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

The preamble states the object: to provide for the establishment of Family Courts with a view to promoting conciliation in, and securing the speedy settlement of, disputes relating to marriage and family affairs and for matters connected therewith.

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.

By section 3(f)(ii) two persons are sapindas of each other if one is a lineal ascendant of the other within those limits, or if they have a common lineal ascendant who is within the limits of sapinda relationship with reference to each of them.

Under section 3(1)(a) of the Hindu Succession Act, 1956 a person is an agnate of another if the two are related by blood or adoption wholly through males; under section 3(1)(c) a person is a cognate if they are related by blood or adoption but not wholly through males.

Sanskritisation is the process, named by M.N. Srinivas, by which a lower caste, tribe or other group takes over the customs, ritual, beliefs, ideology and style of life of a higher, twice-born caste, in order to claim a higher position in the local hierarchy. It is positional change within the system, not a change of the system: the group may rise, the ladder remains.

Section 3(1) of the Dowry Prohibition Act, 1961 provides that if any person, after the commencement of the Act, gives or takes or abets the giving or taking of dowry, he shall be punishable with imprisonment for a term which shall not be less than five years, and with fine which shall not be less than fifteen thousand rupees or the amount of the value of such dowry, whichever is more. The proviso allows the court, for adequate and special reasons to be recorded in the judgment, to impose a sentence of imprisonment for a term of less than five years.

• "Living separately" does not mean living in separate houses. It means not living as husband and wife, and parties under one roof who have ceased all marital relations satisfy it: Sureshta Devi v. Om Prakash (1991).
• The consent must subsist until the decree. In Sureshta Devi the Supreme Court held that either party may unilaterally withdraw consent at any time before the decree, and that mutual consent must continue till then. Smruti Pahariya v. Sanjay Pahariya (2009) affirmed it.
• The court must be satisfied of the averments, and section 23(1)(bb) requires it to be satisfied 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 that the period in section 13B(2) is directory, not mandatory, and may be waived where: the statutory period of one year of separation under section 13B(1) has already expired before the first motion; all efforts at mediation and reconciliation have failed and there is no likelihood of success; the parties have genuinely settled their differences including alimony, custody and any other pending issues; and the waiting period would only prolong their agony. The application for waiver may be made after one week from the first motion.

3. Contracting debts for family purposes and for the family business, binding the shares of all.
4. Acknowledging a debt so as to extend limitation, but not executing a fresh promissory note creating a new liability.
5. Referring a dispute to arbitration, and entering into a bona fide family settlement.
6. Gift of a small portion of movable property for pious purposes or out of affection, and of a reasonable area of immovable property to a daughter on her marriage; a general gift of immovable property is void.
7. Alienation, his narrowest power: sale or mortgage only for legal necessity (apatkale), benefit of the estate (kutumbarthe), or indispensable religious or pious purposes (dharmarthe). The leading case is Hunoomanpersaud Panday v. Mussumat Babooee Munraj Koonweree (1856), where the Privy Council held the power to be limited and qualified and required the lender to make bona fide enquiry into the necessity.

Duties. To maintain every member entitled to maintenance; to meet the marriage expenses of unmarried daughters and coparceners; to pay the family's debts and taxes; to perform its religious and funeral ceremonies; to manage honestly and not waste; and to render accounts on partition.

• Section 4: the court may order the male contracting party, or, if he was himself a child, his parents or guardian, to pay maintenance and provide residence to the female until her remarriage.
• Section 5: the court shall make orders for the custody and maintenance of the children of the marriage, the welfare and best interests of the child being the paramount consideration.
• Section 9: a male adult above eighteen years who contracts a child marriage is punishable with rigorous imprisonment up to two years, or fine up to one lakh rupees, or both.
• Section 10: whoever performs, conducts, directs or abets a child marriage is punishable in the same terms, unless he proves he had reason to believe it was not a child marriage.

Void marriages, section 11 of the Hindu Marriage Act, 1955. Any marriage solemnised after the commencement of the Act shall be null and void and may, on a petition presented by either party against the other, be so declared by a decree of nullity if it contravenes any one of the conditions in clauses (i), (iv) and (v) of section 5, that is:

• 5(i), either party had a spouse living at the time of the marriage;
• 5(iv), the parties are within the degrees of prohibited relationship, unless the custom governing each of them permits;
• 5(v), the parties are sapindas of each other, unless the custom governing each of them permits.

Voidable marriages, section 12. A marriage, whether solemnised before or after the commencement of the Act, is voidable and may be annulled on any of four grounds:

• 12(1)(a), the marriage has not been consummated owing to the impotence of the respondent;

(a) Meena's remedy is a decree of nullity under section 12(1)(a).

Section 12(1)(a) makes a marriage voidable and liable to be annulled by a decree of nullity on the ground that the marriage has not been consummated owing to the impotence of the respondent. Mahesh was impotent at the time of the marriage and continues to be so, so the marriage has not been and cannot be consummated.

Three points must be made about this ground.

The difficulty is section 23(1)(a). The court must be satisfied that the petitioner is not in any way taking advantage of his or her own wrong or disability. Meena has committed adultery, which is a matrimonial wrong. The better view is that the bar does not defeat her petition, because the "own wrong" must have a nexus with the relief claimed: her adultery did not cause Mahesh's impotence and is not the foundation of her petition for nullity. She should nevertheless expect the point to be taken, and a full answer says so.

(b) Yes. Mahesh may petition for divorce on the ground of Meena's adultery under section 13(1)(i).

Section 13(1)(i) allows divorce on the ground that the other party has, after the solemnisation of the marriage, had voluntary sexual intercourse with any person other than his or her spouse. Meena's relationship with Ramesh is exactly that, and since the Marriage Laws (Amendment) Act, 1976 a single act suffices; the standard of proof is the balance of probabilities. He may also plead cruelty under section 13(1)(ia).

(a) No. Ashok has no rights whatever over the money or the flat.

The gifts were made to Ria by her father at the time of the marriage. They are her stridhana, and section 14(1) of the Hindu Succession Act, 1956 provides that any property possessed by a female Hindu, whether acquired before or after the commencement of the Act, is held by her as full owner and not as a limited owner, the Explanation expressly including property acquired by gift and property held as stridhana. She is therefore the absolute owner and may deal with it as she pleases.

Three consequences follow.

1. The demand is itself an offence. Section 4 of the Dowry Prohibition Act, 1961 punishes a person who demands, directly or indirectly, from the parents or other relatives or guardian of a bride or bridegroom, any dowry with imprisonment of not less than six months, extending to two years, and fine up to ten thousand rupees. A demand for the transfer of property in connection with the marriage is caught, and by section 8A the burden of proving that he did not demand dowry is on the accused. Section 8 makes the offence cognizable, non-bailable and non-compoundable, and section 5 makes any agreement to give or take dowry void, so a transfer obtained by the demand would be unenforceable.
2. Cruelty as a criminal offence. Harassment of 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. Formerly section 498A of the Indian Penal Code.
3. Cruelty as a matrimonial ground. In Shobha Rani v. Madhukar Reddi (1988) the Supreme Court held that persistent demands for dowry amount to cruelty and that cruelty need not be intentional. So Ria may petition for divorce under section 13(1)(ia) or for judicial separation under section 10 of the Hindu Marriage Act, 1955.

The threat of divorce is not itself unlawful, since either party may petition on a statutory ground; what is unlawful is the demand and the harassment used to enforce it. Say so, rather than treating the threat as the offence.

2. Judicial separation, section 10, on the same ground, if she does not want the marriage dissolved. It relieves her of the duty to cohabit, preserves her inheritance rights as a Class I heir, and a year's non-resumption then founds a divorce under section 13(1A)(i).
3. Maintenance pendente lite and expenses of the proceeding, section 24, and permanent alimony and maintenance, section 25, the latter allowing a gross or periodical sum secured by a charge on his immovable property, and requiring the court to have regard to the conduct of the parties.
4. Custody, maintenance and education of Sonu, section 26, under which the court may pass interim orders during the proceeding and orders after the decree.

His having no job is not an answer to the maintenance claim. An able-bodied man is presumed capable of earning, and courts fix maintenance on his earning capacity, not merely on his present income. In Rajnesh v. Neha (2020) the Supreme Court required an affidavit of disclosure of assets and liabilities from both parties and directed maintenance from the date of the application.

• Guardianship and custody are different things. Guardianship is the legal office; custody is the physical care of the child.
• Section 13(1) makes the welfare of the minor the paramount consideration in any appointment or declaration of a guardian by a court, and section 13(2) provides that no person shall be entitled to guardianship under the Act if the court is of opinion that it will not be for the welfare of the minor. Mohan beats the child. That is decisive: a court cannot hold that guardianship by a man who assaults his daughter is for her welfare, and section 13(2) then removes his entitlement altogether.
• The Supreme Court has said repeatedly that a father's right is preferential and not absolute and yields to welfare: Gaurav Nagpal v. Sumedha Nagpal (2009), Rosy Jacob v. Jacob A. Chakramakkal (1973), Nil Ratan Kundu v. Abhijit Kundu (2008), where the Court held that the antecedents and conduct of the claimant are material.
• Githa Hariharan v. Reserve Bank of India (1999) read "after him" in section 6(a) as "in the absence of the father", physical or otherwise. Sonu is with Kavita and Mohan's conduct has driven them out, so Kavita may act as natural guardian.

A and B are friends, not relations, so neither is an heir to the other and section 21, the presumption of simultaneous death, has no work to do. Each estate is worked out separately under section 8 of the Hindu Succession Act, 1956.

(a) A's property: the mother takes the whole. The father and the sister take nothing.

Section 8 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. Class II is reached only "if there is no heir of Class I".

The mother is a Class I heir. The father is a Class II heir, standing alone in entry I of Class II, and the sister is in entry II of Class II.

1. By a declaration of intention to separate. A coparcener's clear and unequivocal declaration that he wishes to separate effects a severance, and the property need never be physically divided. In Raghavamma v. Chenchamma (1964) the Supreme Court held that the intention must be communicated to the other coparceners, and that severance takes effect from the date of communication, not from the date the intention was formed. An uncommunicated intention, however clearly recorded, fixes nothing.
2. By notice. A written notice or registered letter conveying that declaration. This is the usual way of making the communication Raghavamma requires, and the date of service is the date of severance.
3. By agreement. A mutual agreement among the coparceners to hold in defined shares. Once made, the status is severed and the members hold as tenants in common, even if they continue to live together and enjoy the property jointly.
4. By suit for partition. The institution of a suit is itself an unequivocal declaration, so severance dates from the filing of the plaint, not from the decree. A consequence worth stating: a plaintiff who dies during the suit dies as a divided member, and his fixed share passes to his heirs.

9. By renunciation. A coparcener who enters a religious order and renounces the world goes out of the coparcenary in the same way.
10. By marriage under the Special Marriage Act, 1954. Section 19 of that Act provides that the marriage of a member of an undivided Hindu family who professes the Hindu, Buddhist, Sikh or Jaina religion shall be deemed to effect his severance from that family.

Who may demand partition. Every coparcener, which since the 2005 Amendment includes a daughter; a son, grandson and great-grandson within the four degrees; a minor coparcener through his next friend, where the court is satisfied that partition is in his interest; an absent coparcener, whose share is kept apart; and a son of a void or voidable marriage to the extent of his father's share: Revanasiddappa v. Mallikarjun (2023). A father's wife and a widowed mother cannot demand partition, but in Mitakshara law they take a share equal to a son's when partition takes place between sons.

For full marks, cover: to whom the Act applies; the five conditions of section 5 each with the consequence of breach; the definitions in section 3(f) and (g) that two of them depend on; section 7 with Bhaurao Lokhande; section 8 with Seema; the effect of the Prohibition of Child Marriage Act on the age condition; and section 16 on the children.

A. Application, section 2. The Act applies to any person who is a Hindu by religion in any of its forms or developments, including a Virashaiva, Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj; to any Buddhist, Jaina or Sikh; and to any other person domiciled in India who is not a Muslim, Christian, Parsi or Jew, unless it is proved that he would not have been governed by Hindu law. It does not apply to a Scheduled Tribe unless the Central Government otherwise directs, section 2(2).

B. The five conditions of section 5.

Condition 1, monogamy, section 5(i): neither party has a spouse living at the time of the marriage. This is the only condition admitting of no customary exception.

Condition 4, prohibited degrees, section 5(iv): the parties are not within the degrees of prohibited relationship, unless the custom or usage governing each of them permits such a marriage. Section 3(g) defines the degrees: where one is a lineal ascendant of the other; where one was the wife or husband of a lineal ascendant or descendant of the other; where one was the wife of the brother, or of the father's or mother's brother, or of the grandfather's or grandmother's brother of the other; or where the two are brother and sister, uncle and niece, aunt and nephew, or the children of a brother and sister or of two brothers or of two sisters.

Condition 5, sapinda relationship, section 5(v): the parties are not sapindas of each other, unless the custom or usage governing each of them permits it. Section 3(f) defines sapinda relationship as extending as far as the third generation inclusive in the line of ascent through the mother and the fifth inclusive through the father, the line being traced upwards from the person concerned, who counts as the first generation.

The Explanation to section 3(f) and (g) widens both: relationship includes half and uterine blood as well as full blood, illegitimate as well as legitimate, and by adoption as well as by blood.

C. The consequences of breach.

D. Ceremonies, section 7. A Hindu marriage may be solemnised in accordance with the customary rites and ceremonies of either party, and where those rites include the saptapadi, the seven steps taken jointly before the sacred fire, the marriage is complete and binding on the taking of the seventh step. There is no single prescribed form; what must be proved is the ceremony customary to the parties. This matters most in bigamy: Bhaurao Shankar Lokhande v. State of Maharashtra (1965) held that a second marriage is bigamy only if validly solemnised with the essential ceremonies, and mere cohabitation is not enough; Kanwal Ram v. Himachal Pradesh (1966) and S. Nagalingam v. Sivagami (2001) apply it.

E. Registration, section 8. A State Government may make rules for registration and may make it compulsory, breach of a compulsory rule being punishable with a fine up to twenty-five rupees; but section 8(5) provides that the validity of a Hindu marriage is in no way affected by the omission to make the entry. In Seema v. Ashwani Kumar (2006) the Supreme Court directed all States to make registration of marriages of all citizens compulsory.

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

This abolished the Hindu woman's estate, under which a widow held for her life and the property reverted to her husband's heirs. In V. Tulasamma v. Sesha Reddy (1977) the Supreme Court held that property given to a widow in recognition of her pre-existing right to maintenance falls under section 14(1) and becomes absolute, and that section 14(2) is confined to grants creating a new and independent title.

B. The general order, section 15(1): the property devolves according to the rules in section 16,

• (a) firstly, upon the sons and daughters (including the children of any predeceased son or daughter) and the husband;
• (b) secondly, upon the heirs of the husband;
• (c) thirdly, upon the mother and father;
• (d) fourthly, upon the heirs of the father;
• (e) lastly, upon the heirs of the mother.

C. The source rule, section 15(2), which operates "notwithstanding anything contained in sub-section (1)":

Example one. She dies leaving her husband H, a daughter D, and the two children of a predeceased son S. Three shares in the first line: H, D and the branch of S. So H one-third, D one-third, and S's two children one-sixth each. Her parents take nothing.

Example two. She dies childless, leaving her husband H, and the property is what she had inherited from her father. Section 15(2)(a) applies, and the property goes not to H but to the heirs of her father, ascertained under Rule 3 by applying section 8 to her father as if he had died intestate immediately after her.

F. Special systems, section 17. For persons who would have been governed by the marumakkattayam or aliyasantana law, sections 8, 10, 15 and 23 apply with modifications. For a female intestate the substituted order is (a) sons and daughters, including the children of any predeceased son or daughter, and the mother; (b) the father and the husband; (c) the heirs of the mother; (d) the heirs of the father; (e) the heirs of the husband, and section 15(2)(a) and section 23 do not apply at all. The mother rises into the first entry and the husband falls to the second: the matrilineal principle made statutory.

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; section 12 with its provisos; sections 15 and 16 on cancellation and proof; and the CARA route.

A. Section 6, the four-fold test. 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.

An adoption that fails any one of the four is void, and the effect of section 6 is that the four later sections which fill it in are cumulative, not alternative.

B. Requisite one: capacity and right of the adopter.

No person except the father, the mother or the guardian may give a child in adoption, section 9(1). By section 9(2) as substituted in 2010, the father or the mother, if alive, have an equal right, and neither may exercise it 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.

By section 9(4), where both parents are dead, have renounced the world, have abandoned the child, or are of unsound mind, or the parentage is not known, the guardian may give the child with the previous permission of the court, to any person including the guardian himself; and by section 9(5) the court must be satisfied that the adoption is for the child's welfare, giving due consideration to the child's wishes according to age and understanding, and that no payment or reward has passed.

The Explanation provides that "father" and "mother" do not include an adoptive father or mother, so an adopted child cannot be given away again.

D. Requisite three: capacity of the child, section 10. The person must be (i) a Hindu; (ii) not already adopted; (iii) not married, unless a custom permits; and (iv) not have completed fifteen years, unless a custom permits.

E. Requisite four: the other conditions, section 11.

F. What follows: sections 12, 15 and 16. By section 12 the child is deemed to be the child of the adoptive parents for all purposes from the date of the adoption, 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.