BLS LLB 5 Years Sem 7 Family Law II 2021-22 Question Paper with Solutions

The answer is (a), permanent alimony and maintenance.

Section 25 empowers any court exercising jurisdiction under the Act, at the time of passing any decree or at any time subsequent to it, on the application of either the wife or the husband, to order the other to pay a gross sum or a monthly or periodical sum for a term not exceeding the applicant's lifetime, and to secure the payment by a charge on the respondent's immovable property.

The answer is (c), Arun Laxmanrao Navalkar v. Meena Arun Navalkar, AIR 2006 Bom 342.

The husband sued for a declaration that the marriage was null and void under section 11 on the ground that the parties were sapindas. The Bombay High Court found a common lineal ascendant, Moroba, within five generations of each of them, and held that they were within the sapinda relationship. The wife argued that the line was broken because it passed through her grandmother, who was the husband's paternal aunt; the Court rejected this, holding that the definition in section 3(f) contemplates no such interruption: it asks only whether there is a common lineal ascendant within the limits. Reading section 5(v) with section 3(f), the marriage was void unless a custom of the community permitted it, and the marriage was declared null and void.

Section 9 of the Hindu Marriage Act, 1955 gives a decree of restitution only where the other spouse has withdrawn from the petitioner's society without reasonable excuse, and the Explanation places the burden of proving reasonable excuse on the person who has withdrawn. A wife who takes up employment for which she has been selected on merit, in another city, has a reasonable excuse, and the husband's mere wish that she should not is no answer to it.

The leading authority is Swaraj Garg v. K.M. Garg (Delhi High Court, 1978). The Court held that there is no law giving the husband the exclusive right to decide the matrimonial home; where the wife has a good job and the husband a lower income, the decision must be taken on reasonable grounds and by agreement; and a wife who refuses to give up her employment and live with her husband is not without reasonable excuse. It rejected as unconstitutional any rule that the wife must always follow the husband, since it would offend Article 14 and Article 15.

The answer is (b), section 6.

Section 6 of the Hindu Marriage Act, 1955 was headed "Guardianship in marriage" and provided that where the bride had not completed eighteen years, the consent of her guardian in marriage was required, listing the guardians in order: the father, the mother, the paternal grandfather, and so on.

The section was OMITTED by the Child Marriage Restraint (Amendment) Act, 1978, with effect from 1 October 1978, the same Act which raised the minimum ages to eighteen for the bride and twenty-one for the bridegroom. So there is now no requirement of a guardian's consent to a Hindu marriage, and section 6 stands as omitted in the statute book.

The answer is (c), invalid, that is void.

Section 3(g)(iii) of the Hindu Marriage Act, 1955 places within the degrees of prohibited relationship the case where one was the wife of the brother of the other. A brother's widow is therefore within the prohibited degrees of her deceased husband's brother.

Section 5(iv) requires that the parties be not within the degrees of prohibited relationship, unless the custom or usage governing each of them permits a marriage between them. Section 11 makes a marriage in contravention of section 5(iv) null and void, and section 18(b) makes it punishable with simple imprisonment up to one month or fine up to one thousand rupees or both.

The answer is (b), two years.

Section 13(1)(ib) of the Hindu Marriage Act, 1955 allows divorce on the ground that the other party has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition.

The answer is (a), section 25.

Section 25 provides that a person who commits murder or abets the commission of murder shall be disqualified from inheriting the property of the person murdered, or any other property in furtherance of the succession to which he or she committed or abetted the commission of the murder.

The principle is one of public policy: a man may not profit by his own crime. In Vellikannu v. R. Singaperumal (2005) a son who murdered his father was held disqualified not only from inheriting but also from taking by survivorship, and it was held that he could not be treated as a fresh stock of descent, so his own son took nothing through him.

The Patna High Court held that where a misrepresentation as to the age of the bridegroom was made to the mother, who acted as the bride's agent, and the bride consented believing the statement to be true, her consent was obtained by fraud and the marriage was liable to be annulled. The case is cited for the proposition that a party is under a duty to disclose material facts and that a material misrepresentation concerning the respondent vitiates consent.

The answer is (d), Persian.

"Benami" comes from the Persian be-nam, meaning "without a name" or "in another's name". A benami transaction is one in which property is bought or held in the name of one person while the consideration is paid by, and the beneficial interest belongs to, another.

The answer is (d), Bhaurao Shankar Lokhande v. State of Maharashtra (1965).

The Supreme Court held that the word "solemnize" means to celebrate a marriage with proper ceremonies and in due form, and that unless the second marriage is so celebrated it is not "solemnized" at all. Since section 17 of the Hindu Marriage Act, 1955 makes a second marriage an offence only where it is void by reason of its taking place during the life of a spouse, and a marriage is void under section 11 only if it was a marriage in the first place, the prosecution must prove that the essential ceremonies of the second marriage were performed. Merely living together as husband and wife, or a ceremony short of the essential rites, does not amount to bigamy.

The question does not distinguish between the two statutes that govern, and the honest answer says which is which.

Under the Hindu Marriage Act, 1955 the marriage is VALID. Section 5(iii) requires the bridegroom to have completed twenty-one and the bride eighteen years, but breach of that clause is not among the grounds that make a marriage void under section 11, which are clauses (i), (iv) and (v) of section 5, nor among the four grounds that make it voidable under section 12. The only consequence under this Act is punishment under section 18(a): rigorous imprisonment up to two years, or fine up to one lakh rupees, or both.

Polygamy is the genus; polyandry is one of its species.

Polygamy means plural marriage, that is a marriage in which a person has more than one spouse at the same time. It has two forms:

• polygyny, where one man has more than one wife; and
• polyandry, where one woman has more than one husband.

So the difference is one of classification and not of kind: polyandry is a form of polygamy, and the opposite of polyandry is polygyny, not polygamy.

3. An end to the abuse of conversion. Sarla Mudgal v. Union of India (1995) concerned Hindu husbands converting to Islam in order to take a second wife; the Court held the second marriage bigamous and called for a code, and Lily Thomas v. Union of India (2000) applied it.
4. Certainty and simplicity. Courts must now choose between systems in inter-faith disputes, and litigants cannot predict which law governs their marriage, their children or their property.
5. National integration and secularism, which does not require religion to govern civil relations.
6. The constitutional instruction itself, unfulfilled for over seventy-five years and called a dead letter by the Supreme Court in Mohd. Ahmed Khan v. Shah Bano Begum (1985), with further calls in John Vallamattom v. Union of India (2003).

2. Benefit of the estate, kutumbarthe: a transaction which a prudent owner would enter into, and not confined to purely defensive acts. The classic formulation is that of the Privy Council: it is not enough that the transaction was beneficial in hindsight; it must have been one a prudent manager would have made.
3. Indispensable religious or pious purposes, dharmarthe: an act of duty rather than of mere charity, such as the shraddha of the father or the marriage of a daughter.

The leading case 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 a lender or purchaser must make bona fide enquiry into the existence of the necessity. If he makes that enquiry and the manager's representation is one a reasonable person could accept, the alienee is protected even if the money was afterwards misapplied.

(a) The action that can be taken against Rajiv.

1. Cruelty as a criminal offence. Harassing a woman with a view to coercing her or any person related to her to meet an unlawful demand for property or valuable security is cruelty under section 86 of the Bharatiya Nyaya Sanhita, 2023, punishable under section 85 with imprisonment up to three years and fine. These provisions replaced section 498A of the Indian Penal Code. Rajiv's ill-treatment of Meena founded on the allegation that she brought no dowry falls squarely within it.

4. Maintenance and separate residence. Section 18(2)(b) of the Hindu Adoptions and Maintenance Act, 1956, cruelty, and section 18(2)(g), any other cause justifying separate living; section 24 and section 25 of the Hindu Marriage Act if a matrimonial proceeding is filed; and section 125 of the Code of Criminal Procedure, now section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023, which is the quickest.
5. The Protection of Women from Domestic Violence Act, 2005. Section 3 expressly includes harassment to coerce an unlawful demand for dowry, and covers economic abuse. She may obtain a protection order under section 18, a residence order under section 19, monetary relief under section 20 and compensation under section 22, with interim orders under section 23, on an application to a Magistrate under section 12.
6. Note who else is liable. The money was given to the mother-in-law, so the mother-in-law is the taker for the purposes of section 3 of the 1961 Act, and section 85 of the Sanhita reaches "the husband or the relative of the husband". The prosecution is not confined to Rajiv.

(b) Yes. Meena is entitled to the two lakh rupees, and there are two independent routes to them.

Separate property, also called self-acquired property, is property which its owner holds absolutely, in which no other member of the family takes an interest by birth, and which he may sell, mortgage, gift or will away as he pleases. It stands in contrast to coparcenary or joint family property, in which the coparceners take an interest by birth and no one may point to a defined share before partition.

What is separate property.

1. Property inherited from any relation other than the father, father's father or father's father's father, that is sapratibandha daya, obstructed heritage.
2. Property acquired by a coparcener by his own exertions without detriment to the joint family estate, including his professional earnings.
3. Property obtained on partition, subject in the old law to the interest of the taker's own sons.
4. A gift from the father made out of affection from his separate property, and a gift of a small portion of ancestral movables.
5. Property acquired by a government grant, or as a prize.

The definition. Section 4(b) of the Hindu Minority and Guardianship Act, 1956 defines a "guardian" as a person having the care of the person of a minor or of his property, or of both his person and property, and includes:

• (i) a natural guardian;
• (ii) a guardian appointed by the will of the minor's father or mother, that is a testamentary guardian;
• (iii) a guardian appointed or declared by a court; and
• (iv) a person empowered to act as such by or under any enactment relating to any Court of Wards.

Section 4(a) defines a "minor" as a person who has not completed eighteen years.

The powers, section 8. The powers are stated for the natural guardian and are carried across to a testamentary guardian by section 9(5), which gives him "all the rights of a natural guardian... to such extent and subject to such restrictions as are specified in this Act and in the will".

4. Section 8(4), the test for permission. The court shall not grant permission except in case of necessity or for an evident advantage to the minor.
5. Sections 8(5) and (6), procedure. The application is governed by the Guardians and Wards Act, 1890 as if made under section 29 of that Act, and an order refusing permission is appealable.

• Section 4(2): if any person attempts to commit sati, whoever abets such attempt, directly or indirectly, shall be punishable with imprisonment for life, and shall also be liable to fine.

The Explanation to section 4 deems the following, and the like, to be abetment:

• (a) any inducement to a widow or woman to get herself burnt or buried alive, irrespective of whether she is in a fit state of mind or is labouring under intoxication, stupefaction or any other cause impeding the exercise of her free will;
• (b) making her believe that the commission of sati would result in some spiritual benefit to her, to her deceased husband or relative, or to the general well-being of the family;
• (c) encouraging her to remain fixed in her resolve to commit sati and thus instigating her;
• (d) participating in any procession in connection with the commission of sati, or aiding her by taking her along with the body to the cremation or burial ground;
• (e) being present at the place where sati is committed as an active participant in the commission or in any ceremony connected with it;

Section 3(f)(i) of the Hindu Marriage Act, 1955 provides that "sapinda relationship" with reference to any person extends as far as the third generation (inclusive) in the line of ascent through the mother, and the fifth (inclusive) in the line of ascent through the father, the line being traced upwards in each case from the person concerned, who is to be counted as the first generation.

Section 3(f)(ii) provides that two persons are said to be "sapindas" of each other if:

• one is a lineal ascendant of the other within the limits of sapinda relationship; or
• they have a common lineal ascendant who is within the limits of sapinda relationship with reference to each of them.

The counting rule. You count yourself as the first generation. So "third generation through the mother" means the person, the mother, and the mother's parent; "fifth through the father" means the person and four ascendants above him.

Section 13(1)(ib) of the Hindu Marriage Act, 1955 allows either party to obtain a divorce on the ground that the other has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition.

The Explanation to section 13(1) defines desertion as the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and provides that it includes the wilful neglect of the petitioner by the other party.

Its four elements are, on the part of the deserting spouse, the factum of separation and the animus deserendi, the intention to bring cohabitation permanently to an end; and, on the part of the deserted spouse, the absence of consent and the absence of conduct giving reasonable cause to leave. All four must continue throughout the two years, and the period must immediately precede the petition.