period of seven years 11. That there has been no resumption of cohabitation for one year after the passing of the decree of judicial separation 12. There has been no restitution of conjugal rights for one year even after the passing of such decree.

A wife has following other grounds for judicial separation or divorce- 1. That the husband married again when the other spouse was living 2. Husband has been guilty of rape, sodomy or bestiality 3. He has not resumed cohabitation with her after the passage of any decree by any court for maintenance under the Hindu Adoption and Maintenance Act, section 125 of Cr.PC, or S.488 of Cr.PC for a period of one year after the passage of such decree. 4. That her marriage was solemnized before she attained the age of fifteen years (whether consummated or not) and she repudiated it before attaining 18 years.

Any marriage shall be null and void on a petition of either party if it contravenes any of the conditions mentioned in clauses 1, 4 and 5 of S.5 which are- 1. Bigamy- Has a living spouse at the time of the marriage 2. Not within the degree of prohibited relationship unless permitted by their customs/usages 3. Parties are not sapindas of each other unless permitted by their customs/usages

Voidable marriages may be annulled by the decree of nullity on the following grounds- 1. Not consummated due to impotency of the respondent 2. Marriage is in contravention of conditions specified in clause ii of S.5 which is- 1. Incapable of giving valid consent at the time of marriage due to unsoundness of mind 2. Suffering from a mental disorder which renders him/her unfit for procreation 3. Subject to recurrent attacks of insanity. 3. That the consent for marriage was obtained by force or fraud 4. That the respondent at the time of marriage was pregnant by some other person other than the petitioner provided that 1. Petitioner was ignorant of this fact 2. Not more than one year has passed since the discovery of this fact 3. There has been no marital intercourse by the petitioner after the discovery of the said fact This conditions for annulment of marriage shall not be entertained if – 1. More than one year has elapsed since the application of that force or fraud. 2. The party on her own continued to live with the respondent even after discovering such fraud or continued to live with the respondent after the force had ceased to operate.

Conditions for Judicial separation and divorce are same.

There are various theories of Divorce- Divorce at will theory Frustration of Marriage Theory Offense/Guilt/Fault Theory Mutual Consent Theory Irretrievable breakdown Theory

Cases – Conversion to other religion Sarla Mudgal Lilly Thomas

Insanity Ramnarain Gupta

Desertion Bhagwat v Bhagwat

Leprosy Swaraja Laxmi v Jeetji Padma Rao

Deadly disease Mr. X v Mrs. Z

Cruelty D Bhagat v Bhagat Dastani v Dastani Neelu Kohli v Naveen Kohli Hirachand Srinivas v Sunanda

Renouncing the world Sital Das v Sant Ram

S.13A- Alternative relief in Divorce Proceedings- But court has no discretion in cases of- conversion to other religion Renonciation Unheard of 7 years or more

Both parties can together file a petition for divorce by mutual consent. Then they have to file a motion for the not before 6 months and not later than 18 months affirming their desire for the dissolution of marriage and the court if satisfied of the following condition can grant the decree of divorce- 1. The marriage was solemnized between the parties 2. Parties have lived separately for more than one year before filing this petition 3. They are not able to live together and continue to live apart 4. They have mutually agreed to dissolve the marriage without any force, fraud, undue influence, and collusion. 5. Averments made in the petition are true and conditions under S.25 are fulfilled (Krishna Khetrapal v Satish Lal 1987) There cannot be any written agreement between the parties for divorce contrary to the provisions contained in this Act.- Malayaiah v GS Vasantha Lakshmi 1997

Nikhil Kumar v Rupali Kumari 6 Months interregnum period was waived off.

Sureshta Devi v Omprakash Whether a party can unilaterally withdraw his/her consent after jointly presenting petition of divorce under 13B of the Hindu Marriage Act? A couple was married in 1968 but they did not live together for more than 6-7 months and on 9 January 1985 they jointly moved a petition for divorce. But one week later the wife another application stating that her consent was obtained under pressure. The court said that the parties must be separately living for one year or more immediately preceding the filing of petition and living separately does not necessarily mean separate residence but not living like a husband and wife. The court said that there is nothing in the section that stops a party from revoking his/her consent and the interregnum period of 6 to 18 months have been provided for same reason facilitate change of heart if any or to inquire about the issue of pressure force or coercion in the consent.

Anil Kumar v Maya Jain This case dealt with a very important issue relating to divorce by mutual consent as to what will happen in case one party withdraws his consent before the passing of court decree of dissolution of marriage or one party refuses to present the second motion. As per the facts when difference arose between a couple and they could not live together, they filed a petition for divorce under mutual consent under section 13B of the HMA. But after the passing of 6 months, the wife refused to present the second motion along with the husband but reiterating that she will not live with the husband and will also not dissolve the marriage. When matter reached to the Supreme Court, the honorable court did not agree with the contention of the wife of not living together with the husband without giving substantial reason and also not agreeing to divorce by mutual consent. The court therefore granted husband divorce under 13-B of the Hindu Marriage Act but exercising its extraordinary power under Article 142 of the Constitution of India in line with cases like Ashok Hurra and Roopa Hurra.

Manish Goyal v Rohini Goyal A highly educated couple was married in 2008 but soon differences arose between them and their marriage ran into rough weather. The husband filed a petition for divorce under S.12 of the Hindu Marriage Act while the wife filed several cases under Domestic violence Act against the Husband. But somehow their relatives intervened and convinced them to settle all their disputes amicably and peacefully dissolve their marriage by mutual consent.Then they moved to Supreme court for the waiving of these periods by exercising its extraordinary jurisdiction under Article 142 of the Indian Constitution. Supreme Court said that power under 142 which had been given to it under utmost trust is to be exercised only under exceptional circumstances to do complete justice. In the words of court- ‘Thus, this is not a case where there has been any obstruction to the stream of justice or there has been injustice to the parties, which is required to be eradicated, and this Court may grant equitable relief. Petition does not raise any question of general public importance. None of contingencies, which may require this Court to exercise its extraordinary jurisdiction under Article 142 of the Constitution, has been brought to our notice in the case at hand.’

Poonam v Sumit Tanwar

This case again dealt with the same issue as in the Manish Goyal case. A couple separated just two days after their marriage. When the lower courts refused to entertain this plea. They appealed to the Supreme Court under Article 32 of the Indian Constitution. Supreme Court said that Article 32 has to be exercised when parties can prove the violation of their fundamental rights to the satisfaction of the court. Supreme court, therefore, dismissed the petition citing the same reasons as in Manish Goyal case and also reprimanded the parties for doing a disservice to the family courts that obliged with statutory requirements of the Hindu Marriage Act by alleging that they violated the fundamental rights of the parties by not granting them divorce.

S.14 NO PETITION FOR DIVORCE TO BE PRESENTED WITHIN ONE YEAR OF MARRIAGE, except in exceptional circumstances and hardships or exceptional depravity on part of respondent. Meghnath v Sushila

When marriage has been dissolved by decree of divorce and there is no pending appeal against the decree by virtue of appealing period being expired (90 days) or dismissed by appellate court. S.16 Legitimacy of Children born out of void/voidable wedlock Any child of such marriage will be legitimate but he will not inherit the ancestral property Revanasidappa v Malikarjuna

S.18- a person procuring marriage in contravention of sub- section 3, 4, 5 of section 5 shall be punishable by rigorous punishment extending unto two years or fine unto 1 lakh or both S.19-23 Procedures and Jurisdiction of courts. All proceedings to be held in camera. S.23(2)- Object of the Hindu Marriage Act- parties should not be found conniving under S.13 or have condoned the act of cruelty. When divorce is sought by mutual consent, consent should not have obtained by fore, fraud or coercion. The court will try to preserve the marriage

S.25- Permanent Alimony and Maintenance. Such gross sum or monthly income of the spouse till she gets remarried. Can be altered with change in circumstances. It will stop on remarriage of the party getting such maintenance. Varsha v Urmila Chand Dhawan v Jawaharlal Dhawan Maintenance under this section is incidental or ancillary remedy to the strained marital status due passing of a decree for restitution of conjugal rights or judicial separation etc. If there is no intervention by court under HMA, a person is entitled to maintenance under S.18 HAMA(Hindu Adoption and Maintenance Act) Savita Bahen case S.26- Custody of Children- keeping in mind the wishes of the child and his best interest. Custody can be altered from time to time. S.27- Disposal of property- court may make any decree which is just and proper with respect to property jointly belonging to both parties. Title of Stridhan always remains with the wife. Breach of trust under S.406 of IPC Rameshchandra v Rameshwari Yamunabai v Anant Rao Pratibharani v Sure Kumar

Constitution of India, Article 21 right to bodily autonomy Right to reproductive autonomy from perspective to right to privacy Finding a family As many children Right to adopt and give in adoption a child

Article 141 of Indian constitution Indian contract Act ICMR Guidelines 2005 VISA Regulations- MEA Stop gap arrangements for foreigners in India CARA (Central Adoption Resource Agency) guidelines- single person cannot adopt a child. http://cara.nic.in/parents/Guideline_RI.html

No transit permit visa Permit from home country necessary Had to be married No homosexual Indian origins

only PIOs, OCIs, NRIs No foreigners except those who have contracted before the date of notification Case to case basis approach Only heterosexual and married.

Specific to surrogacy Ban on commercial surrogacy In line with 228th LCI Report Altruistic motive Surrogate should be a close relatives, child of her own and Married Indian only Married for at least 5 years One of the couple must be clinically infertile

Traditional – the surrogate is pregnant with her own biological child, but this child was conceived with the intention of relinquishing the child to be raised by others; by the biological father and possibly his spouse or partner, either male or female. Gestational – the surrogate becomes pregnant via embryo transfer with a child of which she is not the biological mother. Altruistic – where the surrogate receives no financial reward for her pregnancy or the relinquishment of the child (although usually all expenses related to the pregnancy and birth are paid by the intended parents such as medical expenses, maternity clothing, and other related expenses). Commercial – form of surrogacy in which a gestational carrier is paid to carry a child to maturity in her womb and is usually resorted to by well off infertile couples who can afford the cost involved or people who save and borrow in order to complete their dream of being parents

Kirtikant D Vadoria v State of Gujarat the expression ‘mother’, in Clause (d) of Section 125(1) of the Code, means and is referable only to the real or natural mother, who has actually given birth to the child.

R Rajagopala v State of TN (1) The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. It is a “right to be let alone”. A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child bearing and education among other matters. None can publish anything concerning the above matters without his consent – whether truthful or otherwise and whether laudatory or critical.

Baby Manji Yamada v UOI Court said that the commission constituted under commissions For Protection of Child Rights Act, 2005 will look into the matter and decide accordingly on the basis of its broad objective of child welfare.

Johnson v Calvert After Johnson (Defendant) served as a surrogate mother for the Calverts (Plaintiffs), she refused to give up the child, who was not related to her genetically since the child was developed from reproductive cells donated by each of the Plaintiffs. When a fertilized egg is formed from the reproductive cells of a husband and wife and is then implanted into the uterus of another woman, resulting in a child that is unrelated to her genetically, the natural parents are the husband and wife.

Re Buzzanca Luanne and John had an embryo genetically unrelated to either of them implanted in a surrogate. The couple separated, and John disclaimed any parental responsibility for the child. When a married couple consent to in vitro fertilization by unknown donors and subsequent implantation into a surrogate, the couple are the legal parents of the offspring.

Intent based approach (mother who intended to ave the child) Genetic contribution test Best interest of the Child Gestation based approach John v Calvert- But for the commissioning couple, the child would not have come into being, therefore the commissioning mother has more natural claim.

SPECIAL MARRIAGE ACT 1954

• Conditions for a valid marriage- No living spouse Capable of giving consent Completed 21 years of age in case of male and 18 years in case of female Not within prohibited relationship unless permitted by a custom of either party recognized by state. Custom should have following characteristics- Continuously and uniformity observed for a long period of time Certain Reasonable Not against public policy Not discontinued by family
• Notice of intended marriage – to be given to marriage registrar of the district where at least one party must have been residing for at least 30 days immediately preceding the date on which such notice is given. Nirmal Das v Mamta Gulati- the requirement is not by itself fatal.
• Such notice shall be displayed in the marriage notice book open for inspection by any person free of cost. Same shall also be published in the district of permanent address of the parties.
• Objections to Marriage- has to be raised within the 30 days of publication of intended marriage.
• Procedure on receipt of registration- Marriage officer shall inquire accordingly to ascertain the veracity and validity of objection within 30 days of such receipt of objection. In case officer refuse to solemnize the marriage parties have 30 days to appeal in HC decision of which shall be final.
• Marriage registrar has following powers- 1) All powers vested in a civil court 2) summoning and enforcing attendance of witnesses 3) compelling the production of witnesses 4) discovery and inspection etc 4) impose compensation unto 1000/- if he finds objection male fide and unreasonable.
• If objection to marriage is received from abroad, he shall after inquiry notify the Central government and follow its advice.
• Declaration of marriage by parties in the presence of 3 witnesses and marriage officer and signed and countersigned by the officer.
• Place and form of solemnization- at the office of marriage offer or at any reasonable distance from it. It can be solemnized in any form the parties may desire provided that it shall not be binding unless they say to each other in the presence of officer and three witnesses that- ‘I AB take thee(CD) to be my lawful wife/husband.
• Certificate of marriage- to be given after solemnization shall be conclusive proof of marriage.
• If marriage is not solemnized within 3 months of notice due to objection, inquiry, appeal, or under section 10, that notice and all other proceedings arising therefrom shall be deemed to have been lapsed.
• REGISTRATION OF MARRIAGES SOLEMNISED IN OTHER FORMS This is for the registration of marriages solemnized under any other law/personal law on fulfillment of following conditions- valid ceremony and parties have lived together Not more than one spouse living at the time of registration Parties are not lunatic or idiot Have completed the age of 21 years Not within prohibited relationship in absence of any custom to the contrary Parties have been residing in the district for at least 30 days mediately preceding the date of registration.
• Procedure of registration- same procedure of publication of notice, objection and inquiry to be followed. Appeal to be made in district court whose decision shall be final.
• Effect of registration under this act- all such marriages shall be deemed to be solemnized under this act and all children born after the date of ceremony shall be considered legitimate.

19- a Hindu, Buddhist, Sikh or Jain shall be deemed to to effect his severance from his undivided family. 20- same rights and disabilities in matters of succession as person to whom Caste and disabilities removal Act 1850 applies. 21- Succession of persons married under this act to be made according to this at. 21A- if both parties are Hindu then S.19 and 21 shall not apply and the disability created by S.20 shall also not apply. Meneka Gandhi v Indira Gandhi- where marriage of Hindus are solemnized according to this act, Hindu succession act shall apply in place of this act for matters of succession.

• Restitution of conjugal rights (S.9 HMA)
• Judicial Separation (S.10 HMA)

Lakshmi Sanyal v Sanchit Kumar Dhar The conversion to Christianity as also the performance of the ceremony of marriage was all attributed to fraud, coercion, and undue influence practiced by the respondent. It was claimed that the appellant was a minor at the time the marriage was solemnized and the consent of her father or her guardian was not taken nor did she give her own consent freely to the marriage.

Supreme Court observed that marriage of parties governed by Cannon law and not by Hindu Marriage Act – as per Cannon law marriage between persons so related is valid – age of majority under said law is 16 years for male and 14 years for female – marriage held valid and appeal dismissed.

On the question of the marriage being within the prohibited degree of consanguinity, it was found that since the consanguinity between the parties was of the second degree it was certainly all impediment in the way of marriage under the Roman Catholic Law. But the impediment could be removed by dispensation which was granted by the competent authorities of the Church. For that reason, the marriage could not be held to be invalid or null and void.

Molly Joseph v George Sebastian after Divorce Act is in force dissolution granted under personal law cannot have any legal impact – Section 3 confers exclusive jurisdiction on District and High Courts in matrimonial matters of persons professing Christian religion.

HINDU ADOPTION AND MAINTENANCE ACT 1956

S.1 Application- Hindu by religion in any of its form including Vaishnava, Lingayat, Brahms, Prarthana or Arya Samaj Buddhist, Jain, Sikh Not Muslim, Christian, Parsi Any child legitimate or illegitimate both of whose parents Hindus One of parents Hindu but brought up as Hindu Convert to Hindu

S.3. Definitions Maintenance includes- provisions of food, clothing, residence, education, and medical treatment, reasonable expense of marriage in case of unmarried daughter S.4. Overriding effect of this act notwithstanding with any custom or usage S.5. All adoptions of Hindus to be made according to this act only

S.6. Conditions for a valid Adoption

Should be a Hindu Capacity and right of both parties who are adopting and giving in adoption Sound mind Giver or adaptor not a minor Consent of both spouses except in case of complete renunciation of world, conversion, declared incompetent by a court or unsound mind.

S.9. Persons capable of giving in adoption Only the mother, father, or guardian can give in adoption. (Guardian to give in adoption only with permission of the court)

Guardian – A person having the care of the child or both of his person and property Guardian can be appointed by the will of parents of a child or by the court (civil or district court) The court shall look into the following matters before giving permission- Welfare of child Wishes of the child No reward or consideration for adoption except as the court may sanction

• Person who can be adopted Hindu Not already been adopted Unmarried unless there is some custom or usage Not completed the age of 15 years unless a custom/usage permitting them.
• Other conditions- In case unmarried person the child of opposite sex the child should be 21 older than that person In case of adoption of son, the adoptive parents must not have son, son’s son or son’s son’s son. (whether by legitimate blood relation or adoption) In case of daughter adoption, the couple must not have daughter, or son’s daughter (whether by legitimate blood relation or adoption) Same child may not be adopted by two or more persons Intention of adoption and giving in adoption to transfer the child from the family of his/her birth to adoptive parents. (guardian in case of abandoned child)
• Effects of Adoption The child shall be deemed to be the child of adoptive parents for all purposes and its ties from the family of birth shall be deemed to have been severed. Provided- it cannot marry a person whom he could not have married had there been no adoption Property that vested in the child before the adoption shall continue to vest subject to any obligations if attached. The adopted child shall not divest any person of any estate which vested in him/her before the adoption.

The date of the death of his adoptive father shall be considered the date of adoption of a child for the purpose of succession in coparcenary property. An adopted son is entitled to take in defeasance of the rights acquired prior to his adoption was that, in the eye of the law, his adoption-related back, by a legal fiction, to the date of death of his adoptive father.

Sawan Ram v Kalawanti S. 5(1) of the Act which lays down : “No adoption shall be made after the commencement of this Act by or to a Hindu except in accordance with the provisions contained in this Chapter, and any adoption made in contravention of the said provisions shall be void. ” It is significant that, in this section, the adoption to be made is mentioned as “by or to a Hindu”. Thus, adoption is envisaged as being of two kinds. One is adoption by a Hindu, and the other adoption to a Hindu. If the view canvassed on behalf of the appellant be accepted, the consequence will be that there will be only adoptions by Hindus and not to Hindus. On the face of it, adoption to a Hindu was intended to cover cases where an adoption is by one person, while the child adopted becomes the adopted son of another person also.

Sitabai v Ramchandra- Affirmed the theory of relation back. An adopted child can claim his share in his deceased father’s property.

• Right of adoptive parents to dispose their property Except the coparcenary property, parents can dispose their property accordingly.
• Adoptive parents cannot annul the adoption, nor can the adopted child return to their natural parents.
• Prohibition of certain Payments- Any kind of reward, payment or consideration is prohibited in adoption. Violation is a punishable offense but sanction of state government is necessary for such prosecution.
• Wife is entitled to maintenance during her life time. A Hindu wife is entitled to live separately in following cases- in cases her husband has deserted, neglected or abandoned her without reasonable cause without her consent. Treated her with cruelty so as to cause reasonable apprehension in her mind of any injury. If he is suffering from virulent disease or leprosy. Any other wife living. If he keeps concubine either in the same house or somewhere else. Converted to other religion. Any other cause justifying her living separately. Provided she shall not be entitled such maintenance if she is unchaste or ceases to be Hindu Avtar Singh v Jasbir Singh
• Maintenance of widowed daughter in law- She is entitled to be maintained by her father in law if he has the means to maintain her to the extent she is unable to. Maintain herself.
• Maintenance of children and ages parents- Subject to the provision of this section, a Hindu is bound to maintain during his/her lifetime his/her children legitimate/illegitimate (even from void marriages) and aged and infirm parents. a child can claim maintenance from his father/mother (includes childless stepmother as well) as long as he is a minor Obligation to maintain aged/infirm parents and unmarried daughter extends in so far as they are unable to maintain themselves
• Dependents defined are defined as the following relatives of the deceased- his/her father/mother Widow as long as she does not marry Son or son of predeceased son or son of a predeceased son of a predeceased son so long as they are minor to the extent they are unable to maintain themselves from their father/mother’s estate. Unmarried daughters or his predeceased son’s unmarried daughters or his predeceased son’s predeceased son’s unmarried daughter so long as they remain unmarried and to the extent they are unable to maintain themselves from the inherited estate. widowed daughters to the extent she is unable to maintain themselves from the inherited estate. Widowed daughter in laws to the extent they are unable to maintain themselves from the inherited estate. Illegitimate son/daughter as long as they are minor
• Maintenance of dependents- hires of deceased Hindu are bound to maintain the dependents of the deceased Hindu from the estate inherited by them from the deceased. (it is not a personal liability) Liability shall be in proportion of inheritance 23- Amount of maintenance to be determined by- position and status of parties Reasonable wants of the claimant Number of persons entitled to maintenance Net value of the estate of deceased after providing for the payment of debt Degree of relationship Past relations between them Number of dependents 24- Claimant to maintenance should be a Hindu 24- Amount of maintenance may be altered with changing circumstances 28- Where a dependent has right to receive maintenance from a person holding an estate and that is estate is transferred, right to maintenance can be enforced against the transferee.

S.4- minor is a person not completed the age of 18 Guardian means a person having the care of the person or property or both of a minor and includes-Natural Guardian Guardian appointed by the will of minor’s parents A guardian appointed by the court Any person empowers to act as such S.5- This act to have overriding effect over any other law, custom or usage S.6- Natural guardian of Hindu minor (boy or unmarried girl)are- father and after him mother but custody of a child less than 5 years of age shall ordinarily be with the mother In case illegitimate child mother and after her the father A person will cease to be a guardian If he ceases to be a Hindu Completely and finally renounced the world Father and Mother do not mean step-father or mother for the purpose of this section.

Geeta Hariharan v RBI Gayatri Bajaj

S.7- for an adopted son, the adoptive father and then adoptive mother S.8- Powers of natural guardian to do all acts necessary, reasonable and proper for the benefit of the child, his person, and property but cannot bind him in a personal covenant (voidable) Mortgage or put any charge on his property Lease any property for more than 5 years Contravention of above condition shall render such transaction voidable at the instance of the minor But the court can permit such things in the necessity or for an evident advantage of the minor Hunoman Prasad Pandey v Babooee Muenaraj Koonweree

S.9 Testamentary guardian Hindu father or Hindu widow may by will appoint such guardian and their powers shall be- but this will have no effect if father predeceases the mother but will revive if mother dies without any will Such guardian will have all powers of the natural guardian Ceases with marriage in case of girl S.10- minor cannot be guardian of another minor S.11- De-facto guardian cannot deal with minor’s property S.12. Guardian not be appointed for minor’s undivided interest in joint family property but nothing in this shall affect the jurisdiction of HC S.13- Welfare of the minor to be of paramount consideration

MUSLIM PERSONAL LAW

KP Chandshekharappa v Mysore Defined Muslim – not necessary by birth Abdul Kadir v Salim A Muslim marriage is purely a civil contract and not a sacrament

S.2- Notwithstanding any custom or usage to the contrary, in all questions (save in agricultural land) regarding intestate succession, special property of females, personal law, marriage, dissolution of marriage including Talaq, Ila, Lian, Jihar, Khula and Mubarat, maintenance, dower, guardianship, gifts, trusts, wakfs ( other than charitable institutions and religious endowments) the rule of decision in cases where the parties are Muslims shall be Muslim personal Law/Shariat

S.2 Grounds on which Muslim women can seek a divorce-

Whereabouts of the husband not known for a period of four years provided that such decree shall not take effect for a period of 6 months from the date of decree and the husband can in this period come and resume conjugal duties with the permission of court Failed to maintain her for 2 years 7 or more years imprisonment provided sentence has become final Failed to perform his marital obligation for 3 years Impotent at the time of marriage and continues be so Insane for 2 years, suffering from leprosy, virulent venereal disease Marriage was conducted when she was below 15 years but she have to repudiate the marriage in before attaining 18 years of age in case she was aware of this right. (KHYAR-UL-BULUGH) provided the marriage has not been consummated, Cruelty (illustrations given in section 2(viii) Habitual mental or physical assault Accuses her of adultery or women of evil repute Force her to a led an immoral life Misappropriate her property Obstructs her religious observances If he has more than one wife, then does not treat them equally/equitably in accordance with the injunctions of the Quran Automatic dissolution in case of Rida/apostasy (husband leaving Islamic fold) Any other grounds under Muslim law.

Nawab Sadik v Jai Kishori Majority in case go girl is 9 years Allah Diwayah v Kammon Bai Pre-pubescent marriage is not a marriage in the eyes of the law

Bahram Khan v Akhtar Begum A pre-Pubescent married girl can dissolve marriage even when it has been consummated

S.4 Effect of conversion to another faith- Renunciation of Islam by wife will not automatically dissolve the marriage provided she she had not converted to Islam then re-embraces her original faith. But in case of Husband renunciation Islam, there will be automatic dissolution of marriage.

S.2 Definitions Iddat period means- Three menstrual courses after the divorce if she is subject to menstruation Three lunar months after divorce if she is not subject to menstruation If she is pregnant, till the delivery or termination, whichever is earlier.

S.3- Mahr or other properties of Muslim to be given to her at the time of divorce

Divorced women shall be entitled to- A reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband. Where she herself maintains the children born before or after the divorce, a reasonable and fair provision for a period of two years from the date of birth of such children An amount equal to the sum of Mahr or dower agreed to be paid at the time of marriage All the properties were given to her before, at the time, or after the marriage by relatives and friends. If the woman is not paid the above provisions, she or anyone authorized by her on her behalf can file a complaint to the magistrate. Non-compliance with these provisions is a punishable offense.

What if the Husband does not has sufficient means for maintenance?

S.4- In cases Husband does not have sufficient means magistrate may direct if satisfied that the women is unable to maintain herself after the iddat period and has not remarried- direct her relatives who would inherit her property to pay a reasonable and fair maintenance Keeping in mind needs of the woman and the standard of life enjoyed by her during the marriage Then the court may ask her children if they are able to and are major to maintain her In the even of Children also unable to maintain, her parents will be directed to maintain her If the parents are also unable to maintain her, then other such relatives the magistrate may deem fit When even other relatives are unable to maintain her, the Waqf board shall be liable to maintain her. (Wakf act 1954)

S.5- Option to be governed by provisions of section 125 to 128 of CrPC. The parties may declare this by affidavit either jointly or separately.

Shamim Banu v Ashraf Khatoon Whether the appellant’s application for grant of maintenance under Section 125 of the Code is to be restricted to the date of divorce and, as an ancillary to it because of filing of an application under Section 3 of the Act after the divorce for grant of mahr and return of gifts would disentitle the appellant to sustain the application under Section 125 of the Code? and second,

Whether regard being had to the present fact situation, as observed by the High Court, the consent under Section 5 of the Act was an imperative to maintain the application?

Held , No. Even an application has been filed under the provisions of the Act, the Magistrate under the Act has the power to grant maintenance in favor of a divorced Muslim woman and the parameters and the considerations are the same as stipulated in Section 125 of the Code.

Mohammed Ahmad Khan v Shah Bano Begum The wife filed for maintenance under S.125 CrPC after driven out of home by Husband. The husband gave triple talaq, thereby returning the Mahr amount along with maintenance for the iddat period.

Observations of SC- CrPC being a secular provision is applicable to all communities and Muslim women are not excluded from it.

Even though Muslim personal law of Shariat cast no obligation on the husband to maintain the wife after the iddat period, it also does not prohibit such maintenance. Whether 125 will prevail over personal law presumes that there is a conflict between them.

But there is no conflict between them as Shariat does not contemplate the situation mentioned in 125 which provides maintenance for wife even after divorce if she is unable to maintain herself.

Shariat if looked in totality also provides the same. Quran in chapter 2 verse 241 says- For divorced women also there shall be provided according to what is fair. This is an obligation binding on the righteous. Thus does Allah make His commandments clear to you that you may understand.

No maintenance after iddat in Shariat is based on situations where the wife can maintain herself. Though the divorced wife’s right to maintenance ceased on the expiration of the iddat period this Court proceeded to observe that the general propositions reflected in those statements did not deal with the special situation where the divorced wife was unable to maintain herself.

Although the Muslim Law limits the husband’s liability to provide for the maintenance of the divorced wife to the period of iddat, it does not contemplate or countenance the situation envisaged by Section 125 of the Code of Criminal Procedure, 1973.

Danial Latifi v Union of India Constitutionality of S. 3(a) of the Muslim women(protection of rights on Divorce) Act 1986 was challenged and also the option given to husband under this act to choose to give maintenance to wife either under this act or under S.125 CrPC? As the wordings of this act contemplates maintenance only till iddat period while 125 ensures it for life.

Though there was an ulterior motive of government behind the enactment of the act to appease the Muslim Patriarchy by limiting the maintenance only till the iddat period nowhere did it explicitly mentioned in the act that maintenance shall be only till iddat period. Supreme Court upheld the constitutionality of the Act by giving a beautiful and erudite interpretation

Courts reflected upon the wordings of S.3- ‘Provision for maintenance to be made and paid within the iddat period’ and interpreted as to be maintained for entire life but to be paid and given within the iddat period itself.

The crux of the matter is that the divorced woman shall be entitled to a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband.

The emphasis of this section is not on the nature or duration of any such ‘provision’ or ‘maintenance’, but on the time by which an arrangement for payment of provision and maintenance should be concluded, namely, ‘within the iddat period’.

IQBAL BANU V UP Proceedings under Section 125 Cr.P.C. are civil in nature. Even if the Court notices that there was a divorced woman in the case in question, it was open to him to treat it as a petition under the Act considering the beneficial nature of the legislation. Proceedings under Section 125 Cr.P.C.

A Muslim husband is liable to make reasonable and fair provisions for the future of the divorced wife which obviously includes her maintenance as well. Such a reasonable and fair provision extending beyond the iddat period must be made by the husband within the iddat period in terms of Section 3(i)(a) of the Act.

Liability of the Muslim husband to his divorced wife arising under Section 3(i)(a) of the Act to pay maintenance is not confined to the iddat period.

A divorced Muslim woman who is not remarried and who is not able to maintain herself after the iddat period can proceed as provided under Section 4 of the Act against her relative who is liable to maintain her in proportion to the properties which they inherit on her death according to Muslim law for such divorced woman including her children and parents.

If any of her relatives being unable to pay maintenance, the Magistrate may direct the State Waqf Board established under the Act to pay maintenance. The provisions of the Act do not offend Article 14, 15 and 21 of the Indian Constitution.

SHABANA BANU Family Courts Act is applicable even in case of a petition under S.125 of CrPC by virtue of S.7, 20 of the Act. A bare perusal of Section 20 (overriding effect over any other law) of the Family Act makes it crystal clear that the provisions of this Act shall have an overriding effect on all other enactments in force dealing with this issue.

The objective behind 125 is to prevent vagrancy/destitution amongst females after divorce or separation who are unable to maintain themselves. Even a divorced Muslim woman would be entitled to claim maintenance from her divorced husband, as long as she does not remarry. This being a beneficial piece of legislation, the benefit thereof must accrue to the divorced Muslim women.

Hindu Joint Family and Coparcenary Every Hindu family is assumed to be a joint family- After marriage, a daughter ceases to be a member of the joint family. She will join again if returns after getting widowed or divorced Gur Narain Das v Gur Tahal Das, AIR 1952 SC 225. Sitabai v Ramchandra AIR 1970 SC 343 Gowli Buddanna v CIT Mysore AIR 1966 SC 1523

Rights of the members of the Joint Hindu Family- Right to maintenance and residence Understanding the Tantra Sociological Perspective Legal perspective

Read more| Family Law II notes

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Douglas and Colleen Hartmann have created a complete history Russia from medieval times to the present in short articles with links to other sites. An excellent sources of information on Russian history.

A new electronic journal of Russian history on line, including a page of delightful historical anecdotes. The table of contents of the first issue (Windows 1251 font): ���������� ��������� ��������� �������� XVIII ���� (�. ���������� � �. ���������� ������ ������ (�. ��������) ��������� ����� ������ ������� ��� � ������ �� ��������-���������� ������ (�. ���������) ������ ������ (�. ��������)

This CNN 16-part special is backed up by an elaborate multimedia website which includes course materials for classroom instructors. The most elaborate treatment of the Cold War since it ended.

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Q: To what extent will it hurt my case if I have dv records (1)from my current wife that were dropped ??

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A: If it goes to trial, you will need to have witnesses to the DV incident or incidents, Records from cases that was dismissed are hearsay and therefore not admissible.

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Garrett West ’18 to Join Yale Law School Faculty

Dean Heather K. Gerken has announced that Garrett West ’18 will be joining the Yale Law School faculty as an Associate Professor of Law on July 1, 2024.

West’s scholarly interests include torts, remedies, federal courts, and administrative law. His scholarship focuses on the uses of private law theory in public law and on the problems of constitutional interpretation and doctrinal coherence through constitutional change. His work has been or will be published in the Yale Law Journal , Virginia Law Review , Wisconsin Law Review , and Administrative Law Review , exploring topics such as constitutional torts, the Appointments Clause of the Constitution, and contempt of Congress.

“Garrett has produced an astonishing amount of insightful scholarship while working full-time as a lawyer, and every paper showcases his creativity and brilliance,” said Dean Heather K. Gerken. “His presence on the faculty will enrich our conversation and enhance our intellectual life.” 

West received his B.A. from Hillsdale College in 2015 and his J.D. from Yale Law School in 2018, where he served as Articles and Essays Editor on the Yale Law Journal and as Submissions Editor for the Yale Journal on Regulation . During law school, West received the Thomas I. Emerson Prize in 2017 and 2018, awarded annually to a distinguished student paper on legislation. 

After law school, West clerked for Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit, Judge Thomas B. Griffith of the U.S. Court of Appeals for the D.C. Circuit, and Justice Samuel Alito ’75 of the U.S. Supreme Court.

West is currently an associate in the Washington, D.C., office of Paul, Weiss, Rifkind, Wharton & Garrison LLP, where he is a member of the firm’s Supreme Court & Appellate Litigation Group.

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Everyone in Japan will be called Sato by 2531 unless marriage law changed, says professor

Sato will become the only option by 2531, suggests modelling as part of campaign to overturn outdated law requiring spouses to have same surname

Japanese citizens will all have the same family name in 500 years’ time unless married couples are permitted to use separate surnames , a new study has suggested as part of a campaign to update a civil code dating back to the late 1800s.

The study, led by Hiroshi Yoshida, a professor of economy at Tohoku University, projected that if Japan continues to insist that couples select a single surname, every single Japanese person will be known as “Sato-san” by 2531.

Yoshida conceded that his projections were based on several assumptions, but said the idea was to use numbers to explain the present system’s potential effects on Japanese society to draw attention to the issue.

“If everyone becomes Sato, we may have to be addressed by our first names or by numbers,” he said, according to the Mainichi. “I don’t think that would be a good world to live in.”

Sato already tops the list of Japanese surnames, accounting for 1.5% of the total population, according to a March 2023 survey, with Suzuki a close second.

Some social media users wrongly assumed the study, first reported on Monday but published in March, was an April fools’ day prank, but Yoshida said he wanted it to give people pause for thought.

A nation of Satos “will not only be inconvenient but also undermine individual dignity,” he said, according to the Asahi Shimbun, adding that the trend would also lead to the loss of family and regional heritage.

According to Yoshida’s calculations, the proportion of Japanese named Sato increased 1.0083 times from 2022 to 2023. Assuming the rate remains constant and there is no change to the law on surnames, around half of the Japanese population will have that name in 2446, rising to 100% in 2531.

Couples in Japan have to choose which surname to share when they marry, but in 95% of cases, it is the woman who changes her name.

However, the picture would be different if Japan’s government submitted to growing pressure to allow married couples to use separate surnames.

The study contained an alternative scenario extrapolated from a 2022 survey by the Japanese Trade Union Confederation, in which 39.3% of 1,000 employees aged 20 to 59 said they wanted to share a surname even if they had the option of using separate ones.

Under those circumstances, Yoshida, whose study was was commissioned by the Think Name Project and other organisations that want to legalise the opportunity to select your surname, projected that by 2531, only 7.96% of the Japanese population would be named Sato, the Mainichi Shimbun reported.

Groups calling for a change in the law on married surnames hope their campaign will receive a boost from the prospect that Suzukis, Watanabes and, indeed, people called Yoshida – the 11th most common surname – could one day disappear.

While the government has allowed maiden names to appear alongside married names on passports, driving licences and residence certificates, Japan remains the only country in the world that requires spouses to use the same name.

Conservative members of the ruling Liberal Democratic party (LDP) say changing the law would “undermine” family unity and cause confusion among children.

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Law & Order 's Angie Harmon Says Deliveryman Shot and Killed Her Dog

Law & order alum angie harmon wrote on instagram that “a man delivering groceries for instacart shot & killed” her dog oliver over easter weekend. read the company's response..

Angie Harmon is mourning the loss of her dog Oliver.

The Law & Order alum said "a man delivering groceries for Instacart shot & killed" her beloved pet over Easter weekend. 

"He got out of his car, delivered the food & THEN shot our dog," Harmon wrote in an April 1 Instagram post alongside throwback photos of Oliver . "Our ring camera was charging in the house, which he saw & then knew he wasn't being recorded. The police let him go b/c he claimed 'self defense'. He did not have a scratch or bite on him nor were his pants torn." 

She also said the deliveryman had been "shopping under a woman's identity" and shared a screenshot that showed the photo and name associated with the shopper profile. 

In addition, Harmon—who is mom to daughters Finley , 20; Avery , 18; and Emery , 15—said her kids were home at the time of the incident.

"He shot our dog with my daughters & myself at home & just kept saying, 'Yeah, I shot your dog. Yeah I did,'" she continued. "We are completely traumatized & beyond devastated at the loss of our beloved boy & family member. #RIP OLLIE."

The Rizzoli & Isles  star then sent a message to the deliveryman.

"To the man who took Ollie away from us: your actions are despicable and inexcusable," she shared on her Instagram Stories. "You've not only robbed us of a beloved member of our family but you've also traumatized us beyond measure. The fact that someone could commit such a heartless act is beyond comprehension to me and I'm devastated that I didn't get to say goodbye to him."

The Charlotte-Mecklenburg Police Department in Charlotte, N.C., told E! News they responded to the incident on March 30, and they confirmed the deliveryman said he acted in self-defense.

"The investigation revealed that a delivery driver arrived at the residence to deliver consumable good," the CMPD said. "The driver told officers that a dog attacked him while he was at the residence and that he defended himself by firing a single gunshot, striking and mortally wounding the dog. Another dog was present at the residence but did not attack."

The department—who added its Animal Care and Control unit responded to the scene as well—also said no criminal charges have been filed in relation to this incident and that the "CMPD is not currently seeking any additional parties."

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Meanwhile, Instacart has also spoken out.

"We were deeply saddened and disturbed to hear about this incident," the grocery delivery service said in a statement to People . "We have no tolerance for violence of any kind, and the shopper account was immediately suspended from our platform. We have been in direct contact with the customer and are cooperating with law enforcement on their investigation."

E! News has reached out to Instacart for additional comment but has yet to hear back.

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