LLB 3ydc, 1st Sem, 2nd internals Q&A
FAMILY LAW - IMPORTANT TOPICS FOR 2ND INTERNAL
1) Restitution of conjugal rights
Restitution of conjugal rights is a legal claim under Section 9 of the Hindu Marriage Act, 1955. It's a legal right that allows a
spouse to file a petition in matrimonial court if their spouse withdraws from their society without a reasonable excuse.
The objective of Section 9 is to protect the sanctity and legality of the institution of marriage. The burden of proof is on the
person who has withdrawn from society of the other person to prove that there has been a reasonable excuse to withdraw.
The defence to this principle lies in the concept of a "reasonable excuse". If the respondent has withdrawn from the society of
his spouse for a valid reason, it is a complete defence to restitution petition.
The constitutionality of the provision for the restitution of conjugal rights has frequently been contested.
The objective of Section 9 is to protect the sanctity and legality of the institution of marriage. The aggrieved party may apply to
the District Court for restitution of conjugal rights if the husband or wife is withdrawn from the other partner's company without
any reasonable ground.
2)
Judicial separation
In India, judicial separation is a legal process that allows married couples to live apart while still remaining technically married.
It's governed by the Hindu Marriage Act, 1955 and the Indian Divorce Act, 1869.
Judicial separation is different from divorce, which ends the marital relationship, while judicial separation allows the couple to
live apart while still maintaining their marital status. Judicial separation provides an alternative to divorce for couples facing
irreconcilable differences or problems within the marriage.
During a judicial separation, the spouses retain their marital status, but their legal duties and obligations toward each other are
suspended. Spouses can seek judicial separation based on specific grounds such as cruelty, adultery, desertion, or mental
illness. This arrangement provides an opportunity for the couple to assess their relationship, possibly reconcile or eventually
move towards divorce.
Either party to the marriage can file a petition for judicial separation under Section 10 of the Act. The petition has to be filed in
the District Court of the place where: the marriage was solemnized, the respondent resides, the parties to the marriage last
resided together, and the petitioner resides under certain circumstances.
The court may, on the application by petition of either party and on being satisfied of the truth of the statements made in such
petition, rescind the decree if it considers it just and reasonable to do so.
3)
Divorce
In India, divorce is the legal dissolution of a marriage between a man and a woman. A court grants the separation after receiving
a petition from either spouse. The Hindu Marriage Act, 1955 governs the marriage and divorce of Hindus in India. Some grounds
for divorce include:
 Conversion to another faith
 Bigamy
 Rape
 Sodomy or bestiality
 Adultery
 Cruelty
 Desertion
 Mental disorder
 Communicable disease
When the couples agree to a divorce, the courts will consider a divorce with mutual consent as per. Section 10A of Indian
Divorce Act, 1869, requires the couple to be separated for at least two years, the couple only needs to provide that they have
not been living as husband and wife during this period. Mutual divorce in India 2024 follows a simplified process, where both
parties agree to end the marriage amicably. The couples need to jointly file a petition for mutual divorce, stating their decision
to separate, and if the court is satisfied, the divorce can be granted.
The HMA also prohibits the dissolution of a marriage if:
The marriage has not elapsed one year since the date of marriage
There are exceptions and enough proof are provided while filing the petition
Alimony, or maintenance, is the financial assistance provided by one spouse to the other during or after divorce. Courts consider
various factors like the spouse's income, standard of living during the marriage, duration of the marriage, and the spouse's
ability to earn.
4)
void marriage
In India, a marriage can be considered null and void if the legal requirements for marriage were not met. The Hindu Marriage
Act, 1955 (HMA) distinguishes between valid, void, and voidable marriages. A void marriage is legally non-existent, while a
voidable marriage is legal and binding until annulled by a court.
Grounds for a void marriage include:
 Prohibited degrees of relationship
 Bigamy
 Sapinda relationship
 Underage marriage
 The marriage has not been consummated due to impotence of the respondent
 The marriage is in contradiction or breach of the condition specified in clause (ii) of section 5
 Consent was obtained by fraud or force
Grounds for a voidable marriage include:
 Consent obtained by force, fraud, or undue influence
 Mental disorder
Children from void or voidable marriages are legitimate and are entitled to their parents' share in ancestral property.
5)
Voidable marriage
A voidable marriage is a marriage that can be annulled by a court decree, and remains valid until the marriage is annulled. A
voidable marriage remains valid and binding and continues to subsist for all purposes, unless a decree is passed by the court
annulling the same on any of the grounds mentioned in Section 12 of HMA. The Hindu Marriage Act of 1955 (HMA) states that a
marriage is voidable if:
 One party is unable to give valid consent due to unsoundness of mind
 One party is under-aged
 One party's consent was obtained by force or fraud
 One party concealed their identity or age
 One party concealed a disease like AIDS or cancer
 One party concealed their religion or caste
 One party concealed a pre-marriage pregnancy
The HMA also states that a marriage is voidable if:
 The marriage has not been consummated owing to the impotence of the respondent
 The marriage is in contravention of the condition specified in clause (ii) of section 5
The Supreme Court ruled on September 1, 2023 that children born out of "void or voidable" marriages are legitimate and are
entitled to their parents' share in ancestral property.
6)
Succession (Class 1 Heirs)
The Indian Succession Act of 1925 only considers relations that arise from a lawful marriage. The Hindu Succession Act of 1956
states that if a female dies without a will, her property goes to her sons and daughters, including the children of any previous
deceased son or daughter, and her husband, then to her husband's heirs. The widow of the intestate, or all widows together,
take one share, and the surviving sons and daughters, and the mother of the intestate, each take one share.
The Hindu Succession (Amendment) Act of 2005 gave daughters equal rights to property as sons, and also subjected daughters
to the same liabilities and disabilities as sons. The act applies to Hindus, Buddhists, Sikhs, Jains, and any person who is not a
Muslim, Christian, Parsi, or Jew.
In general, heirs in class I take simultaneously and to the exclusion of all other heirs. For example, those in the first entry in
class II are preferred to those in the second entry, and so on in succession.
In India, succession law is different for different religions.
7)
Maintenance
In India, maintenance is a social justice measure that entitles a person to food, clothing, and shelter. It is typically available to
a wife, children, and parents. The purpose of maintenance is to prevent destitution and immorality, and to improve the
economic conditions of women and children.
Maintenance is governed by various laws, including:
Code of Criminal Procedure, 1973
Section 125 states that a person with sufficient means cannot refuse to maintain their wife, children, and parents if they are
unable to maintain themselves.
Hindu Marriage Act, 1956
Section 24 deals with maintenance pendente lite (pending litigation). Section 20 specifically deals with the right of maintenance
of children and aged parents.
A person may sue for maintenance under Section 125 of the Code of Criminal Procedure. The amount of maintenance paid
depends on several factors, including:
 The position and status of the husband and wife
 Whether the wife has an actual claim for maintenance
 If the wife is living separately, whether the reason to do so is justified
 The wife's total property and income
The amount of maintenance is based on the earnings of the person paying the maintenance, and the needs of the person
receiving the maintenance.
MAINTENANCE OF CHILDREN: Section 20 of HAM ACT imposes an obligation upon the parents – mother and father, both equally
to maintain the children – both legitimate and illegitimate. This is a unique feature of the Hindu law where both the parents
are equally responsible to maintain the children.
Case laws:
8)
9)
Restitution of conjugal rights:(constitutional)
1. sareetha vs venkat subbarayya
2. saroj rani vs Sudarshan
Religious conversion for bigamy is unconstitutional:
1. sarla mudgal case
2. lilly thomas case
10) Adultery decriminalises but became ground for divorce:
1. joseph shine vs UOI