Family Law I: Complete Notes

About this subject

Family Law I is the personal law of marriage and family for Hindus and Muslims in India, studied in five units, from what a personal law is and where it comes from, to adoption and the care of a child and the child's property. Marriage, divorce, maintenance and custody touch almost every home, and sooner or later every lawyer meets them. The subject carries great weight in university, Judicial Services, UGC NET and CLAT PG examinations, and in practice: family courts are among the busiest in the country, with petitions for divorce, maintenance, custody and protection from domestic violence filed every day. A sound grasp of the subject lets a lawyer help real people from the very first year at the Bar.

Unit 1: Introduction to Personal Laws

What a personal law is

Most branches of Indian law are common to everyone: the same law of contract and the same criminal law apply to a Hindu, Muslim, Christian or Parsi. But in family matters (marriage, divorce, maintenance, adoption, guardianship and succession) a person is largely governed by the law of his or her religious community. This body of law is called personal law.

India thus has several parallel systems of family law. Hindus, Muslims, Christians, Parsis and Jews each have their own, and alongside them stand secular laws that apply to everyone, whatever their religion. This subject covers Hindu law and Muslim law in detail, together with the secular laws that touch them.

Personal law sits where law, religion and custom meet. It grew out of religious texts, was shaped by the customs of castes, regions and families, and was later reshaped by judges and legislatures.

Hindu family law	Muslim family law
Mostly codified in Acts of Parliament, such as the Hindu Marriage Act, 1955.	Still largely uncodified: rests mainly on religious sources and judicial decisions, with a few statutes such as the Muslim Personal Law (Shariat) Application Act, 1937 and the Dissolution of Muslim Marriages Act, 1939.

How India came to have separate personal laws

• Warren Hastings' judicial plan, 1772: when the East India Company began to administer justice, suits about inheritance, marriage, caste and other religious usages were to be decided by the laws of the Quran for Muslims and the Shastras for Hindus.
• Pandits and maulvis sat in the courts to advise British judges on these laws until the practice was abolished in 1864.
• The judges built a large body of case law, often called Anglo-Hindu law and Anglo-Muhammadan law. Where no rule could be found, they applied justice, equity and good conscience.

Legislative reform

Statute	Effect
Hindu Widows' Remarriage Act, 1856	Allowed Hindu widows to remarry.
Child Marriage Restraint Act, 1929	Punished child marriages.
Shariat Act, 1937	Replaced many local customs with Muslim personal law.
Dissolution of Muslim Marriages Act, 1939	Gave Muslim wives the right to seek divorce through the court.

After Independence, Hindu law was codified in four Acts: the Hindu Marriage Act, 1955, and, all of 1956, the Hindu Succession Act, the Hindu Minority and Guardianship Act and the Hindu Adoptions and Maintenance Act.

Who Is a Hindu and Who Is a Muslim

Since personal law depends on religion, the first practical question is who belongs to which community.

Who is a Hindu: Section 2, Hindu Marriage Act

The other Hindu Acts use almost the same words. The Act applies to:

1. 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 or Arya Samaj;
2. Buddhists, Jains and Sikhs;
3. any other person domiciled in India who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that such a person would not have been governed by Hindu law.

Children and converts:

• a child, legitimate or illegitimate, is a Hindu if both parents are Hindus;
• a child with one Hindu parent is a Hindu if brought up as a member of that parent's community;
• a person who converts or reconverts to Hinduism is a Hindu.

Exception for Scheduled Tribes: Section 2(2)

Nothing in the Act applies to the members of any Scheduled Tribe, unless the Central Government, by notification, directs otherwise. Tribal communities therefore continue to follow their own customs in family matters. This exception decided the bigamy case of Dr. Surajmani Stella Kujur v. Durga Charan Hansdah (see the conditions of a valid Hindu marriage below).

Who is a Muslim

A person is a Muslim by birth or by conversion. Anyone who professes Islam, that is, believes in one God and accepts Prophet Muhammad as His messenger, is a Muslim. Courts do not test how deeply a person practises the faith. But a conversion made only to escape the law of an existing marriage will not be allowed to defeat that law (Sarla Mudgal, below).

Personal Law and Article 13

• Article 13(1): all laws in force before the Constitution, so far as inconsistent with the fundamental rights, are void to that extent.
• Article 13(2): the State shall not make any law that takes away or abridges those rights.
• Article 13(3): "law" includes any ordinance, order, bye-law, rule, regulation, notification, custom or usage having the force of law.

The question: is uncodified personal law, such as a rule of Hindu or Muslim law taken from religious texts, a "law in force" or a "custom" within Article 13? If it is, a court can strike down a rule that violates equality or liberty. If it is not, that personal law stands outside the reach of the fundamental rights, and only the legislature can change it.

Sources of Hindu Law

A source is the place from which a legal rule draws its authority. Hindu law has ancient and modern sources.

Ancient sources

Shruti ("what was heard")	Smriti ("what was remembered")
The Vedas, believed to have been revealed to ancient sages.	Texts composed by sages to set out rules of conduct, duties and law; best known are the Manusmriti, Yajnavalkya Smriti and Narada Smriti.
Highest authority in theory, but very little law: mostly rituals, prayers and philosophy, only here and there marriage, duties or property.	Deal with marriage, adoption, inheritance, crimes and procedure.
Prevailed over Smriti in a conflict, in theory.	The real source of legal rules in practice.

Commentaries and digests

Commentaries explained the Smriti texts; digests combined them. The two most important:

• Mitakshara: a commentary on the Yajnavalkya Smriti, written by Vijnaneshwara in the eleventh century.
• Dayabhaga: a digest on inheritance and partition, written by Jimutavahana.

These works adapted the old texts to the customs of their regions and gave birth to the schools of Hindu law.

Custom

Section 3(a), Hindu Marriage Act: a custom or usage is a rule which, having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family. The rule must be certain and not unreasonable or opposed to public policy, and a family custom must not have been discontinued by the family. So a valid custom must be:

1. ancient;
2. certain;
3. reasonable (not opposed to public policy); and
4. continuous.

The person relying on a custom must plead it and prove it by clear evidence.

Modern sources

1. Judicial precedent: decisions of the Privy Council in the past, and of the Supreme Court and High Courts today, bind the courts below them.
2. Legislation: now the most important source, since most of Hindu family law lies in the Acts of 1955 and 1956.
3. Justice, equity and good conscience: applied when no other rule is found.

Schools of Hindu Law

A school of Hindu law is a body of rules followed in a particular region, based on a particular commentary. The two main schools are the Mitakshara and the Dayabhaga.

School	Sub-school	Where it prevails
Dayabhaga	-	Bengal and Assam
Mitakshara	Banaras	Northern India, including Odisha
Mitakshara	Mithila	Tirhut and parts of northern Bihar
Mitakshara	Maharashtra or Bombay	Western India, including Gujarat
Mitakshara	Dravida or Madras	Southern India

Each Mitakshara sub-school follows its own leading texts.

Point	Mitakshara	Dayabhaga
Interest by birth	A son acquires an interest in ancestral property by birth.	No one acquires property by birth; the father is the full owner during his lifetime.
Devolution	A deceased coparcener's interest passes to the surviving coparceners by survivorship.	The father's heirs take the property only on his death, by succession.
Basis of inheritance	Nearness of blood.	Religious efficacy: the heir's capacity to confer spiritual benefit on the deceased through offerings called pinda.

Do the schools still matter? Much less than before. The Acts of 1955 and 1956 apply to all Hindus, whatever their school. The schools still matter in areas the Acts did not fully cover, such as parts of the law of the joint family. Even there, since 2005, a daughter too is a coparcener by birth, and survivorship no longer applies.

Sources of Muslim Law

Muslim law is based on the Shariat, literally "the path to the watering place", that is, the path God has laid down for believers. Its sources are primary and secondary.

Primary sources

1. Quran: the holy book of Islam, believed by Muslims to be the word of God revealed to Prophet Muhammad; the supreme source. Some verses are of direct legal importance, for example on marriage, dower, divorce, the waiting period called iddat, and the shares of heirs.
2. Sunna: the practice of the Prophet, including his sayings, his actions and his silent approval of what others did in his presence. The reports of these are called Hadith. The Sunna explains and supplements the Quran.
3. Ijma: the consensus of the qualified jurists of a particular age on a question of law.
4. Qiyas: analogical deduction, applying a rule found in the Quran or the Sunna to a new situation that shares the same reason.

Secondary sources

Custom (urf), accepted where it did not conflict with the primary texts; judicial decisions; legislation; and justice, equity and good conscience.

The Muslim Personal Law (Shariat) Application Act, 1937

The most important statute in India. It was needed because several Muslim communities, such as the Khoja and Memon communities, and many families in Punjab, followed customs that differed from Muslim law, especially customs that denied women their shares in property.

Section 2 applies notwithstanding any custom or usage to the contrary: where the parties are Muslims, the rule of decision shall be Muslim personal law in matters of intestate succession; special property of females; marriage; dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat; maintenance; dower; guardianship; gifts; trusts; and wakf. Questions about agricultural land were left out.

Section 3 allows a Muslim to declare that he wishes to be governed by Muslim personal law in matters of adoption, wills and legacies.

Schools of Muslim Law

After the death of Prophet Muhammad in 632, the community divided over who should lead it. The majority accepted leaders chosen by the community, beginning with Abu Bakr: the Sunnis. A minority believed that leadership belonged to the Prophet's family, through his cousin and son-in-law Ali: the Shias.

Sunni schools (named after jurists of the 8th or 9th century)	Shia schools
Hanafi (Abu Hanifa): the great majority of Indian Muslims	Ithna Ashari (the Twelvers): the largest, followed by most Indian Shias
Maliki (Malik ibn Anas)	Ismaili: includes the Khoja and Bohra communities
Shafii (al-Shafii): followers in parts of Kerala and on the Konkan coast	Zaidi: almost no followers in India
Hanbali (Ahmad ibn Hanbal)	-

Why the schools matter: the rules differ, so a court must first find out which school the parties belong to. For example:

• Sunni law requires two witnesses for a marriage; Shia law does not.
• The Ithna Ashari school recognises a temporary marriage called muta; Sunni law does not.
• Shia law has never recognised triple talaq.

Article 44 and the Uniform Civil Code

Article 44: the State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.

Article 44 is a Directive Principle of State Policy. Under Article 37, the Directive Principles are not enforceable by any court, but are fundamental in the governance of the country, and the State must apply them in making laws. So Article 44 directs the legislature; it gives no citizen a right a court can enforce.

Constituent Assembly debates

Several Muslim members wanted personal laws protected from change. Others, including K.M. Munshi, Alladi Krishnaswami Ayyar and Dr. B.R. Ambedkar, argued that the State must have the power to reform family law. Dr. Ambedkar explained that the Article only asks the State to try to secure a code and does not say it must be forced on every citizen; he even suggested that a future Parliament might begin with a code applying only to those who chose it.

Legislative power: Entry 5, Concurrent List

Family law falls under Entry 5 of the Concurrent List: marriage and divorce; infants and minors; adoption; wills, intestacy and succession; joint family and partition; and all matters on which the parties were governed by their personal law before the Constitution. Both Parliament and the State legislatures can therefore make family laws.

Steps toward uniformity

1. The Hindu Code of 1955 and 1956 unified the law for Hindus, Buddhists, Jains and Sikhs, removing many differences between schools and castes.
2. The Special Marriage Act, 1954 created a secular form of marriage open to any two persons, whatever their religion.
3. Secular laws apply to everyone: the maintenance provision of the criminal procedure law, the Dowry Prohibition Act, the Prohibition of Child Marriage Act, the Protection of Women from Domestic Violence Act, the Guardians and Wards Act and the Juvenile Justice Act. This is often called indirect reform, because these laws quietly create common standards across communities.

Goa, Uttarakhand and Gujarat

Goa has long had a common civil code, inherited from Portuguese times, applying to all its residents.

In 2024, Uttarakhand became the first State since Independence to pass its own Uniform Civil Code, in force from 27 January 2025. It applies to the residents of the State except members of Scheduled Tribes; prohibits polygamy; fixes the same minimum marriage ages for all communities; and requires registration of marriages, and even of live-in relationships. In March 2026, the Gujarat Assembly also passed a Uniform Civil Code Bill.

The Law Commission

The 21st Law Commission, in a 2018 consultation paper, said a uniform civil code was neither necessary nor desirable at that stage, and suggested instead that each personal law be reformed to remove discrimination against women. The 22nd Law Commission invited public views on the question again in 2023.

The Supreme Court on Article 44

The debate

Supporters say a uniform code would	Critics say
secure equality before the law under Article 14	India's diversity must be respected
end discrimination against women under Article 15	Articles 25 and 26 protect the practices of religious communities
promote national unity	a code imposed from above may be resisted
simplify the law	the better path is to reform each personal law from within to secure gender justice

Unit 2: Nature, Conditions and Kinds of Marriage

The nature of marriage

Is marriage a sacrament or a contract? A sacrament is a holy union created by religious rites. A contract is an agreement created by the free consent of two parties, which the parties can also bring to an end. For Hindus and Muslims, the traditional answers differed.

Hindu marriage

In classical Hindu law, marriage was a sanskar, one of the sacred rites every Hindu was expected to undergo. It was:

• permanent: it could not be dissolved;
• eternal: the union was believed to continue even in future lives;
• holy: it was completed by religious ceremonies before the sacred fire.

Its three purposes were dharma (performance of religious duties), praja (progeny) and rati (pleasure). The bride's consent had little place; a father could give his daughter in marriage even as a child.

Eight forms in the Smritis: approved	Disapproved
Brahma	Asura: the bridegroom paid a price to the bride's family
Daiva	Gandharva: a union by mutual love
Arsha	Rakshasa: marriage by capture
Prajapatya	Paishacha: marriage by fraud or while the girl was unconscious

These forms now have little legal importance, because the Hindu Marriage Act prescribes none of them.

The Hindu Marriage Act changed the character of Hindu marriage: it made monogamy compulsory, gave importance to the consent of the parties, fixed minimum ages and allowed divorce. Hindu marriage today is often described as partly a sacrament and partly a contract. The sacramental element remains, because a valid Hindu marriage still requires ceremonies.

Muslim marriage

In Muslim law, marriage, called nikah, is essentially a contract.

Like a contract, nikah needs a proposal and an acceptance; the parties must be competent and their consent free; the dower works somewhat like consideration; it can be ended by the acts of the parties; and its terms can be varied by agreement, within the limits of the law.

But it is not only a contract. Chief Justice Sulaiman of the Allahabad High Court later referred to authorities showing that Muslim marriage is not a mere civil contract but also a religious sacrament. The balanced view: Muslim marriage is a civil contract with religious and social dimensions.

Point	Hindu marriage	Muslim marriage
Traditional nature	Sacrament	Contract
Completed by	Religious ceremonies	Proposal and acceptance
Dissolution	Traditionally could not be dissolved	Can be dissolved
Modern law (the two have moved toward each other)	Depends on consent and can be dissolved	Keeps its religious character

Ceremonies of Marriage

Section 7, Hindu Marriage Act

A Hindu marriage may be solemnised in accordance with the customary rites and ceremonies of either party. Where those rites include the saptapadi (the taking of seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and binding when the seventh step is taken.

Ceremonies and bigamy

A marriage without the essential ceremonies is no marriage at all, which is crucial in bigamy cases. Section 17: a marriage between two Hindus solemnised after the Act is void if either party had a living spouse, and the offence of bigamy applies. That offence was in Sections 494 and 495 of the Indian Penal Code; it is now in Section 82 of the B.N.S., 2023. The prosecution must prove that the second marriage was actually solemnised with the essential ceremonies.

Tamil Nadu: Section 7A

A Tamil Nadu State amendment added Section 7A, recognising self-respect or reformist marriages. Such a marriage may be solemnised in the presence of relatives, friends or other persons by any one of three acts:

1. each party declares, in a language both understand, that each takes the other as spouse;
2. the parties garland each other or put a ring on the other's finger; or
3. a thali is tied.

No priest and no saptapadi is needed.

Solemnisation of a Muslim marriage

No religious ceremony and no priest is essential. What is essential is a proposal (ijab) by or on behalf of one party and an acceptance (qubul) by or on behalf of the other, made at the same meeting.

• Sunni law: in the presence of two adult, sane Muslim witnesses, either two men or one man and two women.
• Shia law: witnesses are not required.

A Qazi usually performs the nikah and records it in a nikahnama, a written record of the marriage and the dower, but his presence is not a legal requirement.

Conditions of a Valid Hindu Marriage

Section 5, Hindu Marriage Act: a marriage may be solemnised between any two Hindus if five conditions are fulfilled. Both parties must be Hindus.

(i) Monogamy

Neither party may have a spouse living at the time of the marriage. A marriage in breach is void under Section 11, and the offence of bigamy applies. Before the Act a Hindu man could marry more than one wife; the Act ended that for all Hindus.

Conversion to escape monogamy

(ii) Mental capacity

At the time of the marriage, neither party must:

• be incapable of giving a valid consent because of unsoundness of mind;
• though capable of consenting, suffer from a mental disorder of such a kind or extent as to be unfit for marriage and the procreation of children; or
• have been subject to recurrent attacks of insanity.

Epilepsy was also mentioned until 1999, when it was removed. Breach makes the marriage voidable under Section 12, not void.

(iii) Age

The bridegroom must have completed 21 years and the bride 18 years. Under the Hindu Marriage Act itself, breach makes the marriage neither void nor voidable: Section 11 (void marriages) does not mention the age clause, and neither does Section 12. The Act provides only two consequences:

1. punishment under Section 18: rigorous imprisonment up to two years, or fine up to one lakh rupees, or both; and
2. a special ground of divorce for a wife married before the age of 15 (studied in Unit 3).

(iv) Prohibited degrees and (v) sapinda relationship

The parties must not be within the degrees of prohibited relationship, and must not be sapinda of each other, unless in either case a custom governing each of them permits the marriage. Breach of either makes the marriage void.

Degrees of prohibited relationship: Section 3(g)

Two persons are within these degrees if:

1. one is a lineal ascendant of the other (father and daughter);
2. one was the wife or husband of a lineal ascendant or descendant of the other (a man and his stepmother; a man and his son's widow);
3. one was the wife of the other's brother, or of the other's father's or mother's brother, or of the other's grandfather's or grandmother's brother; or
4. they are brother and sister, uncle and niece, aunt and nephew, or the children of a brother and sister or of two brothers or two sisters.

Relationship includes half blood and uterine blood, illegitimate relationships, and relationship by adoption.

Sapinda relationship: Section 3(f)

Sapinda relationship extends up to the third generation (inclusive) in the line of ascent through the mother, and up to the fifth generation (inclusive) through the father, the person concerned being counted as the first generation. Two persons are sapinda if one is a lineal ascendant of the other within these limits, or if they have a common lineal ascendant within these limits with reference to each of them.

Why the custom exception: in parts of South India, some communities have long practised marriages between certain close relatives, such as a man and his maternal uncle's daughter, and a proved custom allows such a marriage.

Consequences of breach

Condition broken	Effect
(i) Monogamy	Void; offence of bigamy
(ii) Mental capacity	Voidable
(iii) Age	Valid but punishable under the Act; voidable by the child party under the Prohibition of Child Marriage Act, 2006
(iv) Prohibited degrees	Void, unless custom permits
(v) Sapinda relationship	Void, unless custom permits

Conditions of a Valid Muslim Marriage

Muslim law being largely uncodified, these rules come from the texts and from judicial decisions.

1. Capacity: every Muslim of sound mind who has attained puberty may marry. In the absence of evidence, puberty is presumed on completion of 15 years. A minor, or a person of unsound mind, may be given in marriage by a guardian, the wali; the main guardians for marriage are the father and, after him, the paternal grandfather.
2. Free consent: the marriage of a Muslim who has attained puberty and is of sound mind, without his or her consent, is void (Ghulam Kubra Bibi).
3. Proposal and acceptance at one meeting and, for Sunnis, before two witnesses.
4. Absence of any legal bar: some bars make the marriage void, others only irregular.

Absolute prohibitions: marriage void

• Consanguinity (blood): a man cannot marry his mother or grandmother, daughter or granddaughter, sister, niece or grandniece, or aunt or great-aunt.
• Affinity (marriage): a man cannot marry his wife's mother or grandmother, the wife of his father or grandfather, the wife of his son or grandson, or his wife's daughter or granddaughter. The last bar applies only if his marriage with the wife was consummated.
• Fosterage: a child nursed in infancy by a woman other than its mother becomes her foster child, and similar prohibitions apply between a person and his or her foster relations, with a few exceptions.

A marriage within any of these relationships is void from the beginning.

Relative prohibitions: marriage irregular under Sunni law

The bar is temporary or can be removed. Five main examples:

1. Unlawful conjunction: a man cannot have at the same time two wives so related that, if one had been a male, they could not have married each other, such as two sisters, or an aunt and her niece.
2. A fifth wife: a Muslim man may have up to four wives at a time.
3. Absence of witnesses, under Sunni law.
4. Difference of religion: a Muslim man may validly marry a Muslim woman or a kitabiya (a Jewish or Christian woman), but his marriage with an idolatress or a fire-worshipper is irregular.
5. Marriage with a woman undergoing iddat, the waiting period after a divorce or her husband's death.

Further rules

• A Muslim woman cannot marry a non-Muslim man under Muslim law; authorities differ on whether such a marriage is void or only irregular. Such couples may marry under the Special Marriage Act.
• Shia law does not recognise irregular marriage: a marriage is either valid or void.
• Polyandry is prohibited: a woman cannot marry a second husband while her first marriage subsists. Such a marriage is void and the offence of bigamy applies.
• The Quran attaches a condition of equal treatment to having more than one wife, which many jurists read as very demanding. Courts have used it to protect the first wife, and the Dissolution of Muslim Marriages Act lets a wife seek divorce if she is not treated equitably.

Dower (Mehr)

Specified dower	Proper dower (mehr-ul-misl)
Fixed by the parties, before, at or even after the marriage.	Fixed by the court when no amount was specified, looking at the dower given to other women of the wife's father's family and at her personal qualities and social position.

Minimum dower: 10 dirhams (Hanafi), 3 dirhams (Maliki); Shia law fixes no minimum.

Prompt dower	Deferred dower
Payable immediately on demand.	Payable when the marriage is dissolved by death or divorce, or on the happening of an agreed event.

Specified dower is usually divided into prompt and deferred. If the contract does not say how much is prompt, Hanafi law looks to custom, while Shia law treats the whole dower as prompt.

Remedies for non-payment

• Dower is a debt: the wife, or her heirs after her death, can sue for it.
• Before consummation, the wife may refuse to live with the husband until her prompt dower is paid.
• Even after consummation, if the husband sues for restitution of conjugal rights, the court may make its decree conditional on payment of the prompt dower.
• A widow who has lawfully obtained possession of her husband's property in lieu of unpaid dower may retain it until the dower is paid.

Dower (Mahr) and Dowry Distinguished

Dower (mahr)	Dowry
Paid by the husband to the wife	Property given or agreed to be given in connection with the marriage, usually demanded by the bridegroom or his family
The wife's legal right	Prohibited and punishable under the Dowry Prohibition Act, 1961

Option of Puberty (Khiyar-ul-Bulugh)

A minor may be given in marriage by a guardian. Muslim law allows the minor, on attaining puberty, to repudiate the marriage: the option of puberty, khiyar-ul-bulugh. Under the old Hanafi law, the option was generally not available if the father or paternal grandfather had arranged the marriage, unless the guardian had acted fraudulently or negligently.

Section 2(vii), Dissolution of Muslim Marriages Act, 1939

A woman married under Muslim law may obtain a decree dissolving her marriage if:

1. she was given in marriage by her father or other guardian before she attained 15 years;
2. she repudiated the marriage before attaining 18 years; and
3. the marriage has not been consummated.

Point	Muslim wife (1939 Act)	Hindu wife (Section 13(2)(iv), Hindu Marriage Act)
Marriage	Given in marriage by father or guardian before 15	Married before 15
Repudiation	Before 18	After 15 but before 18
Consummation	Marriage must not have been consummated, though consummation during her minority does not defeat her right	Divorce available whether or not consummated

Child Marriage

Law	Status of a child marriage
Hindu Marriage Act	Valid but punishable; a wife married before 15 may repudiate it
Muslim personal law	Valid after puberty; a minor's marriage arranged by a guardian is valid, subject to the option of puberty
Prohibition of Child Marriage Act, 2006	A secular law above both, which replaced the Child Marriage Restraint Act, 1929: a child marriage is voidable, and void in certain cases

The Prohibition of Child Marriage Act, 2006

Voidable (Section 3): every child marriage is voidable at the option of the party who was a child at the time of the marriage, who may petition for a decree of nullity. A minor may petition through a guardian or next friend, along with the Child Marriage Prohibition Officer, at any time before completing two years after attaining majority.

Void (Section 12): a child marriage is void where a minor child is taken or enticed out of the keeping of the lawful guardian, is forced or deceived into leaving any place, or is sold for the purpose of marriage, and is then made to go through a form of marriage; or where, after the marriage, the minor is sold, trafficked or used for immoral purposes. A child marriage solemnised in breach of a court injunction under the Act is also void.

Protection on annulment

• The court may order the husband, or his parent or guardian if he is a minor, to maintain the girl until her remarriage, and may provide for her residence.
• Children are legitimate for all purposes.
• The court must make custody orders, treating the children's welfare as paramount, and may order their maintenance.

Offences

Offender	Punishment
Male adult above 18 who contracts a child marriage	Rigorous imprisonment up to 2 years, or fine up to one lakh rupees, or both
Anyone who performs, conducts, directs or abets it	Rigorous imprisonment up to 2 years and fine up to one lakh rupees
Anyone, including a parent, who promotes or permits it, or negligently fails to prevent it	The same

• No woman can be punished with imprisonment for promoting or permitting a child marriage.
• The offences are cognizable and non-bailable.
• Courts can issue injunctions to prevent a child marriage; the District Magistrate can act to stop mass child marriages on certain auspicious days.
• Karnataka has amended the Act so that every child marriage solemnised there after the amendment is void from the beginning.

The Act and personal law

The B.N.S. now says the same: the marital exception applies only where the wife is not under 18 years of age.

Does the Act override Muslim personal law?

Muslim law treats puberty as the age of capacity, and High Courts have differed:

• The Punjab and Haryana High Court has, in several cases, protected Muslim couples where the girl was above 15, relying on personal law. In August 2025, the Supreme Court dismissed the National Commission for Protection of Child Rights' appeal against one such order, holding that the Commission had no standing to challenge a protection order; it did not decide the larger question.
• Other High Courts, including the Kerala High Court, have held that the Act, and the law on sexual offences against children, apply to every person, whatever the religion.

A Bill of 2021 to raise the marriage age of women to 21 lapsed when the Lok Sabha was dissolved in 2024.

Registration of Marriage and the Special Marriage Act, 1954

Hindu marriages (Section 8, Hindu Marriage Act): State Governments may make rules for registration, to make proof easier. A State may make registration compulsory, with a fine of up to 25 rupees for breach, but failure to register does not affect the validity of the marriage.

Muslim marriages: proved by the nikahnama and by witnesses. Some States have special registration laws; in 2024, Assam replaced its law of 1935 with a new law for compulsory registration of Muslim marriages and divorces.

The Special Marriage Act, 1954

The Act provides a civil form of marriage that any two persons may use, whatever their religion, especially useful for couples of different faiths. A marriage solemnised before a Marriage Officer is entered in the Marriage Certificate Book, and the certificate is conclusive evidence of solemnisation under the Act. Under Section 15, a marriage already celebrated in another form, such as under personal law, may be registered if the Act's conditions are met; it is then treated as if solemnised under the Act.

Conditions (Section 4)

1. Neither party has a spouse living.
2. Neither is incapable of a valid consent, or suffers from a disqualifying mental disorder or recurrent insanity.
3. The male has completed 21 years and the female 18.
4. They are not within the degrees of prohibited relationship, though a custom governing at least one of them may permit the marriage.

Procedure

1. Notice: written notice to the Marriage Officer of a district where at least one party has lived for at least 30 days.
2. Publication and objection: the notice is published; anyone may object within 30 days that a Section 4 condition is not met, and the officer inquires.
3. Solemnisation: after 30 days, before the officer and three witnesses, in any form; but each party must say to the other, in a language they understand, that he or she takes the other as lawful wife or husband.

The public notice has been criticised for exposing inter-faith couples to family pressure. In 2021, the Allahabad High Court held that publishing it should be optional, at the parties' request.

Special effects

A member of an undivided Hindu, Buddhist, Sikh or Jain family who marries under the Act is deemed separated from that family, and succession to the property of persons married under the Act is governed by the Indian Succession Act. Since 1976, neither rule applies where both parties are Hindus, Buddhists, Sikhs or Jains.

Void and voidable marriages

Void (Section 24)	Voidable (Section 25)
A condition of Section 4 is broken	Non-consummation owing to the respondent's wilful refusal
Respondent impotent at the time of the marriage and of the suit	Wife pregnant by another man at the time of the marriage
—	Consent obtained by coercion or fraud, as defined in the Indian Contract Act

Void and Voidable Marriages under Hindu Law

Under the Hindu Marriage Act, a marriage is valid, void or voidable.

Void (Section 11)	Voidable (Section 12)
No marriage at all; a nullity from the beginning	Valid until annulled
No decree needed; the parties never become husband and wife, and either may treat it as void	Annulled only at the option of one party, by a court decree
A decree of nullity, on either party's petition, only declares the existing legal position	If that party does not act, it continues as valid; strangers cannot challenge it

Section 11: a marriage solemnised after the Act is void if it breaks clause (i), (iv) or (v) of Section 5.

Grounds of voidability (Section 12)

1. Non-consummation owing to the respondent's impotence, meaning physical or mental incapacity to consummate, not inability to have children.
2. Breach of the mental capacity condition in clause (ii) of Section 5.
3. Petitioner's consent obtained by force, or by fraud as to the nature of the ceremony or any material fact or circumstance concerning the respondent.
4. Respondent pregnant at the marriage by some person other than the petitioner.

Ground	Conditions
Force or fraud	Petition within one year after the force ceased or the fraud was discovered; no living together as husband or wife, with full consent, after that
Pregnancy	Petition within one year of the marriage; petitioner ignorant of the pregnancy at the marriage; no marital intercourse with the petitioner's consent after discovering it

Children (Section 16)

A child of a void marriage is legitimate, whether or not a decree of nullity is passed; so is a child of an annulled voidable marriage born or conceived before the decree. Such a child can claim property only from the parents, not other relatives.

Even the spouse of a void marriage can claim permanent alimony under the Hindu Marriage Act (Unit Four).

Valid, Void and Irregular Marriages under Muslim Law

Muslim law classifies marriages as valid (sahih), void (batil) and irregular (fasid).

Point	Void (batil)	Irregular (fasid)
Prohibition broken	Absolute	Relative, which can be removed: unlawful not in itself but because of something curable
Examples	Relative by blood, marriage or fosterage; another man's wife	Fifth wife; wife's sister while the first marriage continues; no witnesses; woman undergoing iddat
Effects	No civil rights or obligations; children illegitimate	See below

Irregular marriage: either party may end it at any time, before or after consummation, by words showing an intention to separate. Before consummation it has no legal effect. After consummation, the wife is entitled to dower (the lesser of the proper and the specified dower) and must observe iddat, and the children are legitimate and can inherit; but husband and wife do not inherit from each other.

Muta Marriage

Muta (meaning enjoyment) is a temporary marriage recognised only by the Ithna Ashari Shia school: a marriage for a fixed period (a day, a month or several years) for a fixed dower. Sunni law treats it as void.

Essentials: the period must be fixed and the dower specified. A Shia man may contract a muta with a Muslim, Christian or Jewish woman, or even a fire-worshipper; a Shia woman may not contract it with a non-Muslim.

Consequences

• It ends automatically on expiry of the period or the death of either party. There is no divorce, but the husband may end it early by a gift of the remaining term (hiba-e-muddat).
• Dower: half if not consummated; full if consummated.
• Iddat: two courses after a consummated muta ends by expiry; four months and ten days on the husband's death.
• Children are legitimate and inherit from both parents.
• Spouses do not inherit from each other, and under Shia law the wife is not entitled to maintenance.

Classifications Compared: Hindu Law and Muslim Law

Point	Hindu Marriage Act	Sunni law
Classes	Valid, void, voidable	Valid, void, irregular
Middle category	Voidable: valid until annulled, at the option of one party, by a court decree	Irregular: no effect until consummation; ended by either party without any court; after consummation, wife gets dower and children are legitimate
Void marriage	No marriage at all, though the Act protects the children's legitimacy	No marriage at all

Same-Sex Marriage

Unanimous points:

1. The Constitution gives no unqualified fundamental right to marry.
2. The Court cannot strike down or rewrite the Special Marriage Act to include same-sex couples; that is for Parliament.
3. Queer persons have the right to choose a partner and live together, and the State must protect them from harassment and violence.
4. A transgender person in a heterosexual relationship can marry under existing laws.

Issue (3:2)	Minority: Chief Justice Chandrachud, Justice Sanjay Kishan Kaul	Majority: Justices S. Ravindra Bhat, Hima Kohli, P.S. Narasimha
Civil union	Queer couples have a right to a civil union	No enforceable right unless the legislature creates it
Joint adoption	Queer couples may jointly adopt	Upheld regulations excluding unmarried couples from joint adoption

The Government told the Court that a committee headed by the Cabinet Secretary would examine practical entitlements of queer couples, such as joint bank accounts, ration cards and pension benefits. In January 2025, a five-judge bench dismissed the review petitions.

Live-in Relationships

Rights under the Domestic Violence Act

The Protection of Women from Domestic Violence Act, 2005 (Unit Four) protects a woman in a domestic relationship, defined to include a relationship in the nature of marriage. Such a woman can claim protection, residence and maintenance under it.

Velusamy requirements:

1. The couple hold themselves out to society as akin to spouses.
2. They are of legal age to marry.
3. They are otherwise qualified to marry, including being unmarried.
4. They have voluntarily cohabited for a significant period.

Keeping a woman mainly for sexual purposes or as a servant, or a one-night stand, does not qualify.

Indra Sarma guidelines: duration; shared household; pooling of resources and financial arrangements; domestic arrangements; sexual relationship; children; appearing in public as a couple; and the intention and conduct of the parties.

Relationship in the nature of marriage	Other live-in relationship
Looks like a marriage in every way except the ceremony	A casual arrangement, a relationship with a married partner, or a purely sexual arrangement
Both unmarried and of marriageable age; live together for a significant period, share a household, present themselves as spouses	Lacks these features
Protected under the Domestic Violence Act	Not protected under that Act

• A live-in partner is not a wife in law, so she cannot ordinarily claim maintenance as a wife under the criminal procedure law, unless the court presumes a marriage from long cohabitation.
• In 2010, the Supreme Court referred to a larger bench whether a wider reading of "wife" is possible; no larger bench has answered it so far.
• The Uttarakhand Uniform Civil Code requires live-in couples there to register, and treats children of such relationships as legitimate.

Unit Three: Matrimonial Reliefs and Bars to Matrimonial Relief

When a marriage runs into trouble, the law offers remedies called matrimonial reliefs. The Hindu Marriage Act offers four:

Relief (Hindu Marriage Act)	Effect
Restitution of conjugal rights	Tries to save the marriage
Judicial separation	Suspends it
Nullity	Declares that a valid marriage never came into being, or annuls a voidable one
Divorce	Ends a valid marriage

The Special Marriage Act offers the same four. Muslim law has its own system of divorce, together with the Dissolution of Muslim Marriages Act, 1939.

Restitution of Conjugal Rights

Section 9, Hindu Marriage Act

When either spouse has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply to the District Court, which may decree restitution if satisfied that the statements in the petition are true and that there is no legal ground for refusing it. An Explanation added in 1976 puts the burden of proving reasonable excuse on the person who has withdrawn.

Elements: (1) withdrawal by one spouse from the society of the other; (2) without reasonable excuse; (3) no legal ground for refusing relief.

Reasonable excuse: conduct that would itself be a ground for matrimonial relief, such as cruelty or adultery. Before 1976, only such grounds were allowed as defences; since that limit was removed, courts also accept grave and weighty conduct falling short of a ground.

The working wife

Kailashwati	Swaraj Garg
Husband decides the matrimonial home	Home decided by weighing the needs and convenience of both
Based on the husband's duty to maintain	Based on equality of spouses (Article 14)
Working wife's refusal: no reasonable excuse	Working wife's refusal: can be a reasonable excuse

Constitutional validity

In practice, restitution is often filed as a first step: if the decree is not obeyed for one year, either party can seek divorce under Section 13(1A). A fresh challenge to restitution was filed in the Supreme Court in 2019.

Restitution under Muslim law

Muslim law also recognises a suit for restitution of conjugal rights. The court decides it on equitable principles. The wife may defend it by showing cruelty, non-payment of prompt dower before consummation, or some other just cause.

Recall also the Ghulam Kubra Bibi case, where the husband's restitution suit failed at the first step, because he could not prove a valid marriage.

Nullity of Marriage

Under Section 11, either party to a void marriage may petition for a declaration that it is void; under Section 12, the aggrieved party to a voidable marriage may petition to annul it. Either way, the children remain legitimate under Section 16.

Judicial Separation

• Grounds (Section 10): any divorce ground under Section 13(1); a wife may also use her special grounds under Section 13(2). Before 1976 it had separate grounds; the amendment made them the same as for divorce.
• Effect: the petitioner need not live with the respondent, but they remain husband and wife, so neither can remarry.
• Rescission: the court may rescind the decree on either party's petition if just and reasonable, for example on reconciliation.
• Divorce: if cohabitation is not resumed for one year or more after the decree, either party may seek divorce under Section 13(1A).

A wife who wants protection and maintenance without the finality of divorce may prefer it, and it leaves room for reconciliation.

Theories of Divorce

Theory	Idea
Fault (guilt or offence) theory	Divorce only when one spouse has committed a matrimonial offence (adultery, cruelty, desertion) and the other is innocent; only the innocent spouse gets relief. The original Hindu Marriage Act was built mainly on it.
Consent theory	Spouses who freely agree may part without proving fault: Section 13B of the Hindu Marriage Act and Section 28 of the Special Marriage Act.
Breakdown theory	The question is whether the marriage has broken down beyond repair, not who is at fault; keeping it alive in law serves no purpose. Section 13(1A) reflects it; irretrievable breakdown is studied later.
Frustration or no-fault theory	Divorce where the purpose of the marriage is defeated by circumstances such as incurable mental disorder, conversion, renunciation of the world or long disappearance, though no one has committed an offence.

Development

• Classical Hindu law did not allow divorce, though custom allowed it in many communities.
• Some provinces passed divorce laws before Independence, such as the Bombay Hindu Divorce Act, 1947.
• The Hindu Marriage Act introduced divorce for all Hindus in 1955.
• The Marriage Laws Amendment Act, 1976 made cruelty and desertion grounds for divorce, introduced divorce by mutual consent, and gave wives two new grounds, based on a maintenance order and on the option of puberty.

Grounds of Divorce under the Hindu Marriage Act

Section 13(1) lists the grounds available to either spouse.

Adultery

The respondent has, after the marriage, had voluntary sexual intercourse with any person other than his or her spouse. Before 1976, the petitioner had to prove that the respondent was "living in adultery"; now a single act is enough. Direct evidence being rare, courts accept circumstantial evidence, judged by the preponderance of probabilities.

Cruelty

The respondent has, after the marriage, treated the petitioner with cruelty. The Act does not define cruelty; it may be physical or mental.

That test was stated under the old wording. Since 1976 the Act simply says "treated with cruelty", and courts ask whether the conduct is so grave and weighty that the petitioner cannot reasonably be expected to live with the respondent.

Instances of mental cruelty (Samar Ghosh) include:

• conduct causing acute mental pain and suffering that makes living together impossible;
• a sustained course of abusive and humiliating treatment;
• unilateral refusal of sexual relations for a long time without good reason;
• a unilateral decision after marriage not to have a child;
• a vasectomy by the husband, or an abortion or sterilisation by the wife, without medical reason and without the other's consent or knowledge.

Desertion

Desertion for a continuous period of not less than two years immediately before the petition.

Deserting spouse	Deserted spouse
Fact of separation	Absence of consent
Intention to end cohabitation permanently (animus deserendi)	No conduct giving the other reasonable cause to leave

The petitioner must prove all of these. Constructive desertion: the deserter is not always the one who leaves the house.

Other grounds under Section 13(1)

• Conversion: the respondent has ceased to be a Hindu by converting to another religion.
• Mental disorder: the respondent has been incurably of unsound mind, or has been suffering, continuously or intermittently, from mental disorder of such a kind and extent that the petitioner cannot reasonably be expected to live with the respondent.
• Venereal disease in a communicable form.
• Renunciation of the world by entering a religious order.
• Not heard of as alive for seven years or more by those who would naturally have heard of it.

Leprosy was also a ground until Parliament removed it in 2019, because leprosy is curable and the ground stigmatised patients.

Section 13(1A): breakdown grounds

Either party may seek divorce where there has been no resumption of cohabitation for one year or more after a decree of judicial separation, or no restitution of conjugal rights for one year or more after a restitution decree. Even the party against whom the decree was passed may use these grounds.

Section 13(2): wife's additional grounds

1. In a marriage solemnised before the Act, the husband had another wife living at the time of the marriage, still alive when the petition is filed.
2. The husband has, since the marriage, been guilty of rape, sodomy or bestiality.
3. A maintenance order has been passed in her favour under the Hindu Adoptions and Maintenance Act or the criminal procedure law, and cohabitation has not been resumed for one year or more since.
4. She was married before 15 and repudiated the marriage after 15 but before 18, whether or not it was consummated.

Divorce by Mutual Consent

Under Section 13B, both parties may present a petition together on the ground that they have been living separately for one year or more, have not been able to live together, and have mutually agreed that the marriage should be dissolved.

After a waiting period, both must make a second motion, not earlier than six months and not later than 18 months after the petition. If the petition has not been withdrawn, the court hears the parties and makes such inquiry as it thinks fit; if satisfied that the statements are true, it passes a decree of divorce.

Divorce by Mutual Consent: Withdrawal of Consent and the Waiting Period

Withdrawal of consent before the decree

Withdrawn consent and the curative petition

A dispute of the same kind led to a landmark in constitutional procedure.

Waiver of the six-month waiting period

The six-month period exists so that the parties can think again. But where they have lived apart for years and settled everything, it only prolongs their agony.

Four conditions for waiver:

1. The statutory period of six months, along with the one year of separation, is already over before the first motion.
2. All efforts at mediation and reconciliation have failed.
3. The parties have genuinely settled their differences, including alimony and custody of children.
4. The waiting period would only prolong their agony.

The application for waiver may be filed one week after the first motion.

Sections 14 and 15

• Section 14: no petition for divorce may be presented within one year of the marriage. The court may allow an earlier petition on the ground of exceptional hardship to the petitioner or exceptional depravity on the part of the respondent.
• Section 15: either party may remarry when there is no right of appeal, or the time for appeal has expired without an appeal, or an appeal has been dismissed.

Divorce under Muslim Law

Modes of dissolution

A Muslim marriage may be dissolved by the death of a spouse; by the acts of the parties without going to court (non-judicial or extra-judicial divorce); or by a decree of the court (judicial divorce, now governed mainly by the Dissolution of Muslim Marriages Act, 1939).

Extra-judicial divorce by	Forms
The husband	Talaq, ila, zihar
The wife	Under a power delegated to her
Both (mutual consent)	Khula, mubarat

Talaq

Talaq literally means release: the husband's power to dissolve the marriage by pronouncement. Classical law recognised two main kinds: talaq-ul-sunnat, the approved form, which follows the practice of the Prophet and has two sub-forms (ahsan and hasan); and talaq-ul-biddat, the disapproved or innovative form. A tuhr is a period when the wife is free from menstruation.

Form	Procedure	Effect
Ahsan (most approved)	A single talaq pronounced during a tuhr; the husband then abstains from intercourse during the iddat.	Revocable during the iddat, by words or by resuming cohabitation; becomes final only when the iddat ends.
Hasan	Three pronouncements in three successive periods of purity, without intercourse in between.	The third pronouncement makes the divorce final.
Talaq-ul-biddat	Three pronouncements in a single tuhr, usually all at once, or a single pronouncement clearly intending an irrevocable divorce.	Takes effect immediately; cannot be revoked. Hanafi law: sinful but valid. Shia law never recognised it.

Halala: after three pronouncements, the parties could remarry each other only if the wife first married another man, that marriage was consummated, and it too was dissolved. The practice has been widely criticised.

Judicial control over talaq

For a long time, Indian courts accepted that a Muslim husband could divorce at will, without giving reasons. Change came through the courts.

Triple talaq set aside: Shayara Bano

Judges	Opinion
Justice R.F. Nariman, with Justice U.U. Lalit	Triple talaq is manifestly arbitrary: it lets the husband break the marriage whimsically, without any attempt at reconciliation. The Shariat Act of 1937 enforces Muslim personal law, so it is a law in force; to the extent it recognises and enforces triple talaq, it is void under Article 13 for violating Article 14.
Justice Kurian Joseph (agreeing in result)	Triple talaq is against the basic tenets of the Quran, so it cannot be part of Muslim personal law protected by Article 25. What is bad in theology is bad in law as well.
Chief Justice J.S. Khehar and Justice S. Abdul Nazeer (dissent)	Triple talaq is part of the personal law of Sunni Hanafi Muslims, protected by Article 25, so only Parliament could change it. They would have restrained husbands from pronouncing it, at first for six months, while Parliament legislated.

Muslim Women (Protection of Rights on Marriage) Act, 2019

After Shayara Bano, Parliament passed this Act, which took effect from 19 September 2018.

• Section 3: any pronouncement of talaq by a Muslim husband upon his wife, by words spoken or written, in electronic form or in any other manner, is void and illegal. Talaq here means talaq-e-biddat or any similar form having the effect of an instant and irrevocable divorce.
• Section 4: an offence punishable with imprisonment up to three years and fine.
• The wife is entitled to a subsistence allowance for herself and dependent children, and to custody of her minor children.
• The offence is cognizable if information is given by the wife or a relative; compoundable at her instance with the Magistrate's permission; bail only after hearing her.

Critics ask why an act already void should be a crime; supporters say punishment is needed as a deterrent. The Act's validity has been challenged before the Supreme Court, and petitions questioning talaq-e-hasan have also reached that Court.

Divorce by the wife: talaq-e-tafweez (delegated divorce)

The husband may delegate his power of talaq to the wife, or to a third person, absolutely or on conditions, often in the nikahnama. When the condition happens, she may exercise the power, and the divorce is as effective as if the husband had pronounced it. The delegation is valid if its conditions are reasonable and not against public policy.

Ila and zihar

• Ila: the husband swears to abstain from intercourse with his wife for four months or more, and keeps the vow.
• Zihar: the husband compares his wife to a woman within the prohibited degrees, such as his mother. The wife may refuse cohabitation until he performs a penance, and may seek divorce through the court.

Both are rare today.

Khula and mubarat

Khula	Mubarat
At the instance of the wife: she asks to be released and offers something in return, usually the return of her dower.	Aversion is mutual; both desire separation, and either may make the offer.

In both, once the offer is accepted, the divorce is complete and irrevocable, and the wife must observe iddat.

Does khula need the husband's consent?

Classical texts treated khula as a contract needing his acceptance. High Courts have recently held otherwise. In 2021, a Division Bench of the Kerala High Court held that a Muslim wife may end her marriage by khula outside the court, without her husband's consent.

Judicial Divorce: The Dissolution of Muslim Marriages Act, 1939

Before 1939, a Hanafi wife had almost no way to obtain a divorce through the court; some wives even renounced Islam, because apostasy was treated as dissolving the marriage. The 1939 Act, drawing on the more liberal Maliki school, gave Muslim wives clear grounds for judicial divorce.

Grounds under Section 2

1. Husband's whereabouts not known for four years.
2. Husband has neglected or failed to provide for her maintenance for two years.
3. Husband sentenced to imprisonment for seven years or more.
4. Husband has failed, without reasonable cause, to perform his marital obligations for three years.
5. Husband was impotent at the time of marriage and continues to be so.
6. Husband has been insane for two years, or is suffering from a virulent venereal disease.
7. Option of puberty (covered in the previous unit).
8. Cruelty.
9. Any other ground recognised as valid under Muslim law, such as lian, where the husband falsely accuses his wife of adultery.

The cruelty clause

It is wide, and covers a husband who:

• habitually assaults her or makes her life miserable by cruelty of conduct, even if not amounting to physical ill-treatment;
• associates with women of evil repute or leads an infamous life;
• attempts to force her to lead an immoral life;
• disposes of her property or prevents her exercising her legal rights over it;
• obstructs her in the observance of her religious profession or practice; or
• has more wives than one and does not treat her equitably in accordance with the injunctions of the Quran.

Safeguards

• Disappearance: the decree does not take effect for six months; if the husband reappears within that time and satisfies the court that he is prepared to perform his conjugal duties, the decree is set aside.
• Imprisonment: no decree until the sentence is final.
• Impotence: the court must first give the husband, if he applies, one year to show that he has ceased to be impotent.

Sections 4 and 5

• Section 4: a married Muslim woman's renunciation of Islam, or conversion to another faith, does not by itself dissolve her marriage.
• Section 5: preserves her right to dower on dissolution.

Hindu and Muslim divorce compared

Hindu Marriage Act	Muslim law (traditional)
Every divorce needs a decree of the court.	The husband could divorce without the court.
Grounds largely the same for both spouses, with some extra grounds for the wife.	The wife needed delegation, the husband's agreement or a decree.

The gap has narrowed: triple talaq is void and punishable; talaq must be for a reasonable cause, with attempts at reconciliation; and High Courts have recognised the wife's right to khula.

Irretrievable Breakdown of Marriage

Position under the Hindu Marriage Act

It is not a ground as such. The Law Commission recommended adding it in its 71st Report (1978) and 217th Report (2009). A Bill to do so was passed by the Rajya Sabha in 2013 but lapsed. Parliament has not added the ground.

Dissolution under Article 142

Meanwhile, the Supreme Court began dissolving dead marriages itself under Article 142, which empowers it to pass any decree necessary for doing complete justice.

Relevant factors: the period of cohabitation; when the parties last lived together; the nature of the allegations; the effect of the litigation; the attempts at settlement; and the length of separation (about six years or more is a relevant factor). The Court must also ensure fairness to the wife and children through alimony and custody arrangements.

Breakdown was already recognised in part: Justice Krishna Iyer read it into Muslim divorce law in Yousuf Rawther; and for Hindus, divorce by mutual consent and the grounds in Section 13(1A) recognise it in part.

The debate

Supporters	Critics
A dead marriage causes misery to both parties and their children.	An economically weaker spouse, often the wife, may be abandoned against her will.
Fault-based litigation only increases bitterness.	A party may create the breakdown by his own wrong and then take advantage of it.

Bars to Matrimonial Relief: Section 23, Hindu Marriage Act

Even when a ground is proved, the court will refuse relief if a bar applies. Under Section 23, the court shall decree relief only if satisfied that:

1. No advantage from own wrong or disability: the petitioner is not taking advantage of his or her own wrong or disability for the purpose of the relief. This rests on the maxim that no one may benefit from his own wrong.
2. No accessory, connivance or condonation: where the ground is adultery, the petitioner has not been accessory to, connived at or condoned it; where the ground is cruelty, the petitioner has not condoned it.
3. Free consent: where the ground is mutual consent, the consent was not obtained by force, fraud or undue influence.
4. No collusion: the petition is not presented or prosecuted in collusion with the respondent.
5. No delay: there has been no unnecessary or improper delay in bringing the proceeding.
6. No other legal ground exists for refusing relief.

Divorce by mutual consent is lawful, but a secret agreement to fake a ground such as adultery is collusion.

Duty to attempt reconciliation

Before granting any relief, the court must, in every case where it is possible consistently with the nature and circumstances of the case, make every endeavour to bring about a reconciliation.

• The duty does not apply to grounds such as conversion, mental disorder, venereal disease, renunciation of the world and presumed death, where reconciliation would be pointless.
• The court may adjourn the case for up to fifteen days and refer the parties to a person they name, or one it nominates, to attempt reconciliation.

Section 23A: a respondent may not only oppose the relief but also claim relief on the ground of the petitioner's adultery, cruelty or desertion.

Mediation, Counselling and Family Courts

Family disputes differ from ordinary civil disputes: the parties often have children and a shared history, and may have to deal with each other for years. A bitter court fight can destroy whatever goodwill remains, so the law encourages settlement.

Counselling	Mediation
Professional help to understand and resolve the emotional causes of the conflict.	A neutral person, the mediator, helps the parties reach their own settlement; the mediator decides nothing. Voluntary and confidential.

Many disputes about maintenance, custody, residence and property, and even the decision to part by mutual consent, are settled in court-annexed mediation centres. Mediation is not suitable where one spouse faces serious violence or threats.

Supporting provisions

• Section 23 of the Hindu Marriage Act: efforts at reconciliation.
• Order 32A, Code of Civil Procedure (added in 1976): courts dealing with family disputes must first try to help the parties settle.
• Section 89, Code of Civil Procedure: courts may refer disputes to mediation and other methods of settlement.
• The Mediation Act, 2023.

The Family Courts Act, 1984

Passed because women's organisations and the Law Commission had long demanded a less formal and more conciliatory forum for family disputes.

• Section 3: the State Government, after consulting the High Court, must establish a Family Court for every city or town with a population exceeding one million, and may establish them elsewhere.
• Section 4: every effort is to be made to select judges committed to protecting and preserving the institution of marriage and promoting the welfare of children, with experience in settling disputes by conciliation and counselling. Preference is to be given to women.
• Section 7: a Family Court exercises the jurisdiction of a District Court or subordinate civil court in family suits and proceedings: nullity, restitution, judicial separation and divorce; validity of a marriage or matrimonial status; property of the spouses; injunctions arising out of a marriage; legitimacy; maintenance; and guardianship and custody of children. It also exercises a Magistrate's jurisdiction under the maintenance provisions of the criminal procedure law.
• Section 9: in the first instance, the court must try to persuade the parties to settle, and may adjourn where there is a reasonable possibility of settlement.
• Sections 5 and 6: association of social welfare agencies, and counsellors.
• Procedure: the court may lay down its own procedure; may hold proceedings in camera, and must if either party wishes; may take the help of medical and welfare experts; and, the strict rules of evidence being relaxed, may receive any report or document that helps it deal effectually with the dispute.
• Section 13: no party is entitled, as of right, to be represented by a legal practitioner, though the court may seek a legal expert's help as amicus curiae. In practice, lawyers are often permitted.
• Section 19: appeal lies to the High Court from every judgment or order, other than an interlocutory order, on facts and law; within thirty days; heard by a bench of two or more judges. No appeal lies from a consent order. A maintenance order under the criminal procedure law can be challenged in the High Court only in revision.
• Section 20: overriding effect over any other law.

Unit 4: Alimony and Maintenance

A divorce or separation raises an urgent question: how will the dependent spouse and the children live?

Maintenance is not charity but a legal obligation: a person who has taken on responsibility for dependants must not leave them destitute.

Sources

• Hindu Marriage Act: spouses and children in matrimonial proceedings.
• Hindu Adoptions and Maintenance Act: Hindu wives, children, parents and other dependants.
• Criminal procedure law: a secular remedy for people of every religion.
• Muslim Women (Protection of Rights on Divorce) Act, 1986: divorced Muslim women.
• Protection of Women from Domestic Violence Act: victims of domestic violence.

A person may have remedies under more than one of these laws.

Maintenance under the Hindu Marriage Act

Section 24: maintenance pendente lite and expenses

In any proceeding under the Act, a wife or husband with no independent income sufficient for support and the necessary expenses of the proceeding may apply; the court may order the other spouse to pay those expenses and a monthly sum during the proceeding, considering the income of both. Since 2001, the application must, as far as possible, be decided within sixty days of service of notice. "Any proceeding" includes a case in which the claimant is the respondent, and even a petition to declare the marriage void.

Section 25: permanent alimony

• Either spouse may apply at the time of passing any decree or at any time afterwards.
• The court may order the other spouse to pay a gross sum or a monthly or periodical sum, for a term not exceeding the applicant's life, considering the income and property of both parties, their conduct and other circumstances.
• If necessary, payment may be secured by a charge on the immovable property of the paying spouse.
• The order may be varied or modified if circumstances change, and varied or rescinded if the recipient has remarried, if a recipient wife has not remained chaste, or if a recipient husband has had sexual intercourse with any woman outside wedlock.

Section 26: children

In any proceeding, the court may make interim orders and provisions in the decree about the custody, maintenance and education of minor children, consistently with their wishes wherever possible. Applications for children's maintenance and education during the proceeding should, as far as possible, be decided within sixty days.

Guidelines and quantum

Maintenance under the Hindu Adoptions and Maintenance Act, 1956

The Hindu Marriage Act gives maintenance only in matrimonial proceedings. This Act gives a Hindu wife an independent right without seeking divorce or separation, and extends to children, aged parents and other dependants.

Section 18: wife

A Hindu wife is entitled to be maintained by her husband during her lifetime, and to live separately without losing maintenance:

1. if he is guilty of desertion (abandoning her without reasonable cause and without her consent or against her wish, or wilfully neglecting her);
2. if he has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with him;
3. if he has any other wife living;
4. if he keeps a concubine in the same house, or habitually resides with a concubine elsewhere;
5. if he has ceased to be a Hindu by conversion;
6. if there is any other cause justifying her living separately.

She is not entitled to separate residence and maintenance if she is unchaste or ceases to be a Hindu by conversion.

Section 19: widowed daughter-in-law

She is entitled to maintenance from her father-in-law if she cannot maintain herself from her own earnings or property, or from the estate of her husband, father or mother, or from her son or daughter. The obligation arises only if the father-in-law has the means from coparcenary property in which she has received no share, and ends if she remarries.

Section 20: children and aged parents

• A Hindu must, during his or her lifetime, maintain legitimate or illegitimate children and aged or infirm parents.
• A child, legitimate or illegitimate, may claim from the father or the mother so long as the child is a minor.
• For an aged or infirm parent or an unmarried daughter, the obligation extends only so far as they cannot maintain themselves from their own earnings or property.
• "Parent" includes a childless stepmother.

Sections 21 and 22: dependants of a deceased Hindu

Dependants include, each subject to conditions: the father; the mother; the widow, so long as she does not remarry; minor sons and grandsons; unmarried daughters and granddaughters; a widowed daughter; a son's widow; a minor illegitimate son; and an unmarried illegitimate daughter. The heirs taking the estate must maintain them out of it, in proportion to the value of their shares.

Section 23: amount

Wife, children, aged or infirm parents	Dependants
Position and status of the parties; reasonable wants of the claimant; whether a separately living claimant is justified; value of the claimant's own property and income; number of persons entitled.	Net value of the estate after debts; any provision by will; degree of relationship; past relations with the deceased; the dependant's reasonable wants and own property; number of dependants.

Other rules

• No one can claim under the Act after ceasing to be a Hindu by conversion.
• The amount may be altered on a material change of circumstances.
• Debts of the deceased have priority over dependants' claims.
• A dependant's claim is not a charge on the estate unless created by will, decree, agreement or otherwise; but if the estate is transferred, it is enforceable against a transferee with notice or one who took the property free of cost.

The Secular Remedy: Section 125 CrPC and Section 144 B.N.S.S.

The most widely used remedy was for fifty years Section 125 of the CrPC, 1973. From 1 July 2024 the B.N.S.S., 2023 replaced that Code, and the same provision now appears, in almost the same words, as Section 144. Most leading cases were decided under Section 125, so know both numbers.

The remedy is secular (it applies to every religion) and summary (quick and simple), and is heard by a Magistrate of the first class, or a Family Court where one exists.

Who can claim

If a person with sufficient means neglects or refuses to maintain any of the following, the Magistrate may order a monthly allowance:

1. his wife, unable to maintain herself;
2. his legitimate or illegitimate minor child, married or not, unable to maintain itself (Section 144 leaves out the word "minor" here; its effect is debated);
3. his legitimate or illegitimate major child, not a married daughter, unable to maintain itself because of physical or mental abnormality or injury;
4. his father or mother, unable to maintain himself or herself.

A father or mother can claim from a daughter as well as a son.

• There is no upper limit on the amount.
• Interim maintenance may be ordered; the application should, as far as possible, be decided within sixty days of service of notice.
• Maintenance runs from the date of the order or, if so ordered, from the date of the application; the Rajnesh guidelines now require it from the date of the application.

Who is a wife; the three bars

By the Explanation, wife includes a woman divorced by, or who has obtained a divorce from, her husband and has not remarried; so a divorced wife can claim until she remarries. A wife is not entitled if (1) she is living in adultery, (2) she refuses to live with her husband without sufficient reason, or (3) they live separately by mutual consent. If the husband offers maintenance on condition that she lives with him and she refuses, the Magistrate may still grant it if she has just grounds; the law expressly makes his marriage to another woman, or keeping a mistress, a just ground.

The second wife

Parents and senior citizens

The Maintenance and Welfare of Parents and Senior Citizens Act, 2007 allows parents and senior citizens who cannot maintain themselves to claim maintenance from children or relatives before a Maintenance Tribunal. A senior citizen may also have a transfer of property declared void where it was made on condition that the transferee would look after him, and the transferee fails to do so.

Enforcement

On failure without sufficient cause to obey the order, the Magistrate may issue a warrant to recover the amount as a fine, and may sentence the person to imprisonment up to one month for each month's unpaid allowance, or until earlier payment. The recovery application must be made within one year from the date the amount became due.

Maintenance of Muslim Women

The maintenance rights of Muslim women have seen the most dramatic legal history in this subject. Under Muslim personal law, a husband must maintain his wife during the marriage, unless she refuses without lawful cause to live with him. After divorce, he must maintain her during the iddat, and she is entitled to any unpaid dower. Classical law placed no further duty on the former husband.

Muslim Women (Protection of Rights on Divorce) Act, 1986

The judgment caused a political storm, and Parliament passed this Act. Many read it as reversing Shah Bano, because it seemed to limit the husband's duty to the iddat period.

• Section 3: a divorced Muslim woman is entitled to (a) a reasonable and fair provision and maintenance, made and paid within the iddat period by her former husband; (b) maintenance for two years from the birth of any child of the marriage whom she maintains; (c) an amount equal to her dower; and (d) all properties given to her before, at or after marriage by her relatives or friends, or by the husband or his relatives or friends. If unpaid, she may apply to a Magistrate.
• Section 4: if she has not remarried and cannot maintain herself after the iddat, the Magistrate may order the relatives who would inherit her property to maintain her, in proportion to their shares. If she has children, the order is only against them, and if they cannot pay, against her parents. If there are no such relatives or they cannot pay, the State Wakf Board may be ordered to pay.
• Section 5: by a joint or separate declaration at the first hearing, the parties may choose to be governed by the maintenance provisions of the criminal procedure law instead.

Maintenance of Divorced Muslim Women: Forum and Present Position

The Act of 1986 speaks of a Magistrate, but many cities have Family Courts. Which court should hear applications under it?

Maintenance under the Domestic Violence Act

The Protection of Women from Domestic Violence Act, 2005 is a civil law, backed by criminal enforcement, giving women quick protection within the home. It applies to women of every religion.

Aggrieved person and domestic relationship

So a wife, a woman in a relationship in the nature of marriage, a mother, a sister or a widow living in a joint family can all use the Act.

Respondent

The Act originally defined a respondent as an adult male person, though a wife could also complain against her husband's relatives.

Domestic violence (Section 3)

It includes physical abuse, sexual abuse, verbal and emotional abuse, and economic abuse. Economic abuse includes depriving the woman of financial resources to which she is entitled (such as maintenance), disposing of her assets, and restricting her access to the shared household. Harassment to meet an unlawful dowry demand is also domestic violence.

Reliefs (Sections 12 and 20)

The woman may apply to a Magistrate under Section 12. The Magistrate may grant:

• protection orders, stopping the respondent from committing violence or contacting her;
• residence orders, protecting her right to live in the shared household;
• monetary relief, custody orders for children, and compensation for injuries, including mental torture and emotional distress;
• interim and ex parte orders.

These reliefs may also be sought in other proceedings, such as a divorce case in a Family Court.

Monetary relief (Section 20) covers expenses and losses caused by the violence (loss of earnings, medical expenses, loss of property) and maintenance for the woman and her children, which may be in addition to an order under the criminal procedure law. It must be adequate, fair and reasonable, consistent with the standard of living to which she is accustomed, and may be a lump sum or monthly payments.

Right of residence in the shared household

This is one of the most important features of the Act.

Penalty and relation with other laws

Breach of a protection order is an offence: imprisonment up to one year, or fine up to Rs 20,000, or both. The Act adds to other laws and does not replace them.

Comparison of the Main Maintenance Remedies

Law	Who can claim	Nature of remedy
Hindu Marriage Act	Either spouse	Alimony, only in matrimonial proceedings
Hindu Adoptions and Maintenance Act	Hindu wife, children, parents, dependants	Independent right, without any matrimonial case
Criminal procedure remedy	Only wife, children and parents	Secular, quick and summary
Act of 1986	Divorced Muslim woman	Fair provision for her future
Domestic Violence Act	Any woman facing domestic violence in a domestic relationship, including one in the nature of marriage	Maintenance with protection and a right of residence

Adoption under Hindu Law

In classical Hindu law, adoption had a religious purpose: a son was needed to perform the funeral rites and offer the pinda, offerings believed to secure the spiritual welfare of the ancestors. The Hindu Adoptions and Maintenance Act, 1956 gave it a secular purpose and some equality.

Classical Hindu law	Act of 1956
Generally only a son could be adopted	A daughter may be adopted
A woman could adopt only for her husband	A woman may adopt in her own right
Datta homam (offering into the sacred fire) often performed	Datta homam not essential

Section 5: no adoption shall be made by or to a Hindu except in accordance with the Act; an adoption in breach of it is void.

Requisites of a valid adoption (Section 6)

1. The person adopting has the capacity and the right to adopt.
2. The person giving in adoption has the capacity to do so.
3. The person adopted is capable of being adopted.
4. The adoption complies with the other conditions of the Act.

Capacity to adopt (Sections 7 and 8)

Male Hindu (Section 7): any male Hindu of sound mind and not a minor may adopt a son or a daughter. If he has a wife living, he needs her consent, unless she has completely and finally renounced the world, has ceased to be a Hindu, or has been declared by a court to be of unsound mind. With more than one wife, he needs the consent of all, with the same exceptions.

Female Hindu (Section 8): today any female Hindu of sound mind and not a minor may adopt a son or a daughter; if married, she needs her husband's consent, subject to the same three exceptions. This is the position only since 2010. Before that, a married woman could not adopt at all while her husband was alive and the marriage subsisted, unless an exception applied.

Who may give in adoption (Section 9)

• Only the father, the mother or the guardian of the child.
• Father and mother have an equal right to give a son or daughter, but neither can do so without the other's consent, unless the other has renounced the world, has ceased to be a Hindu, or has been declared of unsound mind.
• Where both parents are dead, have renounced the world, have abandoned the child, or have been declared of unsound mind, or the parentage is unknown, the guardian may give the child, with the previous permission of the court, to any person, including himself. The court must be satisfied that the adoption is for the child's welfare and that no payment has been made for it.

Who may be adopted (Section 10)

The child must be a Hindu, not already adopted, not married, and must not have completed 15 years. The last two conditions may be relaxed where a custom applicable to the parties permits.

Other conditions (Section 11)

• Adopting a son: no Hindu son, son's son or son's son's son of the adoptive parent may be living.
• Adopting a daughter: no Hindu daughter or son's daughter may be living.
• A man adopting a daughter, or a woman adopting a son, must be at least 21 years older than the child.
• The same child cannot be adopted by two or more persons at the same time.
• The child must actually be given and taken by the parents or guardian, with the intention of transferring the child from the family of birth to the family of adoption. Datta homam is not essential.

Effects of adoption (Section 12)

The adopted child is deemed the child of the adoptive father or mother for all purposes from the date of adoption; all ties with the family of birth are severed and replaced by ties in the adoptive family. Provisos:

1. The child cannot marry anyone he or she could not have married in the family of birth.
2. Property vested in the child before adoption stays with him or her, subject to attached obligations.
3. The child does not divest anyone of an estate vested before the adoption.

Sections 13 to 17

• Section 13: adoption does not take away the adoptive parents' power to dispose of their property, unless agreed otherwise.
• Section 14: decides the adoptive mother. When a married man adopts, his wife is the adoptive mother; if a bachelor adopts and later marries, his wife is the child's stepmother.
• Section 15: a valid adoption cannot be cancelled by the adoptive parents or anyone else, and the child cannot renounce it and return to the family of birth.
• Section 16: a registered document recording an adoption, signed by the persons giving and taking the child, raises a presumption that the adoption complied with the Act, unless disproved.
• Section 17: prohibits and punishes any payment or reward for an adoption.

Guardianship under Hindu Law

A minor cannot manage his or her own affairs, make binding contracts or deal with property, so a guardian looks after the minor's person (upbringing, health, education) and property.

• Natural guardian: a guardian by law itself, because of the relationship, such as the father or mother.
• Testamentary guardian: appointed by a parent's will.
• Guardian appointed or declared by a court under the Guardians and Wards Act, 1890, a secular law for all communities. For Hindus, the Hindu Minority and Guardianship Act, 1956 supplements it.

Natural guardians (Sections 6 and 7)

For the minor's person and property, excluding his undivided interest in joint family property:

Minor	Natural guardian
Boy or unmarried girl	Father, and after him, mother; custody of a child under 5 ordinarily with the mother
Illegitimate boy or illegitimate unmarried girl	Mother, and after her, father
Married girl	Husband
Adopted son (Section 7)	Adoptive father, and after him, adoptive mother

No one may act as natural guardian who has ceased to be a Hindu or has completely and finally renounced the world as a hermit or ascetic. Father and mother do not include a stepfather or stepmother.

"After him"

Read literally, the mother would be guardian only after the father's death, and inferior throughout his lifetime.

In 2015 the Law Commission recommended making both parents equal natural guardians, but the Act's text is unchanged.

Powers of a natural guardian (Section 8)

• He may do all acts necessary, or reasonable and proper, for the minor's benefit or the protection of the minor's estate, but cannot bind the minor by a personal covenant.
• Without the court's previous permission, he cannot mortgage, sell, gift or exchange the minor's immovable property, or lease it for over 5 years or for over 1 year beyond the minor's majority.
• A disposal in breach is voidable at the instance of the minor or anyone claiming under him.
• Permission is given only for necessity or evident advantage to the minor.

Other rules

• A Hindu father may appoint a testamentary guardian by will, but the appointment has no effect if the mother survives him, unless she dies without appointing a guardian herself.
• A minor cannot be guardian of another minor's property.
• A de facto guardian (merely looking after the minor without legal authority) cannot deal with the minor's property on that basis.
• No guardian is appointed for a minor's undivided interest in joint family property; an adult family member manages it.

Welfare of the minor (Section 13)

Welfare is more than material comfort: it includes moral upbringing, emotional security, education and health, a parent's love and care, and, where the child is old enough, the child's own wishes.

Guardians and Wards Act, Section 17: the court is guided by the minor's welfare, considering the minor's age, sex and religion, the character and capacity of the proposed guardian, a deceased parent's wishes, and the minor's own preference if old enough to form an intelligent one.

Guardianship under Muslim Law

Muslim law here is uncodified, applied by courts through the Guardians and Wards Act. It recognises guardianship of the person, of property, and in marriage.

Hizanat

Custody of the minor's person, especially a young child, is hizanat. It belongs first to the mother, because a young child needs a mother's care.

School	Son	Daughter
Hanafi	Until he completes 7 years	Until puberty
Ithna Ashari Shia	Until he completes 2 years	Until she completes 7 years

Under Hanafi law, if the mother is absent or disqualified, the right passes to other female relatives, such as the mother's mother and father's mother, in a set order. The mother may lose it if she marries a man not related to the child within the prohibited degrees, leads an immoral life, or neglects the child.

Guardianship of person, property and marriage

Property (Hanafi): legal guardians, in order, are the father, his executor, the father's father, and the father's father's executor. The mother is not a legal guardian of property, though a court may appoint her. A de facto guardian has no power to transfer the minor's immovable property.

Marriage: guardianship lies with the father, then the paternal grandfather and other relatives, subject to the minor's option of puberty.

In court, these rules yield to the child's welfare under the Guardians and Wards Act, so courts have sometimes let a mother keep custody beyond the hizanat ages, or given custody to the father earlier.

Acknowledgement of Paternity (Ikrar)

Muslim law bases legitimacy on a valid or irregular marriage of the parents. Where the marriage, or its date, cannot be proved, a man may acknowledge a child as his legitimate child (ikrar), and the law may presume both marriage and legitimacy.

Conditions

1. He must acknowledge the child as his legitimate child, not merely his child.
2. He must be at least 12½ years older than the child.
3. The child must not be known to be another man's child.
4. The child must not be the offspring of an unlawful union: marriage between the man and the mother must have been possible at conception. If she was then married to someone else, or related to him within the prohibited degrees, it fails.
5. He must be adult and of sound mind.
6. A child old enough to understand must not reject it.

Effects and limits

An acknowledgement is irrevocable. The child becomes legitimate and inherits from the father, and a presumption may arise that the man married the mother, so she too may claim rights as his wife.

Section 116 of the B.S.A. (all communities): a child born during a valid marriage, or within 280 days after its dissolution while the mother remains unmarried, is conclusively presumed the husband's legitimate child, unless it is shown that the spouses had no access to each other when the child could have been conceived.

No adoption: Muslim personal law does not recognise adoption as making another's child one's own legitimate child for all purposes. A child may be brought up under guardianship, often called kafala, but does not become an heir.

Adoption under the Juvenile Justice Act

The Hindu Act is open only to Hindus and Hindu children. Others long had only guardianship under the Guardians and Wards Act, which does not create the full parent-child relationship. A secular law was needed, especially for orphaned and abandoned children.

The Juvenile Justice Act, 2000, as amended in 2006, gave a secular basis to adoption of orphaned, abandoned and surrendered children. The law now is the Juvenile Justice (Care and Protection of Children) Act, 2015, with the Adoption Regulations, 2022 (replacing those of 2017).

Meaning and scope

• Available for orphaned, abandoned and surrendered children, and for adoption by a relative or step-parent.
• Does not apply to adoptions under the Hindu Adoptions and Maintenance Act.
• CARA, a statutory body under the Ministry of Women and Child Development, regulates in-country and inter-country adoptions and is India's central authority under the Hague Convention on inter-country adoption.

Who can adopt (Section 57 and Regulations)

• Prospective parents must be physically fit, financially sound, mentally alert and highly motivated.
• A couple needs both spouses' consent and at least two years of stable marital relationship.
• A single or divorced person may adopt, but a single man cannot adopt a girl child.
• Age limits depend on the child's age; the minimum age gap between the child and either parent is 25 years, except for a relative or step-parent.

Procedure

1. The Child Welfare Committee declares the child legally free for adoption: for an abandoned child, after efforts to trace the parents; for a surrendered child, after the time given to the parents to reconsider.
2. Prospective parents register online with CARA; a specialised adoption agency prepares a home study report.
3. A child is referred; on acceptance, the child may be placed in pre-adoption foster care.
4. The agency applies for an adoption order, issued by the District Magistrate. Since a 2021 amendment, effective September 2022, this power lies with the District Magistrate instead of the court, to reduce delays.
5. Follow-up after adoption ensures the child's welfare.

Effect (Section 63) and offences

From the date of the adoption order, the child is the child of the adoptive parents for all purposes, including intestate succession, as if born to them. All ties with the birth family are severed, though property already vested in the child continues with the child.

Adoption without following the Act's procedure: imprisonment up to three years, or fine of Rs 1 lakh, or both. Sale and procurement of children is punished more severely.

Leading cases

Hindu Act and Juvenile Justice Act compared

A favourite examination comparison:

Point	Hindu Adoptions and Maintenance Act	Juvenile Justice Act
Who can adopt	Only a Hindu	Any person, any religion
Who can be adopted	Hindu child under 15, unmarried (unless custom allows)	Orphaned, abandoned or surrendered child below 18
Existing children	Hindu son bars adopting a son; Hindu daughter bars adopting a daughter	Irrelevant
Mode	Actual giving and taking, no official order; registered deed raises presumption of validity	Child declared legally free; supervised by CARA and agencies; order of the District Magistrate
Effect	Child of adoptive parents for all purposes	Same

Quick revision

• A divorced Muslim woman may claim under the Act of 1986, Section 144 of the B.N.S.S., or both (Shah Bano, Danial Latifi, Abdul Samad); void triple talaq attracts a subsistence allowance under the Act of 2019.
• The Domestic Violence Act gives any woman in a domestic relationship maintenance with protection and residence; all parallel claims must be disclosed (Rajnesh).
• Hindu Act adoption is limited to Hindus and Hindu children under 15; the Juvenile Justice Act is open to all religions, by order of the District Magistrate.
• Hizanat keeps a young child with the mother, but the child's welfare prevails over everything.
• In every problem, first identify the community of the parties and the governing law, personal or secular.
• Always name the section and support it with the leading case.
• Where two concepts look similar (void and voidable marriages; live-in relationship and relationship in the nature of marriage), write their differences clearly, with an example.