BLS LLB 5 Years Sem 7 Family Law II 2018-19 Question Paper with Solutions

Section 11 makes a marriage solemnised after the commencement of the Act null and void if it contravenes any of the conditions in clauses (i), (iv) or (v) of section 5. Two of those grounds are:

1. Section 5(i), bigamy: that either party had a spouse living at the time of the marriage.
2. Section 5(iv), prohibited degrees: that the parties were within the degrees of prohibited relationship as defined in section 3(g), unless the custom or usage governing each of them permits such a marriage.

The third is section 5(v), sapinda relationship, subject to the same custom exception.

Reunion restores the joint status that partition had severed. The reunited members again hold the property as coparcenary property, with community of interest and unity of possession; a son born after the reunion takes an interest by birth; and the karta's powers of management and alienation apply to it again.

Section 7 of the Hindu Minority and Guardianship Act, 1956 provides that the natural guardianship of an adopted son who is a minor passes, on adoption, to the adoptive father, and after him to the adoptive mother.

Section 9 of the Prohibition of Child Marriage Act, 2006 provides that whoever, being a male adult above eighteen years of age, contracts a child marriage shall be punishable with rigorous imprisonment which may extend to two years, or with fine which may extend to one lakh rupees, or with both.

Section 21 provides that where two persons have died in circumstances rendering it uncertain whether either of them, and if so which, survived the other, then for all purposes affecting succession to property it shall be presumed, until the contrary is proved, that the younger survived the elder.

Section 16 of the Hindu Marriage Act, 1955 protects the children although it does not save the marriage.

Section 16(1): notwithstanding that a marriage is null and void under section 11, any child of such a marriage who would have been legitimate if the marriage had been valid shall be legitimate, whether or not a decree of nullity is granted, and whether or not the marriage is held to be void otherwise than on a petition under the Act.

Section 16(2): where a voidable marriage is annulled under section 12, any child begotten or conceived before the decree who would have been legitimate if the marriage had been dissolved instead of annulled shall be deemed to be the legitimate child of the parties notwithstanding the decree.

Section 16(3): nothing in the two sub-sections above confers on any such child any rights in or to the property of any person other than the parents, in any case where, but for the Act, the child would have been incapable of possessing or acquiring such rights.

Section 27, the effect. Where a person is disqualified from inheriting, the property devolves as if that person had died before the intestate.

Section 28, no other disqualification. No person shall be disqualified from succeeding on the ground of any disease, defect or deformity, or, save as provided in the Act, on any other ground whatsoever. That single sentence swept away the Smriti catalogue, under which the blind, the deaf, the dumb, the lame, the leprous, the lunatic and the "unchaste widow" were all excluded.

Two provisions repealed in 2005. The Hindu Succession (Amendment) Act, 2005, with effect from 9 September 2005, omitted section 24, which disqualified a son's widow, a son's son's widow and a brother's widow who had remarried before the succession opened; and section 23, which was not strictly a disqualification but prevented a female heir from claiming partition of a dwelling house wholly occupied by the family until the male heirs chose to divide.

• the obligation is not enforceable if the father-in-law has no means to discharge it from any coparcenary property in his possession out of which the daughter-in-law has not obtained a share. The liability therefore attaches to coparcenary property, and not to his separate or self-acquired property;
• the obligation ceases on the remarriage of the daughter-in-law.

Quantum, section 23(1) and (2): the amount is in the discretion of the court, which must have regard to the position and status of the parties, the reasonable wants of the claimant, whether she is justified in living separately, the value of her own property and income, and the number of persons entitled to maintenance under the Act.

Before 2010 the law was different, and this is what the question is testing. The father alone could give the child in adoption, with the mother's consent; the mother could give only if the father was dead, had renounced the world, had ceased to be a Hindu or had been declared of unsound mind. The parents now stand equal, and sub-section (3), which contained the old rule for the mother, was omitted.

Section 9(4): where both the father and mother are dead, or have completely and finally renounced the world, or have abandoned the child, or have been declared of unsound mind, or where the parentage of the child is not known, the guardian of the child may give the child in adoption with the previous permission of the court, to any person including the guardian himself.

Section 9(5): before granting permission the court shall be satisfied that the adoption will be for the welfare of the child, due consideration being given to the wishes of the child having regard to its age and understanding, and that the applicant has not received or agreed to receive, and that no person has made or given or agreed to make or give, any payment or reward in consideration of the adoption, except such as the court may sanction.

A Uniform Civil Code is one body of civil law on marriage, divorce, maintenance, adoption, guardianship and succession, applicable to all citizens, in place of the personal laws that now apply according to religion.

Article 44 of the Constitution, a Directive Principle, provides that "the State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India". By Article 37 it is not enforceable by any court but is fundamental in the governance of the country. In the Constituent Assembly on 23 November 1948 Dr B.R. Ambedkar pointed out that India already had a uniform criminal code and a uniform law of property, and that only the family lay outside; Muslim members' amendments to protect personal law were defeated, and the compromise was to put the article in Part IV rather than Part III.

The case for it. Personal laws differ on the age of marriage, polygamy, grounds of divorce, maintenance and shares in inheritance, and differences that leave a woman worse off than a man, or than a woman of another faith, sit badly with Articles 14 and 15; a common code would generalise the gender-justice reforms already achieved; it would end forum-shopping by conversion; and it would simplify inter-faith litigation.

Section 10 is only half the enquiry, and the fuller answer says so. Section 11(i) adds that where the adoption is of a son, the adopter must have no Hindu son, son's son or son's son's son living at the time, whether by legitimate blood relationship or by adoption; and section 11(iv), where the adoption is by a female and the person adopted is a male, the adoptive mother must be at least twenty-one years older than him. The child's eligibility under section 10 does not by itself make the adoption good.

(ii) Yes. A can adopt a son, with B's consent.

Capacity, section 8, as substituted by the Personal Laws (Amendment) Act, 2010 with effect from 31 August 2010: any female Hindu who is of sound mind and is not a minor has the capacity to take a son or daughter in adoption; provided that, if she has a husband living, she shall not adopt except with the consent of her husband, unless he has completely and finally renounced the world, has ceased to be a Hindu, or has been declared by a court of competent jurisdiction to be of unsound mind.

A is married and B is living, so she may adopt with B's consent. The consent must be prior or contemporaneous; an adoption without it is void, and consent given afterwards does not cure it.

The other conditions on these facts:

(i) A, B and C take one-third each. C's conversion makes no difference.

Conversion does not disqualify the convert himself. The Caste Disabilities Removal Act, 1850 abolished forfeiture of rights of property on renouncing a religion, and the Hindu Succession Act, 1956 did not restore it. Section 26 of the 1956 Act disqualifies only the children born to a convert after the conversion, and their descendants; it says nothing whatever about the convert.

Section 27 supplies the consequence: a disqualified person is treated as if he had died before the intestate. The branch of C therefore drops out entirely, and the estate is divided between the two surviving sons.

They therefore have a common lineal ascendant, the maternal grandfather, within the third generation through the mother for each of them, which is precisely the second limb of section 3(f)(ii): two persons are sapindas if they have a common lineal ascendant who is within the limits of sapinda relationship with reference to each of them.

Section 5(v) forbids a marriage between sapindas unless the custom or usage governing each of them permits it, and section 11 makes a marriage in contravention of section 5(v) null and void.

But the custom exception is a real one here, and it is why the problem was set. Marriage with a maternal uncle's daughter is permitted by custom in much of South India and in some communities in Maharashtra, and is a well-recognised customary practice. Where such a custom governs each of the parties and is proved, the marriage is valid.

So the answer to (i) is: void under sections 5(v) and 11 if there is no such custom; valid if a custom applicable to both A and B permits the marriage.

(ii) The validity of A's marriage with C depends entirely on the answer to (i).

2. Cruelty, 13(1)(ia): has treated the petitioner with cruelty, physical or mental. The test in Samar Ghosh v. Jaya Ghosh (2007) is whether the petitioner cannot reasonably be expected to live with the respondent; Shobha Rani v. Madhukar Reddi (1988) held cruelty need not be intentional and that dowry demands are cruel; V. Bhagat v. D. Bhagat (1994) that wild allegations in the pleadings are cruelty.
3. Desertion, 13(1)(ib): has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition. Its four elements are the factum of separation, the animus deserendi, the absence of consent and the absence of reasonable cause: Bipin Chandra Jaisinghbhai Shah v. Prabhawati (1957). The Explanation includes wilful neglect, the basis of constructive desertion.
4. Conversion, 13(1)(ii): has ceased to be a Hindu by conversion to another religion.
5. Unsoundness of mind, 13(1)(iii): has been incurably of unsound mind, or has suffered continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.
6. Venereal disease, 13(1)(v): in a communicable form.

3. that a decree or order of maintenance has been passed against him under section 18 of the Hindu Adoptions and Maintenance Act, 1956 or section 125 of the Code of Criminal Procedure, and cohabitation has not been resumed for one year or upwards;
4. the option of puberty: her marriage was solemnised before she attained fifteen and she has repudiated it after fifteen and before eighteen.

D. Section 13B, mutual consent. A joint petition on the ground that the parties have been living separately for one year or more, that they have not been able to live together, and that they have mutually agreed to dissolve the marriage, with a second motion not earlier than six months and not later than eighteen months after the petition. Consent must subsist until the decree: Sureshta Devi v. Om Prakash (1991). The six-month period is directory and may be waived: Amardeep Singh v. Harveen Kaur (2017).

For full marks, cover: the definition in section 3(b); section 18 sub-section by sub-section with every clause of 18(2); section 23 on quantum; sections 25, 27 and 28; the place of section 18 among the other maintenance statutes; and Rajnesh v. Neha.

A. What maintenance is. Section 3(b) provides that "maintenance" includes: (i) in all cases, provision for food, clothing, residence, education and medical attendance and treatment; and (ii) in the case of an unmarried daughter, also the reasonable expenses of and incident to her marriage. The word is "includes", so the list is not exhaustive.

B. The general right, section 18(1). A Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her lifetime. Three things sit in that sentence: the right belongs to her as a wife; it applies to pre-Act marriages; and it lasts for her life.

C. Living separately without losing the right, section 18(2). A Hindu wife is entitled to live separately from her husband without forfeiting her claim to maintenance:

D. The disqualifications, section 18(3). A Hindu wife shall not be entitled to separate residence and maintenance from her husband if she is unchaste or if she ceases to be a Hindu by conversion to another religion. These are the only two, and both must be proved.

E. Quantum, section 23. The amount is in the discretion of the court, which by section 23(2) must have regard to (a) the position and status of the parties; (b) the reasonable wants of the claimant; (c) if she is living separately, whether she is justified in doing so; (d) the value of her own property and any income from it, from her earnings or any other source; and (e) the number of persons entitled to maintenance under the Act.

F. Three further sections. Section 25: the amount, whether fixed by decree or by agreement, may be altered if there is a material change in the circumstances. Section 27: a dependant's claim is not a charge on the estate unless created by will, decree, agreement or otherwise. Section 28: where a person having a right to maintenance out of an estate transfers it, the right may be enforced against the transferee if he had notice of it or if the transfer was gratuitous, but not against a transferee for consideration without notice.

By section 6: for a boy or an unmarried girl, the father, and after him the mother, with the proviso that the custody of a minor who has not completed five years shall ordinarily be with the mother; for an illegitimate boy or unmarried girl, the mother, and after her the father; for a married girl, the husband. The proviso disqualifies a person who has ceased to be a Hindu or has completely and finally renounced the world; the Explanation excludes a step-father and step-mother. Section 7 passes the natural guardianship of an adopted son, on adoption, to the adoptive father and after him the adoptive mother.

His powers, section 8: all acts necessary or reasonable and proper for the benefit of the minor or of his estate, but no personal covenant; no mortgage, charge, sale, gift or exchange of immovable property, and no lease beyond five years or beyond one year past majority, without the previous permission of the court; a dealing in breach is voidable at the minor's instance; and permission is granted only in case of necessity or for an evident advantage to the minor.

C. Testamentary guardian, section 9. Appointed by will, and only by a person entitled to act as natural guardian: the father under 9(1); a widow, or a mother entitled because the father is disentitled, under 9(3); the mother of an illegitimate minor under 9(4).

F. Guardian by affinity, the guardian of a minor widow, recognised in the older case law as the husband's relations; its survival after the Act is doubtful, and the modern approach is to apply section 13.

G. Guardian under a Court of Wards enactment, expressly included by section 4(b)(iv).

B. Establishment and judges. Section 3: the State Government, after consultation with the High Court and by notification, shall establish a Family Court for every area comprising a city or town whose population exceeds one million, and may establish one elsewhere. Section 4: appointment is by the State Government with the concurrence of the High Court; a Judge must have seven years as a judicial officer, a member of a tribunal, or in a post requiring special knowledge of law, or seven years at the Bar; in selecting, preference shall be given to women and persons committed to preserving the institution of marriage and promoting the welfare of children are to be chosen; and no one may hold the office after sixty-two.

C. The jurisdiction, section 7(1). The Family Court has and exercises all the jurisdiction exercisable by any district court or subordinate civil court in respect of the suits and proceedings in the Explanation, and is deemed to be a district court for that purpose:

• (a) nullity, restitution of conjugal rights, judicial separation or dissolution of marriage;
• (b) a declaration as to the validity of a marriage or as to the matrimonial status of any person;
• (c) a suit between the parties to a marriage with respect to the property of the parties or either of them;

E. The distinctive procedure. Section 9, the duty in every suit to make an effort to assist and persuade the parties in arriving at a settlement; section 10, the Code of Civil Procedure applies but the Court may lay down its own procedure; section 11, in camera proceedings if the Court so desires and compulsorily if either party so desires; section 12, assistance of a medical expert or welfare expert; section 13, no right as of right to a legal practitioner, though the Court may seek the help of a legal expert as amicus curiae; sections 14 and 15, the Court may receive any report, statement or document it thinks will assist it whether or not admissible under the law of evidence, and need record only a memorandum of a witness's evidence; section 16, evidence of a formal character by affidavit; section 18, execution of decrees and orders.

F. Appeal, section 19. A single appeal to the High Court on facts or law, heard by a Bench of two judges, within thirty days; no appeal from a decree or order passed with the consent of the parties, nor from an interlocutory order.

His position is sui generis, and the negatives describe it fastest. He is not a partner, though he may run the family business, a joint family firm not being a partnership and the coparceners not becoming partners by birth. He is not an agent of the coparceners, though his acts bind them, an agent's authority being conferred while his arises from status. He is not a trustee, though he manages property for others; a trustee must account, invest and preserve, and the karta is bound to none of those things.

Who may be karta. The senior-most coparcener, seniority and not ability deciding; a junior coparcener with the express or implied consent of the others; and, since Sujata Sharma v. Manu Gupta (Delhi High Court, 2016, affirmed by a larger Bench in December 2023), the eldest daughter, being a coparcener under the substituted section 6 of the Hindu Succession Act. A person who is not a coparcener cannot be karta, which is why a widowed mother managing the family for minor sons is not karta in law, though she may be a de facto manager whose acts bind only so far as they were for the family's benefit.

B. Powers.

6. Gift. He may gift a small portion of movable property for a pious purpose or out of affection, and a reasonable area of immovable property to a daughter on her marriage or for a pious purpose. A general gift of immovable property is void.
7. Alienation, his narrowest power. He may sell or mortgage coparcenary property only for legal necessity (apatkale), that is government revenue, family debts, maintenance, the marriage expenses of daughters and coparceners, funeral and religious ceremonies, necessary litigation and the defence of the family's title; for the benefit of the estate (kutumbarthe), being a transaction a prudent owner would make; or for indispensable religious or pious purposes (dharmarthe).

The leading authority is Hunoomanpersaud Panday v. Mussumat Babooee Munraj Koonweree (1856, Privy Council): the manager's power is a limited and qualified power, exercisable only in a case of need or for the benefit of the estate, and the lender must make bona fide enquiry into the necessity; if he does, and the manager's representation is one a reasonable lender could accept, the alienee is protected even if the money was afterwards misapplied.

For full marks, cover: section 23(1) clause by clause, defining taking advantage of one's own wrong, accessory, connivance, condonation, collusion and delay; section 23(2) and (3) on reconciliation; section 14, the one-year bar; the special bars in section 12(2); and the cases.

Bars to matrimonial relief operate in three places in the Act, and a complete answer takes them in order: the general bars in section 23, the time bar in section 14, and the special bars in section 12(2).

A. The general bars, section 23(1). In any proceeding under the Act, whether defended or not, the court shall decree the relief only if it is satisfied that:

• Connivance: the petitioner consented to or wilfully acquiesced in the offence before it was committed, including deliberate blindness to what he could have prevented.
• Condonation: the petitioner forgave the offence after it was committed and reinstated the offending spouse. It has two elements, forgiveness with knowledge, and restoration to the position of a spouse, usually proved by the resumption of cohabitation and marital intercourse. Condonation is conditional: a fresh act of the same kind revives the condoned offence.

(bb) In a petition for divorce by mutual consent under section 13B, that the consent was not obtained by force, fraud or undue influence.

(c) The petition is not presented or prosecuted in collusion with the respondent, that is by agreement to obtain a decree by putting up a case.

(d) There has been no unnecessary or improper delay in instituting the proceeding.

(e) There is no other legal ground why relief should not be granted.

Section 14 applies to divorce only. It does not bar a petition for judicial separation under section 10, or for nullity under sections 11 and 12, and that is one of the reasons judicial separation is worth advising in the first year.

D. The special bars, section 12(2). For a voidable marriage:

• on the ground of force or fraud, section 12(1)(c): no petition lies if presented more than one year after the force ceased or the fraud was discovered, or if the petitioner has with full consent lived with the other party as husband and wife after that;
• on the ground of pregnancy by another, section 12(1)(d): no petition unless the court is satisfied that the petitioner was ignorant of the facts at the time of the marriage, that proceedings were instituted within one year from the date of the marriage, and that marital intercourse with the petitioner's consent has not taken place since the discovery of the ground.