Family law Flashcards

Question

Ramesh Chandra Daga v Rameshwari Daga - Sec 5(i) r/w Sec 11 and 25

Answer 1

- X gets married - problem arises b/w families and marriage ceremonies is not completed - goes to live with husband but files for divorce later - there was no legal divorce that happened so she went to community to get customary divorce ( choran chitthi)- gets married again and she has a daughter - X alleges the new husband is mistreating her so she files for judicial separation and asks for maintenance of 3000 - husband files that second marriage is void as at the time of marriage she was already married (absence of court order dissolving the marriage) - held that second marriage was null and void as the existence of the customary divorce was not proved - now question arose if she can be given maintenance under section 25 - court said under 25 it says that ‘at the time of passing any decree or any time subsequent thereto’ so this incudes section 11 , 12 , 13 as well. - Why should the man be paying maintenance? - a bigamous marriage may be declared illegal but it cannot be said to be immoral so as to deny even the right to maintenance when she is financially weak. It is with the purpose of not leaving the financially dependent spouse destitute. - Sec 25 is an enabling provision - empowers court to consider circumstances of the spouse to decide on maintenance. If, for example, daughter reached marriageable age and wanted an increase in maintenance - court asked her to apply under 25 (2)

Answer 2

- Conversion to any religion especially Islam w/o dissolving your previous marriage is bigamy

Answer 3

- Facts: This case contradicts SPS Balasubramanyam which said for unmarried couples who cohabit for a long time, a presumption is raised that they lived as husband and wife - Held: Mere living together as husband and wife does not confer the status of married couple unless the customs and ceremonies have been performed. Distributing Gur and Sugar does not make a marriage valid. Marriage without performance of necessary ceremonies is void

Answer 4

- admission of marriage by accused is no evidence of marriage for the purpose of proving an offense of bigamy

Answer 5

8, 11, 17, 18, 494 ipc and 114 (evidence act)

Answer 6

1. section- 7(a) 2. priests not needed 3. friends and relatives 4. TN and Pondi

Answer 7

1. Nitin v Rekha 2. Balakrishna Pandia v Superintendent of police

Answer 8

1. indra sarma v kv sarma 2. N Ramalingam v sivagami (7+17+494IPC)

Answer 9

- R.Ram Prasath, the petitioner, has stated that he was in love with the detenue and they both got married in 2014, which was registered on the same day and that after the marriage-the detenue went back to her parents house - He alleged in his affidavit that the parents of the detenue are keeping her in illegal custody and trying to get her forcibly married to someone and therefore- sought for issuance of Writ of Habeas Corpus - The detenue filed a counter narrating the sequences of events -The petitioner has averred that a marriage certificate was issued by an advocate Sivakumar. “I have never met the advocate nor visited his office. These certificates relied upon by the petitioner have been obtained by fraud and collusion and I have never married the petitioner or consented to the same” - In course of the investigation it was found that an Advocate has solemnised 205 marriages in 2013 in the G.T.Court Bar Association room, however these were fraud - Held -[a] Marriages performed in secrecy in the chambers of Advocates and Bar Association Rooms, will not amount to solemnisation and only women who are victims of such marriage can question the same in matrimonial proceedings before the appropriate Court as a question of fact. We also hold that the Certificate of Solemnisation issued by Advocates will not be per se proof of Solemnisation of Marriage in a matrimonial dispute.

Answer 10

N (appelant) - challanging order by family court of restitution of conjugal rights - R cliams to have married to Rajesh in 1988 and had two children but continues to live with X because of her children -R claims they got married by tying the mangalsutra and putting sindoor in front of Lord Krishna (around 2011 )- N’s parents say there is no marriage and start looking for matches - N gets engaged - R files a complaint of rape, promise of marriage w/ police, compliant before NHRC and asked for Restitution of conjugal rights w/ the family court - He claims that 8th August 2013 R demanded 10 lakh Rs. to withdraw sexual assault charges before his engagement on 13th - he pays under duress and shows to court the thank you message - she asked for money again - the family court on the basis of text messages b/w them said they were marriage - However, the HC said no valid form - in FIR she didn’t write marrige date or husband name - she said the marrige happened in gandharbh form - Court observes that there was no registration of marrige and according to R no one knew about the marrige including the parents of the appellants - N said he was from the Marwari community and would have required huge dowry and because she was maharashtrian brahmin his family would not accept her- in cross examination she also agreed that she knew certain ceremonies had to be performed under HMA - but she said she didn’t know the rituals needed in an agarwal community like vermala (exchange of garlands), puja of groom by MIL, Kanyadan etc. - R also admitted that she has never seen a marrige where only sindoor and mangalsutra are performed - HC said that it is vividly visble that after going through one marrige she clearly knows what rituals a marrige would entail ; she has failed to prove either maharashtrain or marwadi form of marrige ; on going through the text messages it it clear that there was no marrige; - Where a marrige has been performed with any modified customs of shastric law it must be pleaded and proved that it is a custom - in the absence of such a pleading any evidence you bring in won’t help

Answer 11

1. Bhaurao Lokhande v State of MH 2. Ramesh Daga v Rameshwari Daga 3. Surjit Kaul v Jhujur Singh 4. Lily Thomas v UOI 5. Dr Surajmani Stella v Durga Charan Hansdah 6. Bhogdada Kannababu v Vuggini Pyduamma 7. Rajesh v Neha

Answer 12

- X married Y in 1966 and Z in 1962 - Case filed against X and Z - held for bigamy - the facilitator of the marriage ( X brother ) held under 114 ( abetment of crime) - Case went to SC, questions the scope of 494 - Whoever marries means whoever marries validly or the marriage is a valid one - we assume the first marriage is validly performed - marriage must be solemnized ( celebrate the marriage w/ proper ceremonies and due form in due form ) - in the absence of proper ceremonies there is no solemnization so no bigamy - court asked 2nd wife if there was a ceremony performed as per customs - both were from same community where there was a requirement of other things than sapdpati but they were not done ( no priest, coconut, just exchange of garlands) - since the customs of wife/husband/ community not done it was held there was no ,marriage - therefore no bigamy, this was also reiterated in **Dr. AN Mukherjee v. State.**

Answer 13

- X gets married - problem arises b/w families and marriage ceremonies is not completed - goes to live with husband but files for divorce later - there was no legal divorce that happened so she went to community to get customary divorce ( choran chitthi)- gets married again and she has a daughter - X alleges the new husband is mistreating her so she files for judicial separation and asks for maintenance of 3000 - husband files that second marriage is void as at the time of marriage she was already married (absence of court order dissolving the marriage) - held that second marriage was null and void as the existence of the customary divorce was not proved - now question arose if she can be given maintenance under section 25 - court said under 25 it says that ‘at the time of passing any decree or any time subsequent thereto’ so this incudes section 11 , 12 , 13 as well. - Why should the man be paying maintenance? - a bigamous marriage may be declared illegal but it cannot be said to be immoral so as to deny even the right to maintenance when she is financially weak. It is with the purpose of not leaving the financially dependent spouse destitute. - Sec 25 is an enabling provision - empowers court to consider circumstances of the spouse to decide on maintenance. If, for example, daughter reached marriageable age and wanted an increase in maintenance - court asked her to apply under 25 (2)

Answer 14

every penny earned/ inherited is accounted for for deciding the amount for maintenance

Answer 15

Conversion to any religion especially Islam w/o dissolving your previous marriage is bigamy

Answer 16

- Facts: This case contradicts SPS Balasubramanyam which said for unmarried couples who cohabit for a long time, a presumption is raised that they lived as husband and wife - Held: Mere living together as husband and wife does not confer the status of married couple unless the customs and ceremonies have been performed. Distributing Gur and Sugar does not make a marriage valid. Marriage without performance of necessary ceremonies is void

Answer 17

- Held: Sc allowed second marriage as the custom was proved to exist in their society.

Answer 18

Children born out of void marriages also have a share in the inheritance.

Answer 19

Kanwal Ram v. HP Priya v. Suresh Gopal Lal v. State of Rajasthan

Answer 20

Where a spouse contracts a second marriage while the first marriage is still subsisting the spouse would be guilty of bigamy under Section 494 it is proved that the second marriage was a valid one in the sense that the necessary ceremonies required by law or by custom have actually been performed. The voidness of marriage under Section 17 of the HMA is in fact one of the essential ingredients of Section 494 because the second marriage will become void only because of the provisions of Section 17 of HMA.

Answer 21

o The parties were married in Punjab in 1972. In 1985, a petition for divorce by mutual consent was filed in court at Amritsar. The appellant wife alleged that she was not a consenting party and the petition was dismissed in 1987 following an agreement on the basis of which she would be put back in the matrimonial home. Three months later, the respondent husband filed a regular petition for divorce alleging adultery against his wife. The appellant wife refuted the claim and the Court granted her maintenance pendent lite at Rs. 1000 per month under Section 24. She claimed permanent alimony and maintenance under section 25 of the Hindu Marriage Act. o High Court: held that the application under Section 25 was not maintainable as the matrimonial court at Amritsar had not passed any decree for restitution of conjugal rights, judicial separation, nullity or divorce. o Supreme Court:  The right of permanent maintenance in favour of the husband or the wife is dependent on the court passing a degree of the kind envisaged under Sections 9-14 of the Hindu Marriage Act. Without the marital status being affected or disrupted by the matrimonial court under the Hindu marriage Act, the claim of permanent alimony was not valid as it was incidental to such disruption.  While sustaining her marriage and preserving her marital status, a Hindu wife’s claim to maintenance is codified under Section 18 of the Hindu Adoptions and Maintenance Act and must be agitated thereunder. Both the statutes are codified as such and are clear on their subjects and by liberality of interpretation inter-changeability cannot be permitted so as to destroy the distinction on the subject of maintenance.

Answer 22

Facts: the appellant’s/Ramesh’s (husband) first marriage was formalised with Usha. They had three children out of this marriage. The respondent/Rameshwari (wife) was married to man named Girdhari Lal Lakhotia. According to the respondent, the standard ceremonies of marriage were not finished – she sought a divorce but no pronouncement of separation was passed. In this situation, as per the pervasive custom of the Maheshwari people group (or Chhor Chithhi) – a report of disintegration of marriage was executed between the respondent and her past husband and this was disclosed by the wife to the appellant. Later, appellant and respondent got married and had one child. Rameshwari became the victim of domestic violence, she left the house with her daughter. She filed a complaint against Ramesh where she sought a decree of judicial separation for cruelty and claimed maintenance of Rs. 3000 per month. Ramesh filed a cross petition stating at the time of his marriage with Rameshwari, her first marriage was not completely dissolved and was pending before court In this case, the Supreme Court held that the marriage solemnised between the respondent and the appellant is considered as null and void because it was against the provision of Section 5(i) of the Act, the court did not give validity to the customary divorce instituted by the respondent.  Despite holding the marriage to be null and void, the court granted the permanent maintenance to the wife by widely interpreting Section 25 of the HMA. The Court stated that Section 25 enables the court to award maintenance at the time of passing any type of decree resulting in breach in marriage relationship and says that any type of decree issued by the court comes under the ambit of any type of decree. Enabling provision as it empowers the court in a matrimonial case to consider facts and circumstances of the spouse and decide whether or not to grant permanent maintenance.

Answer 23

1. SARLA MUGDAL V UOI 2. LILY THOMAS V UOI 3. SURJIT KAUR V GARJA SINGH

Answer 24

ALKA SHARMA V ABHINESH CHANDRA SHARMA

Answer 25

- Summary : if either not fit for procreation or fit for marriage → valid grounds ( rearing and caring is a part of procreation) - Facts ⇒ Husband and Wife lived together immediately after the marriage for about 12 days in the first instance and then after a bit at the parents’ house for 7 days → the total stay of the wife with the husband was thus nineteen days → petition filed within 1 year → husband claimed that on the honey-moon night itself, he discovered that the wife was “**abnormal and erratic in behaviour”** {as per Court} → refused sexual intercourse on the very first night and showed all signs of a person not mentally sound → stated that during her second visit, on one occasion she became extremely uncontrollable and violent → psychiatrist had to be called to examine her → when the doctor was called, they discovered that the woman was a patient of their’s and they had to inform the family that she was not of sound mind from before → proves this wasn’t a valid consent - Court held that nullity of marriage under the word “and” between expression “unfit for marriage” and “procreation of children”, in Sec. 5 (ii) (b) should be read as “and” / “or” 2. PROCREATION INVOLVES REARING AND CARING FOR THE CHILDREN AND NOT JUST BIRTHING THEM

Answer 26

1. WHYSALL V WHYSALL 2. KARTIK V MANJURANI 3. BANI DEVI V BANERJEE 4. alka chandra sharma v abhinash chandra sharma

Answer 27

- In order to decide the nature and degree of unsoundness of mind, which can furnish a good ground to nullify a marriage, the SC has relied upon this test - Test for ability for reasonable man – 1. Able to maintain himself and his affairs. 2. He should be able to handle social problems and married life

Answer 28

X marries Y - X alleged that after solemnisation of marriage when the Y was brought to the residence of the appellant Y was found not to have been behaving like a normal person at night - immediately send back to parent’s house- X alleged that Y’s father hid her lunacy - approaches court - Held → “it may be that on next two or three nights after the marriage the first respondent showed certain abnormal behaviours but these facts by themselves without more by no means could establish that the first respondent was a lunatic at the time of marriage. In this case, the appellant and his relations who negotiated the marriage adopted an attitude which to say the least, was highly unnatural and unusual for in such a situation the reasonable attitude of appellant's near relations ought to have been to keep the first respondent with them and watch at least for some time to see whether she was really suffering from insanity. It is common experience that man may behave sometime like an insane person; but because of such behaviours it would be dangerous to conclude that such a man is a lunatic.”

Answer 29

X marries Y - X alleged that after solemnisation of marriage when the Y was brought to the residence of the appellant Y was found not to have been behaving like a normal person at night - immediately send back to parent’s house- X alleged that Y’s father hid her lunacy - approaches court - Held → “it may be that on next two or three nights after the marriage the first respondent showed certain abnormal behaviours but these facts by themselves without more by no means could establish that the first respondent was a lunatic at the time of marriage. In this case, the appellant and his relations who negotiated the marriage adopted an attitude which to say the least, was highly unnatural and unusual for in such a situation the reasonable attitude of appellant's near relations ought to have been to keep the first respondent with them and watch at least for some time to see whether she was really suffering from insanity. It is common experience that man may behave sometime like an insane person; but because of such behaviours it would be dangerous to conclude that such a man is a lunatic.”

Answer 30

Held: if post taking regular medication, the person becomes normal, he can’t be held as insane, but if he has to live an artificial existence protected from normal incidents throughout the day, he can be termed incurable and thus insane.

Answer 31

7,12(1)(c) , 13(2)(iv) and 18(a) + PCMA- 2, 3, 9,10, 11, 20 + HMGA Act - 4a, 6a, 6c, 13 + IPC 375(2) + POCSO (3.5.6), SMA 4, 24

Answer 32

1. T Sivakumar v. Inspector of Police Thiruvallur Town Police Station 2. Independent Thought v UOI- IPC 375(2) 3. Lajja Devi v State 4. Gajara Naran Bhura v Kaubi Kunverbai 5. Birupakshya Das v Kunja Behari

Answer 33

o "The practice of early marriage of Hindu minors-may be sanctioned by usage; but it has been disapproved by the passing of the Child Marriage Restraint Act of 1929".

Answer 34

o "The practice of early marriage of Hindu minors-may be sanctioned by usage; but it has been disapproved by the passing of the Child Marriage Restraint Act of 1929".

Answer 35

1. shakuntala v amarnath 2. baluswami v balakrishna

Answer 36

cousin marriage custom is valid

Answer 37

custom abhorrent to morality will not stand. It will be seen at a glance that the fourth plaintiff is the daughter's daughter of Ramaswami Reddiar who claims to have been married to her own grandfather according to a custom prevalent in their community with the result that plaintiffs 1 to 3 and defendants 3 to 5 had been begotten on the fourth plaintiff by Ramaswami Reddiar.

Answer 38

1. Sareetha v subbiah 2. harvinder kaur v harmendar kaur 3. saroj rani v sudarshan 4. joeseph shine v uoi 5. soli 6. chethna 8. hariharan v rbi 7. russel v russel 8. bitto v ram deo 9. puttaswamy

Answer 39

Decriminalization of Adultry - discussed privacy of individuals even in the institution of marriage - matrimonial rights and obligation should also be within the purview of constitutional rights - For the first time court talked about public private divide ( matrimonial v constitutional rights) - You cannot carve out spaces where constitutional rights can be violated - constitutional principles are applicable here - since in present day marriages the two are at par constitutional principles should be applicable - earlier woman was the property - Public/ Private divide is irrelevant when it comes to individual rights - eg- domestic violence cases as punishable - Marriage is a relationship b/w two equal people coming together → the institution itself is not an individual right bearer - Decisional privacy v Institutional privacy→ highlights this divide - Currently the scales are in the favor of Decisional Privacy - “any institution that treats women w/ indignity, inequity or discrimination invites the wrath of the Constitution.” - what was once acceptable may change w/ change in society →a constitutional bench cannot say entrenched w/ a precedent when the lives of actual ppl at stake - The right to self determination connotes right to sexual self determination

Answer 40

sexual freedom and right for self determination - “Privacy is the ultimate guarantee against violations caused by programmes not unknown to history, such as state imposed sterilization programmes or mandatory state imposed drug testing for women. The challenge in this area is to enable the state to take the violation of the dignity of women in the domestic sphere seriously while at the same time protecting the privacy entitlements of women grounded in the identity of gender and liberty. ”

Answer 41

pending - contests Sec 9 of HMA and Sec 22 of Special Marriage Act and Order 21, Rule 32 and 33 of CPC- GHNLU Students via Sanjay Hegde

Answer 42

The wife was granted restitution of conjugal rights, however, there was no action taken for a year and therefore she files for a divorce. The husband claims that the wife herself refused to resume marital obligations, however the court stated that there was no evidence to indicate that she was taking advantage of her own wrong doing and therefore, she was granted divorce.

Answer 43

X and Y marry - Wife filed a petition for restitution of conjugal rights that she had been ill treated and turned out - The husband opposed but his defense was struck out -She applied for permanent alimony - A decree of restitution of conjugal rights in her favor was granted - The husband filed a petition for divorce on 25.8.81 u/s 23(1A)(ii) of the [Hindu Marriage Act](https://indiankanoon.org/doc/590166/), 1955 [the Act], on the ground that there has been no restitution of conjugal rights for a period of one year and over. - Held → the the husband in this case cannot apply for divorce as he is barred by Sec 23(1)(a)

Answer 44

- In *Russell* v. *Russell*, Sir Hannen observed that, “*I have not once known a restitution petition to be genuine, that these were merely a convenient device either to enforce a money demand or to obtain divorce.”* [Restitution of conjugal rights has outlived its founding rationale, undesirable for social transformation]

Answer 45

X and Y marry - Wife filed a petition for restitution of conjugal rights that she had been ill treated and turned out - The husband opposed but his defense was struck out -She applied for permanent alimony - A decree of restitution of conjugal rights in her favor was granted - The husband filed a petition for divorce on 25.8.81 u/s 23(1A)(ii) of the [Hindu Marriage Act on the ground that there has been no restitution of conjugal rights for a period of one year and over. - Held → the the husband in this case cannot apply for divorce as he is barred by Sec 23(1)(a)

Answer 46

The petitioner, who was married with a son, applied to the respondent, the Reserve Bank of India ("RBI"), for bonds to be held in the name of their minor son and had signed off as his guardian. The respondent sent back the application to the petitioner, advising her to either produce the application signed by her son's father or produce a certificate of guardianship from a competent authority in her favor. The respondent was of the opinion that the petitioner's husband was the natural guardian on the basis of Section 6(a) of the Hindu Minority and Guardianship Act, 1956 (HMGA). That provision stated that the father is the natural guardian of a Hindu minor child and the mother is the guardian “after” the father. The petitioner challenged the constitutional validity of this provision in the Supreme Court on grounds that it violated the right to equality guaranteed under Articles 14 and 15 of the Indian Constitution. The Supreme Court, relying on gender equality principles enshrined in the Indian Constitution, CEDAW and UDHR, widely interpreted the word “after” in the provision and upheld the constitutional validity of Section 6(a) HMGA, 1956. It held that both the father and mother are natural guardians of a minor Hindu child, and the mother cannot be said to be natural guardian only after the death of the father as that would not only be discriminatory but also against the welfare of the child, which is legislative intent of HMGA, 1956. This case is important because it established for the first time that a natural guardian referred to in the HMGA, 1956 can be a father or a mother: whoever is capable of and available for taking care of the child and is deeply interested in the welfare of the child, and that need not necessarily be the father.

Answer 47

SC has held that the mother's right to guardianship is not lost automatically after her remarriage.

Answer 48

, it was held that a mother's right to guardianship is not lost upon conversion to another religion if she is able to provide proper care to the minor.

Answer 49

husband alleged unchastity of wife to frustrate her claim. relief to wife granted

Answer 50

1. Niranjini rao v roshan 2. birender kaur v UOI

Answer 51

held- both parties should be hindu at the time of filing for divorce under this act (man was Christian)

Answer 52

HELD- "HINDU" WORD DOES NOT MAKE INDIA LESS SECULAR. CONSTITUTION IS ALL-EMBRACING. HINDUISM HAS A HISTORY OF LEGENDARY TOLERANCE

Answer 53

1. SAPNA JACOB V STATE OF KERALA 2. SHASTRI V MULDAS

Answer 54

1. Child of hindu mother and christian facther denied SC benefit because she was held to be a christian 2. no evidence of a hindu upbringing was found

Answer 55

non- satsangi harijans allowed entry to satsangi swaminatha temple as it was held that it is no way separate from the concept of hinduism

Answer 56

1. abraham v abraham 2. jesudas case 3. dr surajmani v durga charan hansdah 4. perumal v ponniswamy

Answer 57

Abraham, whose ancestors were Hindu, converted to Christianity. On his death, his widow brought a suit for recovery of his estate which was opposed by his brother on the basis that he was still governed by Hindu law of his ancestors despite his conversion. Privy Council held he had elected against Hindu law due to his renunciation of Hindu customs, and adoption of Christian traditions and way of life

Answer 58

Christian singer becomes Hindu by bonafide declaration

Answer 59

it was emphasized that mere pleading of a custom stressing for monogamy by itself was not sufficient to constitute the offence of bigamy.

Answer 60

* SC held that a person may also become a Hindu if after expressing an intention, expressly or impliedly, they live as a Hindu and the community they are ushered into accepts them as a member of that community

Answer 61

ndergoes a formal ceremony prescribed by the community, or o Expresses bona fide intention to become a Hindu accompanied by conduct + acceptance of them as a member of the community, or o Bona fide declaration