BLS LLB 5 Years Sem 7 Family Law II 2022-23 Question Paper with Solutions

Under section 9 of the Hindu Marriage Act, 1955, a decree may be obtained when the other spouse has, without reasonable excuse, withdrawn from the society of the petitioner, and the court is satisfied of the truth of the statements in the petition and that there is no legal ground why the application should not be granted.

The Explanation puts the burden of proving reasonable excuse on the person who has withdrawn.

Constructive desertion is desertion by the spouse who stays in the matrimonial home. Where one spouse's conduct is such that it compels the other to leave, or makes cohabitation impossible, the spouse who remains is in law the deserter, even though it was the other who physically departed.

The statutory basis is the Explanation to section 13(1) of the Hindu Marriage Act, 1955, which defines desertion as the desertion of the petitioner 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.

Obstructed heritage, sapratibandha daya, is property in which a person's right arises only on the death of the last owner: property inherited from any relation other than the father, father's father or father's father's father, for example from a brother, a paternal uncle or a nephew. The existence of that owner is an obstruction to the heir's right, and no interest arises by birth.

Section 10 provides that no person shall be capable of being taken in adoption unless:

• (i) he or she is a Hindu;
• (ii) he or she has not already been adopted;
• (iii) he or she has not been married, unless there is a custom or usage applicable to the parties which permits married persons being taken in adoption;
• (iv) he or she has not completed the age of fifteen years, unless there is such a custom or usage.

An impartible estate is property which, by custom or by the terms of the grant or by statute, is not divisible on partition and descends as a whole to a single heir, usually the eldest, by the rule of primogeniture, although it may otherwise have all the incidents of joint family property.

Two examples: a Raj or zamindari or jagir descending by primogeniture, and the math or the office of a mahant, together with the property attached to it. Other recognised instances are a shebaitship, the office of a hereditary priest, and, in earlier times, a watan or hereditary office under a State grant.

• "Living separately" is not living in separate houses. It means not living as husband and wife, so parties under one roof who have ceased all marital relations satisfy the requirement: Sureshta Devi v. Om Prakash (1991).
• Consent must subsist until the decree. Sureshta Devi held that either party may unilaterally withdraw consent at any time before the decree, and Smruti Pahariya v. Sanjay Pahariya (2009) affirmed it. A petition once presented does not bind the parties.
• The court must be independently satisfied, and by section 23(1)(bb) it must find that the consent was not obtained by force, fraud or undue influence.

The six-month period. In Amardeep Singh v. Harveen Kaur (2017) the Supreme Court held it directory, not mandatory, and waivable where four conditions are met: the one-year separation under section 13B(1) has already expired before the first motion; mediation and reconciliation have failed with no likelihood of success; the parties have genuinely settled their differences including alimony, custody and all pending issues; and the waiting period would only prolong their agony. The waiver application may be moved after one week from the first motion.

What "welfare" means. It is not confined to money. The courts read it as covering the child's physical, mental, moral and emotional well-being, education, health, the affection and security available, the stability of the home offered, continuity of environment, and the character and conduct of the person claiming.

The cases.

• Rosy Jacob v. Jacob A. Chakramakkal (1973): children are not chattels or playthings; the father's right yields to the children's welfare.
• Gaurav Nagpal v. Sumedha Nagpal (2009): in custody matters the court is not adjudicating a right of property between parents; the father's right is subordinate to the child's welfare, and the court exercises a jurisdiction parens patriae.
• Nil Ratan Kundu v. Abhijit Kundu (2008): the antecedents, character and conduct of the claimant are material, and a custody dispute is not to be decided on the strict law of rights.

A Uniform Civil Code means one body of civil law on marriage, divorce, maintenance, adoption, guardianship and succession for all citizens, replacing the personal laws that now apply according to religion. Article 44, 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 but is fundamental in the governance of the country.

The need, put as five arguments.

1. Equality. Personal laws differ on the age of marriage, on polygamy, on grounds of divorce, on maintenance and on shares in inheritance. Differences that leave a woman worse off than a man, or worse off than a woman of another faith, are hard to reconcile with Articles 14 and 15.
2. Gender justice. Nearly all the reform that has happened has improved the position of women, from the Hindu Code Bills of 1955 and 1956 and the 2005 Amendment to the abolition of instant triple talaq; a common code would generalise it.

The other side, which a six-mark note must acknowledge. Articles 25 and 26 protect religious freedom and the management of religious affairs; minorities fear a "uniform" code will be the majority's law renamed; tribal custom is protected under the Sixth Schedule and by Articles 371A and 371G for Nagaland and Mizoram; Hindu law itself preserves marumakkattayam and aliyasantana in section 17 of the Succession Act and custom in several places; and no draft code exists, so no one can say which rule would be chosen. In Ahmedabad Women Action Group v. Union of India (1997) the Supreme Court declined to test personal laws against Part III, holding this to be a matter of State policy.

• (f) a suit or proceeding for maintenance;
• (g) a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor.

Section 7(2) adds the jurisdiction exercisable by a Magistrate of the first class under Chapter IX of the Code of Criminal Procedure, that is the maintenance of wives, children and parents, now Chapter X of the Bharatiya Nagarik Suraksha Sanhita, 2023, and any other jurisdiction conferred by another enactment.

Section 8, exclusivity. Where a Family Court has been established for an area, no district court or subordinate civil court shall exercise any jurisdiction in respect of those suits and proceedings, and no Magistrate shall exercise the Chapter IX jurisdiction; every pending suit or proceeding stands transferred to the Family Court.

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

(i) The son, the widow and the mother take one-third each. The brother takes nothing.

Section 8 of the Hindu Succession Act, 1956 provides that the property of a male Hindu dying intestate devolves firstly upon the heirs specified in Class I of the Schedule, and section 9 provides that Class I heirs take simultaneously and to the exclusion of all other heirs.

The son, the widow and the mother are all Class I heirs. The brother is a Class II heir, in entry II, and Class II is reached only "if there is no heir of Class I".

Section 10 distributes: Rule 1, the widow takes one share; Rule 2, the surviving son and the mother each take one share.

(i) The second marriage with Sarita is void, and it is bigamy.

Section 5(i) of the Hindu Marriage Act, 1955 requires that neither party has a spouse living at the time of the marriage. Aman's marriage with Vidya was solemnised as per Hindu rites and subsists: abandoning her does not dissolve it, and only a decree of divorce under section 13 or of nullity under sections 11 or 12 can.

Section 11 provides that a marriage solemnised after the commencement of the Act in contravention of clause (i), (iv) or (v) of section 5 is null and void, and may on a petition by either party be so declared. The marriage with Sarita is therefore void ab initio: it needs no decree to be void, and Sarita never becomes a wife: Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav (1988).

3. Maintenance. Section 24, maintenance pendente lite and the expenses of the proceeding; section 25, permanent alimony, a gross or periodical sum which may be secured by a charge on his immovable property, and where the court must have regard to the conduct of the parties.
4. Custody, maintenance and education of Vihar, section 26, both during the proceeding and after the decree.
5. A declaration that the second marriage is void. She is not a party to it and cannot petition under section 11, which is confined to the parties; but she may set up its invalidity in any proceeding, and she may sue for a declaration under section 34 of the Specific Relief Act, 1963.

Vidya's rights outside this Act, which a full answer names: section 18(2)(a) of the Hindu Adoptions and Maintenance Act, 1956, separate residence with maintenance for desertion, and section 18(2)(e) where he habitually resides with a concubine elsewhere, which fits these facts precisely, since Sarita is not in law a wife; section 125 of the Code of Criminal Procedure, now section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023; and the Protection of Women from Domestic Violence Act, 2005, including a residence order under section 19.

(i) Asha alone is entitled to divorce on that ground. Ashok cannot rely on his own conversion.

Section 13(1)(ii) of the Hindu Marriage Act, 1955 provides that a marriage may be dissolved on a petition presented by either party on the ground that the other party has ceased to be a Hindu by conversion to another religion.

The words "the other party" decide it. The ground is available to the spouse who has not converted, so it is Asha who may petition. The converted spouse cannot use his own conversion, both because the section is drafted against the other party and because section 23(1)(a) requires the court to be satisfied that the petitioner is not in any way taking advantage of his own wrong or disability.

Ashok has ceased to be a Hindu. He is therefore disqualified from acting as natural guardian, and Asha, being next in the order, becomes the natural guardian in her own right.

Three supporting points.

S remains governed by the Act. Section 3 of the Hindu Minority and Guardianship Act applies it to a Hindu minor, and the child's own religion is unaffected by his father's conversion; nor does the father's conversion affect the child's rights of succession.

Section 9(3) follows: a Hindu mother entitled to act as natural guardian because the father has become disentitled may herself appoint a testamentary guardian by will.

Section 13 would in any event have produced the same result on these facts if the question were one of custody, since the welfare of the minor is the paramount consideration and section 13(2) removes any entitlement inconsistent with it: Gaurav Nagpal v. Sumedha Nagpal (2009).

Ameet's daughter is also a coparcener, and this is the point of the question. Section 6 of the Hindu Succession Act, 1956, as substituted by the Hindu Succession (Amendment) Act, 2005 with effect from 9 September 2005, provides that the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son, shall have the same rights in the coparcenary property as she would have had if she had been a son, and shall be subject to the same liabilities.

So each of the three has:

1. an interest by birth, which fluctuates, rising on a death and falling on a birth;
2. a right to demand partition at any time, and on partition the daughter is allotted the same share as a son, section 6(3);
3. a right to joint possession and enjoyment of the whole property, and to be maintained out of it, including the expenses of an unmarried daughter's marriage;
4. a right to challenge an unauthorised alienation by the karta and to sue to set it aside within twelve years;

The general rule is that property acquired by a coparcener by his own exertions, without detriment to the joint family estate, is his separate or self-acquired property. Professional earnings are the clearest instance.

The one argument the other way used to be that where the coparcener's professional training had been paid for out of joint family funds, his earnings were joint family property, because the learning itself had been bought with the family's money. That argument is now statutorily closed.

Section 3 of the Hindu Gains of Learning Act, 1930 provides that, notwithstanding any custom, rule or interpretation of Hindu law, no gains of learning shall be held not to be the exclusive and separate property of the acquirer merely by reason of:

• (a) his learning having been, in whole or in part, imparted to him by any member of his family, living or deceased, or with the aid of the joint funds of his family or of the funds of any member of it; or
• (b) himself or his family having, while he was acquiring his learning, been maintained or supported, wholly or in part, out of the joint funds of his family or of the funds of any member of it.

• not an agent of the coparceners, though his acts bind them; an agent's authority is conferred, his arises from status;
• 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.

1. The senior-most coparcener, so long as he lives and does not relinquish the right. Seniority, not ability, decides.
2. A junior coparcener, with the express or implied consent of the others.
3. A daughter. Since Sujata Sharma v. Manu Gupta (Delhi High Court, 2016), affirmed by a larger Bench of that Court in December 2023, the eldest daughter, being a coparcener under the substituted section 6 of the Hindu Succession Act, may be karta.
4. Not a person who is not a coparcener. A widowed mother managing the family for minor sons is not karta in law; she may act as a de facto manager, and her 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, not merely voidable.
7. Alienation, his narrowest power. He may sell or mortgage coparcenary property only for:

• legal necessity (apatkale): government revenue, family debts, maintenance, the marriage expenses of daughters and coparceners, funeral and religious ceremonies, the costs of necessary litigation and the defence of the family's title;
• benefit of the estate (kutumbarthe): a transaction a prudent owner would make, and not confined to purely defensive acts;
• indispensable religious or pious purposes (dharmarthe).

3. To pay the taxes and the debts of the family out of joint family property.
4. To perform the religious and funeral ceremonies of the family.
5. To manage honestly, not to waste, and not to prefer his own interest to the family's.
6. To render accounts on partition, and fully if fraud is shown.
7. Not to alienate except within the three heads.

So the requirements are three: soundness of mind; majority; and, if she has a husband living, his consent, unless he suffers one of the three disqualifications.

B. What section 8 used to say, and why the amendment matters.

Before 31 August 2010, section 8 gave a woman capacity to adopt in her own right only if she was:

• unmarried;
• divorced;
• a widow; or
• a woman whose husband had finally renounced the world, had ceased to be a Hindu, or had been declared of unsound mind.

A married woman whose husband was alive and under no disqualification could not adopt at all, even with his consent; the adoption had to be made by him, with her consent under section 7, and she then became the adoptive mother under section 14(1).

Section 6: the adoption is valid only if the adopter has the capacity and the right, the giver has capacity, the child is capable of being taken, and the other conditions of Chapter II are complied with.

Section 9: the child must be given by the father or the mother, each acting with the consent of the other, or, where both are dead, have renounced the world, have abandoned the child or are of unsound mind, or the parentage is unknown, by a guardian with the previous permission of the court.

Section 10: the child must be a Hindu, not already adopted, not married unless custom permits, and not over fifteen unless custom permits.

Section 11, of which two clauses bear directly on a female adopter:

• 11(i) and (ii): she must have no Hindu son, son's son or son's son's son living if she adopts a son, and no Hindu daughter or son's daughter living if she adopts a daughter;

For full marks, cover: the date and the reason for the Amendment; the substituted section 6 sub-section by sub-section; the abolition of the pious obligation; the omission of sections 23 and 24; the amendment to the Class I Schedule; the two limits, the proviso and section 6(5); Vineeta Sharma and what it overruled; and what the Amendment did not do.

The Hindu Succession (Amendment) Act, 2005 (Act 39 of 2005) came into force on 9 September 2005. It gave effect to the recommendations of the Law Commission's 174th Report (2000), "Property Rights of Women: Proposed Reforms under Hindu Law", and to the position already reached by State amendments in Kerala, Andhra Pradesh, Tamil Nadu, Karnataka and Maharashtra. It made five changes.

1. The daughter became a coparcener, section 6 substituted.

Section 6(1): in a joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall:

• (a) by birth become a coparcener in her own right in the same manner as the son;

• the share of a predeceased son or a predeceased daughter, had they been alive, is allotted to their surviving children; and
• the share of a predeceased child of a predeceased son or of a predeceased daughter is allotted to the child of such predeceased child.

3. The doctrine of pious obligation was abolished prospectively, section 6(4). After the commencement of the Amendment no court shall recognise any right to proceed against a son, grandson or great-grandson for the recovery of a debt due from his father, grandfather or great-grandfather on the ground of the pious obligation of the descendant to discharge it, and no such right is enforceable. The proviso saves debts contracted before 9 September 2005, in relation to which the old law, and the avyavaharika exception, continue to apply.

The reason is exact: once daughters took the same liabilities as sons, a religious duty falling only on male descendants could not stand, and Parliament chose to abolish rather than extend it.

4. Two sections that had operated against women were omitted.

For full marks, cover: the eight ancient forms and the sacramental conception; the shift from sacrament to contract with the statutory landmarks; then section 5 clause by clause with the consequence of breach; sections 7 and 8; and the effect of the Prohibition of Child Marriage Act on the age condition. Two tasks, so divide the time.

PART ONE: THE EVOLUTION OF THE INSTITUTION

1. Marriage as a sacrament. In the classical law a Hindu marriage was one of the ten samskaras, a sacrament and not a contract. It was held to be indissoluble, its object being the performance of religious duties and the begetting of a son; the tie was said to subsist beyond death; and, once solemnised with the essential ceremonies, it could not be undone. Three consequences followed: no divorce, no requirement of consent in the contractual sense, since a girl could be given in marriage by her father, and polygamy permitted to a male.

2. The eight forms. Ancient law recognised eight forms, four approved and four disapproved:

• Child Marriage Restraint Act, 1929, the "Sarda Act", fixing minimum ages;
• Hindu Gains of Learning Act, 1930 and the Hindu Women's Rights to Property Act, 1937, altering the property incidents;
• Hindu Marriage Act, 1955, which imposed monogamy, prescribed conditions of validity, and introduced nullity, judicial separation and divorce;
• Marriage Laws (Amendment) Act, 1976, widening the grounds of divorce and adding divorce by mutual consent;
• Child Marriage Restraint (Amendment) Act, 1978, raising the ages to eighteen and twenty-one;
• Prohibition of Child Marriage Act, 2006, making a child marriage voidable at the child's option;
• Personal Laws (Amendment) Act, 2019, removing leprosy as a ground of divorce.

4. Where the institution now stands. It is neither a pure sacrament nor a pure contract. It retains sacramental features, the ceremonies under section 7 and the absence of any requirement of writing or registration for validity, and has acquired contractual ones, capacity, consent, and dissolution by decree or by mutual consent. The courts describe it as a sacrament with the incidents of a civil status.

Section 7, ceremonies. A Hindu marriage may be solemnised in accordance with the customary rites and ceremonies of either party, and where those include the saptapadi, the marriage is complete and binding on the taking of the seventh step. There is no prescribed form; what must be proved is the ceremony customary to the parties: Bhaurao Shankar Lokhande v. State of Maharashtra (1965).

Section 8, registration. A State may make registration compulsory, but by section 8(5) the validity of the marriage is in no way affected by the omission to register. In Seema v. Ashwani Kumar (2006) the Supreme Court directed all States to make registration of marriages of all citizens compulsory.