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Hindu Law BALLB Vth Sem

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Title: Hindu Law BALLB Vth Sem


1
Hindu Law BALLB Vth Sem
2
Sec 5 Hindu Marriage Act 1955
  • Marriage May Be Solemnized Between Two Hindus But
    Not either Party Has A Spouse Living Or Is Of
    Unsound Mind Or Suffering From Mental Disorder Or
    insanity Or Minors Or Within Prohibited
    Relationship Or Sapindas.
  • A Marriage Between A Hindu Man Who Converted As
    Christian A Christian Lady In A Hindu Form Is
    Not A Valid Marriage. According To Sec 5 Of The
    Act Marriage Can Be Solemnized Between Two Hindus
  • M. Vijayayakumary Vs K.Devabalan Air2003ker363

3
Sec 7
Marriage may be solemnized in accordance with
the customary rights and ceremonies and if
includes satapadi it become complete and binding
with the seventh step
4
Restitution of conjugal rights and judicial
separation sec-9 HAMA
  • When either party without reasonable excuse with
    from the society of the other, the aggrieved
    party may file petition for restitution of
    conjugal rights
  • Where it is found that conduct of husband created
    reasonable apprehension in mind of wife that it
    would be unsafe for her not tostay with husband
    the decree for restitution of conjugal rights in
    favour of husband cannot be granted
  • Kamala devi vs Shiva Kumar Swamy, AIR 2003 Kar36

5
Judicial separation sec 10 HMA 1955
  • Either party may file decree for Judicial
    separation on any grounds under sec .13 (2) it
    will not be obligatory on the parties to cohibit
    after such decree

6
Nullity of marriage sec.11 HMA
  • A marriage between two hindus is null and void if
    one of the party has a spouse living or
  • Are within prohibited degree or sapindas
  • Sec 12
  • Any marriage solemnized shall be voidable and may
    be annulled by decree of nullty in case of
    impotency or insanity or of unsound mind or
    consent obtained by fraud or on pregnancy by
    third person

7
Sec -12 voidable marriages HMA1955
  • Any marriage solemnized shall be voidable may be
    annulled by a decree of nullity in case of
    impotency or insanity or of unsoundness of mind
    or consent obtain by fraud or on pregnancy by
    third person

8
Sec 13 Divorce
  • A marriage may be dissolved by a decree of
    divorce on the grounds of adultery or cruelty
    ,desertion conversion , renunciation or suffering
    from unsoundness of mind or leprosy, veneral
    disease or not heard for seven years or more.

9
Cruelty
  • Cruelty which is ground for dissolution of
    marriage may be defined as wilful and
    unjustifiable conduct of such character as to
    cause danger to life limb or health, bodily or
    mental, or as to give rise to a reasonable
    apprehension of such a danger.
  • The question of mental cruelty has to be
    considered in the light of the norms of material
    ties of the particular society, to which parties
    belong, their social values, status, environment
    in which they live.
  • Cruelty need not be physical .if from the conduct
    of the spouse it is established or an inference
    can be legitimately drawn that the treatment of
    the spouse is such that it causes apprehension of
    mind of the other spouse, about his or her mental
    welfare then his conduct amounts to cruelty
  • Maya Devi Vs. Jagdish Prasad, AIR 2007 SC 1426

10
Sec-14 HMA 1955
  • It shall not be competent for any court to
    entertain petition for dissolution of marriage by
    decree of divorce within one year of marriage

11
Sec- 15 HMA 1955
  • When marriage has been dissolve by decree of
    divorce and there is no appeal , the parties may
    marry again

12
Sec 16 HMA 1955
  • Any child born out of void marriage shall be
    legitimate, whether a decree of nullty is passed
    or not any child begotten or conceived before
    decree of nullity of voidable marriage shall be
    legitimate

13
Sec -17 HMA 1955
  • Any marriage between two Hindus shall be void if
    either party has a spouse living the provisions
    of secs 494and495 ,IPC shall apply accordingly

14
Sec 19 HMA 1955
  • Every petition shall be presented to district
    court where the marriage has been solemnized or
    respondent resides or parties last resided or
    where the wife as petitioner is residing on the
    date of petition

15
Sec 22 HMA 1955
  • Every proceeding shall be conducted in camera and
    it shall be unlawful to print or publish such
    matter

16
Sec 24 HMA 1955
  • Where in any proceeding it appear to the court
    that either party has no sufficient income for
    support and expenses of the proceeding , it may
    order the other party to pay

17
SOURCES OF HINDU LAW
18
SOURCES OF HINDU LAW
  • 1)Ancient Sources
  • Sruti Manu has defined Sruti as follows By
    Sruti or what was heard from above (from God) is
    meant the Veda. Sruti or Veda are believed to
    contain the very words of Deity (God). They are
    supposed to be the divine utterances to be found
    in the four Vedas, the six vedangas and the
    eighteen Upanishads.
  • b) Smriti They are utterances and precepts of
    the Almighty, which have been heard and
    remembered and handed down by the Rishis (sages)
    from generation to generation. The smrities are
    divided into Primary and Secondary Smrities
    contained in Dharma Sutra (Prose) and
    Dharmashastras (Poetry).
  • c) Digests and Commentaries After the Smrities,
    the next step in the development of Hindu Law was
    the composition of a number of commentaries
    (tika) and Digests (Nibandha) based upon the
    Smrities. The commentaries are to interpret the
    law as laid down in the Smrities.
  • d) Custom When human beings came to live in
    groups, it was but natural that they should, for
    harmonious group life, conform to certain
    patterns of human behaviour.

19
2) Modern Sources a) Judicial Decisions b)
Legislation c) Equity, Justice and Good Conscience
20
APPLICATION OF HINDU LAW
  • 1 .Hindu by Religion In this category two types
    of persons fall
  • Those who are originally Hindus, Jains, Sikhs or
    Buddhist by religion, and
  • Those who are converts or reconverts to Hindu,
    Jain, Sikhs or Buddhist religion
  • Converts and Reconverts to Hinduism
  • 2. Hindu by Birth A child whose both the
    parents were Hindus, Sikhs, Jains or Buddhists at
    the time of his birth, is regarded as Hindu. A
    person will be Hindu if at the time of his birth
    one of the parents was Hindu and the child is
    brought up as a member of the tribe, community,
    group or family to which Hindu parent belonged at
    the time of his birth.
  • 3. Who are not Muslims, Christians, Parsis or
    Jews Any person who is not a Muslim,
    Christian, Parsi or Jew and who is not governed
    by any other law, is governed by Hindu law,
    unless it is proved that Hindu law is not
    applicable to such a person

21
  • Under the Codified Law Section 2 of the Hindu
    Marriage Act 1955,
  • provides that the Act applies to the persons
    listed below (and similar provisions are also
    made in the other enactments of Hindu Law)
  • 1. Application of Act This Act applies
  • a) to any person who is Hindu by religion in any
    of its forms of development, including a
    Virashaiva, a Lingayat or a follower of the
    Brahmo, Prarthana or Arya Samaj
  • b) to any person who is a Buddhist, Jaina or Sikh
    by religion and
  • c) to any other person domiciled in the
    territories to which this Act extends, who is not
    a Muslim, Christian, Parsi or Jew by religion,
    unless it is proved that any such person would
    not have been governed by the Hindu law or by any
    custom or usage as part of that law in respect of
    any of the matters dealt with herein if this Act
    had not been passed.

22
  • Explanation The following persons are Hindus,
    Buddhists, Jainas or Sikhs by religion, as the
    case may be
  • a) any child, legitimate, or illegitimate, both
    of whose parents are Hindus, Buddhists, Jains or
    Sikhs by religion
  • b) any child, legitimate, or illegitimate, one of
    whose parents is a Hindu, Buddhist, Jaina or Sikh
    by religion, and who is brought up as a member of
    the tribe, community, group or family to which
    such parent belongs or belonged and
  • c) any person who is a convert or re-convert to
    the Hindu, Buddhist, Jain or Sikh religion.
  • 2. Notwithstanding anything contained in
    sub-section (1), nothing contained in this Act
    shall apply to the members of any Schedule Tribes
    within the meaning of clause (25) of Article 366
    of the Constitution, unless the Central
    Government, by notification in the Official
    Gazette, otherwise directs.
  • 3. The expression Hindu in any portion of this
    Act shall be construed as if it included a person
    who, though not a Hindu by religion is,
    nevertheless, a person to whom this Act applies
    by virtue of the provisions contained in this
    section.

23
  • Person to whom Hindu Law Applies (Uncodified Law)
  • 1. Hindus by birth and also to Hindus by
    conversion in any of its forms or developments
    including Brahmans, Arya Samajists etc.
  • 2. Illegitimate children whose parents are
    Hindus.
  • 3. Illegitimate children born of a Christian
    father and a Hindu mother and brought up as
    Hindus.
  • 4. Buddhists, Jains, Sikhs and Nambudry Brahmans
    except, so far such law is varied by custom and
    to lingayats who are considered as Shudras.
  • 5. Sons of Hindu dancing girls of Naik caste
    converted to Mohammedanism where the sons are
    taken into the family of Hindu grandparents and
    are brought up as Hindus.
  • 7. Brahmos and Arya Samajists, and to Santhals of
    Chhota Nagpur, and also to Santhals of Manbhum
    except so far as it is not varied by custom.
  • 8. A Hindu who has made a declaration that he is
    not Hindu for the purpose of Special Marriage Act
    1872, and
  • 9. A person who is born a Hindu and has not
    renounced the Hindu religion, does not cease to
    be a Hindu merely because he departs
  • 10. A Hindu by birth who having renounced
    Hinduism, has reverted to it after performing the
    religious rites of expiation and repentance, or
    even without a formal ritual or re-conversion
    when he was recognised as a Hindu by the
    community

24
THE HINDU MARRIAGE ACT, 1955 Nature of Hindu
Marriage - Sacrament or a Contract
  • It is believed among Hindus that every Hindu is
    under a religious obligation to discharge three
    debts Pitri Rin, Dev Rin, and Rishi Rin.
  • Rishi Rin is discharged by getting education, Dev
    Rin is discharged by prayer and by making gift
    but for the discharge of Pitri Rin a Hindu must
    have his own son who is supposed to perform
    funeral rites and to give sacred obligations to
    the ancestors on their death for their salvation.
    Marriage is also necessary among Hindus because
    all the religious ceremonies and rites are to be
    performed in the companionship of his wife
    otherwise they will not bear any fruits.
  • From the Rig Vedic period marriage was considered
    as a sacramental union. A marriage is the union
    of flesh with flesh and bone with bone. It is a
    union which is indissoluble. As long as her
    husband is alive, the wife is enjoined to regard
    him as her God likewise, the wife is declared to
    be half the body of her husband (Ardhangini) who
    shares with him equally the fruits of all his
    acts, good or bad. Man is only half, not complete
    until he marries. The wife is the source of
    Dharma, Artha and Kama, and she is also the
    source of Moksha.

25
  • According to Manu, the daughter is given in
    marriage only once and she remains the wife of
    that person to whom she is given in marriage for
    her whole life.
  • According to Narada and Parasara, there are only
    five conditions in which a wife could abandon her
    husband and remarry
  • 1.If the husband is lost 2.dead or
    3.has renounced the world and has become a
    sanyasi or 4. has become impotent 5. has
    been ousted from his caste.
  • But these conditions could be allowed only in the
    case of unapproved form of marriage. Marriage is
    a tie which once tied cannot be untied. It is
    sacramental union and continues to exist even
    after the enactment of the Hindu Marriage Act.

26
  • Changes Brought About by the Hindu Marriage Act
    1955
  • 1. The Act has declared that marriages amongst
    Hindus, Jains, Sikhs and Buddhists, are valid.
  • 2. Monogamy has been introduced and provided
    punishment for bigamy.
  • 3. The minimum age for marriage, 21 for boy and
    18 for a girl.
  • 4. The Act does not recognise any particular form
    of marriage but prescribes some conditions.
  • 5. Registration of Hindu Marriage.
  • 6. Restitution of conjugal rights.
  • 7. The provision of judicial separation.
  • 8. The provision of divorce and the concept of
    divorce by mutual consent.
  • 9. The provision of re-marriage.

27
Hindu Marriages Act, 1955
  • Section 5. Conditions for a Hindu marriage
  • A marriage may be solemnized between any two
    Hindus, if the following condition are fulfilled,
    namely-
  • (i) neither party has a spouse living at the time
    of the marriage
  • (ii) at the time of marriage, neither party-
  • (a) is incapable of giving a valid consent to
    it in consequence of unsoundness of mind or
  • (b) though capable of giving a valid consent, has
    been suffering from mental disorder of such a
    kind or to such an extent as to be unfit for
    marriage and the procreation of children or
  • (c) has been subject to recurrent attacks of
    insanity
  • (iii) the bridegroom has completed the age of
    twenty one years and the bride, the age of
    eighteen years at the time of 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

28
  • Sec.2 (g) degrees of prohibited relationship
  • Two persons are said to be within the degrees of
    prohibited relationship
  • (i) if one is lineal ascendant of the other or
  • (ii) if one was the wife or husband of a lineal
    ascendant or descendant of the other or
  • (iii) if one was the wife of the brother or of
    the fathers or mother's brother or of the
    grandfathers or grandmothers brother of the
    other or
  • (iv) if the two are brother and sister, uncle
    and niece, aunt and nephew or children of brother
    and sister or of two brother or of two sister
  • Explanation- For the purposes of clauses (f) and
    (g), relationship includes-
  • (i) relationship by half or uterine blood as well
    as by full blood
  • (ii) illegitimate blood relationship as well as
    legitimate
  • (iii)  relationship by adoption as well as by
    blood
  • and all terms of relationship in those clauses
    shall be constructed accordingly

29
  • Prohibited degrees
  • Lineal ascendants
  • If one was the w or h of a lineal ascendant or
    descendant of the other

30
(No Transcript)
31
  • Sec.2 (f) sapinda relationship
  • (i) sapinda relationship with reference to any
    person extends as far as the third generation
    (inclusive) in the line of ascent through the
    mother, and the fifth (inclusive) in the line of
    ascent through the father, the line being traced
    upwards in each case from the person concerned,
    who is to be counted as the first generation.
  • (ii) two persons are said to be sapindas of
    each other if one is a lineal ascendant of the
    other within the limits of sapinda relationship,
    or if they have a common lineal ascendant who is
    within the limits of sapinda relationship with
    reference to each of them

32
  • Is A sapinda to his paternal great grandfathers
    sons daughter B

33
  • Is A sapinda to his maternal aunts grand
    daughter (daughters daughter B

34
Is A sapinda to his maternal aunts grand
daughter (sons daughter) B
35
Is A sapinda to his grandfathers sons sons
daughter
36
  • Ceremonies for a Hindu Marriage (Section 7)
  • a) A marriage may be solemnised in accordance
    with the customary rites and ceremonies of either
    party thereto.
  • b) Where such rites and ceremonies include the
    saptapadi (that is, the taking of seven steps by
    the bridegroom and the bride jointly before the
    sacred fire) the marriage becomes binding when
    the seventh step is taken.
  • Registration of Hindu Marriages (Section 8) For
    the purpose of facilitating the proof of a Hindu
    Marriage, the State Government may make rules
    that the parties to marriage may have the
    necessary particulars entered in a Hindu Marriage
    Register kept for the purpose.
  • The marriage is not affected in any way by the
    omission to have it entered in the Hindu Marriage
    Register, even it is compulsory to do so. The
    only consequence is that a fine not exceeding Rs.
    25, may be levied.

37
  • Consequences in case of violation of the above
    conditions mentioned u/s. 5 of the Act----
  • Contravention of Sec.5(1) will render the
    marriage void under Section 11, and a competent
    Court may declare such a marriage to be a nullity
    on a petition presented by either party to such
    marriage.
  • The parties to a bigamous marriage are also
    liable to be punished under Section 494 and 495
    of the Indian Penal Code (Section 17 of the Act).
  • Contravention of Sec.5(2) will render the
    marriage voidable under Section 12

38
  • Contravention of Sec.5(3) will render the
    marriage valid but according to sec.18 (a)
    - Every person who procures a marriage of himself
    or herself to be solemnized under this Act in
    contravention of the conditions specified in
    clauses (iii) of section 5 shall be
    punishable-with rigorous imprisonment which may
    extend to 2 years, or with fine which may extend
    to one lakh rupees, or with both
  • And PCMA
  • Contravention of Sec.5(3) and (4) will render the
    marriage void under Section 11, and according to
    sec.18 (b) in the case of a contravention of the
    condition specified in clause (iv) and (v) of
    section 5, with simple imprisonment which may
    extend to 1 month, or with fine which may extend
    to one thousand rupees, or with both.

39
  • 16-Legitimacy of children of void and voidable
    marriages.
  •  (1)Notwithstanding that a marriage is null and
    void under section 11, any 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, (68 of
    1976) and whether or not a decree of nullity is
    granted in respect of that marriage under this
    Act and whether or not the marriage is held to be
    void otherwise than on a petition under this
    Act. 
  • (2)Where a decree of nullity 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 sub-section (1) or
    sub-section (2) shall be construed as conferring
    upon any child of a 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 passing of this
    Act, such child would have been incapable of
    possessing or acquiring any such rights by reason
    of his not being the legitimate child of his
    parents.

40
  • Void Marriage (Section 11) Any marriage
    solemnized at 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) of Section 5. Thus a
    marriage will be void ab initio
  • i) if any party to marriage has a spouse living
    at the time of marriage Section 5(i)
  • ii) if the parties are within the decree of
    prohibited relationship unless the custom or
    usage governing each of them permits such a
    marriage Section 5 (iv)
  • iii) if the parties are sapindas of each other,
    unless the custom or usage governing each of them
    permits such a marriage Section 5(v).
  • Section 11 is not applicable to marriage
    solemnized before the commencement of the Hindu
    Marriage Act 1955, i.e. before 18th May 1955
    though such marriage may be void.

41
Section 12 (1)-Voidable marriages-- Any marriage
solemnized, whether before or after the
commencement of this Act, shall be voidable and
may be annulled by a decree of nullity on any of
the following grounds, namely-
  •   (a) that the marriage has not been consummated
    owing to the impotence of the respondent or 
  •  (b) that the marriage is in contravention of the
    condition specified in clause (ii) of section 5
    or 
  •  (c) that the consent of the petitioner, or where
    the consent of the guardian in marriage of the
    petitioner was required under section 5 as it
    stood immediately before the commencement of the
    Child Marriage Restraint (Amendment) Act, 1978,
    (2 of 1978) the consent of such guardian was
    obtained by force or by fraud as to the nature of
    the ceremony or as to any material fact or
    circumstances concerning the respondent or 
  •  (d)that the respondent was at the time of the
    marriage pregnant by some person other than the
    petitioner.

42
  • (2)Notwithstanding anything contained in
    sub-section (1), no petition for annulling a
    marriage-
  • (a) on the ground specified in clause (c) of
    sub-section (1) shall be entertained if-
  • (i) the petition is presented more than one year
    after the force had ceased to operate or, as the
    case may be, the fraud had been discovered or  
  •  (ii) the petitioner has, with his or her full
    consent, lived with the other party to the
    marriage as husband or wife-after the force had
    ceased to operate or, as the case may be, the
    fraud had been discovered
  • (b) on the ground specified in clause (d) of
    sub-section (1) shall be entertained unless the
    court is satisfied- 
  •   (i) that the petitioner was at the time of the
    marriage ignorant of the facts alleged  
  •  (ii) that proceedings have been instituted in
    the case of a marriage solemnized before the
    commencement of this Act within one year of such
    commencement and in the case of marriages
    solemnized after such commencement within one
    year from the date of the marriage and  
  •  (iii) that marital intercourse with the consent
    of the petitioner has not taken place since the
    discovery by the petitioner of the existence of
    the said ground.

43
JURISDICTION
  • Court to Which Petition shall be Presented
    (Section 19)
  • Every petition under this code shall be
    presented to the District Court within the local
    limits of whose ordinary original civil
    jurisdiction
  • 1. the marriage was solemnized or
  • 2. the respondent, at the time of the
    presentation of the petition resided, or
  • 3.a) the parties to the marriage last resided
    together or
  • b) in case the wife is the petitioner, where
    she is residing on the date of presentation of
    the petition
  • 4. the petitioner is residing at the time of the
    presentation of the petition, in a case where the
    respondent
  • a) is at that time residing outside the
    territories to which the Act extends, or
  • b) has not been heard of as being alive for a
    period of seven years or more by those persons
    who would have naturally heard of him if he were
    alive.

44
Restitution of Conjugal Rights (Section 9)
  • When either the husband or the wife has, without
    reasonable excuse, withdrawn from the society of
    the other, the aggrieved party may apply, by
    petition to the district court, for restitution
    of conjugal rights land the court, on being
    satisfied of the truth of the statements made in
    such petition and that there is no legal ground
    why the application should not be granted, may
    decree restitution of conjugal rights
  • Explanation- Where a question arises whether
    there has been reasonable excuse for withdrawal
    from the society, the burden of proving
    reasonable excuse shall be on the person who has
    withdrawn from the society.

45
  • reasonable excuse---
  • a) Grossly indecent behaviour.
  • b) Extravagance of living on the part of the wife
    affecting the financial position and prospects of
    the husband.
  • c) Excessive drinking carried to such a degree as
    to render it impossible for the duties of married
    life to be discharged.
  • d) Persistence in a false charge against the
    respondent of having committed an unnatural
    offence.
  • e) Refusal of marital intercourse without
    sufficient reason.
  • f) Apprehension of violence due to development of
    insanity in the petitioner.
  • g) Agreement to live separately.
  • h) Misconduct approaching cruelty
  • i) withdrawal for reasons of employment
  • Kailashwati vs Ajudhia Prakash 1971 P.H.
  • Swaraj Garg v. K.M. Garg 1978 Dehi

46
Whether Section 9 of the Act is Unconstitutional
  • T. Sareetha v T. Venkata Subhaiah A.I.R1983 A.P 
    --Holding that Section 9 is constitutionally
    void, as being violative of Article 21, the Court
    observed.
  • A decree for restitution of conjugal rights
    constitutes the grossest from of violation of an
    individuals right to privacy. The Court also
    held that Section 9 also violated Article 14 of
    the Constitution (the right to equality)
  • Harvinder Kaur v Harmander Singh Choudhry
    A.I.R1984 Delhi-section 9 is not violative of
    Articles 14 and 21 of the Indian Constitution.
  • Saroj Rani v Sudarshan Kumar Chandha A.I.R1984
     S.C.-- where the Court expressly overruled the
    judgment of the Andhra Pradesh High Court, and
    held that Section 9 is not violative of Article
    14 and 21 of the Constitution. The Court pointed
    out that a decree for restitution of conjugal
    rights serves a social purpose as an aid to the
    prevention of break-up in a marriage. Even if
    such an order of the Court is willfully
    disobeyed, the Court cannot enforce sexual
    intercourse between the spouses. The only remedy
    of the other party would be to apply for
    attachment of the property of the defaulting
    spouse, through Rule32 of Order 21 of the CPC.

47
  • Section 13 (1A) (ii) Either party to a marriage
    whether solemnized before or after the
    commencement of this Act, may also present a
    petition for the dissolution of the marriage by a
    decree of divorce on the ground- that there has
    been no restitution of conjugal rights as between
    the parties to the marriage for a period of one
    year or upwards after the passing of a decree
    for restitution of conjugal rights in a
    proceeding to which they were parties Section
    9, in actuality, is a means of saving the
    marriage, it is in a sense an extension of
    sub-sections (2) and (3) of section 23 of the Act
    which encourage reconciliation by the court. It
    is the policy of the Act that the parties should
    live together and assist in the maintenance of
    marriages.
  • By enforcing cohabitation, the court is serving
    this purpose of the Act. the Indian Legislature
    believes that there should not be a sudden break
    of the marriage tie. It believes in
    reconciliation and that that cooling-off period
    is not only desirable but essential. If the
    marriage cannot be saved even after passing the
    decree of restitution it must be dissolved. A
    factual separation gives an easily justifiable
    indication of breakdown.

48
  • Further, recognizing non-consumption of marriage
    after 1 year of passing of Restitution Decree as
    a ground of divorce enables the aggrieved spouse
    to apply to the court for maintenance under
    section 25 and maintenance pendente lite may
    also be claimed by making out a case for the same
    as provided in section 24. This enables a wife,
    who does not desire disruption of the marriage or
    even judicial separation from the husband, to
    secure provision for her support by an order of
    the court under the matrimonial jurisdiction
    conferred on it, instead of filing a suit for
    maintenance under the law relating to maintenance
    now embodied in the Hindu Adoptions and
    Maintenance Act 1956.
  • The Remedy of Restitution of Conjugal Rights is
    archaic, barbarous and violative of the basic
    Human Rights. It cannot be said that this remedy
    is unconstitutional. Section 9 has sufficient
    safeguards to prevent the marriage from being a
    tyranny.43In truth, it serves the social good
    purpose, by promoting reconciliation between the
    parties and maintenance of matrimonial. It
    protects the society from denigrating. And all
    the years that it has been enforce it has
    efficiently played it's a role.

49
Section10-Judicial separation
  •  (1)Either party to a marriage, whether
    solemnized before or after the commencement of
    this Act, may present a petition praying for a
    decree for judicial separation on any of the
    grounds specified in sub-section (1) of section
    13, and in the case of a wife also on any of the
    grounds specified in sub-section (2) thereof, as
    grounds on which a petition for divorce might
    have been presented.
  •  (2)Where a decree for judicial separation has
    been passed, it shall no longer be obligatory for
    the petitioner to cohabit with the respondent,
    but the court may, on the application by petition
    of either party and on being satisfied of the
    truth of the statements made in such petition,
    rescind the decree if it considers it just and
    reasonable to do so.
  • Section 13 (1A) (i) Either party to a marriage
    whether solemnized before or after the
    commencement of this Act, may also present a
    petition for the dissolution of the marriage by a
    decree of divorce on the ground-that there has
    been no resumption of cohabitation as between the
    parties to the marriage for a period of 3one
    year or upwards after the passing of a decree
    for judicial separation in a proceeding to which
    they were parties

50
Section 13. Divorce
  • Grounds on Fault theory---for Husband and Wife
    both
  • (1) 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 decree of divorce on the
    ground that the other party-
  • (i) has after the solemnized of the marriage, had
    voluntary sexual inter course with any person
    other than his or her spouse
  • To prove the adultery, direct evidence is not
    necessary and can be proved by circumstantial
    evidence The sexual intercourse by either of the
    spouses other than his or her spouses must be a
    voluntary act. To get the matrimonial relief, the
    act of cohibition must be proved beyond doubt
    Pre-marriage unchastity of the wife or the sexual
    relation of husband with some other women is not
    a ground of divorce. The burden of proving
    adultery is always on the person alleging
    adultery.
  • (ia) after the solemnization of the marriage,
    treated the petitioner with cruelty
  • The cruelty is not defined in the Act but it
    should be so serious and weighty that
    cohabitation becomes impossible.
  • i) Physical Cruelty It will necessarily
    constitute a violence of certain degree and such
    degree of violence, sufficient to constitute
    legal cruelty, will vary with the status of
    parties in each case. Where bodily injury is
    inflicted or where there is a reasonable
    apprehension of danger to life, limb or health,
    bodily or mental, it is easy to conclude that
    cruelty has taken place.
  • ii) Mental Cruelty denotes a set of
    circumstances, which though fall short of actual
    physical violence, may yet be acts of cruelty,
    e.g. malicious false accusation, rudeness,
    forcing wife to prostitution, threatening a
    pregnant wife, etc.

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  • (ib) has deserted the petitioner for a
    continuous period of not less than two years
    immediately preceding the presentation of the
    petition
  • i) Actual Desertion
  • A) The spouses must have parted or terminated
    all joint-living.
  • B) The deserting spouse must have the intention
    to desert the other spouse.
  • C) The deserted spouse must not have agreed to
    the separation.
  • D) The desertion must have been without
    reasonable cause and
  • E) This State of affairs must have continued for
    the requisite period i.e. two years.
  • ii) Constructive Desertion Desertion is not
    only abandoning the company of the other spouse
    but also abandonment of a state of things, in
    which one party to marriage has been compelled to
    leave matrimonial home owing to repulsive
    behaviour of the other party and the party thus
    living separately cannot be held to be deserter
    but the party compelling her/him would be held to
    be the deserter.
  • (ii) has ceased to be a Hindu by conversion to
    another religion or

52
  • (iii) has been incurably of unsound mind, or has
    been suffering continuously or intermittently
    from mental disorder of such a kind and to such
    an extent that the petitioner cannot reasonably
    be expected to live with the respondent.
  • Explanation in this clause-
  • (a) the expression mental disorder means
    mental illness, arrested or incomplete
    development of mind, psychopathic disorder of any
    other disorder or disability of mind and includes
    schizophrenia.
  • (b) the expression psychopathic disorder
    means a persistent disorder of disability of mind
    (whether or not including sub- normality of
    intelligence) which results in abnormally
    aggressive or seriously irresponsible conduct on
    the part of the other party, and whether or not
    it requires or is susceptible to medical
    treatment or.
  • (iv) has been suffering from a virulent and
    incurable form of leprosy.

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  • (v) has been suffering from venereal disease in
    a communicable form or
  • (vi) has renounced the world by entering any
    religious order or
  • (vii)   has not been heard of as being alive for
    a period of seven years or more by those persons
    who would naturally have heard of it, had that
    party been alive,
  •  
  • Explanation In this sub section, 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 wilful neglect of the petitioner by the other
    party to the marriage, and its grammatical
    variations and cognate expressions shall be
    constructed accordingly.

54
  • Section (13) 2. Grounds Available to the Wife
    Only
  • a) Bigamy Section 13 (2)(i) That in the case
    of a marriage solemnized before the commencement
    of the Act (i.e. 18th May, 1955) the husband has
    married before such commencement or that any
    other wife of husband, married before such
    commencement, was alive at the time of the
    petitioners marriage.
  • b) Rape, Sodomy or Bestiality Section 13(2)(ii)
    That the husband has been guilty of rape,
    sodomy or bestiality after the solemnization of
    marriage.
  • c) Decree or Order Awarding Maintenance Section
    13(2)(iii) That in a suit under Section 18 of
    the Hindu Adoptions and Maintenance Act, 1956 or
    in a proceedings under Section 125 of the Cr.P.C.
    1973, a decree or order has been passed against
    the husband awarding maintenance to the wife
    (notwithstanding that she was living apart) and
    after passing of such decree or order
    cohabitation between the parties has not been
    resumed for one year or upwards.
  • d) Option of Puberty Section 13(2)(iv) That
    the wifes marriage was solemnized before she
    attained the age of fifteen years and she
    repudiated the marriage after attaining that age
    but before attaining the age of eighteen years,
    whether the marriage has been consummated or not.

55
Divorce on Marriage Breakdown Theory
  • Decree of Judicial Separation Section
    13(1-A)(1) That a decree for judicial
    separation between the parties has been passed,
    and there has been no resumption of cohabitation
    for a period of at least one year after the
    passing of such decree.
  • Decree of Restitution of Conjugal Rights Section
    13(1-A) (2) That a decree for restitution of
    conjugal rights between the parties has been
    passed, but there has been no restitution of
    conjugal rights for a period of at least one year
    after the passing of such a decree.

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  • Divorce by Mutual Consent
  • (Section 13 B (1)) That both the parties have
    been living separately for a period of one year
    or more or that both the parties have not been
    able to live together or that both the parties
    have mutually agreed that their marriage should
    be dissolved.
  • (Section 13 B (2)) 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 sub-section (1) and not later than
    eighteen 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 the
    decree.

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When a Divorce Petition can be Presented (Section
14)
  • Divorce has not been made easy and atleast one
    year should have elapsed between the date of
    marriage and the presentation of a divorce
    petition. But a petition may be field within this
    period, if so permitted by the court on an
    application being made to it on the ground of
  • 1. Exceptional hardship suffered by the
    petitioner.
  • 2. Exceptional depravity on the part of the other
    party.
  • 3. In disposing of any application under this
    section for leave to present a petition for
    divorce before the expiration of one year from
    the date of the marriage, the court shall have
    regard to the interests of any children of the
    marriage and to the question whether there is a
    reasonable probability of a reconciliation
    between the parties before the expiration of the
    said one year.

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When Divorced Persons can Re-marry (Section 15)
  • After passing the decree of divorce, the parties
    to the marriage, may marry again, if the
    following conditions are satisfied
  • 1. When a marriage has been dissolved and there
    is no appeal against the decree of court.
  • 2. If there is such a right of appeal but the
    time has been expired without filing an appeal.
  • 3. An appeal has been filed but has been
    dismissed.

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  • Contents and Verification of Petitions (Section
    20)
  • The petition for any relief must distinctly set
    out the nature of the case and the facts on which
    the claim to relief is founded. It must also
    state (except in a petition under Section 11)
    that there is no collusion between the parties to
    the marriage. The statements contained in the
    petition have also to be verified by the petition
    (or some other competent person) in the manner in
    which plaints have to be verified, and such
    statements may be referred to as evidence at the
    time of the hearing.
  • Application of the Code of Civil Procedure
    (Section 21)
  • Except as otherwise provided by the Act, all
    matters of procedure under the Act are to be
    regulated by the C.P.C. The Act also confers on
    the High Court, the power to make rules
    regulating the procedure to be adopted.
  • Power to Transfer Petition in Certain Cases
    (Section 21-A) Section 21A of the Act provides
    that if a Petition under the Act has been
    presented to a District Court for judicial
    separation (under Section 10) or for divorce
    (under Section 13), and subsequently another
    petition is presented by the other party to the
    marriage for judicial separation or for divorce,
    in the same District Court, or in a different
    District Court, in the same State or in a
    different State
  • a) if the petitions are presented to the same
    District Court, both the petitions are to be
    tried and heard together by that District Court
  • b) if the petitons are presented to different
    District Courts, the subsequent petition is to
    be transferred to the District Court in which the
    earlier petition was presented, and both the
    petitions are to be heard and disposed of by the
    District Court in which the earlier petition was
    presented

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  • Special Provisions Relating to Trial Disposal
    of Petitions under the Act (Section 21B)
  • Section 21B provides that the trial of a petition
    under the Act should, as far as is practicable,
    consistently with the interests of justice, be
    continued from day to day until its conclusion,
    unless the Court finds the adjournment of the
    trial beyond the following day to be necessary,
    and records the reasons for doing so.
  • It is further provided that all petitions and
    appeals are to be disposed of as expeditiously as
    possible, and an endeavour is to be made to
    dispose of a petition within six months from the
    date of service of the notice of the petition on
    the Respondent, and an appeal within three months
    from the date of the service of the notice of the
    appeal on the Respondent.

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  • Section 22 -Proceedings to be in camera and may
    not be printed or published
  •  (1)Every proceeding under this Act shall be
    conducted in camera and it shall not be lawful
    for any person to print or publish any matter in
    relation to any such proceeding except a judgment
    of the High Court or of the Supreme Court printed
    or published with the previous permission of the
    Court.
  •  (2)If any person prints or publishes any matter
    in contravention of the provisions contained in
    sub-section (1), he shall be punishable with fine
    which may extend to one thousand rupees.

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  • Section 23-Decree in proceedings.
  •  (1)In any proceeding under this Act, whether
    defended or not, if the court is satisfied that-
  •   (a) any of the grounds for granting relief
    exists and the petitioner except in cases where
    the relief is sought by him on the ground
    specified in sub-clause (a), sub-clause (b) or
    sub clause (c) of clause (ii) or section 5 is not
    in any way taking advantage of his or her own
    wrong or disability for the purpose of such
    relief, and 
  •  (b) where the ground of the petition is the
    ground specified or in clause (i) of sub-section
    (1) of section 13, the petitioner has not in any
    manner been accessory to or connived at or
    condoned the act or acts complained of, or where
    the ground of the petition is cruelty the
    petitioner has not in any manner condoned the
    cruelty, and 
  •  (bb)when a divorce is sought on the ground of
    mutual consent, such consent has not been
    obtained by force, fraud or undue influence, and 
  •  (c) the petition (not being a petition presented
    under section 11) is not presented or prosecuted
    in collusion with the respondent, and 
  •  (d) there has not been any unnecessary or
    improper delay in instituting the proceeding, and
  •   (e) there is no other legal ground why relief
    should not be granted, then, and in such a case,
    but not otherwise, the court shall decree such
    relief accordingly.

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  •  (2)Before proceeding to grant any relief under
    this Act, it shall be the duty of the court in
    the first instance, in every case where it is
    possible so to do consistently with the nature
    and circumstances of the case, to make every
    endeavour to bring about reconciliation between
    the parties Provided that nothing contained in
    this sub-section shall apply to any proceeding
    wherein relief is sought on any of the grounds
    specified in clause (ii), clause (iii), clause
    (iv), clause (v), clause (vi) or clause (vii) of
    sub-section (1) of section 13. 
  • (3)For the purpose of aiding the court in
    bringing about such reconciliation, the court
    may, if the parties so desire or if the court
    thinks it just and proper so to do, adjourn the
    proceedings for a reasonable period not exceeding
    fifteen days and refer the matter to any person
    named by the parties in this behalf or to any
    person nominated by the court if the parties fail
    to name any person, with directions to report to
    the court as to whether reconciliation can be and
    has been, effected and the court shall in
    disposing of the proceeding have due regard to
    the report.
  •  (4)In every case where a marriage is dissolved
    by a decree of divorce, the court passing the
    decree shall give a copy thereof free of cost to
    each of the parties.

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  • Section 23 A. Relief for respondent in divorce
    and other proceedings.---------
  • In any proceeding for divorce or judicial
    separation or restitution of conjugal rights, the
    respondent may not only oppose the relief sought
    on the ground of petitioner's adultery, cruelty
    or desertion, but also make a counter-claim for
    any relief under this Act on that ground and if
    the petitioner's adultery, cruelty or desertion
    is proved, the court may give to the respondent
    any relief under this Act to which he or she
    would have been entitled if he or she had
    presented a petition seeking, such relief on that
    ground.

65
  • Section 24-Maintenance Pendente lite and expenses
    proceedings---
  •  Where in any proceeding under this Act it
    appears to the court that either the wife or the
    husband, as the case may be, has no independent
    income sufficient for her or his support and the
    necessary expenses of the proceeding, it may, on
    the application of the wife or the husband, order
    the respondent to pay to the petitioner the
    expenses of the proceeding, and monthly during
    the proceeding such sum as, having regard to the
    petitioner's own income and the income of the
    respondent, it may seem to the court to be
    reasonable.

66
  • SECTION  25-Permanent alimony and maintenance.
  • (1) Any court exercising jurisdiction under this
    Act may, at the time of passing any decree or at
    any time subsequent thereto, on application made
    to it for the purpose by either the wife or the
    husband, as the case may be, order that the
    respondent shall pay to the applicant for her or
    his maintenance and support such gross sum or
    such monthly or periodical sum for a term not
    exceeding the life of the applicant as, having
    regard to the respondent's own income and other
    property, if any, the income and other property
    of the applicant, the conduct of the parties and
    other circumstances of the case, it may seem to
    the court to be just, and any such payment may be
    secured, if necessary, by a charge on the
    immovable property of the respondent. 
  • (2) If the court is satisfied that there is a
    change in the circumstances of either party at
    any time after it has made an order under
    sub-section (1), it may at the instance of either
    party, vary, modify or rescind any such order in
    such manner as the court may deem just. (3)If the
    court is satisfied that the party in whose favour
    an order has been made under this section has
    re-married or, if such party is the wife, that
    she has not remained chaste, or, if such party is
    the husband, that he has had sexual intercourse
    with any woman outside wedlock, it may at the
    instance of the other party vary, modify or
    rescind any such order in such manner as the
    court may deem just.

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  • Section 26-Custody of children.
  •  In any proceeding under this Act, the court may,
    from time to time, pass such interim orders and
    make such provisions in the decree as it may deem
    just and proper with respect to the custody,
    maintenance and education of minor children,
    consistently with their wishes, wherever
    possible, and may, after the decree, upon
    application by petition for the purpose, make
    from time to time, all such, orders and
    provisions with respect to the custody,
    maintenance and education of such children as,
    might have been made by such decree or interim
    orders in case the proceeding for obtaining such
    decree were still pending, and the court may also
    from time to time revoke, suspend or vary any
    such orders and provisions previously made.
  • Section 27-Disposal of property.
  •  In any proceeding under this Act, the court may
    make such provisions in the decree as it deems
    just and proper with respect to any property
    presented, at or about the time of marriage,
    which may belong jointly to both the husband and
    the wife.

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  • Section 28-Appeals from decrees and orders.
  •  (1)All decrees made by the court in any
    proceeding under this Act shall, subject to the
    provisions of sub-section (3), be appealable as
    decrees of the court made in the exercise of its
    original civil jurisdiction, and every such
    appeal shall lie to the court to which appeals
    ordinarily lie from the decisions of the court
    given in the exercise of its original civil
    jurisdiction. 
  • (2)Orders made by the court in any proceeding
    under this Act under section 25 or section 26
    shall, subject to the provisions of sub-section
    (3), be appealable if they are not interim
    orders, and every such appeal shall lie to the
    court to which appeals ordinarily lie from the
    decisions of the court given in exercise of its
    original civil jurisdiction. 
  • (3)There shall be no appeal under this section on
    the subject of costs only.
  •  (4)Every-appeal under this section shall be
    preferred within a period of thirty days from the
    date of the decree or order. 28A.Enforcement of
    decrees and orders. All decrees and orders made
    by the court in any proceeding under this Act
    shall be enforced in the like manner as the
    decrees and orders of the court made in the
    exercise of its original civil jurisdiction for
    the time being are enforced.

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  • Section29-Savings
  •  (1)A marriage solemnized between Hindus before
    the commencement of this Act, which is otherwise
    valid, shall not be deemed to be invalid or ever
    to have been invalid by reason only of the fact
    that the parties thereto belonged to the same
    gotra or pravara or belonged to different
    religions, castes or sub-divisions of the same
    caste.
  •  (2)Nothing contained in this Act shall be deemed
    to affect any right recognized by custom or
    conferred by any special enactment to obtain the
    dissolution of a Hindu marriage, whether
    solemnized before or after the commencement of
    this Act. 
  • (3)Nothing contained in this Act shall affect any
    proceeding under any law for the time being in
    force for declaring any marriage to be null and
    void or for annulling or dissolving any marriage
    or for judicial separation pending at the
    commencement of this Act, and any such proceeding
    may be continued and determined as if this Act
    had not been passed. 
  • (4)Nothing contained in this Act shall be deemed
    to affect the provisions contained in the Special
    Marriage Act, 1954 (43 of 1954) with respect to
    marriages between Hindus solemnized under that
    Act, whether before or after the commencement of
    this Act.30-Repealed by the Repealing and
    Amending Act, 1960 (58 of 1960), s. 2 and the
    First Schedule.

70
Hindu Adoptions And Maintenance Act, 1956
  • LAWS RELATED TO ADOPTION
  • Adoption has no uniform law in India, but there
    are some legislation related to adoption that is
    divided into two categories
  • 1. Hindu Adoption and Maintenance Act 1956
  • 2. The Guardians and Wards Act 1890
  • In Hindu Adoption and Maintenance Act 1956 only
    Hindus can take advantage of this act as personal
    law governs it.
  • a) To any person who is a Hindu inclusive of
    Buddhism, Jainism and Sikhism this act is
    applicable.
  • b) This Act does not apply to those who are
    Muslims, Christians, Parsis, or Jews by religion.
  • c) The Act also applies to the child whose
    biological parents is not known or have abandoned
    the child and has been brought up as Hindu,
    Buddhist, Jain or Sikh.
  • d) The Hindu female who is not a minor and not
    married but is of sound mind can adopt. She
    cannot be a joint petitioner with her husband but
    can only be a consenting party in the child's
    adoption.

71
  • e) A Hindu male who is not a minor and is of
    sound mind can adopt.
  • f) A Male Hindu can adopt only by the consent of
    his wife, unless and until she has given up
    Hinduism or is of unsound mind.
  • g) The Adoptive parents should not have a child
    who has been adopted or a child of their own or a
    grandchild at the time of adoption.
  • h) A valid Adoption cannot be changed or
    cancelled.
  • i) All the rights of the biological parents
    should be replaced to the adoptive parents.
  • j) A valid adoption is the one in which the
    person giving and the person taking the child
    sign the Adoption Documents.
  • k) If the adopter and the adoptee are of the
    opposite sex then the age difference between them
    should be at least 21 years.
  • l) Only the child's parents or guardian can give
    the child in adoption.m) Nobody should be awarded
    or paid in relation to adoption.           

72
  • 2.  The Guardians and Wards Act 1890 Under this
    act, people belonging to communities such as
    Muslim, Christian, Parsi or Jews and who wish to
    adopt can only take up "Guardianship" of the
    child. This child, like the biological child
    would not be provided with the same status.
  •   Christians and Parsis can take a child under
    the said Act only under foster care. Once a child
    under foster care becomes major, he is free to
    break away all his connections. Besides, such a
    child does not have legal right of inheritance.
  • Foreigners, who want to adopt Indian children
    have to approach the court under the aforesaid
    Act. In case the court has given permission for
    the child to be taken out of the country,
    adoption according to a foreign law, i.e., law
    applicable to guardian takes place outside the
    country.

73
  • Section 2. Application of Act
  • (1) This Act applies-
  • (a) to any person, who is a Hindu by religion in
    any of its forms or developments, including a
    Virashaiva, a Lingayat or a follower of the
    Brahmo, Prarthana of Arya Samaj,
  • (b) to any person who is a Buddhist, Jaina or
    Sikh by religion and
  • (c) to any other person who is not a Muslim,
    Christian, Parsi or Jew by religion, unless it
    is proved that any such person would not have
    been governed by the Hindu law or by any custom
    or usage as part of the law in respect any of
    the matters dealt with herein if this Act had not
    been passed.
  • Explanation The following persons are Hindus,
    Buddhists, Jainas or Sikhs by religion, as the
    case may be-
  • (a) any child, legitimate or illegitimate, both
    of whose parents are Hindus, Buddhists, Jainas or
    Sikhs by religion

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  • (b) any child, legitimate or illegitimate, one
    of whose parents is a Hindu, Buddhist, Jaina, and
    Sikh by religion and who is brought up as a
    member of the tribe, community, group or family
    to which such parent belongs or belonged
  • (bb) any child, legitimate or illegitimate who
    has been abandoned both by his father and mother
    or whose parentage is known and who in either
    case is brought up as a Hindu, Buddhist, Jaina or
    Sikh and
  • (c) any person who is convert or reconvert to
    the Hindu, Buddhist, Jaina or Sikh religion.
  • (2) Notwithstanding anything contained in
    sub-section (1), nothing contained in this Act
    shall apply to the members of any Scheduled Tribe
    within the meaning of clause (25) of article 366
    of the Constitution unless the Central
    Government, by notification the Official Gazette,
    otherwise directs.
  • (3) The expression "Hindu" in any portion of
    this Act shall be construed as if it included a
    person who, though not a Hindu by religion, is,
    nevertheless, a person whom this Act applies by
    virtue of the provisions contained in this
    section.

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  • CHAPTER II ADOPTIONS 
  • Section 5. Adoptions to be regulated by this
    chapter
  • (1) 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 provision shall be
    void.
  • (2) An adoption which is void shall neither
    create any rights in the adoptive family in
    favour of any person which he or she could not
    have acquired except by reason of the adoption,
    nor destroy the right of any person in the
    family of his or her birth.

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  • Section 6. Requisites of a valid adoption
  • No adoption shall be valid unless-
  • (i) the person adopting has the capacity, and
    also the right, to take in adoption
  • (ii) the person giving in adoption has the
    capacity to do so
  • (iii) the person adopted is capable of being
    taken in adoption and
  • (iv) the adoption is made in compliance with the
    other conditions mentioned in this Chapter i.e
    section 11.
  • Where any of the requirements as laid down under
    s.6 are not strictly observed, that
    non-observance of the requisite or requisites is
    enough to convert the adoption as invalid
    one.-Dhanraj v. Suraj Bai 1972 Raj LW 612

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  • Section 7. Capacity of a male Hindu to take in
    adoption
  • Any male Hindu who is sound mind and is not a
    minor has the capacity to take a son or a
    daughter in adoption
  • PROVIDED that, if he has a wife living,
  • he shall not adopt except with the consent of
    his wife unless the wife has completely and
    finally renounced the world or
  • has ceased to be a Hindu or
  • has been declared by a court of competent
    jurisdiction to be of unsound mind.
  • Explanation If a person has more than one wife
    living at the time of adoption, the consent of
    all the wives is necessary unless the consent of
    any one of the them is unnecessary for any of the
    reasons specified in the preceding proviso.

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  • The person taking in adoption must not suffer
    from idiocy or insanity he must have the
    capacity enough to understand the nature of the
    Act and what would be the legal effects of
    adoption . Simultaneously it is not the
    requirement the person concerned must be
    possessed with a very high degree of
    intelligence. There is a very strong presumption
    favouring soundness of mind.-Babubarelal v.
    Gulzari Devi 1979 All LJ 1333
  • Deaf and dumb but possessed with the capacity to
    express through signs and gestures, though not
    clearly, is to be taken as a person of sound
    mind.-Ambrish Kumar v. Hatu Prasad 1981 HLR 781
  • Proviso places a restriction as concerned to
    right to take in adoption that makes the consent
    of the wife a necessi
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