BLS LLB 5 Years Sem 7 Family Law II 2023-24 Question Paper with Solutions

Adultery, as a ground of matrimonial relief, is voluntary sexual intercourse by a married person with any person other than his or her spouse after the solemnisation of the marriage. Section 13(1)(i) of the Hindu Marriage Act, 1955 makes it a ground of divorce, and section 10 makes it a ground of judicial separation.

Polyandry is the form of marriage in which one woman has more than one husband at the same time. It is the counterpart of polygyny, in which one man has more than one wife, and both are species of polygamy, plural marriage.

Reunion is the act by which persons who have separated by partition come together again with the intention of resuming the joint status. It restores the joint family and the coparcenary with all their incidents, so that the property is again coparcenary property and a son born afterwards takes an interest by birth.

It is confined to a narrow class: a separated coparcener may reunite only with his father, brother or paternal uncle, on the authority of the Brihaspati text quoted in the Mitakshara.

Two disqualifications under the Hindu Succession Act, 1956:

1. Murder, section 25: a person who commits murder or abets the commission of murder is disqualified from inheriting the property of the person murdered, or any other property in furtherance of the succession to which he committed or abetted the murder.
2. Children of a convert, section 26: the children born to a person after that person has ceased to be a Hindu by conversion, and their descendants, are disqualified from inheriting the property of any of their Hindu relatives, unless they are Hindus when the succession opens.

Urbanisation is the process by which an increasing proportion of a population comes to live in towns and cities, and by which urban ways of life, occupations and values spread to those who do so. It involves migration from village to city, a shift from agricultural to industrial and service occupations, and a change in the structure of social relationships from those based on kinship and caste to those based on occupation, contract and neighbourhood.

1. A proceeding under the Act must be pending, whether for nullity, restitution, judicial separation, divorce or otherwise. There is no jurisdiction under section 24 where no petition is on foot.
2. The applicant must have no independent income sufficient for support and for the necessary expenses of the proceeding. Some income does not bar the claim; the question is sufficiency.
3. The relief covers two heads: the costs of the litigation, so that a party without means is not driven out of court, and a periodical sum for support.
4. The order runs only during the proceeding; on the decree it is replaced by permanent alimony under section 25.

2. Testamentary guardian, section 9. Appointed by will, and only by a person entitled to act as natural guardian: the father under 9(1), subject to the crucial rule in 9(2) that his appointment has no effect if he predeceases the mother and revives only if she dies without appointing anyone; a widow or a mother entitled because the father is disentitled, under 9(3); and the mother of an illegitimate minor under 9(4). His right arises only after the appointing parent's death, 9(5), his powers are those of a natural guardian as restricted by the will, and where the minor is a girl his right ceases on her marriage, 9(6).

3. Guardian appointed or declared by a court, the certificated guardian, appointed under the Guardians and Wards Act, 1890. Section 13 of the 1956 Act makes the welfare of the minor paramount in any such appointment.

4. De facto guardian, section 11. A person who has in fact taken charge of the minor's person or property without legal authority. Section 11 provides that no such person shall be entitled to dispose of or deal with the minor's property merely on that ground, so an alienation by him is void, not voidable.

Judicial separation, section 10 of the Hindu Marriage Act, 1955. Either party may present a petition on any of the grounds specified in section 13(1), and in the case of a wife also on any of the grounds in section 13(2). Where a decree is passed, it is no longer obligatory for the petitioner to cohabit with the respondent, but the court may, on the application of either party and on being satisfied of the truth of the statements, rescind the decree if it thinks it just and reasonable to do so.

Divorce, section 13, dissolves the marriage.

The differences.

Partial partition is a partition which does not divide the whole of the joint family property, or does not separate all the members of the family. Hindu law permits it, and it is common.

Partition may therefore be total or partial, and a partial partition may be partial in either of two ways, or in both:

1. Partial as to property. The family divides some of the joint property and continues to hold the rest jointly. So a family may divide its houses and keep the ancestral land and the family business joint. The property divided ceases to be coparcenary property and becomes the separate property of the taker; the rest remains coparcenary property, subject to the karta's management and the right of survivorship in so far as it still operates.

2. Partial as to persons. One or more members separate while the rest remain joint. The separating member takes his share and goes out; the others continue as a coparcenary among themselves.

Under the Prohibition of Child Marriage Act, 2006. Section 2(a) defines a "child" as a male who has not completed twenty-one and a female who has not completed eighteen. Both Anil and Sony are children.

• Section 3 makes the marriage voidable at the option of the contracting party who was a child at the time. Since both were children, either may petition, and the petition must be filed before that party completes two years after attaining majority: for Sony, before she turns twenty; for Anil, before he turns twenty as well, majority for this purpose being eighteen. While a party is a minor the petition may be filed through a guardian or next friend along with the Child Marriage Prohibition Officer. On annulment, section 3(4) requires the return of money, valuables and gifts, section 4 empowers the court to order maintenance and residence for the female until her remarriage, and section 5 to provide for the custody and maintenance of the children.
• Section 11 makes any parent or guardian who promoted the marriage, permitted it to be solemnised, or negligently failed to prevent it, punishable with rigorous imprisonment up to two years and fine up to one lakh rupees, no woman being punishable with imprisonment; and section 11(2) raises a presumption of such negligence against a person having charge of the child.

From legitimacy everything else follows:

1. Maintenance. From either parent under section 20 of the Hindu Adoptions and Maintenance Act, 1956, so long as the child is a minor, and from the father under section 125 of the Code of Criminal Procedure, now section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023. If the marriage is annulled, section 5 of the 2006 Act empowers the court to make orders for custody and maintenance, with the welfare of the child as the paramount consideration.
2. Succession. The child is a Class I heir to the father under section 8 of the Hindu Succession Act, 1956, and is in entry (a) of section 15(1) as against the mother. Being legitimate, the limitation in section 3(1)(j) of that Act, which confines an illegitimate child to relationship with the mother, does not apply, so the child inherits from both parents and from their relations.
3. A coparcenary interest. In a Mitakshara family the child takes an interest by birth in coparcenary property, and since the 2005 Amendment that is true of a daughter as much as a son.
4. Guardianship and custody. Under sections 6 and 13 of the Hindu Minority and Guardianship Act, 1956, with the welfare of the minor paramount.

(ii) B's property: the mother takes the whole. The father and the brother take nothing.

This is the point of the problem. The mother is a Class I heir. The father is a Class II heir, in entry I of Class II, and the brother is a Class II heir in entry II.

Since a Class I heir exists, section 8(a) and section 9 operate: the property devolves firstly on Class I, and Class I heirs take to the exclusion of all other heirs. The Class II heirs are reached only "if there is no heir of Class I".

There is one Class I heir, the mother. She therefore takes the whole of B's property, and the father and brother are entirely excluded.

But Rahul has left, and that changes the position. In Githa Hariharan v. Reserve Bank of India (1999) the Supreme Court held that "after him" in section 6(a) does not mean "after the lifetime of the father": it means "in the absence of the father", and that absence may be physical or otherwise, temporary or total, and includes indifference, illness, or an arrangement by which the father has left the child's affairs to the mother. Read that way the section is constitutional; read literally it would have offended Articles 14 and 15.

Rahul has left the matrimonial home and the children are with Bina. On Githa Hariharan she is therefore the natural guardian in his absence, and she may act as such.

Custody is a separate question and welfare decides it. Section 13(1) makes the welfare of the minor the paramount consideration in the appointment or declaration of any guardian by a court, and section 13(2) provides that no person is entitled to guardianship under the Act if the court is of opinion that it will not be for the minor's welfare. So even if Rahul returned and asserted his status, his right is preferential and not absolute, and it yields to welfare: Gaurav Nagpal v. Sumedha Nagpal (2009), Rosy Jacob v. Jacob A. Chakramakkal (1973), Nil Ratan Kundu v. Abhijit Kundu (2008).

For herself, section 18 of the Hindu Adoptions and Maintenance Act, 1956. Section 18(1) gives a Hindu wife the right to be maintained by her husband during her lifetime. Section 18(2)(a) entitles her to live separately without forfeiting her claim if he is guilty of desertion, that is abandoning her without reasonable cause and without her consent or against her wish, or wilfully neglecting her. Rahul left the matrimonial home; she did not withdraw from his society, he withdrew from hers, and the clause expressly covers wilful neglect. Section 18(2)(g), "any other cause justifying her living separately", is available in the alternative. Section 18(3) disqualifies only a wife who is unchaste or who has ceased to be a Hindu, and neither is suggested.

For the children, section 20. A Hindu is bound during his lifetime to maintain his legitimate or illegitimate children, and by section 20(2) a child may claim from the father or mother so long as the child is a minor. Both children are minors, so the claim is unanswerable.

The amount, section 23(2): 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.

Her other forums, and a complete answer names them:

(i) What Tina can do.

1. Divorce on the ground of adultery, section 13(1)(i). Ashok has, after the solemnisation of the marriage, had voluntary sexual intercourse with a person other than his spouse. A single act suffices since the Marriage Laws (Amendment) Act, 1976, and the birth of a child is strong proof. The standard is the balance of probabilities.

4. Maintenance. Section 24 for maintenance pendente lite and the expenses of the proceeding; section 25 for permanent alimony, where the court must have regard to the conduct of the parties; section 26 for the custody, maintenance and education of any children of the marriage.
5. Under other statutes. Section 18(2)(e) of the Hindu Adoptions and Maintenance Act, 1956 entitles her to live separately with maintenance if he keeps a concubine in the same house in which she is living or habitually resides with a concubine elsewhere, and section 18(2)(g) covers any other justifying cause. Section 125 of the Code of Criminal Procedure, now section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023, gives a summary remedy, and its own Explanation treats a husband's keeping of a mistress as just ground for a wife's refusal to live with him. She may also seek relief under the Protection of Women from Domestic Violence Act, 2005.

Section 3(1)(j) of the Hindu Succession Act, 1956 then decides it. It provides that "related" means related by legitimate kinship, with the proviso that illegitimate children shall be deemed to be related to their mother and to one another, and their legitimate descendants to them and to one another.

So the child is related to Meena and inherits from her, and is not related in law to Ashok. The child is therefore not a "son" or "daughter" in Class I of the Schedule and takes nothing on Ashok's intestacy. Nor is Ashok an heir to the child.

What the child does have.

1. Maintenance from Ashok. Section 20(1) of the Hindu Adoptions and Maintenance Act, 1956 binds a Hindu during his lifetime to maintain his legitimate or illegitimate children, and section 20(2) allows a claim so long as the child is a minor. Section 125 of the Code of Criminal Procedure, now section 144 of the Sanhita, expressly covers an illegitimate minor child.

1. Ancestral property, that is property inherited by a male Hindu from his father, father's father or father's father's father, in which his own male issue took an interest by birth. This is apratibandha daya, unobstructed heritage.
2. Property jointly acquired by members of the family with the aid of joint family funds, and property purchased or improved with the income of joint family property, together with accretions to it.
3. Property thrown into the common stock, the doctrine of blending. The owner must voluntarily abandon his separate claim with the intention of merging it in the joint property; mere permission to the family to use it, or generosity in allowing the family to enjoy its income, is not enough. The burden of proving blending is on the person alleging it.
4. Property recovered with the aid of joint family funds, of which the recoverer takes a share under the old texts.

C. What is separate property.

• Property inherited from any relation other than the three male ancestors, that is sapratibandha daya, obstructed heritage;

• his interest fluctuated, rising on a death and falling on a birth, and formerly passed by survivorship;
• any coparcener could demand partition of it;
• his separate property, by contrast, he owned absolutely and could dispose of at will, and on his death it passed by succession.

In the Dayabhaga, the distinction is far less important, because the son takes nothing by birth. Consequently:

• the father is the absolute owner of all his property, ancestral and self-acquired alike, and may sell, mortgage or gift it as he pleases;
• there is no coparcenary during his lifetime; it arises only on his death, among the sons who then hold together;
• each son's share is then fixed and definite, and he may alienate even his undivided share, including by gift;
• there is no survivorship: a coparcener's share passes to his heirs, including his widow and daughter, who may themselves demand partition.

E. The comparison.

For full marks, cover: section 6 as the four-fold test; sections 7 and 8 with the 2010 amendment; section 9 with the 2010 amendment and the guardian's power; section 10; section 11 clause by clause; then briefly the effects in section 12 and the proof provisions in sections 15 and 16; and the CARA alternative.

A. The four-fold test, section 6. No adoption is valid unless:

1. the person adopting has the capacity and also the right to take in adoption;
2. the person giving in adoption has the capacity to do so;
3. the person adopted is capable of being taken in adoption; and
4. the adoption is made in compliance with the other conditions mentioned in Chapter II.

Each limb is filled in by a later section, and the rest of the answer follows them in order.

B. Capacity of the person adopting.

• 9(1): no person except the father, the mother or the guardian of a child has the capacity to give the child in adoption.
• 9(2), as substituted in 2010: the father or the mother, if alive, shall have equal right to give a son or daughter in adoption; neither may exercise that right without the consent of the other, unless that other has renounced the world, ceased to be a Hindu, or been declared of unsound mind. Before 2010 the father alone could give, with the mother's consent.
• 9(4): where both parents are dead, have renounced the world, have abandoned the child, or have been declared of unsound mind, or where the parentage is not known, the guardian may give the child in adoption with the previous permission of the court, to any person including the guardian himself.
• 9(5): the court must be satisfied that the adoption is for the welfare of the child, giving due consideration to the child's wishes according to age and understanding, and that no payment or reward has been made, given or agreed except what the court sanctions.
• Explanation: "father" and "mother" do not include an adoptive father or mother, so an adopted child cannot be given away again.

5. The same child may not be adopted simultaneously by two or more persons.
6. The child must be actually given and taken in adoption by the parents or guardian concerned, or under their authority, with intent to transfer the child from the family of its birth to the family of its adoption; the proviso adds that the performance of datta homam is not essential to the validity of an adoption.

F. Two sections on what follows, in brief. Section 12 provides that from the date of the adoption the child is deemed to be the child of the adoptive parents for all purposes and the ties in the family of birth are severed, subject to three provisos: the marriage bars of the family of birth survive; property already vested in the child stays vested with its obligations; and the child cannot divest any person of an estate which vested before the adoption. Section 15 provides that a valid adoption cannot be cancelled by anyone, and that the child cannot renounce the adoptive family. Section 16 provides that a registered document recording the adoption, signed by the person giving and the person taking, raises a presumption of compliance with the Act until disproved.

The test. In Samar Ghosh v. Jaya Ghosh (2007) the Supreme Court held that the enquiry is whether the conduct is such that the petitioner cannot reasonably be expected to live with the respondent, judged on the whole matrimonial relationship and not on isolated incidents, and gave an illustrative and non-exhaustive list of instances of mental cruelty, including: sustained unjustifiable conduct causing anguish; sustained reprehensible conduct, studied neglect or indifference; a sustained course of abusive and humiliating treatment; unilateral refusal of sexual intercourse without physical incapacity or valid reason; a unilateral decision not to have a child; and where the parties have lived separately for a long period so that the marriage is dead in substance.

The cases to name.

• Shobha Rani v. Madhukar Reddi (1988): cruelty need not be intentional; the enquiry is into the effect of the conduct on the petitioner, and persistent demands for dowry are of their nature cruel.
• V. Bhagat v. D. Bhagat (1994): wild allegations made in the pleadings, there of insanity, are themselves mental cruelty.

2. the animus deserendi, the intention to bring cohabitation permanently to an end;
3. the absence of the deserted spouse's consent; and
4. the absence of conduct by the deserted spouse giving reasonable cause to leave.

All four must continue throughout the two years, and the period must be immediately preceding the petition. Desertion is therefore a continuing offence, and it can be brought to an end at any time by a genuine offer to return, by resumption of cohabitation, or by the deserted spouse's own supervening conduct giving cause.

Constructive desertion. The Explanation covers wilful neglect, so the spouse who stays in the house may be the deserter if his conduct drives the other out or makes cohabitation impossible. It is not the departure from the house but the repudiation of the obligations of marriage that constitutes desertion.

The cases to name.

• Bipin Chandra Jaisinghbhai Shah v. Prabhawati (1957): the leading case. Desertion requires factum and animus, both must continue for the statutory period, and the offence is inchoate: it can be ended by a bona fide offer to return, which the deserted spouse cannot unreasonably refuse.

For full marks, cover: who may be karta and the sui generis nature of the office; the powers as a numbered list, with alienation treated separately and Hunoomanpersaud cited; the duties; the limits on his liability to account; the consequence of an unauthorised alienation and the limitation period; and Sujata Sharma on a daughter as karta.

A. Position.

The karta is the manager of a Hindu joint family. He holds the office by virtue of his status in the family, not by appointment, election or agreement, and ordinarily he is the senior-most male coparcener.

His position is unique in law, described as sui generis. He is:

• not a partner, though he may manage a family business, because a joint family firm is not a partnership and the members do not become partners by birth;

1. Management. He decides what is spent and on what, where the family lives, what education the children get, and how the family business is run. His discretion is not subject to review at the suit of a coparcener so long as he acts honestly.
2. Representation. He represents the family in suits and proceedings and in dealings with third parties, and a decree obtained against him in that capacity binds all the coparceners, including minors, provided he was not acting against their interests and there was no fraud or collusion.
3. Contracting debts. He may contract debts for family purposes and for the family business, and such debts bind the shares of all the coparceners. A creditor may proceed against the joint family property.
4. Acknowledgment and part payment. He may acknowledge a debt so as to extend limitation, and make a part payment; but he cannot execute a fresh promissory note so as to create a new liability binding the others.
5. Reference to arbitration. He may refer a dispute concerning the family property to arbitration, and an award binds the family if the reference was bona fide and for the family's benefit.

The three heads come from Vijnaneshwara. The leading authority is Hunoomanpersaud Panday v. Mussumat Babooee Munraj Koonweree (1856, Privy Council), where it was held that 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 that the lender must make bona fide enquiry into the existence of 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.

The consequence of an alienation outside those limits. It is voidable, not void: it is good until avoided, and a coparcener must sue to set it aside within twelve years of the alienee taking possession. A coparcener born after the alienation may also sue. Contrast a gift of immovable property, which is void and not merely voidable.

C. Duties.

1. To maintain every member of the joint family entitled to maintenance: the coparceners, their wives, widows, unmarried daughters, aged parents and minor children.
2. To meet the marriage expenses of unmarried daughters and of coparceners out of joint family funds.
3. To pay the taxes and the debts of the family out of joint family property.