BLS LLB 5 Years Sem 7 Family Law II 2024-25 Question Paper with Solutions

Reunion is confined to a narrow class. A person who has once separated may reunite only with his father, brother or paternal uncle, and with no one else. The authority is the text of Brihaspati, quoted in the Mitakshara: "He who, being once separated, dwells again through affection with his father, brother or paternal uncle, is termed reunited."

Section 18 of the Hindu Marriage Act, 1955 punishes a person who procures a marriage of himself or herself to be solemnised in contravention of clauses (iii), (iv) and (v) of section 5:

• (a) for contravention of clause (iii), age, with rigorous imprisonment which may extend to two years, or fine which may extend to one lakh rupees, or both;
• (b) for contravention of clause (iv), degrees of prohibited relationship, or clause (v), sapinda relationship, with simple imprisonment which may extend to one month, or fine which may extend to one thousand rupees, or both.

Escheat is the devolution of property on the State where the owner dies leaving no heir qualified to succeed. Section 29 of the Hindu Succession Act, 1956 provides that if an intestate has left no heir qualified to succeed under the Act, his or her property shall devolve on the Government, and the Government shall take it subject to all the obligations and liabilities to which an heir would have been subject.

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 maintenance of wives, children and parents, now Chapter X of the Bharatiya Nagarik Suraksha Sanhita, 2023.

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.

It is called obstructed because the existence of that owner is an obstruction to the heir's right; no interest arises by birth.

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 the age of eighteen years.

A Family Court is a court established under the Family Courts Act, 1984 with a view to promoting conciliation in, and securing the speedy settlement of, disputes relating to marriage and family affairs. The Act came into force on 14 September 1984 and followed the recommendations of the Law Commission's 59th Report (1974), which had urged that family disputes be dealt with differently from ordinary civil litigation.

Establishment, section 3. A State Government, after consultation with the High Court, shall establish a Family Court for every area in the State comprising a city or town whose population exceeds one million, and may establish one for any other area.

The judges, section 4. A person is qualified for appointment if he has at least seven years' experience as a judicial officer, or as a member of a tribunal or a post requiring special knowledge of law, or has been an advocate for seven years. He must not be over sixty-two. In selecting, the Government is to give preference to women, and the Act directs that persons committed to the need to protect and preserve the institution of marriage and to promote the welfare of children be selected.

4. Section 12, experts. The Court may take the assistance of a medical expert or a person professionally engaged in promoting the welfare of the family.
5. Section 13, no right to a lawyer. No party is entitled as of right to be represented by a legal practitioner, though the Court may seek the assistance of a legal expert as amicus curiae.
6. Sections 14 and 15, evidence. The Court may receive any report, statement, document or information that in its opinion assists it, whether or not it would be admissible under the Indian Evidence Act, now the Bharatiya Sakshya Adhiniyam, 2023; and it need record only a memorandum of the substance of a witness's evidence.
7. Section 19, appeal. A single appeal to the High Court on facts or law, heard by a Bench of two judges, within thirty days, with no appeal from an order made with the consent of the parties.

2. Testamentary guardian, section 9. A guardian appointed by will. The father may appoint under section 9(1), but that appointment has no effect if he predeceases the mother, reviving only if she dies without appointing anyone, section 9(2). A widow, or a mother entitled to act because the father is disentitled, may appoint under section 9(3); the mother of an illegitimate minor under section 9(4). The guardian's right arises only after the death of the appointing parent, section 9(5), and where the minor is a girl it ceases on her marriage, section 9(6).

3. Guardian appointed or declared by a court, sometimes called a certificated guardian, appointed under the Guardians and Wards Act, 1890. Section 13 of the 1956 Act makes the welfare of the minor the paramount consideration in any such appointment, and provides that no person is entitled to guardianship if the court thinks it will not be for the minor's welfare.

4. De facto guardian, section 11. A person who is neither a natural nor a testamentary nor a certificated guardian but has in fact taken charge of the minor's person or property. 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.

Coparcenary property is the property of a Mitakshara coparcenary, that is property in which the coparceners take an interest by birth, held in unity of ownership with no member able to point to a defined share before partition. It is the opposite of separate or self-acquired property, which the owner holds absolutely.

What is coparcenary property.

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.
2. Property jointly acquired by the members of the joint family with the aid of joint family funds.
3. Separate property thrown into the common stock, the doctrine of blending, where the owner voluntarily abandons his separate claim to it with the intention of merging it in the joint property. The intention must be clear; mere permission to the family to use it is not enough.

Section 9 of the Hindu Marriage Act, 1955 provides that when either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply by petition to the district court, and the court, on being satisfied of the truth of the statements made in the petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights.

The Explanation places the burden of proving reasonable excuse for the withdrawal on the person who has withdrawn.

The ingredients. The petitioner must show: that the respondent has withdrawn from his or her society; that the withdrawal was without reasonable excuse; that the statements in the petition are true; and that there is no legal ground for refusing relief, that is none of the bars in section 23, such as the petitioner taking advantage of his own wrong.

The constitutional challenge. T. Sareetha v. T. Venkata Subbaiah (Andhra Pradesh High Court, 1983) held section 9 void as violating Articles 14 and 21, calling it a savage and barbarous remedy that transfers the choice whether to have sexual intercourse from the individual to the State. Harvinder Kaur v. Harmander Singh Choudhry (Delhi High Court, 1984) disagreed, holding that the object of the decree is cohabitation and consortium, not sexual intercourse. In Saroj Rani v. Sudarshan Kumar Chadha (1984) the Supreme Court upheld section 9, approved Harvinder Kaur, overruled T. Sareetha, and held that the remedy serves a social purpose as an aid to the prevention of the break-up of the marriage, with its own safeguards in the words "without reasonable excuse" and in section 23.

(a) The conditions she must satisfy.

Capacity to take, section 8 of the Hindu Adoptions and Maintenance Act, 1956, as substituted by the Personal Laws (Amendment) Act, 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. Since she is unmarried the proviso, which requires the consent of a husband living, does not apply to her at all. So A is competent.

Capacity of the giver, section 9: the child must be given by his father or mother, acting with the consent of the other, or, where both are dead, have renounced the world, have abandoned the child, are of unsound mind, or the parentage is unknown, by a guardian with the previous permission of the court, which must be satisfied that the adoption is for the welfare of the child and that no payment or reward has passed.

Section 6 ties them together: the adoption is valid only if the adopter has 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 16 makes a registered deed of adoption presumptive proof of compliance, which is the practical protection A should take.

(b) Yes, she may marry, and her husband becomes the adopted son's step-father.

Nothing in the Act prevents an adoptive mother from marrying afterwards, and section 15 provides that a valid adoption cannot be cancelled by anyone, so her later marriage cannot unsettle it.

Section 14(4) answers the second half in terms: "Where a widow or an unmarried woman adopts a child, any husband whom she marries subsequently shall be deemed to be the step-father of the adopted child."

So the relationship is step-father and step-son. He does not become the adoptive father, and the child's ties in law run to A alone as the adoptive parent.

Rule 3 of section 16 works out who those heirs are: the devolution takes place in the same order and by the same rules as would have applied if the property had been the father's and he had died intestate in respect of it immediately after X's death. So one applies section 8 to X's father as at the date immediately after her death: his Class I heirs first, then Class II, then his agnates, then his cognates.

F, the husband, is excluded, even though he is in the first entry of section 15(1), because sub-section (2) opens with "notwithstanding anything contained in sub-section (1)".

(b) Under the marumakkattayam law: the son, the daughter and the mother take one-third each. The father and the husband F take nothing.

Section 17 makes special provision for persons who would have been governed by the marumakkattayam or aliyasantana law. In their application to such persons, sections 8, 10, 15 and 23 have effect subject to modifications, and for a female intestate clauses (a) to (e) of section 15(1) are substituted by:

• (a) firstly, upon the sons and daughters (including the children of any predeceased son or daughter) and the mother;

(a) The second marriage is valid, and Shushila cannot prosecute Jayesh for bigamy. But she has a ground of divorce.

Both marriages were solemnised before the Act. The Hindu Marriage Act, 1955 received assent and came into force on 18 May 1955. Jayesh married Shushila in 1950 and Kamini in 1953, so both predate it.

But Shushila is not without a remedy under this Act. Section 13(2)(i) gives a wife a ground of divorce, in the case of a marriage solemnised before the commencement of the Act, that the husband had married again before such commencement, or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the petitioner's marriage, provided in either case that the other wife is alive at the time of the presentation of the petition.

Shushila's marriage was solemnised in 1950, before the commencement; Jayesh married again in 1953, also before the commencement; and Kamini is alive, the facts saying that both wives live in the same house. Every element of section 13(2)(i) is satisfied, and Shushila may petition for divorce. She may equally seek judicial separation on the same ground under section 10.

(b) Yes. Shushila is entitled to live separately and to be maintained.

Section 18(1) of the Hindu Adoptions and Maintenance Act, 1956 provides that a Hindu wife, whether married before or after the commencement of this Act, is entitled to be maintained by her husband during her lifetime. Those words meet the objection that her marriage is of 1950.

(a) Who is a coparcener on these facts.

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 in a joint Hindu family governed by the Mitakshara law, 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 the coparcenary of Kishankumar consists of:

• Kishankumar, the common ancestor;

Keshav's interest itself did not pass by survivorship. Under section 6(3), on the death of a coparcener after the Amendment his interest devolves by testamentary or intestate succession, and is ascertained on a notional partition taken to have occurred immediately before his death, in which his daughters take as coparceners in their own right.

Two limits to state. The proviso to section 6(1) does not affect any partition or testamentary disposition effected before 20 December 2004, and section 6(5) defines "partition" for that purpose as one effected by a registered deed or by a decree of a court. And a wife is not a coparcener: the Amendment made daughters coparceners because they are descendants, not because they are women.

(b) The rights of dependants in a Mitakshara joint family.

"Dependants" here means the members of the joint family who are not coparceners but who have rights against the joint family property.

5. The statutory rights under the Hindu Adoptions and Maintenance Act, 1956, which now largely govern: section 18, a wife's right against her husband; section 19, a widowed daughter-in-law against her father-in-law, but only out of coparcenary property in his possession out of which she has obtained no share, and ceasing on her remarriage; section 20, children and aged or infirm parents against a Hindu during his lifetime; and sections 21 and 22, dependants of a deceased Hindu against his heirs, out of the estate they take.
6. A widow's right of succession, which since 1956 has largely replaced the old maintenance right: a widow is a Class I heir under section 8, and since 2005 she shares on the notional partition under section 6.
7. Section 14 of the Hindu Succession Act converted any property possessed by a female Hindu, including property given to her in lieu of maintenance, into her absolute property: V. Tulasamma v. Sesha Reddy (1977).

For full marks, cover: section 14 and the abolition of the woman's limited estate; the five entries of section 15(1); the source rule in section 15(2); the three rules of section 16 with a worked example; section 17 for marumakkattayam and aliyasantana; disqualifications and escheat; and the criticism with Om Prakash v. Radhacharan.

A. Start with section 14, because without it there would be little for a woman to leave.

Section 14(1) provides that any property possessed by a female Hindu, whether acquired before or after the commencement of the Act, shall be held by her as full owner and not as a limited owner. The Explanation defines "property" widely: property acquired by inheritance, device, partition, in lieu of maintenance or arrears of maintenance, by gift, by her own skill or exertion, by purchase or prescription, or in any other manner, and also any such property held by her as stridhana.

Section 14(2) is the exception: where property is acquired under a gift, will, instrument, decree, order or award which itself prescribes a restricted estate, the restriction stands.

• (b) any property inherited from her husband or from her father-in-law devolves, in the same absence, upon the heirs of the husband.

D. The rules of distribution, section 16.

• Rule 1. Heirs in one entry are preferred to those in any succeeding entry; those in the same entry take simultaneously.
• Rule 2. If a son or daughter predeceased the intestate leaving his or her own children alive at her death, those children take between them the share their parent would have taken, that is per stirpes.
• Rule 3. Devolution on the heirs in clauses (b), (d) and (e), and on the heirs under sub-section (2), takes place in the same order and by the same rules as if the property had been the husband's, the father's or the mother's, as the case may be, and that person had died intestate immediately after the intestate's death.

E. A worked example. A Hindu woman dies leaving her husband H, a daughter D, and the two children of a predeceased son S. There are three shares in the first line: H, D, and the branch of S. So H takes one-third, D one-third, and S's two children one-sixth each. Her mother and father take nothing.

For full marks, cover: the definition in section 3(b); section 18(1), (2) and (3) clause by clause; section 23 on quantum; sections 25, 27 and 28; the other statutes a wife may use; and Rajnesh v. Neha.

A. What maintenance is.

Section 3(b) of the Hindu Adoptions and Maintenance Act, 1956 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", not "means", so the list is not exhaustive and the court may allow for whatever the standard of living of the parties reasonably requires.

The Act creates four distinct liabilities, and the wife's is the first:

• (a) desertion, that is his abandoning her without reasonable cause and without her consent or against her wish, or his wilfully neglecting her;
• (b) cruelty of such a kind as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with him;
• (d) if he has any other wife living;
• (e) if he keeps a concubine in the same house in which she is living, or habitually resides with a concubine elsewhere;
• (f) if he has ceased to be a Hindu by conversion to another religion;
• (g) if there is any other cause justifying her living separately, a residuary clause under which courts have allowed claims founded on impotence, on a false criminal charge, on persistent dowry demands, and on the husband's refusal to provide a separate residence away from an abusive household.

Clause (c), which allowed separate residence where the husband was suffering from a virulent form of leprosy, was omitted by the Personal Laws (Amendment) Act, 2019.

D. 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 dependant has a right to maintenance out of an estate and that estate is transferred, 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.

• the Dharmashastras, in verse, of which the three great ones are the Manusmriti, the oldest and most authoritative, the Yajnavalkya Smriti, better arranged and more liberal, especially to women, and the Narada Smriti, the most practical and the most concerned with procedure.

Where two Smritis conflict, the rule was that the one more consonant with reason and usage prevails, and it was through that rule that the commentators shaped the law.

3. Commentaries and Digests. From about the ninth century, jurists wrote commentaries (nibandhas) on a single Smriti and digests collecting many. These became the immediate source of the modern law, because it was the commentary current in a region that the courts applied.

• The Mitakshara of Vijnaneshwara, eleventh century, a commentary on the Yajnavalkya Smriti, which prevails throughout India except Bengal and Assam and has four sub-schools, Benares, Mithila, Bombay and Dravida.
• The Dayabhaga of Jimutavahana, twelfth century, a digest, which prevails in Bengal and Assam and has no sub-schools.
• Others of standing: the Vivada Ratnakara, Dayatattva, Vyavahara Mayukha and Smriti Chandrika.

5. Legislation. Now the paramount source. Section 4 of each of the codifying Acts gives the Act overriding effect: any text, rule or interpretation of Hindu law, and any custom or usage, ceases to have effect in respect of any matter for which provision is made in the Act, and any other law inconsistent with it ceases to apply. The principal statutes are:

• Hindu Marriage Act, 1955;
• Hindu Succession Act, 1956, substantially amended in 2005;
• Hindu Minority and Guardianship Act, 1956;
• Hindu Adoptions and Maintenance Act, 1956, amended in 2010;

and beyond the "Hindu Code", the Special Marriage Act, 1954, the Dowry Prohibition Act, 1961, the Family Courts Act, 1984, the Commission of Sati (Prevention) Act, 1987, the Protection of Women from Domestic Violence Act, 2005, the Prohibition of Child Marriage Act, 2006, the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 and the Juvenile Justice Act, 2015.

For full marks, cover: what judicial separation is under section 10; the differences in a table; then the full list of divorce grounds under sections 13(1), 13(1A), 13(2) and 13B; and the bars in sections 14 and 23.

PART ONE: JUDICIAL SEPARATION AND DIVORCE

Judicial separation, section 10. Either party to a marriage may present a petition for judicial separation 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 shall no longer be 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 considers it just and reasonable to do so.

Divorce, section 13, dissolves the marriage.

The differences.

Why the relief exists. Judicial separation is a cooling-off relief. It relieves a spouse of the duty to live with the other, and of the risk of a restitution decree, while leaving the marriage in place and the possibility of reconciliation open. It is also the route by which a party who cannot yet establish a ground of divorce, or who is within the one-year bar of section 14, can obtain immediate protection and then, after a year of non-cohabitation, a divorce under section 13(1A)(i).

PART TWO: THE GROUNDS OF DIVORCE

A. Section 13(1), available to either party, on the ground that the other party:

1. has had, after the marriage, voluntary sexual intercourse with any person other than the spouse, 13(1)(i);

Leprosy, formerly clause (iv), was omitted by the Personal Laws (Amendment) Act, 2019.

B. Section 13(1A), available to either party, that there has been no resumption of cohabitation for one year after a decree of judicial separation, or no restitution of conjugal rights for one year after a decree of restitution. No fault need be proved, and even the spouse who obtained the earlier decree may petition: Dharmendra Kumar v. Usha Kumar (1977).

C. Section 13(2), available to the wife alone:

1. pre-Act polygamy, that the husband had married again before the commencement of the Act, or that another wife married before the commencement was alive at the solemnisation of the petitioner's marriage, that other wife being alive at the presentation of the petition;
2. that the husband has since the marriage been guilty of rape, sodomy or bestiality;