Family law Flashcards
Sociologists on family
geroge medrock
david cooper
marx
Edmund Leech
family exists in every society so it is universal → norms differ (banaro and igbo tribes)
nuclear family is the death of family
family is for reproduction to increase workforce
Runaway families → nuclear family children rebel, too much pressure, too many responsibilities
Maintenance vs Alimony
MAINTENANCE
1. 125 of crpc
2. wife or anyone can file
3. objective- sustenance : person shouldn’t become destitute
4. till remarriage or death
ALIMONY
1. 498
2. One time payment to maintain a certain status
3. Filed after divorce and paid up front
Two types of family
Procreation- Family though marriage
Orientation- Family in which one is born
Gurunath v Kamlabai
- deals with justice, equity and good conscience
- PRINCIPLE- in the absence of any clear shastrik texts the courts have the authority to decide cases on the basis of justice, equity and good conscience unless it is shown that the decision would be repugnant to or inconsistent with any doctrine of Hindu law (RELATED TO CUSTOMS)
Collector of Madhura v Muttu Ramlingam
- deals w customs
- zamindar dies w/o sons - back then the property would go to state - widow adopts a son - after her death notice comes stating property will go to state - son files a case - back then custom was husband can adopt with the permission of wife- here widow had adopted after permission from kin of husband - since the custom was a legitimate one in that community it was held that property would go to the son
- same with Jagmohan v Official Liquidator
- zamindar dies w/o sons - back then the property would go to state - widow adopts a son - after her death notice comes stating property will go to state - son files a case - back then custom was husband can adopt with the permission of wife- here widow had adopted after permission from kin of husband - since the custom was a legitimate one in that community it was held that property would go to the son
approved marriages
Bhrama, Arsha, Daiva, Prajapatya
disproved marriages
asura, gandharva, rakshsha and paishacha
different marriages under the code
Pratiloma (wife from higher caste than husband), which were prohibited
- Anuloma ( higher caste man lower caste woman) - allowed
Abdul Kadir v Salima
- related to RCR
- Marriage under Islam is a civil contract - Civil Marriage Theory
- Whether the petition for restitution of conjugal rights might be filed before the payment of dower?
- RCR contingent on payment of dower.
Winans v AG
- related to domicile
- X born in US. Stayed there till 25. Lived in UK for next 40 years. In UK, he developed a health condition UK thus could not stay in UK in winter. So as per doctor order he used to go to Caribbean in winter. X dies.
- Domicile? (continuous residence + you wanna make that place your permanent home)
- his wife was from UK, his friends were from UK, he had two houses w/ structural changes → all of this show his intention to reside there
- his business was making spindle shaped vessels which we would use against US; he also had plans to shift his business to Baltimore, US → his business plans definitely show intention to go back to US
- Held → US domicile
- X born in US. Stayed there till 25. Lived in UK for next 40 years. In UK, he developed a health condition UK thus could not stay in UK in winter. So as per doctor order he used to go to Caribbean in winter. X dies.
White v. Tenant
- Facts: M abandoned home in State X and took his family to a house in State Y intending to live there permanently. They returned to X to spend a night with a relative. M fell ill and died there.
- Held: domicile at death was in Y.
lex citus/ situs -
lex loci celebrationis -
lex domicile -
renvoi-
- ex citus/ situs - where it is situated - immovable property
- lex loci celebrationis - under which law have you celebrated -for marriage
- lex domicile - for marriage
- renvoi- if court finds there are foreign elements
- whenever there is a foreign element - private internal laws (PIL) apply
Y Narasimha Rao v. Y Venkata Lakshmi
- Facts: In this case, appellant (Narasimha) married to respondent (Venkata) in Tirupati, India as per Hindu law in 1975. The couple last resided together in New Orleans and then appellant moved to USA. Later, in 1978, appellant filed a petition for dissolution of marriage in the Missouri, USA and obtained the decree for irrevocable breakdown of marriage by technically satisfying the requirement of residence of 90 days in the State of Missouri, USA. The wife had clearly stated that she did not submit to the jurisdiction of the Missouri Court. Appellant married other women and hence, respondent filed a criminal complaint against the appellant for bigamy.
- Held: Hon’ble Court found the present decree passed by the foreign court was without jurisdiction according to the Act as neither the marriage was celebrated nor the parties last resided together nor the respondent resided within the jurisdiction of that Court.
Lalithamma vs Kannan
sec 2 to be read with
art 342 and 494
Dr. Surajmani Stella Kujur v. Durga Charan Hansdah - Sec 2(2)
- The wife, an Oraon tribal filed a suit against the husband, a Santhali tribal for the solemnization of a second marriage under the HMA.
- Though they were practicing Hindus, STs shall be governed by their customs and usages under 2(2).
- Neither the reference of the alleged custom mandating monogamy was being made in the complaint nor the appellant could establish the existence of a custom which made the second marriage void, ineffectual, having no force of law or incapable of being enforced.
- Thus, it was emphasized that mere pleading of a custom stressing for monogamy by itself was not sufficient to constitute the offence of bigamy
- Since the second marriage being void is essential for attracting 494 under IPC the husband was not liable
Mohandas v. Devaswom Board (Jesudas case) - conversion by declaration
- A popular playback singer, Jesudas was a Catholic Christian by birth who later converted to Hinduism. He filed a declaration stating he was a follower of the Hindu faith, thus issuing a bona fide declaration that he had accepted the Hindu faith and was in fact, converted genuinely. The Court accepted this declaration and said that henceforth, Hindu laws would apply to him.
Perumal v. Ponnuswami - conversion by acceptance
- 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.
- One has to look at the intention and conduct of the convert and if the consensus of the community into which they were initiated is sufficiently indicative of their conversion, then the lack of some formalities cannot negate what is an accomplished fact.
Abraham v. Abraham - conversion by ceremonies
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.
Lajya Devi v. Smt. Kamala Devi (S3)
- that the respondent Kamla Devi filed a suit for declaration to the effect that she was the only legal heir entitled to inherit the estate of Inder Parkash, her husband with a prayer for directing the appellant herein not to proclaim herself as the widow of – said Inder Parkash. The suit was resisted mainly on the ground that the same was barred by time and that Kamla Devi had been divorced by said Inder Parkash in accordance with the custom prevalent in Rajouri district. The appellant claimed to be the only legally wedded wife of the deceased.
- The court observed: The essential attributes of a valid custom are, therefore, that it should be ancient, reasonable, must have continued or observed without interruption, and must be certain of its nature and the person to whom it is alleged to effect, besides being uniform and obligatory. It should not be immoral or opposed to public policy.
- Since that custom of divorce was of recent origin it was not a custom
- “The evidence in the case showed that the isolated marriages being three to four in number were dissolved on the basis of so called custom from 1947 onwards which means that for a period of seven to eight years before the Act regualting the Hindu marriages was enforced in the State of Jammu and Kashmir. The custom relied upon by the appellant cannot, therefore, be treated to be a custom within the meaning ofSection 3 of the Act.”
Baluswamy v. Balakrishna (1957) – Against public policy
- Facts: A person had married his grand-daughter. The man contested that this was a well-established custom.
- Held: But the court held him guilty as it was against public policy.
Sec 5 read with
S 7, 11, 17, 18, 25, 494 AND 495
Bhaurao Shankar Lokhande v State of Maharashtra - Sec 5(i) r/w Sec 7
Bhaurao Shankar Lokhande v State of Maharashtra - Sec 5(i) r/w Sec 7
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
Ramesh Chandra Daga v Rameshwari Daga - Sec 5(i) r/w Sec 11 and 25
- 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)
Lily Thomas v UOI
- Conversion to any religion especially Islam w/o dissolving your previous marriage is bigamy
Surjit Kaul v Jhujhar Singh
- 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
-Kanwal Ram v The HP Administration - Sec 5(i) r/w Sec 7
- admission of marriage by accused is no evidence of marriage for the purpose of proving an offense of bigamy
section 7 is r/w
8, 11, 17, 18, 494 ipc and 114 (evidence act)
Suryamariyathai marriages
- section- 7(a)
- priests not needed
- friends and relatives
- TN and Pondi
Cae laws for section 7
- Nitin v Rekha
- Balakrishna Pandia v Superintendent of police
case laws for suryamaryathai marriages
- indra sarma v kv sarma
- N Ramalingam v sivagami (7+17+494IPC)
Balakrisnan Pandian v Superintendent of police - certificate of solemnization
- 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.
Nitin v Rekha
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
case laws related to section 5(i)- no living spouse
- Bhaurao Lokhande v State of MH
- Ramesh Daga v Rameshwari Daga
- Surjit Kaul v Jhujur Singh
- Lily Thomas v UOI
- Dr Surajmani Stella v Durga Charan Hansdah
- Bhogdada Kannababu v Vuggini Pyduamma
- Rajesh v Neha
