Hindu Law Cases on Marriage, Divorce and Registration

15
HINDU LAW
Kusum*
I INTRODUCTION
AS IN previous years, during the current year also there have been several cases
under Hindu law decided by the Supreme Court and the various high courts.
While there have been some judgments which are progressive, some have been
a little disappointing too. By and large, however, the judgments have reiterated
the legal and judicial position as pronounced in the earlier years. Cases under
the Hindu Marriage Act, 1955 (HMA), Hindu Adoptions and Maintenance Act,
1956 (HAMA) and the Hindu Succession Act, 1956 (HSA) have been covered
in the survey apart from some cases pertaining to joint family property.
II MARRIAGE AND DIVORCE
Registration of marriage
Registration of a marriage is not compulsory under the HMA. Section 8 of
the Act makes it optional and empowers the state governments to make rules for
registration of a marriage. Non-registration of a marriage despite state government
rules for compulsory registration may entail a fine upto Rs 25/-. The validity of
such marriage, however, is not affected.1 In Kamal Kant Panduranga Chibde v.
Susheela Panduranga Chibde2 the court had held that any provision in the rules
invalidating a marriage because of omission to enter the same in the marriage
register would be repugnant to sub-section 5 of section 8.
Absence of provision for compulsory registration of marriage is a lacuna in
the Act and plea has been made from time to time to make marriages compulsorily
registrable. During the current survey period also, the Madras High Court made
a strong plea for the same. In Kanagavalli v. Saroja3 the paternity of children
born of a void marriage was challenged. The court lamented that the Hindu
Marriage Act neither lays down the procedure for solemnization of marriage nor
makes registration compulsory. To this confusion, movies and visual media have
done their part in creating an impression amongst women that exchange of
garland or tying of "thali" constitutes valid marriage. This confusion coupled
with non-registration has landed many women in a relationship, which while
* MA, LLM, Former Research Professor, Indian Law Institute, New Delhi.
1 S. 8(5).
2 (1989) 2 HLR 154 (Bom).
3 AIR 2002 Mad 73.
www.ili.ac.in The Indian Law Institute

378 Annual Survey of Indian Law [2002
extracting from her all duties of a wife, leaves her with neither the right under
the law nor the recognition in society. In divorce or bigamy proceedings, a
Hindu male can admit or deny the first or second marriage depending on his
whim or fancy. If registration is made compulsory there is a proof of marriage
and if it is a second marriage, prosecution for bigamy is easy. "Besides", as
observed by the court,4 "... the trauma that a child may face going through his
formative years with his paternity in doubt. This assault on child's sensibilities
can be easily avoided if there is certificate of registration of marriage between
his mother and father which though may not validate marriage otherwise void,
will at least bear testimony to identify his biological parents." The children will
not have to go to court to seek declaration of their paternity. Apart from this,
compulsory registration will combat child marriages too.
Divorce
Of the 20 cases on matrimonial reliefs (excluding maintenance) surveyed
during the current survey period 19 were filed by husbands and only one by the
wife. This does not, however, indicate that more husbands face problems in
marriage and so seek judicial relief; what is more true to reality is that it is still
wives who suffer in greater number but they are reluctant to approach the court
for reasons social, economic or fear of stigma or disgrace to the family. It is,
however, indicative of the fact that husbands are facing harassment in marriages
in increasing numbers these days. Further, of the 19 cases filed by husbands,
they succeeded in getting relief in 12 cases and failed in seven. In the one case
filed by the wife, relief was refused.
Sapna Banerjee v. Rabindra Nath Banerjee5 was a husband's petition for
restitution of conjugal rights against his wife, under section 9 of the Act. The
wife wanted him to live with her in the house of her father whereas the husband
wanted to live with her independently in quarters allotted to him. There was
sufficient evidence indicating that it was she who abandoned and deserted the
husband without reasonable cause. The wife was, accordingly directed by the
family court to return to the matrimonial home. This order was upheld in revision
before the high court.
In G.V.N. Kameswara Rao v. G. Jabilli,6 a husband had been unsuccessfully
fighting litigation for 15 years to get out of the marriage on the ground of wife's
cruelty. While the family court granted him decree of divorce on ground of
cruelty, the AP High Court reversed the same holding that it was the husband
who was at fault and he was trying to take advantage of his own wrong. To state
the facts briefly, the husband was an academically highly qualified person with
two doctorates and the wife also was a post graduate and working as a lecturer
at the time of marriage. He was working in the, USA and she joined him there
after six months. There were problems and tensions right from the beginning.
The husband alleged that the wife was always quarrelling and behaved in a very
4 Id. at 77.
5 AIR 2002 Jhar 111.
6 AIR 2002 SC 576 (from AP).

Vol. XXXVIII] Hindu Law 379
insulting manner, humiliating him in the presence of outsiders and creating

scenes, not doing any household work, refusing to share bed, etc. After sometime,
she returned to India with their daughter and the husband did not even know
where they were until he made enquiries and found out. When he went to fetch
them, he was insulted and not allowed to enter the house. He further alleged that
on her filing criminal complaint against him and his mother, they were called to
the police station and were detained there for more than ten hours. Though the
police refused to register any complaint as they did not find any prima facie case
it caused them (the petitioner and his mother) a lot of agony and embarrassment.
On the basis of all these allegations, the husband sought divorce on ground of
mental cruelty. After assessing the evidence the apex court held that cruelty was
established. According to the court the mental cruelty faced by the petitioner is
to be assessed having regard to his status in life, educational background and the
environment in which he lived. In this case, the husband who was holding a
position in life must have suffered humiliation, and acute mental cruelty in the
hands of the wife and so was entitled to a decree of divorce. As observed by the
court:7
[T]he police did not register any case evidently as it was a domestic
quarrel and not of a serious nature, and the incident shows the innate
lack of self-control which had driven the respondent to this exorable
conduct. But the humiliation and agony suffered by the appellant and
his mother, considering their status in life and the social circumstances,
was too much.
Praveen Mehta v. Inderjit Mehta% is another Supreme Court ruling in the

current year where the husband succeeded in establishing mental cruelty by the
wife and obtained a decree of divorce. The acts which constituted cruelty were,
inter alia, wife's non-cooperation in conjugal relations as a result of which the
marriage was not even consummated, abusive and rude behaviour by her in the
presence of elders and outsiders, police complaints against husband and his
parents, making false plea that she had conceived and there was a miscarriage,
etc. The couple had lived together for hardly six months after marriage and at
the time of filing the petition by the husband they had been living separately for
ten years. All efforts by him to bring her around failed. The cumulative effect
of all these on the mind of the husband amounted to enough mental cruelty so
as to entitle him to relief. As observed by the court:9
Mental cruelty is a state of mind and feeling with one of the spouses
due to the behaviour pattern by the other ... feeling of anguish,
disappointment and frustration in one spouse caused by the conduct of
Id. at 579.
AIR 2002 SC 2582 (from P&H).
Id. at 2588,

the other can only be appreciated- on assessing the attending facts and
circumstances taken cumulatively.
The court emphasized the fact that in case of mental cruelty, an isolated
instance of behaviour cannot be picked up to assess whether or not such behaviour
constitutes mental cruelty. The approach should be to take cumulative effect of
facts and circumstances as a whole. In this case, the husband had married again
two years after the judgment of the single judge and nearly four months after the
judgment of the division bench of the high court, both decreeing dissolution of
the marriage. This was an additional factor for not allowing the wife's appeal
against the divorce decree. It is submitted that this is an important consideration
which should not be lightly ignored by the courts if otherwise on merits the
applicant is entitled to relief. In this context Suresh Khullar v. Vijay Khullar10
is an unhappy judgment where a woman had to suffer because of procedural
vicissitudes. After obtaining an ex parte divorce decree in 1984 the husband
remarried in 1988 and in 1989 the divorce decree was set aside as a result of
which the second marriage was rendered void and she ie, the second wife was
denied maintenance under the provisions of the HAMA.
Narendra Kumar Gupta v. Induli and Rakesh Sharma v. Surbhi Sharma12
are two cases from Rajasthan where husbands got divorce on ground of mental
cruelty caused to them by the wives' filing, inter alia, false cases of cruelty and
dowry demand against them. In the former case, the wife filed a complaint under
section 498-A of the Penal Code and the husband was humiliated and harassed.
He was released on bail. After investigation no case was made out. She also got
back all her household goods and submitted receipts for them. The family court
had refused to grant divorce but on appeal the high court held that the family
court had committed an illegality by ignoring these facts and documents. In
Rakesh Sharma, apart from allegations of dowry demand, the wife also made
scandalous allegations of his adulterous life. She deserted the husband and refused
to come back. She had also filed a petition for judicial separation making the
above allegations which were denied by the husband. Thereafter she got her
application dismissed. In reply to husband's application for custody of their
minor son she reiterated the allegations. She also made false complaints to his
office as a result of which an enquiry was held against him causing great mental
tension.
The following remarks of the court are pertinent:13
Matrimonial matters are matters of delicate humane and emotional

relationship. It demands mutual trust, regard, respect, love and affection
but the wife [in this case] raised false allegations that her husband
demanded dowry. She also made serious false and scandalous allegations
10 AIR 2002 Del 373, see infra note 59.

11 AIR 2002 Raj 169.
12 AIR 2002 Raj 138.
13 Id. at 144.

regarding adulterous life of her husband. Such false allegations constitute

mental cruelty.
While the family court granted judicial separation instead of divorce, on

appeal, the high court held that decree of divorce and not judicial separation
should have been passed and "the decree of judicial separation was uncalled for
and unwarranted" as there was no possibility of reunion.
In Nidhi Dalela v. Deepak Dalela]4 the husband was granted divorce decree
on the ground of wife's cruelty and adultery. He established that he had reasonable
apprehension that it will be harmful for him to live with his wife because of her
conduct that caused deep mental agony and disgrace to him in the society.
Karuna v. Jiwan Prakash15 was a case where the husband obtained a decree
of judicial separation on the ground that the wife left the matrimonial home
without intention to come back. This was construed as cruelty.
In Adhyatma Bhattar Alwar v. Adhyatma Bhattar Sri Devi16 also wife's
desertion was established as she refused to return to the matrimonial home after
delivery in her parent's house. She had alleged that her father-in-law made
immoral advances and the husband was a silent spectator. She further alleged
that she was ill treated by her husband. She refused to come back even though
her father-in-law had expired. Desertion was held proved but the family court,
exercising jurisdiction under section 13A, which empowers a court to pass an
alternate decree, granted judicial separation and not divorce sought by the husband.
The high court in appeal, however, held that there was no desertion and so
judicial separation was also set aside. The husband filed an appeal before the
apex court wherein it was held that the wife's conduct was indicative of a firm
determination not to return to the marital home and discharge the obligations
attendant thereto. According to the court:17
The failure on the part of the wife to substantiate a serious allegation

of infamous conduct and indecent advances said to have been made to
her by the father-in-law, taken together in the absence and omission
from her side to demonstrate her readiness and willingness to discharge
her continuing obligation to return to the matrimonial home, establish
sufficiently the animus deserendi, necessary to prove legal desertion.
Nonetheless, the court granted judicial separation and not divorce. One
wonders why, inspite of being convinced that the wife had no intention to
resume matrimonial life, the court decreed only separation thereby keeping the
legal relationship in a state of limbo.
Pratima Biswal v. Amulay Kumar Biswal™ and Prabhat Kumar Mitra v.
14 AIR 2002 Raj 128.

15 AIR 2002 HP 127.
16 AIR 2002 SC 88 (from HP).
17 Id. at 94-95.
18 AIR 2002 Ori 125.

Sikha Mitra19 are two cases during the current year where the courts granted
relief to the applicant husbands on the ground of irretrievable breakdown of the
marriage even though the grounds as laid down in section 13 of the Hindu
Marriage Act were not established. In Pratima Biswal, the husband, who was a
petitioner for divorce was living with another woman. Though he could not
establish wife's desertion and was rather himself living with another woman, the
family court granted decree in his favour as, according to it, it would not be
practical for her to stay with him under one common roof. The wife had also
filed a case of bigamy against him under section 494 of the Penal Code. On
appeal the high court agreed that there was no evidence to show that she had
voluntarily abandoned the matrimonial home. "On the contrary we found that
appellant wife claimed that her husband asked the appellant's brother to come
and take her to their home for sometime and thereafter he did not come to take
her as a result of which she has been constrained to stay in the parents' home",
the court observed.20 However, in view of the fact that he was residing with
another woman and a separate criminal case for bigamy was pending, the court
found it "incompatible for the wife to continue to stay with him. The marriage
has came to an irretrievable end and the relationship cannot be restored", the
court held.21 It may be pointed out here that, at a later stage, the wife had also
stated that she was not inclined to join her husband in view of his living with
another woman.
In Prabhat Kumar Mitra, the husband's divorce petition was based on wife's
desertion and cruelty as she had left the matrimonial home within six months of
marriage and also charged him of impotency and mental disorder. He could not,
however, establish the grounds and so lost at the trial stage. He thereupon filed
an appeal. Attempts made for reconciliation failed and the parties were living
separately for 22 years. The court held that there was no strong evidence from
the wife's side indicating that she was willing to lead conjugal life with him. She
rather ventured to make an obnoxious allegation of impotency against him for
which he was subjected to medical check up. In view of all this, the court
allowed his appeal after making financial arrangements in favour of the wife.
"After 22 years compelling the parties to live together will amount to cruelty
now", the court remarked.22
In Shivani Chattopadhyaya v. Sidharth Chattopadhyaya23 a husband obtained
divorce from his wife on grounds of her cruelty. He was a senior police officer
with onerous duties combating terrorism in Punjab. While he needed affection
and moral support, the wife expressed displeasure on his selection; she wanted
him to resign. She used insultive language for his parents, which was unrebutted
and made allegations of infidelity against him, which were not substantiated by
corroborative evidence. She was also in the habit of extravagant shopping which
19 AIR 2002 Jhar 154.

20 Pratima Biswal, supra note 18 at 127.
21 Ibid.
22 Prabhat Mitra, supra note 19 at 156.
23 AIR 2002 P&H 58.

sometimes landed him in embarrassing situations as she demanded her husband's

subordinate staff to settle the payments. On one occasion he was also summoned
by the Director General of Police and asked to give an explanation. She threatened
to set herself and the house ablaze so that the husband and his relatives are
implicated in criminal cases. All this constituted cruelty according to the court.
While the court did make efforts at reconciliation it found that there was no
compatibility and "making them live together would be asking two strangers to
share a roof, the court observed.
In Subhrajyoti Das v. Uttam Das1A the husband's petition for divorce on
ground of wife's desertion was dismissed at trial level. During the course of
proceedings in appeal, the parties agreed to have a divorce by mutual consent.
The original petition for divorce was converted to one under section 13B and the
waiting period of six months was waived since the litigation was going on for
long, the parties were still of marriageable age and there were no chances of
reconciliation, nor any liabilities qua each other.
In all the above mentioned cases the petitioner husbands succeeded in proving
their ground and hence were granted relief. In the seven cases that follow, the
husbands failed to establish any case against their wives.
In Shobha Srinivas Bodigar v. Srinivas Veeranna Bodigar25 the husband
sought divorce on ground of adultery and cruelty. While the plea of adultery was
rejected, divorce was granted by the trial court on the ground of cruelty and the
act which was construed as cruelty was her removal of mangalsutra and throwing
the same on the road. On wife's appeal against the decree the issues were
whether the appellant wife has treated her husband with utmost cruelty which
will be harmful or injurious for him to live with her and whether solitary act of
removal of mangalsutra and throwing it on road is an act of cruelty. It was found
in the course of examination that the counsel had made such allegation without
any instruction from the husband to this effect and infact there was no quarrel
between the couple on that day as she was not even residing with him on that
date. The decree was accordingly set aside. However, according to the court,
even assuming that the wife had done this, it would not have granted divorce on
this ground alone in view of the fact that the wife was an illiterate lady and also
in view of the backdrop of culture and background of parties. As observed by
the court:26
The trial court while granting a decree of divorce should be more

scrupulous and scrutinize the pleadings and evidence as the ground of
mental cruelty alleged by the husband or by the wife has to be adjudged
by the court considering their personality, culture, educational
background etc.
In Prabhavati v. K Somashankhar21 the husband lost his petition on ground
24 AIR 2002 Gau 117.

25 AIR 2002 Kant 256.
26 Id. at 258.
27 AIR 2002 Kant 431.

of desertion as the court found that the wife had reasonable ground to live
separate in view of dowry harassment and attempt to cause her physical harm.
No inference of desertion could be drawn from the fact that the wife did not join
the husband even after the panchayatdars advised her to that effect, according
to the court.
Desertion could not be proved by the husband in Swapan Kumar Ganguly
v. Smiritikana Ganguly2* also even though the wife had left the matrimonial
home and categorically stated that she would not come back. According to the
court she had cogent reason for her refusal; the husband was guilty of causing
physical and mental cruelty to her; he had made a serious charge of unchastity
and unfaithfulness against her which was found to be baseless by the trial court.
Factum of torture by the husband was proved and he had come to court with
unclean hands. The ground of irretrievable breakdown of the marriage was further
invoked but the court held that this was no ground under the statute. The following
observations of the court against irretrievable breakdown are pertinent:29
In a particular case to decide that the decree has to be granted for

divorce as the court thinks that the marriage has broken down
irretrievably is also to overlook the sentiment of a party specially of a
wife who may reasonably think that even if it may not be possible any
further to remain together, the very fact that she is married and not
divorced is a protection to her in our society where women are not
treated equally. In such a situation the court has to think whether such
theory of breaking down of the marriage irreparably can be applied
when there are a number of women who think even if they are unable
to go to the residence of the husband any further they can live apart or
away from the husband because of the cruelty at least to declare
themselves before the society that they are married women and not
spinsters or divorcees. Even that sentiment which again is a reality is
to be understood by the court before applying such theory. Whether that
sentiment should be accepted any further or not is again a matter which
has to be decided by the society itself and social thought obviously will
be ultimately expressed through legislation when in the legislation the
law makers, being the people's representatives will decide that a time
has come because of change of time and the modern ideas, that such
sentiment need not be accepted any further.
The husband's appeal was, accordingly, dismissed.

In Sucha Singh v. Paramjit Kaur30 the husband's petition for divorce on
ground of desertion was dismissed by the trial court as also in appeal. To state
the facts briefly: the husband lived in USA and his allegation was that the wife
was not willing to live at his parents' house in Hoshiarpur and instead wanted
28 AIR 2002 Cal 6.

29 Id. at 10.
30 AIR 2002 P&H 46.

Vol XXXVIII] Hindu Law 385
him to keep her with him or in the alternative arrange for her accommodation
at Chandigarh. In fact the husband did not even appear in the witness box and
instead his brother and sarpanch appeared and stated that she was not prepared
to live with the parents of the husband. Likewise, in Bishwanath Pandey v.
Anjana Devi31 a husband's suit for judicial separation on ground of desertion
alleging that she left the quarter and went to her father's house without his
consent was dismissed as he failed to prove the allegation.
Mental disorder is one of the grounds for divorce. This, however, cannot be
equated with psychological depression. Thus, in Hema Reddy v. Rakesh Reddy32
where the husband alleged that the wife had strange habits of scratching her
hands and head in a very irritating manner, had bouts of silence, never mixed
up with family members, was always depressed and home sick; ridiculed him on
his meager salary, had suicidal tendencies, etc., it was held that it did not amount
to mental disorder. The wife had lost her mother 3-4 years prior to marriage and
was under psychiatrists' treatment since then. According to the husband, his
consent for marriage was obtained fraudulently by suppressing these facts.
Dismissing his petition, the court held:33
The depression by itself is no ground under the Hindu law to grant

decree of divorce. The petitioner has to prove by leading medical
evidence that psychological depression is synonymous to mental disorder.
The husband did not lead any evidence to that effect. Infact even the fact
of mental depression was not proved by him by leading cogent evidence. The
wife's appeal against divorce decree passed by the trial court was accordingly
allowed.
In Butti v. Gulab Chand Pandey?* the husband filed a divorce petition on
ground of wife's desertion and cruelty. His case was that the father and brother
of the wife used to pressurize him to secure his share in the family property and
shift to where they resided. On his declining to do so the wife left the matrimonial
home and all his efforts to bring her back failed. He further contended that she
lodged false criminal complaints as a result of which he along with his father
and uncle were arrested. The wife denied all these and her case was that she was
maltreated by the husband and his family members and so had no choice but to
go to her father's place. After hearing about his second marriage she went to him
but was maltreated and was forced to leave. She thereupon brought the matter
to the police. The trial court found that the wife had not deserted the husband.
She was manhandled and forced to go away from the matrimonial home, the
husband had remarried and also had a son from the second marriage and also
that the reports filed by her against the husband was not false. A decree of
divorce on the ground of desertion and cruelty was held to be not maintainable.
31 AIR 2002 Jhar 112.

32 AIR 2002 AP 228.
33 Id. at 232.
34 AIR 2002 MP 123.

Ironically, however, the court held that in view of the husband's second marriage
there appears to be no chance of improvement of their strained relations and
hence a decree for divorce under section 13(1) HMA was granted. On appeal by
the wife, the same was set aside. It was held that a decree of divorce can be
granted only on specified grounds and the husband failed to prove those grounds.
A divorce decree cannot be granted to the husband on his marrying a second
wife. He cannot be allowed to take advantage of his own wrong. Allowing the
wife's appeal the court remarked that "the trial court had committed a grave
error in observing that since the evidence of the appellant/wife shows that the
respondent/husband has married for the second time and since the relationship
of the parties is not likely to improve a decree of dissolution of marriage and
divorce deserves to be granted."35
In the only case where the petitioner was the wife, relief was refused by the
apex court.36 She sought divorce on the ground of desertion and cruelty. The trial
court and the high court found, on facts and averments as also on evidence led
in support of cruelty, that she failed to establish that she was treated with cruelty.
The courts emphasized that ordinary wear and tear of family life cannot be
equated with cruelty. The acts complained of were not acts of cruelty but sensitivity
of the wife with respect to such conduct complained as cruel. "Cruelty", according
to the court, "cannot be decided on the basis of the sensitivity of the petitioner
and has to be adjudged on the basis of the course of conduct which would, in
general be dangerous for a spouse to live with the other."37 The family court,
however, gave divorce on ground of desertion which was set aside by the high
court, in appeal. It is against this that the wife came to the apex court. It is
significant to note that there was no cohabitation between the parties and this
fact was admitted by the wife.
The Supreme Court held that there could be no desertion without cohabitation.
According to the court:38
Cohabitation by the parties is an essential [ingredient] of a valid marriage

as the object of the marriage is to further perpetuation of the race by
permitting lawful indulgence in passions for procreation of children. In
other words, there can be no desertion without previous cohabition by
the parties. The basis for this theory is built upon the recognized position
of law in matrimonial matters that no one can desert who does not
actively or willfully bring to an end the existing state of cohabitation.
However, such a rule is subject to just exceptions which may be found
in a case on the ground of mental or physical incapacity or other peculiar
circumstances of the case. However, the party seeking divorce on the
ground of desertion is required to show that he/she was not taking
advantage of his or her own wrong.
35 Id. at 127.
36 Savitri Pandey v. Prem Chandra Pandey, AIR 2002 SC 591 (from All).
37 Id. at 595.
38 Id. at 597.

In this case wife herself had declined and did not permit husband to have
cohabitation for consummating the marriage. Thus, it is she who had deserted,
according to the court.
Another significant fact in the case is that the wife remarried pending
husband's appeal in the high court. "If despite pendency of appeal the
appellant chose to solemnise the second marriage the adventure is deemed
to have been undertaken at her own risk and the ultimate consequences
arising of the judgment in the appeal pending in the high court. No person
can be permitted to flout the course of justice by his or her overt or covert
acts", the court remarked.39
It is significant to note that the court also made a strong plea for raising the
limitation period for appeal which presently is 30 days under section 28(4) of
the Act. This according to the court is very inadequate and facilitates the frustration
of the marriage by the unscrupulous litigant spouses. In view of the distances,
geographical conditions, the financial position of the parties and the time required
for filing a regular appeal the period of 30 days is insufficient and inadequate.
A minimum period of 90 days was suggested and any marriage solemnized
during this period would be deemed to be void.
The idea behind section 13B, which provides for mutual consent as a
ground for divorce, is to end deadlock in a marriage where parties are
convinced that they can no longer live together happily. Since it is a no-
fault ground where parties have only to satisfy the requirements laid down
in the section,40 viz. that (i) they have been living separately for a period
of one year or more; (ii) they have not been able to live together; and (iii)
they have mutually agreed that the marriage should be dissolved, the court
is not required to go behind the reasons for the same. Once the above
mentioned ingredients are satisfied in the joint application, the court is
bound to accept the petition and grant the divorce.
In In re KS. Subramanin41 the parties were married for over 40 years with
a son aged 39 and a daughter aged 31, both married and settled abroad. They
were both pensioners with no liability towards each other and had serious
differences which were irreconcilable. They sought a divorce by mutual consent.
The subordinate court, however, dismissed the petition as it was noticed that
both of them were chatting with each other prior to their evidence. On this basis,
the court suspected their bona fides. The parties thereupon filed a revision under
article 227 of the Constitution, which was allowed. According to the court,
whatever may be the reasons, psychological or otherwise, it stands established
that the parties have not been able to live together and all the requirements of
sub-section (1) of section 13B were satisfied. "All other temporary action or
activities in the court hall are immaterial and alien for consideration", the court
remarked.42
39 Id. at 598.
40 S. 13B (1).
41 AIR 2002 Mad 228.
42 Id. at 230.

Customary divorce
In Yamanaji H. Jadhar v. Nirmala43 a husband allegedly obtained a customary
divorce by consent with wife's signatures on the divorce deed. The wife filed a
suit for declaration that the divorce deed was obtained by the husband by coercion
and therefore for cancellation of the same. The relationships between the parties
were never good right from the beginning; the wife was ill-treated and the
husband filed for divorce; there was a compromise which did not work and the
wife was sent back to her parents; she filed a petition for maintenance, the
husband forcibly took her and confined her wrongfully as a result of which her
father had to file criminal proceedings. Subsequently, after threat and coercion,
he took her to the sub-registrar's office and made her sign a document which
turned out to be deed of divorce. Husband denied allegation of fraud and coercion
and stated that she had willingly signed the divorce deed. The trial court and the
first appellate court ruled in favour of the husband but the high court reversed
the same and held that there was no divorce. Hence, the husband's appeal before
the apex court which was dismissed. The court held that Hindu law does not
recognize divorce except when the same is allowed by custom. In this case,
there was neither material on record nor pleading of parties showing prevalence
of any such customary divorce in the community based on which the document
of divorce was obtained. The court observed:44
Public policy, good morals and the interests of society were considered
to require and ensure that, if at all, severance should be allowed only
in the manner and for the reasons or cause specified in law. Thus such
a custom being an exception to the general law of divorce ought to have
been specifically pleaded and established by the party propounding
such custom. Since such custom is contrary to the law of the land and
which if not proved will be a practice opposed to public policy.
The case was consequently remanded to trial court to frame appropriate

issue regarding existence of provision for customary divorce by consent in the
community of the parties.
HI MAINTENANCE
A Hindu wife is entitled to maintenance under two personal statutes viz.,

Hindu Marriage Act and Hindu Adoptions and Maintenance Act.
Hindu Marriage Act

Under this Act a wife (husband too) is entitled to maintenance pendente lite
ie, pending litigation45 as well as to permanent alimony.46 All the six maintenance
43 AIR 2002 SC 971 (from Kant).

44 Id. at 972.
45 S. 24.
46 S. 25.

Vol XXXVIII] Hindu Law 389
cases analysed in the present survey have been under section 24 involving different
issues. In Mandeep Sharma v. Kiran Sharma4,1 the court held that the fact that
the applicant wife was being supported by her parents is no ground for the
husband to seek discharge of his obligation or immunity from liability to maintain
her. This was a wife's application for maintenance pendente lite under section
30 of the Jammu and Kashmir Marriage Act corresponding to section 24 of the
Hindu Marriage Act. Likewise, in Rattan Bala v. Prahlad Swarup Aggarwal4*
where the applicant wife was supported by her son who was a qualified Chartered
Accountant, the court held that such support should not be counted towards
independent income of the wife. With evidence indicating that the husband was
an able bodied person earning Rs. 2,000/- to Rs. 3,000/- per month, an
amount of Rs. 750/- per month pending litigation, and litigation expenses of
Rs. 2,500/- were granted to the wife.
Section 24 does not provide for award of maintenance to children separately
but if children are under the care of the wife, they need not be made parties; the
court would automatically take that into consideration in fixing the quantum.
Thus, in Mandeep Sharma49 where it was contended by the non-applicant husband
that the words used in the section are "wife" or "husband" and so children
should not be included for purposes of grant of maintenance the court did not
accept this argument. Relying on Jasbir Kaur v. Distt. Judge, Dehradun50 it held
that the words "wife" and "husband" should not be so strictly construed so as
to exclude maintenance of children living with the wife and dependent on her.
When a child is living with the wife, in the very nature of circumstances the
requirement of wife will include requirement of minor child/children living with
her, according to the court. Similarly, in Padmavathi v. C. Lakshminarayana51
where a wife filed a suit for restitution of conjugal rights and also sought
maintenance under section 24 for her three minor children, the court negatived
the non-applicant husbands' argument that children not being parties to the
application were not entitled to maintenance. Even if the children are with the
mother, the father has to pay maintenance.
The fact that the wife is capable of earning is no ground for rejecting her
claim for interim maintenance. In Padmavathi, the husband challenged the wife's
right to seek interim maintenance on the ground, inter alia, that she was educated
and knew typing and so was capable of earning enough for herself and for the
children. The argument found favour with the family court judge who, while
awarding maintenance for the children rejected the wife's claim on the ground
that she had studied upto SSLC, knew typing and so was capable of earning and
maintaining herself. On appeal, however, it was held that the only condition for
granting maintenance under section 24 is that the applicant has no independent
income sufficient for support. The court observed:52
47 AIR 2002 J&K 90.

48 AIR 2002 NOC 147 (Del).
49 Supra note 47.
50 AIR 1997 SC 3397.
51 AIR 2002 Kant 424.
52 Id. at 429.

The object of section 24 would be defeated if the interim maintenance

is denied during the matrimonial proceedings on the ground that the
wife is capable of earning her living because of her qualification.
It remarked further that the reasoning of the family court judge was "not
only contrary to settled legal position but also the spirit and the purpose of
section 24 of the Act".
In Mandeep Sharma, however, where there was evidence to show that the
wife, who was a BA, BEd and had her own income, it was held that she was
not entitled to maintenance from the husband. However, the matrimonial court
order holding that it was the moral duty of both the parents to maintain children
was upheld and the husband was directed to contribute towards the maintenance
of the child. The matrimonial court had held that the two and a half years old
son needs good care and has to be maintained as per the standard of the parties.
It found Rs. 1,500/- to be reasonable amount for his maintenance. Accordingly,
the father was ordered to contribute Rs. 750/-.
However, in Madan Lai v. Suman53 the husband alleged that the wife was
working in a school and was getting Rs. 4000/- to Rs. 5000/- and was also
earning by stitching clothes. But he neither clarified in what capacity she was
working in the school, nor produced any certificate to that effect nor was able
to tell whose clothes she was stitching. The court held that in the absence of any
documentary evidence on record showing that wife was earning, she was entitled
to be maintained by the husband.
Obligation to maintain a wife does not arise out of any contract express or
implied but out of status of marriage. A husband has to maintain the wife as long
as he is capable of earning. The fact that he has to maintain his 16 years old son
and mother is no ground for him to wriggle out of his liability to maintain the
wife and 12 years old daughter.54 Maintenance to a wife cannot be refused on
the ground that his financial condition is not good. In Padmavathi,55 one of the
defences of the husband, who was an advocate was that his income had dwindled
since he was arrested by the police authorities on false complaint by his wife and
had no professional income nor any income from joint family property to maintain
his wife and children. Relying on K.D. Vadodaria v. State of Gujarat56 where the
Supreme Court had an occasion to consider a similar plea of the husband, it was
held that "the husband cannot be saying that he is unable to maintain due to
financial constraints so long as he is capable of earning". The court held that it
was unbelievable that a lawyer with 25 years of experience had no income. The
court assessed his income at Rs. 10,000/- per month and granted Rs. 2,000/- per
month to the wife.
While estimating income of spouse in proceedings under section 24, some
guess work cannot be ruled out completely. An interested party often tries to
53 AIR 2002 P&H 321.

54 Ibid.
55 Supra note 51.
56 (1996) 4 SCC 479.

conceal his or her income in order to show low income or to defeat the claim
of the opposite party. In Nishan Singh v. Amarjeet Kaur57 a wife filed a petition
for maintenance pendente lite on husband's suit for divorce. According to the
wife the husband had income from agricultural land, interest on deposits and
was also working in Delhi earning about Rs. 4,000/- per month. Accordingly, the
trial court fixed Rs. 2,500/- as interim maintenance for the wife, Rs. 1,000/- for
the child, and Rs. 2,200/- as litigation expenses. On husband's revision application
the court declined to interfere. It held that the husband did not disclose his
sources of income. He denied that he was working in Delhi which plea the court
disbelieved as, according to the court, it is not possible that a person not belonging
to Delhi would live in Delhi without meaningful employment.
Hindu Adoption and Maintenance Act

A Hindu wife has an advantage of an additional statute under which she
may seek maintenance from her husband even while living separate from him
provided there are reasonable grounds for her separate living. The Hindu
Adoptions and Maintenance Act makes provisions for maintenance of other
dependants as well, specified in section 21 of the Act.
Under section 28 of the Act, where a dependant has a right to receive
maintenance out of an estate and such estate or any part thereof is transferred,
the right to receive maintenance may be enforced against the transferee if the
transferee has notice of the right or if the transfer is gratuitous, but not against
the transferee for consideration and without notice of the right. It is significant
to note that the right against the transferee can be enforced only (a) if the
transfer is for consideration; and secondly (b) the transferee knew about the right
of maintenance attached to the property. The idea is to protect the right of
claimants for maintenance against mala fide transfers. In Kangal v. Atwariya
Devi5* a wife filed a suit for maintenance under section 18 of the Act against her
husband, including past maintenance. She also made a prayer for creating charge
for maintenance on a plot owned by him. However, before the order the husband
transferred the plot to the revisionist by a sale deed. Pending suit the husband
died and the wife claimed maintenance against the purchaser, the revisionist.
While the district court held that the wife could proceed against the transferee,
on appeal by him it was held that the plot was sold to him for consideration and
before it was attached or any charge was created and therefore the property was
not liable for maintenance. The claim of maintenance against the husband was
the personal obligation of the husband and on his death, the claim does not
survive. The revisionist who purchased the plot before court order, for
consideration and without notice of any right of maintenance was not liable in
any case, according to the court.
Suresh Khullar v. Vijay Khullar59 is an unfortunate case where a woman had
to suffer because of procedural vicissitudes, for no fault of hers. To state the
57 AIR 2002 Del 332.

58 AIR 2002 All 77.
59 AIR 2002 Del 373.

facts briefly, H married M in 1980. On his application the marriage was dissolved
by an ex parte decree in 1984. Thereafter he married the petitioner in 1988; M
filed an application for setting aside the ex parte divorce decree which was
allowed in 1989. The petitioner filed an application for maintenance under section
18 of the Hindu Adoptions and Maintenance Act as well as for interim
maintenance. She alleged that he had played a fraud on her by misrepresenting
the facts and also that she was treated with mental and physical cruelty by him
and his parents; he then filed a divorce petition against her. During pendency of
this petition, he sought amendment of the petition stating that the divorce decree
between him and his first wife M had been set aside and therefore that marriage
being subsisting, a decree of nullity of his marriage with the petitioner be passed.
After analyzing the provisions contained in sections 5 and 11 of the Hindu
Marriage Act which refer to monogamy and void marriage, and section 18 of the
Hindu Adoptions and Maintenance Act which provides for maintenance, it was
held that the petitioner's marriage being void, she had no right to claim
maintenance. According to the court, after the setting aside of the ex parte
divorce decree, the respondent shall be presumed to have a spouse living, and
when there was a spouse living, he could not have legally married the plaintiff.
It observed:60
It may be unfortunate and cause tremendous hardship to the petitioner

but there is no escape from the legal position that her marriage with the
respondent was hit by section 5. She being not a Hindu wife within the
meaning of section 18 of the Act has become disentitled to be maintained
by her husband and under this provision.
The court also analyzed case law in the issue, including apex court rulings
in Yamunabai v. Anant Rao61 and Bakulabai v. Gangaram62 and came to the
conclusion that the petitioner could not be granted maintenance as her marriage
was void.
There are various factors that have to be taken into consideration while
fixing the quantum of maintenance. Status of the husband is one of them. In
Meenu Chopra v. Deepak Chopra63 a wife filed for maintenance under sections
18 and 20 of the Hindu Adoption and Maintenance Act, 1956 for grant of
maintenance as an "indigent person" under the provisions of order XXXIII read
with section 151 of the Code of Civil Procedure. On being satisfied that she was
not possessed of sufficient means to pay court fee, her prayer to sue as indigent
person was allowed by the court. In her maintenance claim the wife averred that
her husband was earning not less than Rs. 2 lakh per month. Before filing
the suit she sent him a legal notice demanding maintenance at the rate of
Rs. 20,000/- per month to which the husband replied stating that the amount of
60 Id. at 376.
61 AIR 1988 SC 644.
62 1988 (1) SCALE 188.
63 AIR 2002 Del 131.

maintenance claimed is dependant on the status of the parties and the needs
of the claimant. According to him her father was a pensioner earning only
Rs. 3,000/- per month and therefore the demand of Rs. 20,000/- was "most
amusing". "A person whose father at the time of retirement earned only
Rs. 3,000/- per month is demanding maintenance of Rs. 20,000/- per month is
most amusing. Obviously, their parasitical intention is to fleece me out of my
hard earned income so that these people can live a life of debauchery. I am truly
amazed at the demand", he stated in his reply.64 He neither stated that the demand
was excessive nor was not possessed of sufficient means to pay that amount. His
only argument refuting her claim was that she came from a family with modest
means and so was not having a status entitling her to maintenance at this rate.
At the trial, however, he remained ex parte. On being prima facie satisfied with
the averments made by the wife about his income, the court fixed interim
maintenance at the rate of Rs. 20,000/- per month. The following observations
of the court are pertinent:65
The status of the parents of the plaintiff is totally irrelevant consideration.

After the marriage it is the status of the husband, which is determinative
of the quantum of maintenance to be given to the wife. After the marriage
a girl adopts matrimonial home and gets attuned to the living standard
of her husband. ... If she has to suffer his miseries, she has a right to
enjoy his affluency also. Therefore if the husband is wealthy and leading
opulent life, his wife also has a right to be the partner in his prosperity
and live with same standards and equal dignity. It does not lie in the
mouth of the husband, after separation of the spouses, to say that wife
is no longer entitled to the standard on which she has been living with
the husband and that she shoud re-adopt the standard of her parental
home.
In P. Srinivasa Rao v. P. Indira66 a significant issue involved was whether

an interlocutory application for grant of interim maintenance to a Hindu wife
and her mentally retarded minor child towards provision of food, clothing as
well as medical attendance and treatment and education to the child, filed in a
suit brought under the provisions of the Hindu Adoptions and Maintenance Act
for maintenance, can be entertained by the court in exercise of the inherent
powers of the court under section 151 of the Code of Civil Procedure despite the
absence of a specific provision to this effect in the Act. To state the facts briefly,
a wife who was allegedly harassed by her husband and his parents for dowry and
deserted by him, filed a claim for maintenance for self and her mentally retarded
son @ Rs. 2,500/- per month. She also made an application for grant of interim
maintenance @ Rs. 1,500/- per month. The trial court, on prima facie consideration
of material facts on record, directed payment of Rs. 1,000/- per month towards
64 Id. at 132.
65 Ibid.
66 AIR 2002 AP 130 (FB).

interim maintenance. Challenging this order, it was contended for the husband
that since there is no specific provision no application for interim maintenance
is maintainable and the family court had no jurisdiction to pass such order.
On the other hand, for the wife it was argued that there is a statutory
obligation on the husband to maintain his wife and child and this cannot be
postponed till the determination of the issue on merits. If the applicants are
able to show that they are not maintained, they are entitled to interim
maintenance pendente lite and the court may pass an order ex debito justitiae
particularly when the relationship between the parties is established. After
hearing the arguments on both the sides and analyzing the cases, the court
came to the following conclusions:
(i) Jurisdiction of a court to pass an interim order under section 151,

CPC is no longer res Integra in view of Manoharlal v. Chandra
Rai Bahadur Rao Raja Seth Hiralal.61
(ii) Such power under section 151 CPC is not power over substantive
rights of parties, it is not a power conferred upon the court but is
a power inherent in the court itself by virtue of the duty to do
justice between the parties.
(iii) Sections 18 and 20 of the Hindu Adoptions and Maintenance Act
recognize the absolute right of the wife and minor children to
claim maintenance. There is no express prohibition against grant
of interim maintenance. Therefore where circumstances warrant
grant of interim maintenance in the interests of justice and the
court is prima facie satisfied, it is not precluded from exercising
its inherent jurisdiction.
(iv) Even apart from section 151 of the CPC, maintenance vide section
3(b)(1) of the Hindu Adoptions and Maintenance Act includes
provision for food, clothing, residence, education and medical
attendance and treatment. These needs are immediate and urgent
and if these were to be postponed until final decision after contest,
it could result in great hardship and may be irreversible disasters.
In the words of the court:68
Provisions of the Act being beneficial legislation in favour of

the wife and children, even if there is no provision for grant of
interim maintenance, the same should be read down so as to
give effect to the intent and object of the Act, and to do human
and social justice ... Clothing, food, education, medical
assistance being essential things for survival cannot be denied
to the wife and children neglected by a husband till the
determination of the suit particularly in a case where the marital
status is admitted by him. We are of the view that the court on
67 AIR 1962 SC 527.

68 Supra note 66 at 137-8.

a prima facie consideration of the matter would be at liberty to

grant interim maintenance to do justice where the cases justify
grant of maintenance pendente lite.
(v) Civil court can exercise inherent power with the only limitation
that it should not be inconsistent with other provisions of the CPC
or contrary to any other law; granting interim maintenance in a
suit for maintenance is not inconsistent with any provision of the
CPC nor contrary to any other law.
The husband's revision against the grant of interim maintenance was

accordingly dismissed.
Under section 22 of the Act heirs of a deceased are bound to maintain the
dependants of the deceased out of the estate inherited by them from the deceased.
In Kshiti Sundari Nanda v. Fani Bhushan Nanda69 a widow filed an application
against her deceased husband's brother for direction that he pay her a sum of
Rs. 3,000/- per month towards maintenance for her life time. She had become
a widow during minority. Her brother-in-law inherited all the joint family
properties but refused to maintain her inspite of requests made by village headman
and other relatives. In the court, he denied her marriage with his brother and
contended that she being an impostor, he was not liable to maintain her. The trial
court dismissed her claim but on appeal the high court held that there was
enough documentary evidence to show that she was the widow of the defendant's
brother. She being old and not in a position to cultivate lands or manage properties,
the court awarded a sum of Rs. 2000/- per month as maintenance for her lifetime.
A wife cannot seek maintenance under this section from her husband's
parents. In Sambit Parija v. Surita Parija70 a wife's application under section 24
was directed against her husband and his parents. According to her, the husband
was an accounts officer in an office drawing Rs. 10,000/- per month and his
parents were doctors each earning about Rs. 15,000/- p.m. She accordingly
claimed Rs. 6,000/- as monthly expenses and Rs. 15,000/- as litigation expenses.
The court held that her application against her husband's parents was not
maintainable.
An application for maintenance may be disposed of on the basis of affidavits.
The argument that such application should be disposed of as an original proceeding
after allowing parties to adduce oral and documentary evidence was not accepted
by the court in Sambit Parija. The purpose behind section 24 is to provide
immediate necessary financial support to a party who has no sufficient means to
maintain oneself or bear the litigation expenses. According to the court, the
entire purpose of the provision would be frustrated if such proceeding is to be
disposed of as a suit after taking evidence under all circumstances. "In an
appropriate case the court may ask the parties to adduce evidence, but that does
69 AIR 2002 Ori 104.

70 AIR 2002 Ori 22.

not mean that a proceeding under the section cannot be decided or disposed of
on affidavits", the court remarked.71
The fact that maintenance under section 125 has been granted by the
magistrate is no ground for disallowing application under section 24. Applications
under these two sections are independent. When the husband in one case did
not regularly pay the maintenance ordered under section 125, his paying
Rs. 2,500/- p.m. as arrears was held to be no ground for holding that the wife
and daughter are not entitled to maintenance under section 24 of the Act. The
husband cannot be allowed to take advantage of his own wrong, according to the
IV ADOPTION
Age of adoptee
A child to be adopted must not have completed the age of 15 years at the
time of adoption, unless there is a custom or usage applicable to the parties
which permits such adoption.73 In M.D. Gopalaiah v. Usha Priyadarshinf4 a
boy who was adopted was 18 years old on the date of adoption as per recitals
in the registered adoption deed. No custom was pleaded or proved to show that
in the community to which the parties belong, adoption of a boy above the age
15 years was recognized. It was, therefore, held that the adoption was not in
accordance with the requirements of the statutory provision laid down in section
10(iv) and hence not valid.
Adoption may be invalid despite factum of adoption

An adoption may be invalid even where the factum of adoption is more than
established, if the same is in violation of any legal provisions. Thus, in B.C.
Lingam v. Sivakami Ammal,15 there was enough and more evidence showing that
there was adoption and the adopted boy was treated as such for long time.
Adoption was challenged 43 years after its taking place. There was oral and
documentary evidence in favour of adoption yet the same was held as invalid
because it was in violation of Nanjinad Vellala Act, 1926 (since repealed). Under
section 3 (valid marriage) and section 28 (adoption) of this Act, in order to be
a valid marriage a Nanjinad Vellala male should marry a Nanjinad Vellala female
and a male child out of such marriage can be adopted only by an issueless
Nanjinad Vellala male with the consent of his wife. In this case, a male child
born out of Nanjinad Vellala male and his Christian wife was adopted by the
elder brother of the child's natural father. Since the natural mother was a Christian,
the marriage was not valid and the adoption could not be termed as valid. It was,
therefore, held to be void and unenforceable. The legal heirs of the deceased
71 Id. at 24.
72 Madan Lai v. Suman, AIR 2002 P&H 321.
73 S. I0(iv) HAMA; see also Uma Prasad v. Padmavati, 1999 IHC 3494 (MP).
74 AIR 2002 Kant 73.
75 AIR 2002 NOC 60 (Mad).

adopted son were held not to be entitled to any right over properties left by the
deceased adoptive father.
Adoption can be challenged despite registered document

Under section 16 of the Act, whenever any document registered under any
law is produced before any court purporting to record an adoption made and is
signed by the person giving and the person taking the child in adoption, the
court shall presume that the adoption has been made in compliance with the
provisions of this Act unless and until it is disproved. Thus, even though the
word used is shall in case of registered adoption deeds, there is a flexibility
added to it by including the words "unless and until it is disproved", in the
section. The onus of proof where adoption is assailed in such case is heavy. In
Jai Singh v. Shakuntala16 an adopted son filed a suit claiming property of his
adoptive father, which was decreed within less than ten days, on the same day
as the father died. There was an adoption deed stating that he was adopted
without referring to any ceremonies nor any evidence pertaining to adoption.
He somehow wanted to usurp the properties so apart from the decree and
adoption deed, he also propounded a will which was full of suspicious
circumstances. In the contest between the daughter of the deceased and the
adopted son, the court negated the presumption which is attached to a registered
adoption deed and held that there was enough evidence to prove that there was
no valid adoption.
V HINDU SUCCESSION ACT
Applicability of the Act to scheduled tribes

Under section 2(2) of the Act, the application of the Act to members of the
scheduled tribe is excluded unless the same is made applicable by notification
by the central government. One case77 during the current survey period pertained
to this issue where parties belonged to the Gond tribe of Madhya Pradesh. The
facts in brief were thus: After the death of B, his lands came into possession of
his widow who bequeathed the same to her nephew (plaintiff) by will. After her
death, the plaintiff came into possession of the lands which was challenged by
the defendants, who were the reversioners of the husband of the deceased widow,
on the ground that she being only a limited owner after the husband's death,
could not alienate the property. The trial court, on the basis of mutation entry in
favour of the plaintiff held that he was in possession and accordingly, issued an
order of temporary injunction in his favour. On appeal, however, the same was
set aside. The crucial issue involved was, whether the traditional Hindu law
which was in force prior to 1956 which gave her a limited estate, or the changed
law which gives her full ownership, would apply. The court held that the widow,
prima facie was only a limited owner and the provisions of the Act do not pro
76 AIR 2002 SC 1428 (from Bom).

77 Kailash Singh v. Mewalal Singh Gond, AIR 2002 MP 112.

tanto apply to members of the tribe as customary law is preserved by the provision.
As observed by the court:78
This Act by its own force would not apply to the scheduled tribe because
of the non obstante clause in section 2 (2) but if it is proved that
according to customary law of a particular scheduled tribe a widow is
entitled to inherit as full owner she may get absolute right.
There was no pleading or proof that under the customary law of this tribe
a widow was entitled to inherit as full owner. Hence the revision was dismissed.
Under the Hindu Widow Remarriage Act, 1856, a widow who remarried,
was divested of the property of her husband which had vested in her as his heir.
This Act, however, has been repealed in 1983 and thus a widow vested with
property will not be divested upon her remarriage. Section 24 of the HSA
disqualifies three female heirs from inheriting the property of the intestate if
they had remarried before his death. These are (i) sons' widow, (ii) sons' son's
widow, and (iii) brother's widow. If, however, they remarry after inheritance had
vested in them, they cannot be divested of the property already vested in them.
In this context there is an anomalous judgment79 during the current survey
period. The deceased married a lady and had four sons; after divorcing her he
married the plaintiff and also had a daughter from her. After his death the
plaintiff remarried. In a suit for share in the properties of the deceased it was
held that the plaintiff having lost her chastity by second marriage after the death
of her husband, is not entitled to any share in the property of the deceased
husband. It is submitted that section 24 of the Act, which was invoked to reject
her claim, has no relevance in this case. This section refers to only three categories
of widows viz., son's widow, son's son's widow and brother's widow who
would stand disqualified to succeed to the property of the intestate if on the date
the succession opens she has remarried. One's own widow is not divested of
property already vested, even if she remarries. It would be pertinent to note that
unchastity is no bar under section 28 of the Act either. It clearly says "disease,
defect, deformity or any other ground whatsoever", shall not be disqualification.
Thus, it is not only an unfair judgment but also against the provisions of the law.
Such interpretation defeats the very purpose behind removal of disabilities on
remarriage.
Widow's absolute right

A Hindu female has a right of maintenance against the property of her
husband. Her pre-existing limited right ripens into absolute ownership right in
view of the provision of section 14(1) of the Act. In V Muthusami v. Angammalm
the father-in-law of a widow received property of her deceased husband and
subsequently he made a settlement deed in 1946 providing for maintenance to
78 Id. at 113.
19 Lalramchanni v. Lalthachungi, AIR 2002 Gau 96.
80 AIR 2002 SC 1279 (from Mad).

her during her lifetime. In 1974 she executed an agreement for sale of the
property in favour of the plaintiff, which was challenged on the ground that she
being only a limited owner could not sell the same. It is pertinent to note that
the settlement deed was made on the intervention of the panchayat and so a plea
was taken that she had only a contractual right of maintenance over the properties
of her father-in-law. The high court, accordingly, held that the sale agreement
could not be enforced. On appeal, however, the Supreme Court held that the
settlement deed was in recognition of her pre-existing right of maintenance
against the properties of her husband which came in the hands of the father-in-
law. The case was held to be covered by section 14(1) of the Act and sale of suit
land possessed by virtue of pre-existing right as full owner, is valid. The argument
that she claimed maintenance over the properties of her father-in-law was held
not tenable as she claimed maintenance as of right against the properties left
behind by her deceased husband. According to the court, even though she was
not in actual physical possession of the land, she was in legal possession as she
never parted with the right of maintenance and she could enforce such a right
in law. The panchayat only helped the parties to come to a settlement in
recognition of her pre-existing right to be maintained from the property of her
husband. Therefore, after the coming into force of the Act she became full owner
over the suit land with power to execute the agreement for sale, the court ruled.
In Gorachand Mukherjee v. Malabika Dutta,%x however, where a widow
who had no pre-existing right of maintenance was given right of possession to
the suit property till the death of her maternal uncle and aunt it was held that
her life interest could not ripen into absolute title under section 14(1). The court
held that the maternal uncle or aunt had no moral or legal obligation to maintain
their niece and the right to possession of property given to her by them is not
in lieu of maintenance and so it does not ripen into absolute right.
Right of illegitimate son's widow

Subhan Rao v. Parvathi Bain involved the right of widow of an illegitimate
son in the property left by his father. The husband of the widow was an offspring
of an adulterous union and as such had no right of inheritance in his father's
family. The father, however, considered it his moral duty to maintain his son and
daughter-in-law and executed a deed of settlement namely "potgi patra" in 1941
and granted possession of his property to his son for his maintenance and after
his death to his wife during her lifetime. After the death of the father-in-law and
the son, this moral liability matured into legal liability and the widowed daughter-
in-law's limited right ripened into absolute right under section 14(1) thus entitling
her to alienate the same.
Succession to female's property

Under section 15(2)(a) of the Act, any property inherited by a female Hindu
from her father or mother devolves, in the absence of any son or daughter
81 AIR 2002 Cal 26.

82 AIR 2002 Kant 134.

(including children of predeceased son or daughter), upon the heirs of the father.
In Bhagat Ram v. Teja Singh%3 two sisters S & I inherited property from their
widowed mother. On the death of 'S' the property left by her was mutated in the
name of T . The appellant Bhagat Singh who had entered into agreement with
T on 12.3.1963 filed a suit for specific performance which was decreed. Teja
Singh, the brother of pre-deceased husband of 4 S' filed a suit alleging that on her
death, property devolved on him by virtue of clause (b) of section 15(1) of the
Act as heir of 'S's husband. The trial court decreed his suit. On appeal, the high
court also held that on the death of ' S \ property devolved on him. On Bhagat
Singh's further appeal to the apex court, however, the court held that property
held by 'S' was property inherited by her from her mother so clause (a) of
section 15(2) applied and Teja Singh had no right in the property left by 'S' and
that it would devolve only on her sister I. It held:84
The source from which she (the female) inherits the property is always
important and that would govern the situation. Otherwise persons who
are not even remotely related to the person who originally held the
property would acquire rights to inherit that property. That would defeat
the intent and purpose of sub-section (2) of section 15 which gives a
special pattern of succession.
It may be pointed out that this case was decided in 1999.85 However, since
the only respondent, Teja Singh died in 1986 and neither his legal heirs were
brought on record nor was the fact of his death brought to the notice of the court
at the time of order, on application being filed by the heirs of Teja Singh after
the order, the court allowed them to be impleaded. The court gave an opportunity
to both the parties to be heard but found no reason to deviate from the order
given by it in 1999 and the same was upheld.
VI JOINT FAMILY PROPERTY
Nature of property: burden of proof

When a person claims that a particular property is ancestral or it belongs to
the joint family, the burden of proving the same lies on him. He must show
initially that there was sufficient nucleus. P.M. Mani v. PS. Mohankumar*6 was
a partition suit by grandsons alleging that property of their grandfather was joint
family property. They were, however, unable to show existence of joint family
nucleus from which grandfather could have purchased it. The plaintiffs did not
examine their father who could have spoken about the property nor was any
explanation given for the same. A partition deed between the grandfather and his
brothers was in evidence showing that it was self acquired property. According
83 AIR 2002 SC 1 (from P&H).

84 Id. at 4-5.
85 Bhagat Singh v. Teja Singh, AIR 1999 SC 1944.
86 AIR 2002 Mad 402.

Vol. XXXVIIIJ Hindu Law 401
to the court, on the death of the grandfather the property would pass by inheritance
and not by survivorship as joint family property. Partition suit at the instance of
grandsons was accordingly held to be not maintainable.
Similarly in Harihar Sethi v. Ladu Kishore Sethisl the Orissa High Court
held that there can be no presumption that the family, because it is joint, possesses
joint property. Even a member in a joint family may possess separate property
which would belong exclusively to him and no other member of the coparcenary,
not even his male issue, acquires any interest in it by birth. On his death intestate,
it would pass by succession to his heirs and not by survivorship to the surviving
coparceners. The plaintiff in this case was a teacher drawing good salary and
there were documents which revealed that he had drawn substantial amounts of
loan from his GPF account. Further, the properties in dispute were purchased by
him in the same year in which he had withdrawn the loan. The defendants, on
the other hand totally failed to dislodge the burden and prove that the suit
properties were acquired by utilizing surplus income derived from the joint
family property. The properties were consequently held to be self acquired and
not joint family properties.
Family arrangement
P.N. Wankudre v. CS. Wankudreu was a case in which the court recognized
the validity of an informal family arrangement arrived at whereby various
members of the family were put in possession and enjoyment of different property.
All members of the family were signatories to the arrangement and the partition
so arrived at was acted upon by the parties. No objections were raised for
several years. In these circumstances, the court held that even assuming that
documents were required to be registered yet the conduct of the parties would
operate as an estoppel preventing them from resiling from the said arrangements.
The court observed:89
It is well established that the courts generally lean in favour of family

arrangements, take a very liberal and broad view of the validity of
family arrangements and try to uphold and maintain them rather than
strike them down on frivolous grounds.
Alienation by karta
A karta of a joint family can alienate property for legal necessity. However,
alienation of joint family property by mortgaging the same to raise loan for
purpose of marrying minor daughters aged 12 and 8 was held not to be for legal
necessity. Child marriage is not lawful being in violation of Child Marriage
Restraint Act, 1929. Debt having been incurred for that purpose was held to be
against law and public policy and therefore not for legal necessity so as to bind
87 AIR 2002 Ori 110.

88 AIR 2002 Bom 129.
89 Id. at 133.

the minors.90 Following observation of the Bombay High Court in Rambhau v.

Rajaram Laxman,91 upon which the court, inter alia, relied are pertinent:92
Where marriage of minor was performed in violation of the provisions

of Child Marriage Restraint Act, the debt having been incurred by the
de facto guardian for purposes which were not lawful, the alienation
effected for purposes of satisfying those debts cannot be regarded as
lawful alienation binding upon the minors.
Right of children of void marriage

Kanagavalli v. Saroja93 reiterated the legal and judicially established position
that while a wife of a void marriage has no right in the property of her deceased
husband, the children have an equal right along with the legitimate children. The
facts, in brief were as follows: the deceased married the appellant during the
subsistence of his first marriage and had four children out of this relationship.
After his death, the appellant (second wife) filed a suit for declaration that she
and her children along with first wife, her child and husband's mother are
equally entitled to his terminal benefits and sought injunction restraining the
respondent, Roadways Corporation where he was working, from paying these
amounts to the first wife, her child and the mother of the deceased. The trial
court dismissed the claim of the appellant but declared her four children as heirs.
Against this the first wife filed an appeal which was allowed hence the present
appeal. The paternity of the children of the appellant was challenged but there
was enough and more evidence to establish that the deceased was their biological
father. It was accordingly held that in view of section 16 of the Hindu Marriage
Act which confers a status of legitimacy to children of void and voidable marriage,
they were legitimate children and heirs. The second wife, however, was held not
to be entitled as heir because her marriage was void under section 11 of the
Hindu Marriage Act. The court relied on, inter alia, Rameshwari Devi v. State
of Bihar94 and S.P.S Balasubramanyam v. Suruttayam.95
90 Dev Kishan v. Ram Kishan AIR 2002 Raj 370.

91 AIR 1956 Bom 250.
92 Supra note 89 at 374.
93 AIR 2002 Mad 73; see also Kusum "Hindu Law" XXXVII ASIL 341-71 at 350-51.
94 AIR 2000 SC 753.
95 AIR 1992 SC 756.

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15

II MARRIAGE AND DIVORCE

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insulting manner, humiliating him in the presence of outsiders and creating

Praveen Mehta v. Inderjit Mehta% is another Supreme Court ruling in the

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Matrimonial matters are matters of delicate humane and emotional

10 AIR 2002 Del 373, see infra note 59.

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regarding adulterous life of her husband. Such false allegations constitute

While the family court granted judicial separation instead of divorce, on

The failure on the part of the wife to substantiate a serious allegation

14 AIR 2002 Raj 128.

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19 AIR 2002 Jhar 154.

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sometimes landed him in embarrassing situations as she demanded her husband's

The trial court while granting a decree of divorce should be more

In Prabhavati v. K Somashankhar21 the husband lost his petition on ground

24 AIR 2002 Gau 117.

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In a particular case to decide that the decree has to be granted for

The husband's appeal was, accordingly, dismissed.

28 AIR 2002 Cal 6.

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The depression by itself is no ground under the Hindu law to grant

31 AIR 2002 Jhar 112.

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Cohabitation by the parties is an essential [ingredient] of a valid marriage

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The case was consequently remanded to trial court to frame appropriate

A Hindu wife is entitled to maintenance under two personal statutes viz.,

Hindu Marriage Act

43 AIR 2002 SC 971 (from Kant).

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47 AIR 2002 J&K 90.

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The object of section 24 would be defeated if the interim maintenance

53 AIR 2002 P&H 321.

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Hindu Adoption and Maintenance Act

57 AIR 2002 Del 332.

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It may be unfortunate and cause tremendous hardship to the petitioner

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The status of the parents of the plaintiff is totally irrelevant consideration.

In P. Srinivasa Rao v. P. Indira66 a significant issue involved was whether

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(i) Jurisdiction of a court to pass an interim order under section 151,

Provisions of the Act being beneficial legislation in favour of

67 AIR 1962 SC 527.

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a prima facie consideration of the matter would be at liberty to

The husband's revision against the grant of interim maintenance was

69 AIR 2002 Ori 104.

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Adoption may be invalid despite factum of adoption

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Adoption can be challenged despite registered document

V HINDU SUCCESSION ACT

Applicability of the Act to scheduled tribes