BLS LLB 5 Years Sem 7 Family Law II 2025-26 - ATKT 60/40 Question Paper with Solutions

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

Section 3(f)(ii) adds that 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.

The Act disqualifies an heir in two cases only. Section 25 disqualifies a person who commits murder or abets the commission of murder 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. Section 26 disqualifies the children born to a person after that person has ceased to be a Hindu by conversion, and their descendants, from inheriting the property of any of their Hindu relatives, unless they are Hindus when the succession opens.

Section 21 of the Hindu Succession Act, 1956 provides that where two persons have died in circumstances rendering it uncertain whether either of them, and if so which, survived the other, then for all purposes affecting succession to property it shall be presumed, until the contrary is proved, that the younger survived the elder.

Section 5 of the Hindu Marriage Act, 1955 lays down five conditions. Two of them are:

1. Monogamy, section 5(i): neither party has a spouse living at the time of the marriage. Breach makes the marriage void under section 11 and is bigamy under section 17.
2. Age, section 5(iii): the bridegroom has completed twenty-one years and the bride eighteen years at the time of the marriage. Breach does not make the marriage void or voidable under this Act, but is punishable under section 18(a).

2. Gandharva the voluntary union of a man and a woman out of desire, without the consent of the elders;
3. Rakshasa marriage by forcible abduction of the bride;
4. Paisacha the seduction of a woman who is asleep, intoxicated or of unsound mind, the most condemned of all.

A patriarchal family is one in which authority is vested in the eldest male, descent and the family name are traced through the male line, and property passes from father to son. The typical Hindu joint family, with the karta at its head, is patriarchal, patrilineal and patrilocal.

A matriarchal family is one in which authority rests with the eldest female, descent and inheritance are traced through the female line, and the husband is admitted into the wife's household rather than the wife into his.

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 to the district court for restitution of conjugal rights, and the court, on being satisfied of the truth of the statements and that there is no legal ground why the application should not be granted, may decree restitution. The Explanation places the burden of proving reasonable excuse on the person who has withdrawn.

Enforcement is not by physical compulsion. Order XXI Rule 32 of the Code of Civil Procedure allows a decree for restitution to be enforced by attachment of property, and if disobedience continues for six months, by sale; and non-compliance for one year becomes a ground of divorce under section 13(1A)(ii).

The constitutional challenge.

An in camera proceeding is one held in the judge's chamber or in a closed court, from which the public and the press are excluded, and of which the report and publication are restricted.

Family Courts Act, 1984, section 11. In every suit or proceeding to which the Act applies, the proceedings may be held in camera if the Family Court so desires, and shall be so held if either party so desires. The word "shall" is the point: on a party's request the Court has no discretion.

Hindu Marriage Act, 1955, section 22. As substituted in 1976, every proceeding under the Act shall be conducted in camera, and it shall not be lawful for any person to print or publish any matter in relation to it except a judgment of the High Court or the Supreme Court printed or published with the court's previous permission. Contravention is punishable with fine up to one thousand rupees.

Special Marriage Act, 1954, section 33 is in identical terms for proceedings under that Act.

2. The prohibited acts, section 8(2). Without the previous permission of the court the natural guardian shall not: (a) mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the immovable property of the minor; or (b) lease any part of it for a term exceeding five years or for a term extending more than one year beyond the date on which the minor will attain majority.
3. The consequence of breach, section 8(3). Any disposal of immovable property in contravention of sub-section (1) or (2) is voidable at the instance of the minor or any person claiming under him. It is not void: the minor may affirm it, and if he does nothing, he must sue to avoid it within three years of attaining majority, under Article 60 of the Limitation Act, 1963.
4. The test for permission, section 8(4). The court shall not grant permission except in case of necessity or for an evident advantage to the minor.
5. Procedure, section 8(5) and (6). An application for permission is governed by the Guardians and Wards Act, 1890 as if it were an application under section 29 of that Act, and an order refusing permission is appealable to the court to which appeals ordinarily lie from the decisions of that court.

Permanent alimony and maintenance, section 25. Any court exercising jurisdiction under the Act may, at the time of passing any decree or at any time subsequent to it, on the application of either the wife or the husband, order the other to pay for the applicant's maintenance and support a gross sum or a monthly or periodical sum for a term not exceeding the applicant's lifetime, having regard to the respondent's own income and other property, the applicant's income and property, the conduct of the parties and other circumstances of the case; and it may secure the payment by a charge on the respondent's immovable property.

• Section 25(2): if the court is satisfied that there is a change in the circumstances of either party, it may vary, modify or rescind the order.
• Section 25(3): if the court is satisfied that the party in whose favour the order was made has remarried, or, being the wife, has not remained chaste, or, being the husband, has had sexual intercourse with any woman outside wedlock, it may vary, modify or rescind the order.

(a) A, B and C each take one-third. C's conversion makes no difference.

Conversion does not disqualify the convert himself. The Caste Disabilities Removal Act, 1850 abolished forfeiture of rights of property on renouncing a religion, and the Hindu Succession Act, 1956 did not restore it. Section 26 of the 1956 Act disqualifies only the children born to a convert after the conversion, and their descendants; it says nothing about the convert.

Section 28 confirms this by closing the list: no person shall be disqualified from succeeding on the ground of any disease, defect or deformity, or, save as provided in this Act, on any other ground whatsoever. Conversion of the heir is not one of the grounds provided.

So the estate divides into three shares: one for A, one for B, one for the branch of C. The branch's one-third is divided equally among CS1, CS2 and CS3, giving each one-ninth. If C had left a widow as well, she would have shared that one-third equally with the three sons, giving each one-twelfth.

Section 18(1) provides that a Hindu wife, whether married before or after the commencement of the Act, is entitled to be maintained by her husband during her lifetime. That is the general right and it does not depend on her living with him.

Section 18(2) lists the grounds on which a Hindu wife is entitled to live separately without forfeiting her claim to maintenance:

• (a) desertion, that is abandoning her without reasonable cause and without her consent or against her wish, or 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 the wife is living, or habitually resides with a concubine elsewhere;
• (f) if he has ceased to be a Hindu by conversion;
• (g) if there is any other cause justifying her living separately.

(Clause (c), virulent leprosy, was omitted by the Personal Laws (Amendment) Act, 2019.)

Section 23(1) makes the amount a matter for the discretion of the court. Section 23(2), which governs a claim by a wife, children or aged or infirm parents, directs the court to have regard to:

• (a) the position and status of the parties;
• (b) the reasonable wants of the claimant;
• (c) if the claimant is living separately, whether the claimant is justified in doing so;
• (d) the value of the claimant's property and any income derived from it, or from her own earnings or any other source;
• (e) the number of persons entitled to maintenance under the Act.

• If no share was reserved, the child, on being born alive, may have the partition reopened. Reopening for a son who was in the womb at the time is one of the settled grounds on which a completed partition is set aside, along with fraud, mistake and the omission of property.

The statute takes the same view for succession. Section 20 of the Hindu Succession Act, 1956 provides that a child who was in the womb at the time of the death of an intestate and who is subsequently born alive shall have the same right to inherit as if he or she had been born before the death, and the inheritance is deemed to vest from the date of the intestate's death.

Two conditions are essential and should be stated: the child must have been conceived at the date of the partition, and must be born alive. A child conceived afterwards has no such right, and instead takes a share on a fresh partition or by succession.

(b) No. The child in the daughter's womb cannot demand a share in her father's coparcenary property.

The reasoning has two steps.

The child's rights therefore arise through the mother and not against the grandfather: on the daughter's death her share devolves under section 15, and her children are in the first entry of section 15(1). Section 6(3) makes the same assumption when it provides that on the death of a coparcener the share of a predeceased child of a predeceased daughter is allotted to that child; the child takes by succession through the daughter, not by birth in the coparcenary.

So the answer is that the child, when born, cannot demand partition or a share from its maternal grandfather's coparcenary. What it will take, in due course, is a share of its mother's own share.

The appointment was competently made. Under section 9(1), a Hindu father entitled to act as the natural guardian of his minor legitimate children may by will appoint a guardian in respect of the minor's person, or the minor's property other than the undivided interest referred to in section 12, or both. Ramesh was the natural guardian under section 6(a) and could appoint Mahesh.

But section 9(2) defeats it on these facts. It provides that an appointment made by the father under sub-section (1) shall have no effect if the father predeceases the mother, but shall revive if the mother dies without appointing, by will, any person as guardian.

Ramesh died in 2024 and Sunita survived him. His appointment of Mahesh therefore has no effect. On Ramesh's death Sunita became the natural guardian in her own right under section 6(a), which names "the father, and after him, the mother".

Section 9(5) confirms the timing: a guardian appointed by will has the right to act after the death of the minor's father or mother, as the case may be. Mahesh's right, being contingent on section 9(2), has not arisen and may never arise.

Even so, the will does not have the last word. Section 13(1) provides that in the appointment or declaration of any person as guardian by a court, the welfare of the minor shall be the paramount consideration, and section 13(2) provides that no person shall be entitled to guardianship by virtue of the provisions of this Act if the court is of opinion that his or her guardianship will not be for the welfare of the minor. So if Priya were unfit, or if it were shown that Aryan's welfare lay with Mahesh, a court acting under the Guardians and Wards Act, 1890 could remove her and appoint another, and the will would yield.

For full marks, cover: the three theories the Act uses; the nine grounds in section 13(1) with the statutory periods and a case for each of the main ones; the two grounds in section 13(1A); the four grounds available to a wife alone; mutual consent under section 13B; the bars in sections 14 and 23; and the position on irretrievable breakdown.

The Act does not adopt one theory of divorce. It uses three, and the quickest way to organise the answer is to say which ground belongs to which.

• The guilt or fault theory: section 13(1) and section 13(2). One spouse must prove a matrimonial offence by the other.
• The breakdown theory, in a limited statutory form: section 13(1A), and the two grounds in section 13(1)(vi) and (vii), where no fault need be proved.
• The consent theory: section 13B.

A. Fault grounds available to either party, section 13(1).

Leprosy, formerly section 13(1)(iv), is no longer a ground. It was omitted by the Personal Laws (Amendment) Act, 2019, which also removed it from the Special Marriage Act, the Dissolution of Muslim Marriages Act and the Hindu Adoptions and Maintenance Act. Textbooks printed before 2019 still list it.

The three that carry the case law.

Adultery. The standard of proof is preponderance of probabilities in a matrimonial court, not proof beyond reasonable doubt, and it is usually proved by circumstances rather than direct evidence. Note that Joseph Shine v. Union of India (2018) struck down section 497 of the Indian Penal Code, so adultery is no longer a crime; it remains a ground of divorce and the Court said so expressly.

B. Breakdown grounds, section 13(1A). Either party may petition on the ground that:

• there has been no resumption of cohabitation for one year or more after a decree of judicial separation; or
• there has been no restitution of conjugal rights for one year or more after a decree of restitution.

Neither requires proof of fault. In Dharmendra Kumar v. Usha Kumar (1977) the Supreme Court held that even the spouse who obtained the earlier decree may petition, because mere non-compliance is not "taking advantage of one's own wrong" under section 23(1)(a); there must be conduct that is itself wrongful.

C. Grounds available to the wife alone, section 13(2).

1. Pre-Act polygamy, 13(2)(i): the husband had another wife living at the time of the marriage, provided that wife is alive when the petition is presented.

D. Divorce by mutual consent, section 13B. A joint petition on the ground that the parties have been living separately for one year or more, that they have not been able to live together, and that they have mutually agreed to dissolve the marriage. The second motion must be made not earlier than six months and not later than eighteen months after the petition, and either party may withdraw in the meantime. In Amardeep Singh v. Harveen Kaur (2017) the Supreme Court held the six-month period is directory, not mandatory, and may be waived where the parties have already lived apart for more than the statutory period, all issues including alimony and custody are settled, and there is no possibility of reconciliation. "Living separately" means not living as husband and wife, not necessarily under different roofs.

E. The bars.

• Section 14: no petition for divorce within one year of the marriage, unless the court allows it on the ground of exceptional hardship to the petitioner or exceptional depravity of the respondent.

For full marks, cover: section 6 as the four-fold test; capacity to take under sections 7 and 8 including the 2010 amendment; who may be given, section 10; the six conditions in section 11; who may give, section 9 including the 2010 amendment and the guardian's power; the effects in section 12 with all three provisos; sections 13 to 16; and the CARA alternative.

The paper prints "Hindu Adoptions and Maintenance Act, 1955". The Act is of 1956.

A. The requisites, section 6. No adoption is valid unless four requirements are satisfied:

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;

C. Who may be adopted, section 10. The person must be a Hindu; must not already have been adopted; must not have been married, unless custom permits; and must not have completed fifteen years, unless custom permits.

D. The other conditions, section 11.

1. On adopting a son, the adopter must have no Hindu son, son's son or son's son's son living, whether by blood or by adoption.
2. On adopting a daughter, the adopter must have no Hindu daughter or son's daughter living.
3. A male adopting a female must be at least twenty-one years older than her.
4. A female adopting a male must be at least twenty-one years older than him.
5. The same child may not be adopted by two or more persons simultaneously.
6. The child must be actually given and taken, with intent to transfer him from the family of birth to the family of adoption; the proviso adds that datta homam is not essential.

E. Persons capable of giving in adoption, section 9.

• Section 9(5): before granting permission the court must be satisfied that the adoption is for the welfare of the child, having regard to the child's own wishes according to age and understanding, and that no payment or reward has passed except what the court sanctions.
• Explanation: "father" and "mother" do not include an adoptive father or mother; "guardian" means a person having the care of the child's person or of person and property, including a guardian appointed by the will of the child's father or mother and one appointed or declared by a court.

F. Effects of a valid adoption, section 12. From the date of the adoption the child is deemed to be the child of the adoptive father or mother for all purposes, and all ties in the family of birth are severed and replaced by those created in the adoptive family. Three provisos qualify the severance:

• (a) the child cannot marry any person whom he or she could not have married had he or she continued in the family of birth;

For full marks, cover: what nullity is and how it differs from divorce; void marriages under section 11 with the grounds from section 5; voidable marriages under section 12 with the bars in section 12(2); the differences in a table; section 16 in all three sub-sections; and Revanasiddappa v. Mallikarjun (2023).

The paper prints "Hindu Marriage Act, 1954" in this question. The Hindu Marriage Act is of 1955; 1954 is the Special Marriage Act.

A. What nullity is. A decree of nullity declares that there never was a valid marriage. It differs from divorce, which dissolves a marriage that was valid up to the decree. The Act provides for two categories: void marriages under section 11 and voidable marriages under section 12.

• 12(1)(a) the marriage has not been consummated owing to the impotence of the respondent;
• 12(1)(b) the marriage is in contravention of section 5(ii), that is unsoundness of mind, mental disorder unfitting the party for marriage and the procreation of children, or recurrent attacks of insanity;
• 12(1)(c) the consent of the petitioner, or of the guardian where consent was required, was obtained by force or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent;
• 12(1)(d) the respondent was, at the time of the marriage, pregnant by some person other than the petitioner.

Section 12(2) bars the last two:

• for 12(1)(c), no petition lies if it is presented more than one year after the force ceased or the fraud was discovered, or if the petitioner has, with full consent, lived with the other party as husband and wife after the force ceased or the fraud was discovered;

E. Legitimacy of the children, section 16.

• Section 16(1): notwithstanding that a marriage is null and void under section 11, any child of such marriage who would have been legitimate if the marriage had been valid shall be legitimate, whether or not a decree of nullity is granted, and whether or not the marriage is held void otherwise than on a petition under the Act.

For full marks, cover: section 8 and the four classes; the sixteen Class I heirs; section 9 on order; section 10 with all four rules and a worked example; Class II and section 11; agnates, cognates and sections 12 and 13; the notional partition under section 6; sections 25 to 29; and Chander Sen on the character of inherited property.

A. The order, section 8. The property of a male Hindu dying intestate devolves:

1. firstly, upon the heirs in Class I of the Schedule;
2. secondly, if there is no Class I heir, upon the heirs in Class II;
3. thirdly, if there is no heir of either class, upon his agnates; and
4. lastly, upon his cognates.

• Rule 3. The heirs in the branch of each predeceased son and in the branch of each predeceased daughter take between them one share.
• Rule 4. Within a predeceased son's branch, his widow (or widows together), his surviving sons and his surviving daughters take equal portions; within a predeceased daughter's branch, her surviving sons and daughters take equal portions.

So the scheme is per capita in the first line and per stirpes below it.

A worked example. X dies leaving two widows W1 and W2, his mother M, a son S, a daughter D, and a predeceased son PS survived by his widow SW and one son SS.

Shares in the first line: the two widows together (1) + M (1) + S (1) + D (1) + the branch of PS (1) = five shares.

So W1 and W2 take one-tenth each (one-fifth between them), M, S and D take one-fifth each, and the branch of PS takes one-fifth, which SW and SS divide equally under Rule 4, giving each one-tenth.

H. Disqualifications and escheat. Sections 25 to 28: murder disqualifies, the children born to a convert after conversion are disqualified, a disqualified person is treated as having predeceased, and there is no other disqualification. Section 29: where there is no heir qualified to succeed, the property devolves on the Government, which takes it subject to all the obligations and liabilities attaching to it.