A STUDY ON TERRITORIAL DIVERSITIES AND

PERSONAL LAWS IN INDIA WITH SPECIAL REFERENCE

TO GOA AND PONDICHERRY

DISSERTATION
Submitted
to
The Tamil Nadu Dr. Ambedkar Law University
in partial fulfillment of the requirement
for the degree of

MASTERS OF LAW
IN
LABOUR AND ADMINISTRATIVE LAW

By
U. RAGA JOTHI

(PE16014)

Supervisor
Tmt.
ASSISTANT PROFESSOR
Dr. AMBEDKAR GOVT. LAW COLLEGE, CHENNAI

Dr. AMBEDKAR GOVT. LAW COLLEGE

CHENNAI-600104
TAMIL NADU, INDIA
APRIL 2017
 i

Tmt. ,
Assistant Professor,
Dr. Ambedkar Govt. Law College,
Chennai - 600 104,
Tamil Nadu, India.

CERTIFICATE

This is to certify that the dissertation entitled ―

is a record of research work done by, Ms. U.RAGA JOTHI (PE16014) during

the period 2017-2018 under my guidance and it represents the independent work

on the part of the candidate.

Tmt.
Supervisor
 ii

U.RAGA JOTHI

(PE16014)

LABOUR AND ADMINISTRATIVE LAW

Dr. Ambedkar Govt. Law College,

Chennai 600 104,

Tamil Nadu, India.

DECLARATION

I hereby declare that this dissertation entitled ―

submitted by me for the award of Degree of the Masters of Law is a bona

fide record of work carried out by me during 2017-2018 under the

guidance and supervision of Tmt. , Assistant Professor, Dr.

Ambedkar Govt. Law College, Chennai and that the work has not been

submitted either wholly or in parts for the award of any other degree,

diploma, fellowship or any other similar title in this or any other

university or other similar institution of higher learning.

Station: Chennai

Date:

(U.RAGA JOTHI)
 iii

ACKNOWLEDGEMENT

First and foremost, I thank, ‗The Lord Almighty‘for blessing me with

grace and strength to complete this piece of work.

I am profoundly indebted to my guide Tmt. , Assistant Professor, Dr.

Ambedkar Govt. Law College, Chennai, for her valuable guidance, spontaneous
help and concrete suggestions extended to me throughout the period of study.

I extend my sincere thanks to Principal, Prof. Dr. C.Chockalingam,

Dr.Ambedkar Govt. Law College, Chennai, for his inspiration, keen interest on the
students, constant encouragement and for giving me this golden opportunity to be
a part of this prestigious institution.

My deepest and loving gratitude to all the Faculty Members in

Dr.Ambedkar Govt. Law College, Chennai for their help during the course of
study.

It gives me immense pleasure to thank all my friends especially Mr.R.

Siddharth, Mr. A. Dharanidharan, Ms. T. Saroja Devi, Mr.M.Sanathkumar,

Mr. Daniel G. Steephen and Ms. R. Suganya for their generous co-operation,
valuable suggestions, support and timely help.

It is my privilege and pleasure to express my profound and heartfelt thanks

to Mr. , Advocate, High Court, for his support and encouragement.

I owe my deepest and loving gratitude to my parents and all my family

members.

( U. RAGA JOTHI )
 iv

CONTENTS

Contents Page No.

CERTIFICATE i

DECLARATION ii

ACKNOWLEDGEMENT iii

CONTENTS iv

ABBREVIATIONS x

TABLE OF CASES xii

CHAPTER 1 INTRODUCTION 1

1.1 Objectives of the Study 3

1.2 Hypothesis 3

1.3 Methodology 4

1.4 Limitation of the Study 4

1.5 Scheme of the Study 4

CHAPTER 2 HISTORY OF THE EVOLUTION OF

PERSONAL LAWS OF RELIGIOUS

COMMUNITIES IN INDIA 6

2.1 Parsi Personal Law 6

2.2 Christian Personal Law 10

2.3 Muslim Personal Law 12

2.4 Hindu Personal Law 13

2.5 Jewish Personal Law 14

CHAPTER 3 PERSONAL LAW AND THE

 CONSTITUTION OF INDIA 15

3.1 Personal laws and Legislative Powers 15

3.2 Personal Laws and the Fundamental Rights 18

3.2.1 Personal Laws and Article 13 19

 v

3.2.2 Personal Laws and Article 14 and 15 22

3.2.3 Personal Laws and Religious— Cultural Freedom 23

3.3 Personal Law and Directive Principles 25

3.3.1 Article 44 25

3.3.2 Family Law, Religion and Social Justice 26

3.3.3 Directive Principles and Uniform Civil Code 28

CHAPTER 4 HINDU PERSONAL LAW 34

4.1 Marriage and Divorce under Hindu Personal Law 35

4.1.1 The Nature of Marriage 35

4.1.2 Requisites for a Valid Marriage 36

4.1.3 Void and Voidable Marriage 37

4.1.4 Divorce 38

4.1.5 Judicial Separation 39

4.1.6 Divorce by Mutual Consent 39

4.2 Succession under Hindu Law 40

4.2.1 Intestate Succession to the Property of a Hindu Male 41

4.2.2 Intestate Succession to the Property of a Hindu Female 46

4.2.3 Disqualifications under the Act 47

4.2.4 Testamentary Succession 47

4.3 Guardianship under Hindu Law 47

4.3.1 Guardianship of the person: Minor Children 48

4.3.2 Natural Guardians 48

4.3.3 Testamentary Guardians 49

4.3.4 Guardians Appointed by the Court 50

4.3.5 Guardianship by Affinity 50

 vi

4.3.6 De Facto Guardian 51

4.4 Adoption under Hindu Law 52

4.4.1 Requirements for a valid adoption 53

4.4.2 Capacity of a male to adopt 53

4.4.3 Capacity of a female to adopt 53

4.4.4 Who may give in adoption 54

4.4.5 The person who may be taken in adoption 54

4.5 Maintenance under Hindu Law 55

4.5.1 Maintenance without divorce 56

4.5.2 Maintenance as main relief for wife 56

4.5.3 Grounds for award of maintenance 56

4.5.4 Bar to relief 57

4.5.5 Other dependants who can claim maintenance 57

CHAPTER 5 MUSLIM PERSONAL LAW 58

5.1 Marriage and Divorce under Muslim Law 59

5.1.1 The Nature of Marriage 59

5.1.2 Void and Voidable marriages 60

5.1.3 Divorce 61

5.2 Succession under Muslim Law 67

5.2.1 Sunni Law 67

5.2.2 Shia Law 73

5.3 Guardianship under Muslim Law 73

5.3.1 Classification of Guardianship 73

5.3.2 Rights of Hizanant 78

5.3.3 Determination of Hiznanat 79

 vii

5.4 Adoption under Muslim Law 80

5.5 Maintenance under Muslim Law 81

5.5.1 Rules governing the liability to maintain his children

and grandchildren 81

5.5.2 Maintenance of Unmarried Daughter 82

5.5.3 Maintenance of Wife 82

5.5.4 Maintenance of divorce Muslim woman 83

CHAPTER 6 CHRISTIAN PERSONAL LAW 85

6.1 Marriage and Divorce under Christian Law 85

6.1.1 The Nature of Marriage 86

6.1.2 Requisites for a valid marriage 86

6.1.3 Void and Voidable marriages 87

6.1.4 Divorce 87

6.1.5 Divorce by Mutual Consent 89

6.2 Law of Inheritance for Christians 89

6.2.1 Estate 89

6.2.2 Descendants and Rules of Inheritance 90

6.3 Guardianship under Christian Law 90

6.3.1 Matters to be considered by the Court in appointing

Guardian 91

6.3.2 Court not to appoint Guardian in certain cases 91

6.3.3 Duties of the Guardian of the person 91

6.3.4 The title of the Guardian to custody of award 92

6.4 Adoption under Christian Law 92

6.5 Maintenance under Christian Law 93

 viii

6.5.1 Maintenance under the Indian Divorce Act, 1869 94

6.5.2 Maintenance under Section 125 of Cr.P.C 95

CHAPTER 7 CIVIL CODE OF GOA 99

7.1 Jurisprudence of the Goa Code: Portuguese Civil Code, 1867 100

7.2 Marriage and Divorce laws in the State of Goa 102

7.2.1 Essentials of Marriage 103

7.2.2 Procedure for Marriage under Goa Civil Code 104

7.2.3 Marriage under Goa Code in contrast to Personal Laws 108

7.2.4 Divorce 109

7.3 Inheritance laws in the State of Goa 113

7.3.1 Types of Succession and Successors 114

7.3.2 Acceptance and renunciation of the inheritance 115

7.3.3 Legal Succession 116

7.3.4 Testamentary Succession 118

7.3.5 Disinheritance 119

7.3.6 Mandatory Registration of Births and Deaths and

Succession 119

7.4 Adoption under the Civil Code of Goa 120

7.4.1 Provisions for Adoption under the Code of gentile

Hindu usages and customs of Goa 120

7.5 Maintenance under the Civil Code of Goa 121

7.6 Benefit of Civil Code over Common law for Women 122
 ix

CHAPTER 8 FRENCH CIVIL CODE FOR

RENONCANTS IN PONDICHERRY 123

8.1 Renoncants in Pondicherry 124

8.2 Marriage and Divorce laws for the Renoncants in Pondicherry 126

8.2.1 Qualifications and Conditions required for Contracting

a Marriage 126

8.2.2 Prohibited Marriages 126

8.2.3 Annulment of a Marriage 127

8.2.4 Divorce 128

8.2.5 Judicial Separation 129

8.3 Succession among the Renoncants in Pondicherry 129

8.3.1 The Right of Legitim 129

8.3.2 Existence of Legitim 133

8.3.3 Quantum of Legitim 133

8.3.4 Decisions of the Courts 135

8.4 Adoption among the Renoncants in Pondicherry 137

8.4.1 Plenary Adoption 137

8.4.2 Ordinary Adoption 138

8.5 Guardianship among the Renoncants in Pondicherry 139

8.6 Maintenance among the Renoncants in Pondicherry 139

CHAPTER 9 CONCLUSION 141

BIBLIOGRAPHY 144
 x

Abbreviations

AIR : All India Reporter

All : Allahabad High Court

Bom. : Bombay

Cal. : Calcutta

CJI : Chief Justice of India

Cr.P.C. : Code of Criminal Procedure Code

Cur. L.J. : Current Law Journal

CWN : Calcutta Weekly Notes

FC : Federal Court

h.h.s. : How high soever

h.l.s. : How low soever

HC : High Court

Hyd. : Hyderabad

ILR : Indian Law Reporter

JT : Judgment Today(Supp.)

Ker. : Kerala

LW : Law Weekly

M.P. : Madhya Pradesh

Mad. : Madras

MLJ : Madras Law Journal

Mys. : Mysore

Nag. : Nagpur

P&H : Punjab and Haryana

 xi

p. pp. : Page, pages

Para. : Paragraph

Pat. : Patna

PCC : Portuguese Civil Code

Punj. : Punjab

Raj. : Rajasthan

SC : Supreme Court

SCC : Supreme Court Cases

SCR. : Supreme Court Reporter

Supp. : Supplement

v. : Versus

Vol. : Volume
 xii

TABLE OF CASES

 
 Abdullah v. Chandni, AIR 1956 Bhopal 71.

 
 Ashwani Kumar v. Fulkumari , 77 CWN 349.

 
 Atmaram v. State, AIR 1965 Bom. 9.

 
 Aykut v. Aykut, AIR 1940 Cal 75.

 
 Babu Ram v. Keshavachand, AIR 1978 P & H 124.

 
 Balasaheb v. Jaimala, AIR 1978 Bom 44.

 
 Bethi v. Brawn, AIR 1938 Mad 452.

 
Chinna v. Vinayaghathammal, AIR 1929 Mad 110 at 112.



Diealatchoumianmalle
 v. Madouramnalle, Decision of 21 August
 1968 (unreported).

 
 Ethilulu v. Pathakal, AIR 1950 Mad 390.

 
 Gohar Begum v. Suggi, (1960) 1 SCR 597.

 
 Gurdial Kaur v. Mangal Singh, AIR 1968 P & H 396.

 
 H.B. Singh v. Bhani, AIR 1959 Manipur 20.

 
 Imambandi v. Mutsaddi, (1918) 45 Cal 887.

 
Kannusamy v. Swarnathanmalle, Decision of 29 August 1968 (unreported).


 
 Kannussamy v. Sornathammalle, Judgment of 29 May 1956 (unreported).

 
 Krishan Singh v. Mathura Ahir AIR 1980 SC 707.

 
 Krishnamoorthy Giunder v. Sitarama Gounder, 2002 (3) LW 669.

 
 Kusubai v. Chandrabhaga, AIR 1918 Nag 100.

 
 M.G.K. Pillai v. Kunjulakshmi, AIR 1972 Ker 66.

 
 M.Kadirvelu & ors. v. G.Santhanalakshmi & ors., 2016 3 LW 385.

 
Maniammal v. Mangalakshmy, 1986(1) MLJ 160.
 xiii

 
 Md. Ismail v. Noor-ud-Din, AIR 1986 J & K 14.

 
 Mohammed Allahabad Khan v. Mohammad Ismail, (1886) ILR 8 All 234.

 
Motibai v. Chanayya, AIR 1954 Hyd. 161.



Mouttoukichenapillai
 v. Govindassamy, Decision of 13 August
 1968 (unreported).

 
 Naresh Bose v. S.N. Deb, AIR 1956 Cal. 222.

 
 Panch Gujar Kaur v. Amar Singh, AIR 1954 Raj. 100.

 
Pandurangan v. Sarangapani, (1982) 95 L.W. 318 = 1982 1 MLJ 143.



Philips
 Alfred Malvin v. VJ Gonsalvez, AIR 1999 Ker 187, I (2000) DMC
 540.

 
 Ramalingam v. Manicka Gounder, (1981) 94 L.W. 36 = 1980 (2) MLJ 350.

 
 Rao Mote Singh v. Chandrebali, AIR 1956 M.P. 212.

 
Satya v. Urmila, AIR 1970 SC 1714.



Sebastiao Paulo
 Fernandes v. Filomena Fernandes, Decision of August 2010
 (unreported).


Sockaling Chettiar
 v. Somu Chettiar, Judgment of 19 November 1963
 (unreported).

 
 Srinivas Iyer v. Saraswathi Ammal, AIR 1952 Mad. 1993.

 
 State of Bombay v. Narasu Appa Mali AIR 1952 Bom. 84.
  
 State of Punjab v. Balwant Singh, AIR 1991 SC 1581.

 
 Suda v. Sankappa Rai, AIR 1963 Mys. 245.

 
Syed Shah v. Syed Shah, AIR 1971 SC 2184.



Vasudeva Naiker v.Krishnasamy Naikar, Decision of 4 February
 1936 (unreported).

 
Venkatalakeshnammal v. Balakrishnachari, AIR 1960 Mad 270.
 1

CHAPTER I

INTRODUCTION

India is a secular country. The people in India belong to different religions and
faith. They are governed by different sets of personal laws. The term ―Personal Law‖
includes all those laws which relate to the personal life of human beings. These
include the three major areas of Matrimonial laws, Inheritance Laws and other
―Family Laws‖. India is a country which abounds in personal laws; each community
has its own personal law. The Hindus, the majority community, have their separate
family law; so have the Muslims, the biggest minority community. Smaller minority
communities, the Christians, Parsis and the Jews, whose number, in the context of the
total population of India, is not very significant, too, have their own separate family
laws. Although each of these communities is a religious community, yet it is not
necessary that their personal law is essentially religious law. It is also not necessary
for the application of the personal law that members of the community should be
ardent believers or followers of that religion. In most of the cases, if he is a member
of the community by birth or conversion that will suffice, even though in actual
persuasion he may be an atheist, non-religious, non-conformist, anti-religious or even
decry his faith. So long as he does not give up his faith and embrace another religion
he will continue to be governed by the personal law of the community to which he
belongs.

India has had a long history of personal laws. Till 1935, the Muslims in India
followed different rules according to their practice. Khoja Muslims and Kutchi
Memons are examples of this. The Kutchi Memons worshipped Hindu Gods and Ali
is their tenth avatar instead of Kalki. They had the inheritance laws as per Hindus and
also the marriage laws as per Hindus. When a common Muslim Personal law was
formed, there were many minority creeds of Muslims who had to accept these laws
though they differed from their practices. The Hindu laws, too were different in
different parts of the country. However, they have undergone a turbulent change,
courtesy, geographically united India. Child marriages were banned, Sati was banned,
widow re-marriage was encouraged, divorce was introduced, and inheritance laws
were amended. ―Narabali‖ or human sacrifice, which was considered a religious
 2

practice of Hindus, was also banned. Several other customary practices had also been
modified according to the changing needs of the day.

The study of Hindu legal history shows that during Hindu period there was no
interference of the State with Hindu law. They enjoyed complete immunity and the
whole affairs were regulated by their personal laws. Also during the British period,
legislative immunity was granted to certain specified topics of Hindus and Muslims
laws, which, they considered, were deeply interwoven with religion. The Britishers
did not want to hurt the religious susceptibilities of the Indians. Interference in
religious matters, they considered, was not at all conducive to their friendly trade with
Hindus and Muslims or their political stability. Personal laws have traditionally been
regarded to be beyond the purview of legislature because they are very much
identified with religion or religious beliefs. The very nature of personal laws is such
that the legislature intentionally hesitates in interfering or parting with them.
However, in different periods legislative enactments have been made in this area also.
Some of these tend to modify and some endeavour to restore the personal laws.

As far as the Hindus in India are concerned they have certain laws that govern
them in their personal matters such as marriage, divorce, succession, guardianship,
adoption and maintenance. The following are the Hindu personal laws that govern
them: the Hindu Marriage Act, 1955, the Hindu Succession Act, 1956, the Hindu
Minority and Guardianship Act, 1956 and the Hindu Adoption and Maintenance Act,
1956. Likewise the Muslims have the following personal laws that govern them in
their personal matters, the Muslim Personal Law (Shariat) Application Act, 1937,
Dissolution of Muslim Marriage Act, 1939 and the Wakf Act, 1995. And so do the
Christians who have the Indian Christian Marriage Act, 1872, Indian Divorce Act,
1869, Indian Succession Act, 1925 and the Guardians and Wards Act, 1890. The
question is, are all the persons in India governed by their respective personal laws. It
is a mere myth to say that people in India follow their personal laws because they
follow different religions, having their own laws. The fact is there are different laws
not only because of different religions but also because of regions people live in.
These are called local— regionally different—customary laws. Thus laws differ from
region to region and from religions to community.
 This is the problem with regard to having a Uniform Civil Code throughout
India. I will illustrate my point in detail showing the diversities in different regional
 3

Family laws in different parts of the country. On our western coast is the State of Goa,
where the Portuguese civil law—governing family law and succession—is still
applicable. The Hindus of Goa, Goan Muslims and Goan Christians are still governed
by the Portuguese Civil Code, all their respective personal laws as stated above have
no application to them. Likewise, the Renoncants of the Union Territory of
Pondicherry are still being governed by the French Civil Code. The above mentioned
enactments have in their provisions specifically stated that the Act does not apply to
the Renoncants of Pondicherry.

1.1 Objectives of the Study

The present study has been made having the following objectives:

(a) To study the evolution of different personal laws in India.

(b) To study the Hindu, Muslim and Christian personal laws in India.

(c) To study the personal laws followed in Goa.

(d) To study the French Civil Code applicable to the Renoncants in

Pondicherry.

(e) To study the territorial diversities and personal laws and to suggest

strategies to achieve the Uniform Civil Code in India.

1.2 Hypothesis
The hypothesis framed for the study are as follows:

(a) Do the Hindu, Muslim and Christian personal laws have uniform
application to all the Hindus, Muslims and Christians throughout
India?

(b) Is there a need for implementing the Uniform Civil Code as given
under Article 44 of the Constitution of India?
 4

1.3 Methodology

The research is mainly based on several enactments, court decisions,

conventions, reports, textbooks, articles, journals and web sources. Several textbooks
on the subject, the translated Portuguese Civil Code and the French Civil Code has
also be referred to.

1.4 Limitation of the Study

The study is limited only to the personal laws of Hindu, Muslim and Christian
community people in India. The personal laws with respect to marriage, divorce,
succession, guardianship, adoption and maintenance have been studied into in detail.
The Civil Code of Goa and the French Civil Code that is applicable to the Renoncants
of the Pondicherry has been discussed in detail.

1.5 Scheme of the Study

The present study has been divided under nine chapters.

Chapter I- Introduction, which gives a brief introduction to the personal laws

in India, the objective of the study, the hypothesis and the methodology used for the
study.

Chapter II deals with the historical background of the personal laws in India.
This chapter has been sub-divided into Parsi personal law, Christian personal law,
Muslim personal law, Hindu personal law and Jewish personal law.
 Chapter III deals with the constitutional provision relating to the personal laws
in India. Here the relation of personal laws with the fundamental rights, directive
principles has been discussed.

Chapter IV deals with the Hindu personal laws in India. The laws relating to
marriage and divorce, succession, guardianship, adoption and maintenance applicable
to them has been discussed in detail.

Chapter V deals with the Islamic/Muslim personal laws in India. The laws
relating to marriage and divorce, succession, guardianship, adoption and maintenance
applicable to them are discussed in detail.
 5

Chapter VI deals with the Christian personal laws in India. The laws relating
to marriage and divorce, inheritance, guardianship, adoption and maintenance
applicable to them has been discussed in detail.

Chapter VII deals with the Civil Code of Goa. The jurisprudence of the Goa
Code, the laws relating to marriage and divorce, inheritance adoption and
maintenance under the code has been discussed. The chapter also gives the benefit of
the civil code over common law for women in India.

Chapter VIII deals with the French Civil Code for Renoncants in Pondicherry.
The chapter explains as to who are the Renoncants in Pondicherry. The laws related to
marriage and divorce, succession, adoption, guardianship and maintenance that are
applicable to them.

Chapter IX relates to the concluding observations. This chapter not only

summarizes the conclusion of the present study but also tries to advance a few
suggestions.
 6

CHAPTER 2

HISTORY OF THE EVOLUTION OF PERSONAL

LAWS OF RELIGIOUS COMMUNITIES IN

INDIA

In this chapter the historical development of Personal Laws in India

during the 19th/20th centuries will be considered chronologically.

2.1 Parsi Personal Law

The policy of the British rulers in India was not to be involved with the
Personal matters of the people living in India who had such a great variety of
customs, creeds, beliefs and ceremonies. During the 19th century the policy of
British rulers and law makers was that personal law matters should not be decided
by Civil Courts presided over by British Judges but rather should be left to be
administered by local Panchayats or Akabars or Heads of communities. This was
known as ―Delegated Rule‖. It was only if a community demanded from the
British Rulers that a special Act be promulgated by the Governor ―General in
Council for the members of that particular religious community that a Special Act
was promulgated for such purpose.

In India the position concerning Personal Laws was as follows in the 19th
century: In the territorial area of the Princely States of India the various Laws
applicable in each separate Princely State were applicable to the subjects of each
Prince or Ruler of the State. For Example, Parsi Zoroastrians living in Navsari
was subjects of the Gaekwad of Baroda and as such were governed by the Laws
of the State of Baroda. In the territorial area of British India British laws
applicable in India governed British subjects of Her Majesty Queen Victoria as
well as persons who were not British Subjects but who had their permanent
home/residence in the territory of British India. For Example Parsi Zoroastrians
residing in Surat or Bombay which were within British Indian territory had a
different set of Personal Laws applicable to them upto 1865.
 7

In British India there were three Supreme Courts later called Charter High
Courts, at Bombay, Madras and Fort William, Calcutta. The jurisdiction of these
three Charter High Courts was derived from their grants of Letters Patent by Her
Majesty Queen Victoria. The jurisdiction of the Judges of the Original Side of
these three High Courts was co-equal to that of the Judges of the Supreme Court
in London, England. So far as Matrimonial Jurisdiction was concerned prior to
1857 the Judges of the High Court in England had no power to grant any
matrimonial relief. This power was vested in the Priest Judges of the Church
Courts in England who administered Ecclesiastical Law. In 1857 Parliament at
Westminster enacted the major Statute—the Matrimonial Causes Act 1857. For
the first time in the history of England Civil Judges appointed by Her Majesty
sitting in the Divorce Division of the High Court in London, England could
dispense matrimonial reliefs to persons who had undergone a ―Christian‖
marriage i.e., a monogamous marriage. From 1857 onwards the Supreme Courts/
High Courts in India at Bombay, Madras and Fort William, Calcutta could thus
also dispense the same matrimonial jurisdiction as the Judges in England. By
interpretation of the Letters Patent in India it - was decided that even Jewish
persons whose marriage was monogamous could apply to the High Court for
matrimonial reliefs.

In India the first religious community to demand a separate enactment of

Personal Law was the Parsi Zoroastrians. In the 19th century around the 1840s to
1860s a famous case was bitterly fought through the Bombay Courts to the Privy
Council — Ardeshir Cursetjee v. Pherozabai. The facts in this case were as
follows : at a tender young age Pherozabai, a daughter of a rich merchant family,
the Banarji family, was married to a young boy Ardeshir Cursetjee. After puberty
she was sent to stay with the husband‘s family. The young husband ill treated the
wife. She complained of cruelty and returned to her parents‘ house. Her family
members were Barristers and Lawyers and her family was most influential in
Society. She filed a historic case for restitution of Conjugal rights and alimony in
the Supreme Court Original Side in Bombay. The Trial Court Judge held in her
favour and treated her in the same way as a Christian woman. The husband
appealed. The Appellate Side Judges were divided in their opinion. The husband
raised the plea that his was not a Christian soul and since the Judges of the
 8

Supreme/High Court in Bombay only had similar jurisdiction as the Ecclesiatical

Court Judges in England who only had jurisdiction over Christians, the Bombay
Court had no jurisdiction over the parties to the suit and so the Order of restitution
of conjugal rights could not be made against him. The Chief Justice of Bombay
held in favour of the wife, and awarded her a decree of restitution plus a large
monthly alimony. The husband appealed to the Privy Council. The Privy Council
upheld the husband‘s plea. The disappointed wife returned to India and at her
instance the Governor General at Fort William, Calcutta appointed a Parsi Law
Reform Commission. Her influential family members pointed out that in the
meantime between the date of the Privy Council deciding her case and the
appointment of Law Reform Commission, in England itself the Matrimonial
Causes Act 1857 had been passed. This Act applied to Christians and Jews whose
marriage was monogamous. The Parsis demanded that a separate Act be
promulgated in India by the Governor General in Council creating a separate
special court for Parsi Zoroastrians for matrimonial matters along similar lines to
the Matrimonial Causes Act 1857 in England.

In response to this demand the Parsi Marriage & Divorce Act 1865 was
promulgated. Broadly under this Act the following salient legal provisions were
made regulating Matrimonial Personal Laws for the Parsi Zoroastrians in British
India.

1) Marriage amongst Parsi Zoroastrians was made monogamous.

Provisions were made concerning capacity, essential validity and
formalities of marriage. The marriage ceremony would be legally
valid only if performed by Zoroastrian priests according to
Zoroastrian religious Ashirvad ceremony and customs.

2) Special Courts called ―Parsi Chief Matrimonial Courts‖ were

constituted in Bombay, Madras and Calcutta; and in other mofussil
places in the districts, Parsi Matrimonial Courts were constituted. In
the three Presidency towns the status of the three Parsi Chief
matrimonial Courts was co-eval with the Original Side of the High
Court in dignity ; and the Chief Justice or other Judge presided in
these Court assisted by ―Delegates‖ who were all Parsi
 9

Zoroastrians. These Delegates were final Judges of facts and had

the power to grant matrimonial reliefs.

3) These Matrimonial Courts had. power to grant the following

matrimonial reliefs: divorce ; nullity ; judicial separation ;
restitution of conjugal rights ; and also award alimony to the wife
and maintenance for the children as Well as provide for custody of
the children.

Between 1857 and 1937 the Matrimonial Causes Act in England was
amended several times. Parsis were not lagging behind. The Parsi Marriage &
Divorce Act 1936 was promulgated by the Governor General in Council. The old
Act of 1865 was repealed. Under the present Act, marriages solemnised in
Ashirvad form between two persons who are both Parsi Zoroastrians can be
terminated only in the special Parsi Chief Matrimonial Courts or Parsi
Matrimonial Courts in India. No other Courts in India have any jurisdiction to
grant Decrees of Divorce or nullity to Parsi Zoroastrians whose marriage is
solemnised in the religious Ashirvad form under the provisions of this Act.

The 1936 Act maintained the status of the Special Parsi Courts but
reduced the number of Delegates to seven. The grounds for divorce Were
increased to ten. grounds of which the main grounds are desertion, adultery,
grievous bodily hurt, etc. One ground which is special is that the defendant
(guilty-party) has ceased to be a Parsi Zoroastrian. The term Parsi Zoroastrian is
double barrelled. The word Parsi refers to ethnic origin and means and includes
all those persons in India who are descended from the people who came from Iran
to India who were Zoroastrians. This includes descendants of the original group
who came to India, over a thousand years ago as well as descendants of Irani
Zoroastrians who came to India at any time during the past about one thousand
years. The word Zoroastrian refers to religion and means a person whose religious
initiation, Navjote ceremony, has been performed in the Mazdayasnie
Zarathushtrian Daena. A person who is born a Parsi can never cease to be a Parsi.
So this divorce ground only refers to a person who is ethnically a Parsi but who
has ceased to be a Zoroastrian.
 10

2.2 Christian Personal Law

After the Parsis the Christians were the next to follow suit with a demand
for a special law. In 1869 the Indian Divorce Act was promulgated. During the
British Raj many Europeans especially persons from Great Britain were residing
in British India. Many of them were of the Church of England or Church of
Scotland or other Protestant Churches. After the Matrimonial Cause Act of 1857
it was possible for Christians domiciled in England to apply for matrimonial relief
in the High Court in London. However the ship voyage from India to England
took a long time in sailing boats and steamers. In order to make it easier for
Christians living in India to obtain a legal valid divorce, the Indian Divorce Act
IV of 1869 was promulgated.

Under this Act the Charter Jurisdiction of the three Presidency High
Courts was supplemented. Christian divorce cases have to be instituted in the
High Court of the place where the parties reside. The High Court has the power to
transfer any case concerning Christians to a District Judge within the territorial
jurisdiction of the High Court. The Grounds for divorce under the Christian Act
are rather unfair to the wife. There is a double standard. It is easier for a husband
to get a divorce. The grounds for divorce are basically only two:

(i) change of religion to some other religion than Christianity by the

defendant/respondent,

(ii) adultery.

The wife in addition to adultery must prove that the husband has been
guilty of incestuous adultery, bigamy with adultery, marriage with another
woman with adultery, or adultery coupled with cruelty or adultery coupled with
two years desertion or rape, sodomy or bestiliaty. The name of the co-respondent
has to be cited and the corespondent has to be made party to the petition. If the
Court finds the respondent guilty then decree of divorce is passed which is made
decree absolute after six months.

The Court also has jurisdiction to grant decree of nullity on the grounds of
impotence or the parties are within prohibited degrees of relationship or either
party was lunatic or idiot at the time of marriage or the former spouse of either
 11

party was alive at the time of marriage ceremony between the parties - (bigamous
marriage). The legitimacy status of children of annulled marriages is saved by
section 21 of this Act. The Court also has power to grant decrees of judicial
separation and restitution of conjugal rights ; and also make orders for alimony
for the wife, maintenance for the children and custody of the children. Unlike the
Parsi Act, under the Christian Law, the Court has power to order a settlement of
the wife‘s property for the benefit of husband and children. After this Act the
Christian community also pressed for a law governing marriages amongst
Christians.

The Indian Christian Marriage Act XV of 1872 was promulgated. This

Act applies to parties if one of whom atleast is a Christian. Any person professing
the Christian religion is a Christian and this includes Roman Catholics,
Anglicans, Church of Scotland and other Christian sects. The
priests/ministers/clergymen who are authorised by the Act can perform the
ceremony of marriage. The Act provides for capacity/essential validity and
formalities of marriage. Banns must be published. Both Parsi and Christian
marriages require to be registered. Persons can get married under the Christian
Act by the Marriage Registrar instead of by a Priest in Church.

The post independence Government of India has taken the view following
the example of the British law makers that unless the community concerned
demands a change of Personal Law and the community is united in its demand the
Government will not interfere to change the laws of minority communities.
Although the Minorities Commission has recommended amendment for both
Parsi Law and Christian Law, since the communities are not united in their
demand for change, the matter has not progressed further.

It is necessary at this stage to make a few practical observations regarding

the reality of the state of affairs concerning Christian Law in the Courts in India.
Because the grounds of divorce are limited and many times the real reason for
divorce is not adultery at all, lawyers practising in the High Court for Christian
divorces have in practice resorted to the use of fiction rather than fact in the
presentation of cases in the High Court. The presiding Judge as well as the
lawyers and the parties know fully well that the allegations contained in the
petition usually contain a cooked up fictitious story with an imaginary co-
 12

respondent ; but the farce has to continue with a straight face in Court in order to
enable the parties to obtain a legally valid divorce so long as the present statute is
not amended. There is great need to amend the Indian Divorce Act 1869.

2.3 Muslim Personal Law

Muslim Law remains in the realm of customary Personal Law to a large

extent. The religious law is contained in the Koran. The Koran has been
interpreted by learned Muslim Jurists whose opinions form the Shariat Law.
Muslims are divided into numerous groups, the two main groups being Shia and
Sunni. In addition there are many smaller groups living in India who go according
to their Qazi. Marriage in Muslim Law is considered a Civil contract between a
man and a woman. Under the Koranic Law the man can have upto four legal
wives simultaneously ; but the woman can only have one legal husband at a time.
She can take a divorce and remarry ; or she may become a widow and remarry.

In Muslim Law dissolution of marriage is permitted without the necessity

of going to Court. The husband has the right to pronounce talak. There are three
different methods of pronouncing talak. The second method is by mutual censent
of husband and wife ; this is called ―Khula divorce or ‗mubara‟ at divorce‖ ; the
third method is divorce by the wife according to the marriage contract agreement
called talak-itafweez.

Muslim ladies protested about the unfairness of these Personal Law

methods of divorce. The Dissolution of Muslim Marriages Act VIII of 1939 was
enacted to enable a woman married, under - Muslim Law to obtain a decree of
divorce from a Court. The grounds for divorce are the following : husband‘s
whereabout not known for four years ; husband has neglected or failed to
maintain wife for. two years ; husband is sentenced to seven years jail ; husband
has failed to perform marital obligations for three years without reasonable cause

; husband is impotent; husband is insane for two years or is a leper or suffers from
B. D. ; wife was under age of fifteen years on marriage and she repudiated the
marriage before age 18 ; cruelty by the husband which is defined in various ways.
An unusual provision of this Act is that if a woman converts from Islam to
another religion she can still apply for divorce under this Act. There is much need
 13

for enacting a Family Law statute for Muslims to govern their Personal Law
matters.

2.4 Hindu Personal Law

Prior to 1955 Hindu Law was largely a matter of customs and there was a
very great variety of customs of the numerous different castes, sub-castes and
groups within the broad term ―Hindus‖. The variations of customs were
bewildering so in the British Raj days the English Judges took the easy recourse
under the General Causes Act 1897 of recognising all customs as valid under
Hindu Personal Law. Hindu men had the right to take more than one wife prior to
1955. It was one of the most cherished aims of late Pandit Jawaharlal Nehru to
bring about unification of Hindu Personal Laws. After independence of India a
series of statutes were enacted which collectively form a sort of Hindu Personal
Law Code.

The Hindu Marriage Act 1955 applies to any person who is Hindu by
religion including Brahmo, Prarthana, and Arya Samaj persons and Buddhists,
Jains and Sikhs. It also includes any other person who is domiciled in India and
who is not a Muslim, Christian, Parsi or Jew by religion. So the term Hindu is a
broad catch all term.

After 1955 Hindu marriages have become legally monogamous. The

statute provides for capacity of marriage, and formalities. The formalities
prescribed by the Act include all customary rites and ceremonies of either party to
the marriage including the saptapadi ceremony.

This Act provided for the first time registration of Hindu marriages ; an
attempt to prevent bigamous marriages.
 The Act provides for matrimonial reliefs of divorce, nullity, judicial
separation and restitution of conjugal rights. The grounds for divorce are : divorce
by consent of both parties ; or divorce on the. ground of the respondent having
committed one of several- matrimonial offences which include living in adultery ;
conversion to another religion; incurably of unsound mind ; incurable leprosy ;
suffering from communicable B. D. ; renouncing the world by entering any
religious order ; or not having been heard of as being alive for seven years. The
 14

Hindu Act provides for maintenance claim to be made by both husband and wife
against each other; and also maintenance of children by both parents. This Act in
effect provides a kind of Uniform Civil Code for the millions of Hindus living in
India with their, great varieties of customs.

2.5 Jewish Personal Law

There are no statutes specifically providing for Personal Laws of Jews in

India. The Jewish persons are governed by their religious ―Rabbinical Laws‖
which are administered by their religious priest, the Rabbi in their Synagogue.
According to their Personal Laws Jewish persons can obtain a divorce, called ―a
Bill of Gett‖ from the Rabbi. This enables a Jewish person to remarry another
Jewish person. However in view of there being no statute in India enabling inter-
religious marriages of persons professing different religions in India before 1954,
in order that the Jewish divorce obtained by Bill of Gett should be doubly
reinforced, it was also possible for a Jewish person to apply for a divorce in the
High Courts of Bombay, Madras and Calcutta only. These Charter High Courts
had inherent matrimonial jurisdiction over Jewish persons whose marriages were
monogamous. A decree of divorce pronounced by a High Court was legally valid
throughout the world and would enable a divorced Jew to marry in any country of
the world again under the Laws governing Civil marriage in other countries.

After independence of India late Pandit Jawaharlal Nehru tried to make it

easier for persons belonging to different religious communities and governed by
different Personal Laws in India to marry. Also persons whose Personal Laws
were not satisfactory could have an option to get married and have their legal
rights governed by a Civil Statute. For this purpose the Special Marriage Act
1954 was enacted. This Act is optional. Nobody can be forced to get married
under this Act. However everyone is free to exercise a voluntary choice or option
to get married under this Act by the method of a Civil Registry Marriage or to
have their marriage solemnised under any Personal Law registered under this
statute and so avail of the protection of this statute.
 15

CHAPTER 3

PERSONAL LAW AND THE CONSTITUTION OF

INDIA

The Constitution of India is the Supreme Law of the Land. It is not a

document which sets out the frame-work and the principal functions of the organs of
the Government of a State, but it also lays down the basic principles on the touchstone
of which the legality and constitutionality of other laws are determined in the
prevailing socio-economic and political trends or requirement. It is because of this,
the relationship between the ‗Constitution of India‘ and ‗Personal laws‘, becomes
pertinent to be discussed; the same has been attempted in the this chapter.

For the sake of clarity this chapter deals with the ‗Personal Laws and
Legislative Powers‘, ‗Personal Laws and the Fundamental Rights‘ and ‗Personal
Laws and Directive Principles‘.

3.1 Personal Laws and Legislative Powers

As far as the legislative powers on the matters relating to personal laws, are
concerned, Article 372 of the Constitution is the most important Article. This Article
provides for the ―Continuance in force of existing laws and their adaptation‖. It runs
as follows:
(1) Notwithstanding the repeal by this Constitution of the enactments referred to in
article 395 but subject to the other provisions of this Constitution, all the law in
force in the territory of India immediately before the commencement of this
Constitution shall continue in force therein until altered or repealed or amended
by a competent Legislature or other competent authority.

(2) For the purpose of bringing the provisions of any law in force in the territory of
India into accord with the provisions of this Constitution, the President may by
order make such adaptations and modifications of such law, whether by way of
repeal or amendment, as may be necessary or expedient, and provide that the law
shall, as from such date as may be specified in the order, have effect subject to the
 16

adaptations and modifications so made, and any such adaptation or modification

shall not be questioned in any court of law.

(3) Nothing in clause (2) shall be deemed—

(a) To empower the President to make any adaptation or modification of any

law after the expiration of three years from the commencement of this
Constitution; or

(b) To prevent any competent Legislature or other competent authority from

repealing or amending any law adapted or modified by the President under
the said clause.

The expression ―law in force‖ in this Article shall include a law passed or
made by a Legislature or other competent authority in the territory of India before the
commencement of this Constitution and not previously repealed, notwithstanding that
it or parts of it may not be then in operation either at all or in particular areas.

The phrase ―all the law in force‖ in this Article includes statutory, customary
and, it reasonably seems, also personal laws.1 The language of Article 372 (1) is
analogous to Section 292 of the Government of India Act, 1935, which also
recognized the continued application of ―all law in force‖ then. The Federal Court in
United Provinces v. Atiqa,2 had held that the phrase included also non-statutory law
including personal laws. Even after the commencement of the Constitution the High
Courts of Rajasthan,3 Hyderabad,4 Calcutta,5 Madhya Pradesh,6 and Bombay7 have
confirmed the applicability of Article 372 to personal laws. This Article, in any case,
is the only provision of the Constitution under which personal laws can be claimed to
have been recognized. If we do not apply it to personal law, those laws are left
without any constitutional recognition.8

As regards the constitutional postulate of continuity and change in the matter

of pre – 1950 laws, at the time of the commencement of the Constitution a variety of
1

Tahir Mahood, Muslim Personal Law, Role of the State in the Subcontinent, p. 97 (1977).
AIR 1941 FC 16
2

Panch Gujar Kaur v. Amar Singh, AIR 1954 Raj. 100.

3

Motibai v. Chanayya, AIR 1954 Hyd. 161.

4

Naresh Bose v. S.N. Deb, AIR 1956 Cal. 222.

5

Rao Mote Singh v. Chandrebali, AIR 1956 M.P. 212.

6
Atmaram v. State, AIR 1965 Bom. 9.

7
Tahir Mahood, Muslim Personal Law, Role of the State in the Subcontinent, p. 97 (1977).

8
 17

personal laws-both codified and un-codified was applied to various religious and
ethnic communities. By virtue of Article 372 of the Constitution all these laws, of
every variety, got a statutory lease for all such law extended till ―further action‖, if
any, by a ―competent authority‖. As specified in Article 372 (1), this ―further
action‖ could be taken in the form of alteration repeal, amendment, or adaptation. The
principal ―competent authority‖ that could take any such ‗action‘ would, of course
be Parliament or a State Legislature. An executive authority, however, could also
exercise the power of delegated legislation.

The question if the power of adaption and modification of the existing laws,
conferred by Article 372 (2) on the President of the Republic, could be exercised by
him also in respect of an un-codified law or custom has not been free from difficulty.
However, since that power was not exercised by the President within the stipulated
period of three years from the commencement of the Constitution, this question is
now rather redundant.

It is notable that all the three lists in Schedule VII of the Constitution include
even those subjects to which traditionally the personal laws should apply. List III
(mentioning subject on which both Parliament and state legislatures can make laws)
specifies the following:

(a) Marriage and divorce; infants and minors; adoption; wills, intestacy and
succession; joint family and partition; all matters in respect of which
parties in judicial proceedings were immediately before the
commencement of this Constitution subject to their personal law.9

(b) Transfer of property other than agricultural land; registration of deeds and
documents.10

(c) Charities and charitable institutions, charitable and religious endowments

and religious institutions.11
List II (specifying the subjects on which the state legislatures can make laws) includes
burial and burial grounds; cremations and cremation grounds,12 ―rights in or over

9
Entry 5. List – III Schedule VII of the Constitution of India.
10
Entry 6. List – III Schedule VII of the Constitution of India.

11
Entry 28. List – III Schedule VII of the Constitution of India.

12
Entry 10. List – II Schedule VII of the Constitution of India.
 18

land‖13 (covering succession to agricultural lands) and administration of justice and

organization of courts at the district level.14 In List – I reveal to Muslim law is
―pilgrimage to places outside India‖15 Under this Provision Parliament can make
laws regulating Haj and Ziyarat.

Thus, nearly the entire gamut of subjects which traditionally fall within the
ambit of personal laws, has been placed at the disposal of either the state legislatures
or Parliament.

3.2 Personal Laws and the Fundamental Rights

Although, in theory, there is no constitutional restriction on the legislative power

of the State in respect of personal laws, the policy of successive governments at the
Centre has lead to their continued exemption from direct interference. Thus, by virtue of
the main provision of Article 372, those part of pre-Constitution personal laws-both
codified and un-codified and applicable to whichever community that have not until
today been touched by any ―competent authority‖ remain in force, as before. Apart from
these laws, new personal laws have been enacted by the Parliament for the majority
community bringing the Hindus, Sikhs, Jain and Buddhists under the umbrella of these
new legislations. However, the traditional laws of all these communities not covered by
these new enactments are still applicable to them.

The question is whether the existence of various personal laws, full of

conflicting features and applicable to different religious communities, is in itself
consistent with the fundamental rights enshrined in Part III of the Constitution. Or, are
personal laws supra-fundamental rights? The following discussion, in this section,
throws light on these issues. Intended here is the determination of the relationship
between fundamental rights and personal laws.
13
Entry 18. List – III Schedule VII of the Constitution of India.
14
Entry 5. List – III Schedule VII of the Constitution of India.

15
Entry 20, List – I Schedule VII of the Constitution of India.
 19

3.2.1 Personal Laws and Article 13

Article 13 of Part III of Constitution of India enunciated the following general

principle:

―All laws in force in the territory of India immediately before the

commencement of this Constitution, in so far as they are inconsistent with the
provisions of this Part shall, to the extent of such inconsistency, be void.‖

Clause (2) of the same article restraints the State from making any law which
―takes away or abridges the Fundamental Rights‖. The fundamental rights include,
inter alia, (a) equality before law and equal protection of laws culmination into
prohibition of discrimination against any citizen on grounds only of religion, race,
caste, sex or place of birth16 and (b) religious and cultural freedom. ―All laws in
force‖ in India at the time of the commencement of the Constitution, if repugnant to
these primary fundamental rights, have to cease to apply in any manner whatsoever.

The question is whether it is permissible under the Constitution that the

Muslims, Hindus, Christians, Parsis and Jews of India be governed by different sets of
religion-based laws relating to marriage and inheritance, etc. Are the personal laws
not hit by fundamental rights? The answer to these questions depends on whether the
phrase ―all laws in force‖ used in Article 13(i) covers personal laws too or not.

Article 13 itself says that law ―includes any ordinance, order by-law, rule,
regulation, notification, custom or usage having in the territory of India the force of
law‖17 It further mentions that ‗laws in force‘ ―includes laws passed or made by a
Legislature or other competent authority in the territory of India before the
commencement of this Constitution and not previously repealed, notwithstanding that
any such laws or any part therefore may not be then in operation either at all or in
particular area‖18 Personal law is not specified here in this article. Are, then, the
words used in Article 13(3)(a)&(b) wide enough to include personal laws; or was a
reference to personal laws deliberately omitted? The use of the word ‗include‘ shows
that the lists are not exhaustive and could extend to rules of conduct not specified in
them. The history of enactment of this article and of some other constitutional
provisions (article 19, 25, 44) shows that the Constituent Assembly did not intend to

16
Articles 14 & 15.
17
Article 13 (3)(a).

18
Article 13 (3)(b).
 20

exempt personal laws from the legislative competence the State. Do then, the different
personal laws becomes automatically void in terms of article 13(1)? The answer to
this question is not free from difficulty.

In State of Bombay v. Narasu Appa Mali,19(a case under the Bombay

Prevention of Hindu Bigamous Marriage Act, 1946), it was argued before the Bombay
High Court that the rule of Muslim personal law permitting bigamy had become void,
after the commencement of the Constitution, by virtue of Article 13(1), since it
allowed Muslim men to have more than one wife while the Bombay Act of 1946
forced Hindus to stick to monogamy. Chief Justice Chagla and Justice
Gajendragadkar (as they then were) thereupon examined in detail if Article 13 (1) was
applicable to personal laws; and they arrived at the negative finding. The following
points were stressed by the Chief Justice.

i. The words ‗custom and usage‘ used in Article 13 do not include personal laws.
‗Custom or usage is deviation from personal law and not personal law itself‘.

ii. Relisting the difference between customary law and personal law, The

Constituent Assembly, in defining ‗law‘ under Article 13 has expressly and

advisedly used only the expression custom or usage and has omitted personal
law. This is a ‗very clear pointer‘ to the intention of the Constitution making
body to exclude personal law from the purview of Article 13.

iii. There are other ‗pointers‘ as well. Article 17 abolishes untouchability…

Article 25(2)(b) enables the state to make laws for the purpose of throwing
open of Hindu religious institutions of a public character of all classes and
sections of Hindus. Now, if Hindu personal laws became void by reason of
Article 13 and by reason of its provisions contravening any fundamental
rights, then it was necessary specifically to provide in Article 17 and Article
25(2) for certain aspects of Hindu personal law which contravened Articles 14
 and 15. This clearly shows that only in certain respects the Constitution has
dealt with personal law.

iv. The very presence of Article 44 in the Constitution ‗recognizes‘ the existence
of separate personal laws. Entry No. 5 in the Concurrent List gives power to
the legislatures to pass laws affecting personal laws.

19
AIR 1952 Bom. 84.
 21

v. It is clear from the language of Article 372 (1) and (2) that the expression

‗laws in force‘ used in this article does not include personal law, as Article

372 entitles the President to make adaptations and modifications to law in

force by way of repeal or amendment, and it cannot be contended that it was
intended by this provision to authorize the President to make alterations and
adaptations in the personal laws of any community.

The Chief Justice concluded his arguments observing

―Although the point urged before us is not free from difficulty on the whole,
after a careful consideration of the various provisions of the Constitution we have
come to the conclusion of personal law is not included in the expression „law in
force‟ used in Article 13 (1)”20

Justice Gajendradkar agreed with all arguments of Chief Justice Chagla and
added that Article 13(1) applied to ―what may compendiously be described as
statutory laws‖, that is say, laws, ―passed or made by a legislature or other competent
authority‖21 He added that the Muslim and Hindu personal laws, whose foundations
were their respective ―scriptural texts‖, could not be said to have been passed or
made by the legislature or competent authority and therefore ―do not fall within the
purview‖ of Article 13 (1).22

Similar opinion were in later years expressed by the High Courts of Madras, 23

Punjab24, Karnataka25, Madhya Pradesh26 and Manipur.27 Until this day, the court
has said that either the continued application of separate personal laws is, or the
exclusive reform of any one of them could be, ultra vires Part III of the Constitution.
In 1959 the Supreme Court of India of India expressed an opinion that application of
different endowment administration laws of different religious communities was not
unconstitutional28. Before and after that date in numerous cases the Supreme Court
has taken the note of the existence of separate personal laws and applied them to
20
AIR 1952 Bom. 89, para 13.
21
AIR 1952 Bom. 90, para 13.

22
AIR 1952 Bom. 91, para 13.

23
Srinivas Iyer v. Saraswathi Ammal, AIR 1952 Mad. 1993.

24
Gurdial Kaur v. Mangal Singh, AIR 1968 P & H 396.

25
Suda v. Sankappa Rai, AIR 1963 Mys. 245.

26
Abdullah v. Chandni, AIR 1956 Bhopal 71.

27
H.B. Singh v. Bhani, AIR 1959 Manipur 20.

28
Moti Das v. S.P. Hahi, AIR 1959 SC 962.
 22

respective communities without questioning the legality or the constitutionality of the

personal-law system.

The judicial opinion of the two great judges of the time namely late M.C.
Chagla and late P.B. Gajendragadkar in Narasu Appa‟s case,29 has been dissented
from by the eminent scholars like D.D. Basu,30 H.M. Seervai31 and Mohammad
Ghause32, who are convinced that all personal laws including their non-statutory parts
are hit by Article 13(1). The Chagla-Gajendragadkar verdict pronounced in 1952 has,
however, been followed, though often silently and without specific reference, by all
the higher courts in the country.

In Krishan Singh v. Mathura Ahri33, the Supreme Court has categorically ruled

that :

“Part III of the Constitution does not touch upon the personal laws.‖34

This judgment has been vehemently criticized by Justice A.M. Bhattacharjee

in his M.N. Bose Lectures of 198135. It is, however, submitted that this was the only
way in which the various provisions of the Constitution relating to personal laws,
apparently generating various kinds of tensions and conflicts, could have been
reconciled by the Supreme Court.

3.2.2 Personal Laws and Article 14 and 15

So far as the applicability of Part III of the Constitution to non-statutory

personal laws is concerned, the question that has been particularly, raised is whether
the religion and sex-based diversities found in the fabric of any such laws would be
affected by the equality-clauses of the Constitution contained in Articles 14 and 15. It
is alleged and all classical personal laws particularly those applicable to Hindus and
Muslims – abound in discrimination between persons on the basis of religion or sex.
Much such alleged discrimination under various laws have been brought to the notice

29
State of Bombay v. Narasu Appa Mali , AIR 1952 Bom. 84.
30
Commentary on the Constitution of India, Vol. I, p. 155 (1965).

31
Constitutional Law of India, pp. 254-255 (1968).

32
‘Personal Law and the Constitution of India’ in T. Mahmood (ed.) Islamic Law Modern India, pp.

57-58 (1972).
33
AIR 1980 SC 707.
34
Krishan Singh v. Mathura Ahir , AIR 1980 SC 712.

35
A.M. Bhattacharjee, Hindu Law and Constitution (1983).
 23

of the courts; but the courts –so-far convinced that Part III of the Constitution does
not hit non-statutory personal laws-have generally left those laws intact.

For instance, in Nalini v. State of Bihar,36 the Patna High Court held that rule
that daughters cannot be coparceners is not hit by the provisions of Article 15 of the
Constitution. In Mukta v. Kamalaksha,37 the Karnataka High Court held that the
legitimate illegitimate distinction in the matter of children‘s maintenance rights under
the conventional Hindu law does not affect an unconstitutional discrimination. The
Punjab High Court once refused to test, on the touchstone of Article 15, the High
Court curbs on the power to dispose of ancestral property.38

It is interesting to note that the Supreme Court of India in Ahmedabad Women

Action Group v. Union of India,39 dismissed three writ petitions which challenged the
constitutionally of various provisions of different personal laws on the ground, inter-
alia, of being violative of Articles 14 and 15. The Court observed that the ―questions
involved in the case were the issue of State policies with which the court will not
ordinarily have any concern.‖ The same opinion was expressed by the Apex Court in
Maharshi Avadhesh v. Union of India.40 The judicial trend, so far, clearly indicates
the reluctance of the Courts to determine the constitutionality of various personal laws
on the touchstone of articles 14 and 15.

3.2.3 Personal Laws and Religious – Cultural Freedom

Article 25 of the Constitution provides :

(1) Subject to public order, morality and health and to the other provisions of this
Part, all persons are equally entitled to freedom of conscience and right freely
to profess, practice and propagate religion.
 (2) Nothing in this Article shall affect the operation of any existing law or prevent
the State from making any law—

(a) regulating or restricting any economic, financial, political or other

secular activity which may be associated with religious practice;

36
AIR 1977 Pat. 171.
37
AIR 1960 Mys, 182.

38
1971 Cur. L.J. 660.

39
(1997) 3 SCC 573.

40
1994 Supp. (1) SCC 713.
 24

(b) providing for social welfare and reform or throwing open of Hindu
religious institutions of a public character to all classes and sections of
Hindus.

Article 26 gives to ―every religious denomination or any section thereof‖ the

right ―to establish and maintain institutions for religious and charitable purposes‖
and ―to make its own affairs in matters of religion‖. Article 29 (1) says that any
section of the citizens which has, inter alia, a ―distinct culture of its own‖ shall have
a right ―to conserve the same‖. The question before us is if the terms ―religion‖,
―affairs in matters of religion‖ or ―distinct culture‖ include the religion-based
personal laws of any community. If that is not so personal law will be a ―secular
activity associated with religion‖ which the state can regulate.

In Ratilal Panchand v. State of Bombay,41 the Supreme Court had held that
subject to the restriction which Article 25 imposes, every person has a fundamental
right ―not merely to entertain such a religious belief as may be approved of by his
judgment or conscience but to exhibit his belief and ideas in such overt acts as are
enjoined or sanctioned by his religion…‖ In another case42 the Supreme Court said
that ―Religious practices or performance of acts in pursuance of religious belief are
as much a part of religion as faith or belief in particular doctrines.‖ How would, then,
religion, belief and practices be distinguished from ―secular activity associated with
religious practices.‖

In Mulla Tahir Saifuddian v. State of Bombay,43 the Supreme Court observed

that for the application of Article 25(2)(a) it is necessary to classify religious practices
into such as are essentially for a religious character and those which are not. In
Durgah Committee v. Hussain,44 it said that whether a religious practice is an
essential part of a religion is an objective question to be determined by the court and
that the view of a religious denomination itself is not final.45

From the discussion so far it can be inferred that in spite of the absence of a
clear cut distinction between ―essentially religious‖ and ―secular‖ activities, the
41
(1954) SCR 1055
42
Comm. H.R.E. v. Lakshmindra, (1954) SCR 1005.

43
AIR 1962 SC 853

44
AIR 1961 SC 1402

45
Durgah Committee v. Hussain , AIR 1961 SC 1415
 25

judicial trend is such the personal laws do not find the protection of Religious
Freedom guaranteed under Article 25.

The place of the personal law system in the scheme of Article 26 guaranteeing
to every ―religious denomination‖ the right to manage its own ―affairs in matters of
religion‖ will, of course, be determined by how one interprets the various provisions
of Article 25. If ―practice of religion‖ does not include adherence to personal laws
and if matters now regulated by personal laws are in fact ―secular activity associated
with religion‖, obviously Article 26 cannot apply to personal laws.46

But what is, or should be, the place of personal laws under Article 29 of the
Constitution – guaranteeing to all sections of citizens the fundamental right to
―conserve‖ their ―distinct culture‖? Personal law may not be part of religion, but is
it part of culture? Is it part of our culture how to form a family and live our domestic
life? Or, culture only means how we dress up, sing and dance? Will it be wholly
absurd if a particular section of citizens claims that its age-old personal law is a part of
its ―distinct culture‖? Notably there is no clause in Article 29 enabling the state to
regulate ―secular activity associated with culture.‖ Who will, then, have the authority
to adjudicate upon the assertion of a section of Indian citizenary that its distinct
culture is found in its personal law? And if it accepted that personal law is a part of
culture, will Article 29 come into conflict with Article 25 or with Article 14 and 15?

No answers seem to have been given to these questions.47

3.3 Personal Law and Directive Principles

3.3.1 Article 44

After ‗fundamental rights‘ it is now the turn of the ‗directive principles of

state policy‘, contained in Part IV of the Indian Constitution. Article 44, placed in this
part of the Constitution, happens to be the most controversial, misunderstood and
misused provision. It lays down that:

―That state shall endeavour to secure for the citizens a uniform civil code
throughout the territory of India‖.

46
Tahir Mahmood, Personal Laws in Crisis, p. 20 (1st Ed. New Delhi, 1986).

47
Tahir Mahmood, Personal Laws in Crisis, p. 20 (1st Ed. New Delhi, 1986).
 26

Undoubtedly, the expression ‗civil code‘ used in this article refers to a code of
law relating to those matters which are, at present being regulated or governed by
different personal laws. It is noteworthy to take like all other directive principles
specified in the Constitution, the provision of article 44 too ―shall not be enforceable
by any court‖, but it is ―nevertheless fundamental in the governance of the country‖
and has to be ―applied‖ by the State ―in making laws‖.48

Despite its being ―legally non-enforceable‖, the Court at times has raised the
issue of the enactment of a ‗uniform civil code‘ more often when the case did not
require any such incidental generated by the obiter dicta in Shah Bano‘s Case,49

Jordan Diengdesh‘s case50 and Sarla Mudgal‘s case.51

3.3.2 Family Law, Religion and Social Justice

The family law, by controlling the institutions of marriage and property,

determines the very course of human life. Marriage is a substantial tie in the life
process of human being.52 Family property is the source of substance and the basis of
freedom of actions for the family members. Child care and maintenance are the
important parental obligations. Justice in these matters is necessary for a happy home
and this task is onerous when factors of love and morality do not generate fair familial
relations.53 It is for this reason that scholars have rightly observed that the test for a
just social order lies in a just and fair family law.

The secular power of the modern welfare state, among other things, aims at
establishing social relations within and outside the family on the non-exploitative
plane of social justice and quality. The ethical considerations of familial
responsibilities and the overtones of equality, liberty and justice in family life arising
out of the guaranteed human rights have common ground and aim at promoting social
happiness. However, application of state power becomes a must when the norms
governing interpersonal relations within the family do not accord to guarantee human
rights. The 'living law' of the people namely, customary personal law, ought not to

48
Article 37 of the Constitution of India.
49
Mohd. Ahmad Khan v.Shah Bano,, AIR 1985 SC 945.

50
Ms. Jordan Dienghed v. S.S. Chopra, AIR 1985 SC 935.

51
Sarla Mudgal v. Union of India, (1955) 3 SCC 635.

52
T.M. Knox, Hegel's Philosophy of Right, p. 111 (1958).

53
Steven Vago, Law and Society, pp. 265-67 (1931).
 27

live in contradiction to the avowed policies and values enshrined in the Constitutional
or against the well intentioned, reformist legislations. It has to make way for attaining
social justice within the family.

In its essence, social justice means the quality of being fair and just in social
relations of human beings.54 This noble quality is attained within the family by
eschewing exploitation of the vulnerable members like women and children by the
dominant members and by forbidding, the operation of irrational notions and religious
beliefs of blind nature, the concept of social justice aims to attain a social arrangement
wherein the good things of the society, amenities and responsibilities are justly
distributed among the members of the society.55

At the dawn of Indian independence, the isolated pockets of different personal

laws prevalent in India were not only factors of communal disharmony and disunity
but were veritable instruments of injustice and exploitation. As Pandit Jawaharlal
Nehru observed, "our laws, our customs fall heavily on the women folk... and men
happen to enjoy the dominant position."56

Permission for polygamy and child marriage, prohibition on inter caste

marriage and widow remarriage, absence of divorce and other matrimonial remedies,
denial of woman's right to share in the family property57 on in the property of the
deceased persons and male dominance in matter like custody, guardianship and
adoption of children caused unjust conditions in the Hindu social order. According to
Nehru, the Birth Policy of non-interference with personal law and mechanical
interpretation or perpetuation of Hindu customs stopped the natural growth of Hindu
law and gave rise to petrified rules.58

Eminent scholars of personal law and sociology regard the growth of different
personal laws as mere by–products of specific cultural processes rather than as the
inevitable results of religious principles and practices. On the contrary in the
54
K. Subba Rao, Social Justice and Law, p. 1
55
R.W.M. Dias, Jurisprudence pp. 81-82; Also see John Rawls, A Theory of Justice pp., 3-4 (1972).

56
Nehru's Speeches Vol. III p. 444 Speech in Lok Sabha 16.09.1955 in the context of supporting
the concept of divorce.
57
Steven Vago, Law and Society, pp. 265-67 (1931).

58
Speech of Nehru as reported in The Hindu 10.12.1951 and in Lok Sabha 16.09.1954. Donald
Eugene Smith, Nehru and Democracy p. 164 (1958); The British Policy of non-interference in
pointed out by several authors. M.P. Jain, Outlines of Indian Legal History 472-74(4th Ed. 1981)
 28

background of broad concept of Dharma59 (justice) or the egalitarian charter in the

Shastrik writings60 and the Quaranic emphasis on human dignity and equality61 it is
not possible for anyone to justify some of the unjust, discriminatory and exploitative
usages of personal laws as in accordance with the true ethos of the religions. Derret,
observes, "whether the sanction behind the law be the demands of religion or merely
those of age and unbroken acceptance, a careful distinction is to be maintained
boundary between the two is allowed to become obscure provided that when the rules
apparently authorized by the ultimate sanction cease to serve the purpose for which
they were intended, there should be no obstacle to their relegation to the legal
historians museum, unsurvived by their formal relations.

"Such is the outcome of the investigations whether the claim that Hindu law is
based on Hindu rules. Rules that have religious foundation are, as we shall see in
more detail, often neglected and without public cry. Rules which have no foundation
are upheld on the formal ground that they are sanctioned, by religion. The liaison
between religion and law is not close."62

3.3.3 Directive Principles and Uniform Civil Code

Article 44 of the constitution declares, "The State shall endeavour to secure

for the citizen a uniform civil code throughout the territory of India". The expression
'civil code' connotes a code regulating civil matters including marriage, divorce,
inheritance and such other matters governed by personal laws. Such a code shall be
uniformly applicable to all citizens irrespective of religion, race, caste and sex. Article
44 does not hint at the features of future civil code. It also does not say whether
uniformity of civil law is to be attained at a stretch or by piecemeal reforms. From the
views of constitution makers at the making of the constitution, it can be generated that
uniform civil code is aimed to solve the problem of diversity of gender discrimination
based on religion. In brief, its emphasis is on uniformity with justice.
59
M. Rama Jois, Legal and Constitutional History of India, pp. 3-10. (Vol. 1, 1984).
60
M. Rama Jois, Legal and Constitutional History of India, pp. 3-10. (Vol. 1, 1984).

61
Neil, B.E., Bailliee, Digest of Mohummudan Law pp. 62-65 (1957).

62
Duncan J.M. Derret, Religion Law and the State in India, p. 117 (1968); Prof. S.S. Nigam
considers that the wide range of personal law is essentially of civil nature and matter which are
inseparable from religious beliefs and usages in G.S. Sharma (ed.) Secularism; Its implications
for law and life in India, p. 153 (1966).
 29

Soon after the commencement of the Constitution the Government piloted the
Hindu Code Bill to bring about large scale changes in major area of Hindu law.
Despite the stern opposition from the orthodox, the law was enacted ultimately. Under
Hindu Marriage, Act, 1995 new concepts like monogamy, divorce valid requirement
of marriage, inter-caste marriage, matrimonial remedies and alimony were introduced.
Under Hindu Succession Act, 1956 the concept like widow's absolute right to property
of her husband, equal shares among legal representatives without gender
discrimination, limitation on rule of survivorship and principles governing devolution
of female's property and escheat were established. Under Hindu Minorities and
Guardianship Act, principles relating to equal rights of mother and father in the
custody and guardianship of minor children, protection of interest of minor against the
power of guardians were recognized. Under Hindu Adoption and Maintenance Act,
certain benevolent principles relating to obligation to maintain any spouse, children
and parents who are unable to maintain themselves are recognized. Equal rights of
women to adopt children are also recognized. Inter-caste adoption was newly
introduced under the Act. Through recent amendments in Hindu Marriage Act, new
grounds for divorce were introduced and the concept of divorce on mutual consent has
been established. It is a notable achievement for a nascent democracy that a major
segment of its population is emancipated from orthodox, irrational and discriminatory
relations and in their place is governed by the principles of justice, equality and
liberty. The task of the law giver was not one of much difficulty as the majority of the
Hindu community was ready to receive the reforms.

Regarding reforms of Muslim personal law in a large scale manner, there was
distrust and protest by the representative of the Muslim community in the Constituent
Assembly.63 They had a sense of undue reverence of Quaranic prescription which
were considered as the basis of their personal law. With the obsession of effacement
of their cultural identity by the majoritarian interference, suspicions loomed large
about the noble intention of uniform civil code and its 'imposition' upon them,64
Nehru felt that Muslims were not sufficiently educated to accept and approve modern
values. He observed, "Now, we do not dare to touch the Muslims because they are in
minority and we do not wish Hindu majority to do it. These are personal law and so
63
This is clear from the views of Mr. Naziruddin Ahmed, Mehboob Ali Baig, Mohammad Ismail
Saheb and Hussian Imam C.A.D. Vo. VII p. 540-550.
64
Refer the speech of Naziruddin Ahmed in CAD Vol. VII, p. 540.
 30

they will remain for the Muslims unless they want to change them."65 He completely
ruled out imposition in this matter. It is submitted, the tendency of overcare towards
the minorities conspired with the fundamentalist obsession and as a consequence, the
notion of social justice became the scapegoat in this sphere unawaringly. Instead of
overplaying the sympathy factor, there should have been an organized state
propaganda for social justice in the area of family law.

The argument for retaining status quo in Muslim personal law with the reason
that Muslim law is too sacrosanct to be touched by legislature is not well-founded.66
Enactments like Shariat Act, 1973, Dissolution of Muslim Marriage Act, 1939 and
Muslim Women (Protection of Rights) on Divorce Act, 1986, show that legislations
also have an important say in matters of Muslim law. In fact, the Dissolution of
Muslim Marriage Act, 1939 brought about considerable changes relating to right to
divorce by wife.

Except the Act of 1939 no other legislation provided for reform in Muslim
personal law. The archaic customary practices usages and religious prescriptions still
govern the Muslim community.67

In India, personal laws are the distinct products of multi-cultural system

evolved through generations. Even though the relation between personal law and
religious is considerable remote, because of sentimental reverence of people to the
'living law' of tradition, the task of attaining social justice in this sphere is resisted by
some orthodox sections of the society directly or indirectly. However, the majority of
the population has favourably responded to the introduction of social reforms in their
personal law. But the experience of the law maker in the direction of Uniform Civil
Code is that effecting changes even in an incremental manner is very difficult. In fact,
Uniform Civil Code in its strict sense may not be so much essential as compared to
the need of attaining social justice in each and every enclave of personal law. The
intention of the constitution makers in enacting Article 44 was to orient the state
action towards attaining social justice in the familial relations. As the national social
justice in its broad contours has the same accentuation and insistence, ultimately
social justice in each and every sphere will lead to attain of Uniform Civil Code or a

65
Tibor Mende.

66
Mohammad Ghouse, Secularism, Society and law in India, p. 232 (1978), Tulzapurkar, J. Union
Civil code AIR 1987 Jour 17.
67
Talzapurkar.
 31

situation nearer to it. The disappointing factor in this area is the total neglect of the
goal by the legislature.

The analysis made above shows that there is the snag of non enforceability
which hinders the Directive Principles of State Policy in becoming a powerful
instrument of social engineering. The judicial process has been influenced to some
extent in recent times. Judiciary has demonstrated in several cases that reading in
Directive Principles into the elastic veins of Fundamental Rights is the profitable
approach in translating the values goals in Part IV interstitially. However, the judicial
path of attaining social justice in personal laws by application of the fundamental
rights under Articles 14,15, 19, 21 and 25(2) (b) of the Constitution is strewn with
self-created pitfalls. The unnecessary controversy on the question whether personal
law is law for the purpose of Part III diluted the efficacy of judge made reform.
However, recent pronouncements of the court (for example, pertaining to the
constitutionality of Section 9 of Hindu Marriage Act) receive confidence in this
regard. The need of judge made reform on the basis of Fundamental Rights is very
much felt to-day in the backdrop of legislative inertia and agonizing injustice,
exploitation and discrimination in some of the un-codified personal law.

A blue print of the future in this area consists in a multipronged effort through
legislative activism, propaganda for social justice.68 In personal law and increased
judicial application of Part III in relation to personal laws. There is no need for
amending any provision of Part III relating to religious freedom to protect reforms in
personal laws because the relation between personal law and religion is remote and
also because no impediment on that ground is experienced by the judiciary or the
legislature.69 Further Article 25(2) (b) is quite elastic.
68
In Muslim law it is recognized that Ijma i.e. consensus of the faithful is a source of law. Since
enlightened and collective opinion of the community has a determining say in providing for
adaptation and change, the role of educating public opinion in favour just and fair principles in
family law is essential Amir Ali, Mohammadan Law.

69
Tulzapurkar, J. is of the opinion that there is the need for constitutional amendment permitting
reforms in personal law notwithstanding the guarantee of freedom of religion. It is submitted,
Article 25(2) (b) is quite elastic to allow such reforms even if it is considered that personal law is
part of the religion. But it is generally accepted that personal law is remotely connected with
religion.
 32

The legal activism in the reform of personal laws should not be a unilateral
intrusion of one system to other.70 Some of the just and egalitarian principles of
Mohammedan law could be introduced into Hindu and other personal laws and vice
versa. For example, in Muslim law there is a principle that the power of any Muslim
individual to bequeath his or her property through will is limited to one third of
his/her property and two thirds of the property through will is limited to one third of
his/her property and the two thirds of the property of the deceased person should
devolve according to the rules of intestate succession.71 This rule has several
advantages. First, the kin of the deceased are assured of equal share and they will be
protected against the whims and fancies of the testator. Secondly, the personal
bequeathing can provide for additional share by his will to any of his legal
representative who has assisted him/her during the old age or to a person whom he
thinks as deserving because of economic weakness of that person. Third, the rule
protects against bequests of whole property to any person, institution or body
affecting the interest of the closest blood relatives of the testator. Finally, the impact
of undue influence in the process of making the testament will be considerably
limited. Since the rules of intestate succession are based on humanitarian principles of
protecting of interests of dependents and the kith and kin the reasonable expectation
of the latter are also fulfilled. Total exclusion of intestate succession by the will or the
bequeath or may work as arbitrary. The rule of limitation on testamentary succession
can be adopted in other personal laws subject to modifications. On the whole, the
future personal laws code should incorporate benevolent principles in various laws of
the present. The immediate attention of legal activism should be on reforming the
personal laws rather than hurrying for Uniform Civil Code. If at all Uniform Civil
Code is going to be enacted it should not be on the basis of half-way-house approach
of voluntary Uniform Civil Code.72 This is for the reason that loopholes, defects and
ineffectiveness in social reform legislation not only make the effort futile, but their
failure even on technical ground will be a source of discouragement and inhibits
future efforts.
70
Prof. A.B. Shah is of this opinion in article as cited by Tulzapurkar J, Quran, sura 2, 226 and V
2285 and v. 237.
71
Neil B.B. Baillie, Digest of Mohummadan Law, p. 625 (1957).

72
Tulzapurkar J, Quran, sura 2, 226 and V 2285 and v. 237. The idea of introducing voluntary
Uniform Civil Code was mooted in Parliament in 1986.
 33

From the social change perspective, it is to be noted that Directive Principle

are not able to provide equal interest to all the goal values enshrined in Part IV.
Further, when popular reception and participation are the important factors for
making the reform a success, a well-planned propaganda for educating the public is
an imperative need. Then only would it be possible to attain social changes of desired
magnitude, direction and pace.

It is obvious from the discussions so far that, the majority of the members of
the Constituent Assembly, was unwilling to provide a constitutional protection to the
‗personal laws of different communities for all time to come‘. Instead they introduced
Article 44 which envisages a ‗uniform civil code‘. The Constitution, however, adopts
the policy of continuity and changes under Article 372 as far as personal laws are
concerned.

As regards the conformity of personal laws with Part III of the Constitution,
the judicial attitude shows that this part does not touch upon the personal laws. The
right to freedom of religion guaranteed under Article 25 of the Constitution has been
so interpreted by the courts that it provides little protection to personal laws. But so
far as the question of recognition of personal laws is concerned, the Constitution does
acknowledge the existence of such laws under Entry 5, List III of Seventh Schedule,
together with Article 372. The directive of uniformity under Article 44 itself is
recognition of the exiting variety of personal laws.
 34

CHAPTER 4

HINDU PERSONAL LAW

Hindu law has always existed within a broader pluralism of legal systems in
India that to a greater or lesser extent overlapped with one another in both form and
substance.1 The major historical change to the Hindu law tradition came, through the
European colonies established in India beginning in the sixteenth century. Prior to
1772, the impact of colonialism was less direct in the area of law because of the more
limited political role played by the various ―trading companies‖ of Portugal, Holland,
France and England. Still, transformations associated more generally with ―early
modern‖ Eurasia resulted in changes in legal practices in India as well. Notably, as
just suggested, the long-distance commerce characteristic of the period necessitated
the creation of expanded documentation to keep investors apprised and assured of the
society of their investments. Legal documents thus became an important tangible
material of colonialism, perhaps its most important artefact or by-product.

The direct impact of colonialism on Hindu law may be dated to 1772, the year
in which Governor-General Warren Hastings announced his Judicial Plan. The
relevant decree in the Plan declared that Dharmasastra would be the sole basis for
Hindu law as administered by the British. At the time, none of the British knew
Sanskrit. By 1776, however, Hastings had commissioned a digest of Hindu law that
appeared as the Code of Gentoo Laws, a curious work that consisted of Nathaniel
Halhed‘s English translation of a Persian rendering from an oral Bengali paraphrase
of a Sanskrit original compiled by twelve pundits employed by Hastings. The
Calcutta-based Orientalists, especially Jones and Colebrooke, who guided the early
development of what came to be called Anglo-Hindu law relied exclusively on
Dharmasastra as the source for practical Hindu law in British courts, essentially
meaning that the translations provided by the Orientalists became a uniform basis for
positive law among Hindus throughout the British-dominated regions of India. With
this appropriation, Dharmasastra became completely enmeshed within the colonial
state and its traditional standing in the realm of civil society was translated into
British legal discourse and ossified through it.

1
Hinduism and Law: An Introduction; Edited by Timothy Lubin, Donald R. Davis Jr., Jayanth
K. Krishnan, p.17 (2010).
 35

However, the British did not accept every aspect of Dharmasastra into the
colonial legal system. Rather, primarily matters of religious relevance, meaning laws
that attached to personal identity rather than civil identity, were placed under British
jurisdiction. This is the foundation of the personal-law system in India today.2

Hinduism is by far the religion adhered to by the majority and Hindu personal
law in India has been codified to a large extent. Present day Hindu personal law
consists of: Classic Hindu laws which include: Hindu Marriage Act (1955), Hindu
Succession Act (1956), Hindu Minority and Guardianship Act (1956), and Hindu
Adoptions and Maintenance Act (1956).

For the sake of clarity on the Hindu personal laws this chapter deals with the
‗Marriage and Divorce‘, ‗Succession under Hindu Law‘, ‗Guardianship under Hindu
Law‘, ‗Adoption under Hindu Law‘, and ‗Maintenance under Hindu Law‘.

4.1 Marriage and Divorce

4.1.1 The Nature of Marriage

Among Hindus marriage is a necessary samskar; every Hindu must marry.

Hindus conceived of their marriage a sacramental union—a sacrosanct, permanent,
indissoluble and eternal union.3 Marriage constitutes the basis of the Hindu social
organisation and gives rise to important legal rights and obligations. Right from the
time of Rig Veda (every ancient scripture of Hindus in India) marriage had taken on
the character of a sacrament imparting prestige and importance to the institution. 4 The
Hindu law regarded marriage as a holy union between a man and a woman for the
performance of religious duties and for the begetting of made progeny. It may be
noted that a marriage before the enactment of the Hindu Marriage Act, 1955, was not
only a samskara or sacrament but the only samskara (scarament) prescribed for
women under the Hindu law. Generally accepted view is that a Hindu marriage is not
only a sacrament but also a contract.

The Hindu Marriage Act, 1955 is enacted to amend and codify the law relating to
marriage among Hindus. The concept of a Hindu marriage as a sacrament continues

Hinduism and Law: An Introduction; Edited by Timothy Lubin, Donald R. Davis Jr., Jayanth K.

3
Krishnan, p.25 (2010).

Dr. Paras Diwan, Family Law, p.24, (2011).

4

K. B. Agrawal, Family Law in India, p.107, (2010).

 36

to exist even after the enactment of the Act. This concept is not in any way
inconsistent with the provisions of this Act, which lays down certain conditions for a
valid Hindu marriage and certain grounds for obtaining judicial separation and
divorce. The concept of divorce was not recognised by the ancient Hindu law, and
this is a vital innovation introduced by statutory law in the Hindu social framework.
Custom made inroads in the classical law in respect of marriage rites conditions for
validity of marriage and the indissoluble nature of the marital union. In the course of
time customary marriage rites were recognised along with the shastraic ceremonies
provided under ancient Hindu scriptures. Conditions for marriage imposed by
dharmashatras were relaxed on the basis of custom, and customary divorce was

legally recognised.5

4.1.2 Requisites for a valid marriage

Before the enactment of the Hindu Marriage Act, 1955, minority was no bar to
a valid marriage. A girl was given in marriage before the onset of puberty. The
primary object of marriage was the acquisition of full ceremonial competence,
impotence would not be a bar to a valid marriage according to the shastras. No other
physical defect or deformity or disease would affect the validity of a marriage. The
Hindu Marriage Act, 1955, now prescribes five conditions of a valid Hindu marriage
under Section 5:

(1) Neither party should have a spouse living at the time of marriage. This clause
establishes the rule of monogamy and prohibits polygamy, which was
permitted before the Act came into force.

(2) Neither party should be an idiot or lunatic at the time of marriage. Under the
old Hindu law, a Hindu marriage was a pure sacrament and, therefore, idiots
and lunatics could be lawfully married, because a consenting mind was not
necessary. The Act laid down that lunatics and idiots could not marry at all,
thus making free consent a necessary ingredient of a valid Hindu marriage.
 However, this clause of Section 5 was substantially amended by the Marriage
Laws (Amendment) Act, 1976, which had deleted the second clause and substituted a
5
K. B. Agrawal, Family Law in India, p.108, (2010).
37

new provision in its place. After the 1976 Amendment, the second requirement of a valid
Hindu marriage is that at the time of marriage, neither party:

(a) is incapable of giving a valid consent to it in consequence of unsoundness of

mind; or

(b) though capable of giving a valid consent, has been suffering from mental
disorder of such a kind, or to such an extent, as to be unfit for marriage and
procreation of children; or

(c) has been subject to recurrent attacks of insanity;

(3) the bridegroom should have completed the age of 21 and the bride the age of 18,
at the time of marriage;

(4) the parties should not be within the degrees of prohibited relationship, unless the
custom or usage governing each of them permits such a marriage;

(5) the parties should not be sapindas of each other, unless the custom or usage
governing each of them permits such a marriage.

4.1.3 Void and Voidable marriages

 Any marriage solemnized after the Act came into force in contravention of the
following three conditions in Section 5 would be null and void according to Section 11 of
the Act:

(i) Neither should have a spouse living at the time of marriage.

(ii) The parties should not be within the degrees of prohibited relationship,

unless the custom or usage governing each of them permits such a marriage.

(iii) The parties should not be sapindas of each other, unless the custom or usage
governing each of them permits such a marriage.

Non-fulfilment of any of these conditions renders a marriage void ab initio, and

either party to such marriage can obtain a decree of nullity from the court.

Section 12 of the Act lays down four grounds on which a marriage shall be voidable,
whether such marriage was solemnized before or after the Act. The four grounds are:

1. Impotency

2. Idiocy or Lunacy

3. Consent obtained by force or fraud

 38

4. Pregnant by person other than husband

4.1.4 Divorce

Divorce means putting an end to the marriage by dissolution of marital

relations. The parties can no longer be husband and wife.6 It is well established that
the martial relationship should be safeguarded from every possible angle, and that its
severance should be allowed only on substantial grounds. Under the old, uncodified
Hindu law divorce was not recognised except where allowed by custom. Under the
Hindu Marriage Act divorce is neither favoured nor encouraged; it is permitted only
on grave and substantial grounds.7

Grounds

Section 13 of the Act enumerates eleven grounds on which either party to

marriage can make a petition to the court for a decree of divorce dissolving the
marriage, and it is immaterial whether such marriage was solemnized before or after
the commencement of the Act. The Section also provides four more grounds of
divorce to the wife only. The Act also provides for divorce by mutual consent.
Grounds of divorce available to either husband or wife are:

(1) Adultery;

(2) Cruelty;

(3) Desertion for a continuous period of not less than two years immediately
preceding presentation of the petition;

(4) Ceased to be a Hindu by conversion to another religion;

 (5) Has been suffering from incurable unsoundness of mind, continuous or
intermittent mental disorder, making it impossible for the petitioner to live
with the party.

(6) Has been suffering from a virulent and incurable form of leprosy;

(7) Has been suffering from venereal disease in communicable form;

(8) Has renounced the world and entered any religious order, or

(9) Has not been heard of as being alive for 7 years or more;

6
Prof. G.C.V. Subba Rao’s; Family Law in India; p.241 (2012).

7
K. B. Agrawal, Family Law in India, p.128, (2010).
 39

(10) If there is no cohabitation between the parties even after one year of passing of
a decree for judicial separation;

(11) If there is no restitution of conjugal rights even after one year after the passing
of a decree for restitution of conjugal rights.

Grounds of divorce available to the wife only:

(1) If the husband has married again after marrying her, or already has a living
spouse at the time of marriage;

(2) If the husband is guilty of sodomy or rape;

(3) If a suit is passed under Section 18 of the Hindu Adoption and Maintenance
Act, 1956 or in proceeding under Section 125 of the Code of Criminal
Procedure, a decree or order has been passed against the husband awarding
maintenance of the wife though she was living apart and since the passing of
the decree, cohabitation has not been continued for more than one year;

(4) If the wife was married before the age of 15 and she repudiated it at the age of
15 to 18. It is immaterial whether the marriage was consummated or not.

4.1.5 Judicial Separation

The Act also provides for the alternative relief in divorce proceedings under
Section 13-A. The Court may a decree of judicial separation instead of a decree of
divorce if the petition is filed on the following grounds:

(i) has ceased to be a Hindu by conversion to another religion;

(ii) has renounced the world by entering any religious order; and
 (iii) has not been heard of as being alive for a period of 7 years or more.

4.1.6 Divorce by Mutual Consent

A radical introduction brought about by the Marriage Laws (Amendment) Act,

1976, is section 13(B) dealing with divorce by mutual consent. Formerly, such a
divorce was possible only under the Special Marriage Act, 1954. Now, such a divorce
can be obtained under the Hindu marriage laws also on petition of both the parties to
the marriage on the ground:

(1) that they have been living separately for at least one year;
 40

(2) that they have not been able to live together; and

(3) that they have mutually agreed that their marriage should be dissolved.

After such a petition is presented on the motion of both the parties made not
earlier than six months from the date of presentation, and not later than eighteen
months from that date, if the court is satisfied that the averments made in the petition
are true, the court passes a decree of divorce, declaring the marriage to be dissolved
with effect from the date of the decree.

4.2 Succession under Hindu Law

The Hindu Succession Act, 1956 lays down a uniform law of succession for
all Hindus. Old Hindu law and customary law of succession stand abrogated. The
Hindu Succession Act, 1956 bases its rules of succession on the principle of
propinquity, i.e., preference of heirs on the basis of proximity of relationship.

Intestate and Testamentary Succession

A person, so long as he is alive, is free to deal with his property in any manner
he likes. By making a will he is free to determine a scheme of distribution of his
property after his death. This is known as a testamentary disposition.8 When a person
dies without indicating how his property is to be disposed of on his death, i.e., without
making a will, the law prescribes how his property is to be distributed among his
relations. The law does this in order to prevent a scramble among the relations to get
at the properties of the deceased owner. The relations on whom the property of the
deceased thus devolves are called his heirs. The process of such devolution of the
property of the late owner upon his relations is called inheritance or intestate
succession.9 The law of succession is classified as under:
 (1) Intestate succession, and

(2) Testamentary succession.

The law of intestate succession is concerned with matters such as who are the
persons entitled to take property, i.e., who are the heirs; what are the rules of
preference among the various relations; in what manner the property is to be

Dr. Paras Diwan, Family Law, p.464, (2011).

9

K. B. Agrawal, Family Law in India, p.460, (2010).

 41

distributed in case a person has more than one heir; what are the disqualifications of
heirs and the allied and subsidiary matters. The law of intestate succession is more
properly the law of inheritance. The law of inheritance consists of rules which
determine the mode of devolution of property of the deceased on heirs solely on the
basis of their relationship to the deceased, while law of testamentary succession deals
with the rules relating to devolution of property on relations as well as others. This is
the main distinction between the two terms, succession and inheritance.

The law of testamentary succession is concerned how best the effect could be
given to the wishes of the testator (i.e., the person who made the will); what are the
rules relating to making of a will and allied and subsidiary matters. The testator
enjoys full freedom of bequeathing his property. All matters relating to testamentary
succession are laid down in the Indian Succession Act, 1925.

Section 5 of the Act exempts certain properties from the operation of the Act.
The scheme of inheritance set forth in the Act of 1956 does not apply in the following
cases even though the parties are Hindus.

(1) The property of a Hindu who is married under the Special Marriage Act to a
non-hindu;

(2) To any estate which descends to a single heir by the terms of any covenant or
agreement entered into by the Ruler of any Indian State with the Government
of India or by terms of any enactment passed before the commencement of the
Hindu Succession Act; and

(3) To the Valiamma Thampura Kovilagam Estate and the Palace Fund of former
Cochin State. (this provision has become redundant after the Kerala Act 16 of
1961).

4.2.1 Intestate Succession to the Property of a Hindu Male

 Section 8 of the Act gives the general rules of succession in the case of a
Hindu male dying intestate. The property shall devolve firstly, upon the heirs, being
the relatives specified in Class I of the Schedule; secondly, if there is no heir of Class
I, then upon the heirs, being the relatives specified in Class II of the schedule; thirdly,
 42

if there is no heir of any of the two classes, then upon the agnates10 of the deceased;

and lastly, if there is no agnates, then upon the cognates11 of the deceased.12 Initially
there were 12 Class I heirs. Some new heirs are added by Amending Act of 2005.
Class I heirs are called preferential heirs, as presence of any one of them excludes
heirs in all other categories. They are also called as simultaneous heirs, as heirs in
Class I inherit simultaneously—one does not exclude the other. Under the Act, the
position of females has been I proved substantially, and some cognates of equal
propinquity have been brought at par with agnates.

The following are the heirs in Class I of the schedule appended to the Hindu
Succession Act, 1956:

(1) Mother,

(2) Widow,

(3) Daughter,

(4) Son,

(5) Widow of a predeceased son,

(6) Son of a predeceased son,

(7) Daughter of a predeceased son,

(8) Widow of a predeceased son of a predeceased son,

(9) Daughter of a predeceased son of a predeceased son,

(10) Son of a predeceased son of a predeceased son,

(11) Daughter of a predeceased daughter, and

(12) Son of a predeceased daughter.

 As stated earlier the new heirs added by the Amending Act of 2005 are son of
a predeceased daughter of a predeceased daughter; daughter of a predeceased
daughter of a predeceased daughter; daughter of a predeceased son of predeceased
daughter; daughter of a predeceased daughter of a predeceased son.13

10
A person who descends from the same male ancestor i.e., through the male line
basically related by blood or through an adoption and can be both male and a female.

11
A person who descends from the female side and not wholly through males. They are
also related by blood or adoption and can be both male and a female.
12
Section 8.
13
Dr. Paras Diwan, Family Law, p.467, (2011).
 43

Class II heirs

The Class II heirs are divided into nine categories. The following are the heirs
in Class II of the schedule appended to the Hindu Succession Act, 1956.

Category I

Father

Category II

(1) Son‘s daughter‘s son

(2) Son‘s daughter‘s daughter.

(3) Brother.

(4) Sister.

Category III

(1) Daughter‘s son‘s son.

(2) Daughter‘s son‘s daughter.

(3) Daughter‘s daughter‘s son.

(4) Daughter‘s daughter‘s daughter.

Category IV

(1) Brother‘s son.

 (2) Sister‘s son.

(3) Brother‘s daughter.

(4) Sister‘s daughter.

Category V

(1) Father‘s father.

(2) Father‘s mother.

Category VI

(1) Father‘s widow.

(2) Brother‘s widow.

Category VII

(1) Father‘s brother.

(2) Father‘s sister.

 44

Category VIII

(1) Mother‘s father.

(2) Mother‘s mother.

Category IX

(1) Mother‘s brother.

(2) Mother‘s sister.

As per the explanation appended to the schedule, references to a brother or

sister in the said schedule do not include references to a brother or sister by uterine
blood.14 The rule is that an heir in an earlier category excludes heirs in later
categories. All heirs in one category take simultaneously and between them and take
per capita. Merely because numerals have been used in some categories, such as in
categories II, II and IV, it does not indicate any preference of heirs in an earlier
numeral over the heirs in the later numerals. Thus, in category II son‘s daughter‘s son
bear numeral (1), it does not mean that son‘s daughter in numeral (2) brother in
numeral (3) and sister in numeral (4) will be excluded.15

Rules of distribution of property amongst all the above classes of heirs are also
explicitly provided for in the Act. The rules in respect of distribution of property
amongst Class I heirs are as follows:

(1) Intestate‘s widow takes one share and if there is more than one widow, all
widow‘s together, shall take one share.

(2) Sons, daughter and mother each takes one share.

(3) The heirs in branch of each predeceased son or each predeceased daughter of
the intestate shall take between them one share.
 (4) Among the heirs in the branches of the predeceased son, son of a predeceased
son of a predeceased son, and predeceased daughter, the doctrine of
representation applies. In the other words, the heirs in each branch would take
the same share that the son, son‘s son, or daughter would have taken had he or
she been alive when succession opened. Except the widow, the heirs in each
branch among themselves take per capita; that is per head.

14
K. B. Agrawal, Family Law in India, p.233, (2010).
15
Satya v. Urmila, AIR 1970 SC 1714; M.G.K. Pillai v. Kunjulakshmi, AIR 1972 Ker 66.
 45

(5) If there is more than one widow in the branch of a predeceased son or in the
branch of a predeceased son of a predeceased son, then all widows together
take one share and among themselves divide it equally.

Regarding distribution of property among heirs in Class II of the schedule,

Section 11 of the Act enjoins that the property of an intestate shall be divided between
the heirs specified in any one entry in Class II of the schedule so that they share
equally. The rules of succession among agnates and cognates have been laid down
under Section 12 of the Act as follows:

- Rule 1. Of two heirs, the one who has fewer or no degrees of ascent is
preferred.

- Rule 2. Where the number of degrees of ascent is the same or more, that heir
is preferred who has fewer or no degrees of descent.

- Rule 3. Where neither heir is entitled to be preferred to the other under Rule 1
or Rule 2 they take simultaneously.

Section 13 of the Act describes as to how computation of degrees is to be

made for the purposes of determining the order of succession among agnates or
cognates.16 The rules of priority applicable to agnatic or cognatic succession are the
same. They are the following:

(1) Descendants are preferred to all the others. Among descendants the heir who
has fewer degrees of descent is preferred.

(2) Ascendants are preferred to collaterals. Among ascendants the one with fewer
degrees of ascent is preferred.

(3) Among collaterals, when the number of degrees of ascent is the same, the heir
with fewer degrees of descent is preferred.

(4) When these rules do not settle priority, the claimants will take
simultaneously.17
 In the absence of Class I and Class II heirs the Agnates and in their absence
the cognates take the property. If a Hindu male has no heirs under all the preceding
four heads, the Government take the property as an heir. When the government takes

16
K. B. Agrawal, Family Law in India, p.233, (2010).
17
Prof. G.C.V. Subba Rao’s; Family Law in India; p.496 (2012).
 46

his property as heir, it takes it subject to all the obligations and liabilities of
propositus. This is known as escheat.

4.2.2 Intestate Succession to the Property of a Hindu Female

Section 15 of the Act gives the general rules of succession in the case of a
female Hindu dying intestate. Although Hindu woman‘s limited estate has been
abolished and, so long as the woman is alive, she has absolute power over all types of
property (she is also free to dispose it of by will), yet for the purpose of intestate
succession, the source of the property is still material.

For the purpose of succession, the property of a Hindu female falls under the
following three heads:—

I. Property inherited by a female from her father or mother;

II. Property inherited by a female from her husband or father-in-law; and

III. Property obtained by her from any other source, by inheritance or

otherwise.

If the Hindu female dies leaving behind her children, the distinction between
the sources from which she got the property is immaterial.18

The scheme of succession to the property of a deceased female depends upon

the source from which she has secures the property. The scheme is as follows:

Property inherited from Property inherited from

father-in-law or Father or Mother Other Property

Husband

1. Sons and 1. Son and Daughters 1. Sons and

 Daughters and Husband Daughters

2. Heirs of the 2. Heirs of Father 2. Heirs of Husband

Husband 3. Mother and Father

4. Heirs of Father

5. Heirs of Mother

The children of pre-deceased sons and pre-deceased daughters step into the shoes of
the deceased parent.19

Just as in the case of a Hindu male, in the case of a Hindu female if she dies

leaving no relation, the government takes her property as an heir, subject to all

18
Dr. Paras Diwan, Family Law, pp.480-481, (2011).
19
Prof. G.C.V. Subba Rao’s; Family Law in India; p.530 (2012).
 47

obligations and liabilities of the intestate. It is essential that female Hindu should not
have any heir under both the sub-section of Section 15.20

4.2.3 Disqualifications under the Act

Before 1956, several disqualifications were recognised which prevented an

heir from inheriting property. Section 27 of the Hindu Succession Act, 1956 lays
down that ―if any person is disqualified from inheriting any property under this Act,
it shall devolve as if such person had died before the intestate‖. This means that no
title or right to succeed can be traced through the disqualified person. However, if the
disqualified person recovered from his disqualification subsequent to the opening of
the inheritance, he could recover his share and divest the estate already vested in other
heirs.21 Before the Amendment of 2005, Section 24 provided for disqualification of
certain category of female heirs on the ground of remarriage. Section 25 disqualifies a
murderer from inheriting the property of the person murdered. Section 26 disqualifies
the convert‘s descendants and children born to such descendants to inherit the
property of any of their Hindu relatives. But the Children or descendants of such
children born after his conversion are not affected by the rule if they are Hindus at the
time when the succession opens.

4.2.4 Testamentary Succession

Section 30 of the Act provides for the testamentary succession that any Hindu
may dispose of by will or other testamentary disposition any property, which is
capable of being so, in accordance with the provisions of the Indian Succession Act,
1925, or any other law for the time being in force and applicable to Hindus.
4.3 Guardianship under the Hindu Law

The Hindu law of guardianship of minor children has been codified and
reformed by the Hindu Minority and Guardianship Act, 1956. The subject may be
discussed under the following heads: (i) Guardianship of person of minors, (ii)

20
State of Punjab v. Balwant Singh, AIR 1991 SC 1581.
21
Venkatalakeshnammal v. Balakrishnachari, AIR 1960 Mad 270.
 48

Natural guardians, (iii) Testamentary guardians, (iv) Guardians appointed by the

Court, and (v) Guardians by affinity.

4.3.1 Guardianship of the person: Minor Children

Under the Hindu Minority and Guardianship Act, 1956, Section 4(b), minor
means a person who has not completed the age of eighteen years. A minor is
considered to be a person who is physically and intellectually imperfect and immature
and hence needs someone's protection. Guardian is "a person having the care of the
person of the minor or of his property or both person and property."22 It may be
emphasized that in the modern law guardians exist essentially for the protection and
care of the child and to look after its welfare. Welfare includes both physical and
moral well-being. Guardians may be of the following types: 1.Natural guardians,
2.Testamentary guardians, and 3.Guardians appointed or declared by the court. There
are two other types of guardians, existing under Hindu law, de facto guardians, and
guardians by affinity.

4.3.2 Natural Guardians

In Hindu law only three persons are recognized as natural guardians father,
mother and husband. ―Father is the natural guardian of his minor legitimate children,
sons and daughters". Section 13 of the Hindu Minority and Guardianship Act lays
down that welfare of the minor is of paramount consideration and father's right of
guardianship is subordinate to the welfare of the child. The Act does not recognize the
principle of joint guardians. The position of adopted children is at par with natural-
born children. The mother is the natural guardian of the minor illegitimate children
even if the father is alive. However, she is the natural guardian of her minor legitimate
children only if the father is dead or otherwise is incapable of acting as guardian.
Proviso to clause (a) of Section 6, Hindu Minority and Guardianship Act lays down
that the custody of a minor who has not completed the age of five years shall
ordinarily be with the mother. Thus, mother is entitled to the custody of the child
below five years, unless the welfare of the minor requires otherwise.

22
Hindu Minority and Guardianship Act, 1955, Section 4(b).
 49

In Gita Hariharan v. Reserve Bank of India and Vandana Shiva v. Jayanta

Bandhopadhaya,23 the Supreme Court has held that under certain circumstances, even
when the father is alive mother can act as a natural guardian. The term 'after' used in
Section 6(a) has been interpreted as ‗in absence of‘ instead ‗after the life-time‘.

Rights of Natural Guardian.—The natural guardian has the following rights in

respect of minor children:

(a) Right to custody,

(b) Right to determine the religion of children,

(c) Right to education,

(d) Right to control movement, and

(e) Right to reasonable chastisement.

These rights are conferred on the guardians in the interest of the minor
children and therefore each of these rights is subject to the welfare of the minor
children. The natural guardians have also the obligations to maintain their minor
children.

4.3.3 Testamentary Guardians

When, during the British period, testamentary powers were conferred on

Hindus, the testamentary guardians also came into existence. It was father's
prerogative to appoint testamentary guardians. By appointing a testamentary guardian
the father could exclude the mother from her natural guardianship of the children after
his death. Under the Hindu Minority and Guardianship Act, 1956, testamentary power
of appointing a guardian has now been conferred on both parents.24 The father may
appoint a testamentary guardian but if mother survives him, his testamentary
appointment will be ineffective and the mother will be the natural guardian. If mother
appoints testamentary guardian, her appointee will become the testamentary guardian
and father's appointment will continue to be ineffective. If mother does not appoint,
father's appointee will become the guardian. It seems that a Hindu father cannot
appoint a guardian of his minor illegitimate children even when he is entitled to act as
their natural guardian, as Section 9(1) confers testamentary power on him in respect

23
JT 1999 (1) SC 524 : AIR 1999 SC 1149.
24
Section 9.
 50

of legitimate children. In respect of illegitimate children, Section 9(4) confers such

power on the mother alone.

Under Section 9, Hindu Minority and Guardianship Act, testamentary guardian

can be appointed only by a will. The guardian of a minor girl will cease to be the guardian
of her person on her marriage, and the guardianship cannot revive even if she becomes a
widow while a minor. It is necessary for the testamentary guardian to accept the
guardianship. Acceptance may be express or implied. A testamentary guardian may
refuse to accept the appointment or may disclaim it, but once he accepts, he cannot refuse
to act or resign except with the permission of the court.

4.3.4 Guardians Appointed by the Court

The courts are empowered to appoint guardians under the Guardians and
Wards Act, 1890. The High Courts also have inherent jurisdiction to appoint
guardians but this power is exercised sparingly. The Hindu Minority and
Guardianship Act is supplementary to and not in derogation to Guardians and Wards
Act. Under the Guardians and Wards Act, 1890, the jurisdiction is conferred on the
District Court: The District Court may appoint or declare any person as the guardian
whenever it considers it necessary in the welfare of the child.25 In appointing a
guardian, the court takes into consideration various factors, including the age, sex,
wishes of the parents and the personal law of the child. The welfare of the children is
of paramount consideration.

4.3.5 Guardianship by affinity

In pre-1956 Hindu law there existed a guardian called guardian by affinity. The
guardian by affinity is the guardian of a minor widow. Mayne said that "the husband's
relation, if there exists any, within the degree of sapinda, are the guardians of a minor
widow in preference to her father and his relations."26 The judicial pronouncements have

also been to the same effect.27 The guardianship by affinity was

25
Section 17. Babu Ram v. Keshavachand, AIR 1978 P & H 124.
26
Hindu Law and Usage, (11th ed.) p. 288.
27
Chinna v. Vinayaghathammal, AIR 1929 Mad 110 at 112; Ashwani Kumar v. Fulkumari , 77 CWN
349.
 51

taken to its logical end by the High Court in Paras Ram v. State.28 In this case, the
father-in-law of a minor widow forcibly took away the widow from her mother's
house and married her for money to an unsuitable person against her wishes. The
question before the court was whether the father-in-law was guilty of removing the
girl forcibly. The Allahabad High Court held that he was not, since he was the lawful
guardian of the widow.

A question has come before our courts, whether the nearest sapinda of the
husband automatically becomes a guardian of the minor widow on the death of her
husband or whether he is merely preferentially entitled to guardianship and therefore
he cannot act as guardian unless he is appointed as such? Paras Ram seems to
subscribe to the former view, and the Madras and the Nagpur high Courts to the latter
view. Under Section 13, Hindu Minority and Guardianship Act, in the appointment of
any person as guardian, the welfare of the child is paramount consideration. The fact
that under Hindu law father-in-law has preferential right to be appointed as guardian
is only a matter of secondary consideration.

4.3.6 De Facto Guardian

A de facto guardian is a person who takes continuous interest in the welfare of

the minor's person or in the management and administration of his property without
any authority of law. Hindu jurisprudence has all along recognized the principle that
if liability is incurred by one on behalf of another in a case where it is justified, then
the person, on whose behalf the liability is incurred or, at least, his property, is liable,
notwithstanding the fact that no authorisation was made for incurring the liability.

The term 'de facto guardian' as such is not mentioned in any of the texts, but
his existence has never been denied in Hindu law. In Sriramulu,29 Kanta, J. said that
Hindu law tried to find a solution out of two difficult situations: one, when a Hindu
child has no legal guardian, there would be no one who would handle and manage his
estate in law and thus without a guardian the child would not receive any income for
his property and secondly, a person having no title could not be permitted to
intermeddle with the child's estate so as to cause loss to him. The Hindu law found a
solution to this problem by according legal status to de facto guardians.

28
AIR 1960 All 479.
29
Ethilulu v. Pathakal, AIR 1950 Mad 390; Kusubai v. Chandrabhaga, AIR 1918 Nag 100.
 52

A mere intermeddler is not a de facto guardian. An isolated or fugitive act of a

person in regard to child's property does not make him a de facto guardian. To make a
person a de facto guardian some continuous course of conduct is necessary on his
part. In other words, a de facto guardian is a person who is not a legal guardian, who
has no authority in law to act as such but nonetheless he himself has assumed, the
management of the property of the child as though he were a guardian. De facto
guardianship is a concept where past acts result in present status.

4.4 Adoption under Hindu Law:

The Shastric Hindu Law looked at adoption more as a sacramental than

secular act. Some judges think that the object of adoption is two fold: to secure one‘s
performance of one's funeral rites and 2) to preserve the continuance of one's
lineage.30 Hindus believed that one who died without having a son would go to hell
called poota and it was only a son who could save the father from going to Poota.
This was one of the reasons to beget a son. Ancient Hindu Shatras recognised Dattaka
and Kritrima as types of sons.

In the Hindu Shastras, it was said that the adopted son should be a reflection
of the natural son. This guaranteed protection and care for the adopted son. He was
not merely adoptive parents, but all relations on the paternal and maternal side in the
adoptive family also came into existence. This means he cannot marry the daughter of
his adoptive parents, whether the daughter was natural-born or adopted. In the modern
adoption laws, the main purpose is considered to be to provide consolation and relief
to a childless person, and on the other hand, rescue the helpless, the unwanted, the
destitute or the orphan child by providing it with parents.

Currently, the adoption under Hindu Law is governed by The Hindu Adoption
and Maintenance Act, 1956.The Act extends to only the Hindus, which are defined
under Section 2 of the Act and include any person, who is a Hindu by religion,
including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya
Samaj,or a Buddhist, Jaina or Sikh by religion, to any other person who is not a
Muslim, Christian, Parsi or Jew by religion. It also includes any legitimate or
illegitimate child who has been abandoned both by his father and mother or whose

30
Inder Singh v. Kartar Singh, AIR 1966 Punj 258.
 53

parentage is not known and who in either case is brought up as a Hindu, Buddhist,
Jaina or Sikh. Adoption is recognized by the Hindus and is not recognized by
Muslims, Christian and Parsis.

4.4.1 Requirements for a valid adoption

In the Hindu law the requirements for a valid adoption are as the Act reads, no
adoption is valid unless;

(i) The person adopting is lawfully capable of taking in adoption

(ii) The person giving in adoption is lawfully capable of giving in adoption

(iii) The person adopted is lawfully capable of being taken in adoption

(iv) The adoption is completed by an actual giving and taking and the
ceremony called data human (oblation to the fire) has been performed.

4.4.2 Capacity of male to adopt

Any male Hindu, who is of sound mind and is not a minor, has the capacity to
take a son or daughter in adoption. Provided that if he has a wife living, he shall not
adopt except with the consent of his wife, unless his wife has completely and finally
renounced the world or has ceased to be a Hindu, or has been declared by a court of
competent jurisdiction to be of unsound mind. If a person has more than one wife
living at the time of adoption the consent of all the wives is necessary unless the
consent of one of them is unnecessary for any of the reasons specified in the
preceding provision.
4.4.3 Capacity of female to adopt

Any female Hindu

(a) Who is of sound mind

(b) Who is not a minor, and

(c) Who is not married, or if married, whose marriage has been dissolved or whose
husband is dead or has completely and finally renounced the world or has ceased
to be a Hindu, or has been declared by a court of competent jurisdiction to be of
unsound mind, has the capacity to take a son or daughter in adoption. Where the
woman is married it is the husband who has the right to
 54

take in adoption with the consent of the wife. The person giving a child in
adoption has the capacity or right to do so.

4.4.4 Who may give in adoption

(a) No person except the father or mother or guardian of the child shall have
the capacity to give in adoption.

(b) The father alone if he is alive shall have the right to give in adoption, but
such right shall not be exercised except with the consent of the mother
unless the mother has completely and finally renounced the world or has
ceased to be a Hindu, or has been declared by a court of competent
jurisdiction to be of unsound mind.

(c) The mother may give the child in adoption if the father is dead or has
completely and finally renounced the world or have abandoned the child or
have been declared by a court of competent jurisdiction to be of unsound
mind or where the parentage of the child is unknown – the guardian of the
child may give the child in adoption with the previous permission of the
court. The court while granting permission shall be satisfied that the
adoption is for the welfare of the child and due consideration will be given
to the wishes of the child having regard for the age and understanding of
the child.

4.4.5 The person who may be taken in adoption

No person can be adopted unless

(a) He or she is a Hindu;

(b) He or she has not already been adopted;

(c) He or she has not been married, unless there is a custom or usage applicable to
the parties which permits persons who are married being taken in adoption;

(d) He or she has not completed the age of fifteen years unless there is a custom
or usage applicable to the parties which permits persona who have completed
the age of fifteen years being taken in adoption.
 55

Other conditions for a valid adoption are fulfilled

a. If the adoption is of a son, the adoptive father or mother by whom the

adoption is made must not have a Hindu son, son‘s son or son‘s son‘s son
living at the time of adoption;

b. If the adoption is of a daughter, the adoptive father or mother by whom the

adoption is made must not have a Hindu daughter or son‘s daughter living at
the time of adoption;

c. If the adoption is by a male and the person to be adopted is a female, the adoptive
father is at least twenty one years older than the person to be adopted;

d. If the adoption is by a female and the person to be adopted is a male, the

adoptive mother is at least twenty one years older than the person to be
adopted;

e. The same child may not be adopted simultaneously by two or more parents;
the child to be adopted must be actually given and taken in adoption with an
intent to transfer the child from the family of birth.

4.5 Maintenance under Hindu Law

Obligation of a husband to maintain his wife arises out of the status of the
marriage. Right to maintenance forms a part of the personal law. Maintenance is a
right to get necessities which are reasonable from another. It has been held in various
cases that maintenance includes not only food, clothes and residence, but also the
things necessary for the comfort and status in which the person entitled is reasonably
expected to live. Right to maintenance is not a transferable right. Under Hindu Law,
the wife has an absolute right to claim maintenance from her husband. But she loses
her right if she deviates from the path of chastity. Her right to maintenance is codified
in the Hindu Adoptions and Maintenance Act, 1956. In assessing the amount of
maintenance, the court takes into account various factors like position and liabilities
of the husband. It also judges whether the wife is justified in living apart from
husband. Justifiable reasons are spelt out in the Act. Maintenance pendente lite
(pending the suit) and even expenses of a matrimonial suit will be borne by either,
husband or wife, if the either spouse has no independent income for his or her support.
The same principle will govern payment of permanent maintenance.
 56

4.5.1 Maintenance without divorce

Maintenance, in other words, is right to livelihood when one is incapable of

sustaining oneself. Hindu law, one of the most ancient systems of law, recognises
right of any dependent person including wife, children, aged parents and widowed
daughter or daughter in law to maintenance. The Hindu Adoptions and Maintenance
Act, 1956, provides for this right.

4.5.2 Maintenance as main relief: for wife

The relief of maintenance is considered an ancillary relief and is available only

upon filing for the main relief like divorce, restitution of conjugal rights or judicial
separation etc. Further, under matrimonial laws if the husband is ready to cohabit with
the wife, generally, the claim of wife is defeated. However, the right of a married
woman to reside separately and claim maintenance, even if she is not seeking divorce
or any other major matrimonial relief has been recognised in Hindu law alone. A
Hindu wife is entitled to reside separately from her husband without forfeiting her
right of maintenance under the Hindu Adoptions and Maintenance Act, 1956. The Act
envisages certain situations in which it may become impossible for a wife to continue
to reside and cohabit with the husband but she may not want to break the matrimonial
tie for various reasons ranging from growing children to social stigma. Thus, in order
to realise her claim, the Hindu wife must prove that one of the situations (in legal
parlance 'grounds') as stated in the Act, exists.

4.5.3 Grounds for award of maintenance

Only upon proving that at least one of the grounds mentioned under the Act,
exists in the favour of the wife, maintenance is granted. These grounds are as follows:
a. The husband has deserted her or has wilfully neglected her;
b. The husband has treated her with cruelty;

c. The husband is suffering from virulent form of leprosy/venereal diseases or

any other infectious disease;

d. The husband has any other wife living;

e. The husband keeps the concubine in the same house as the wife resides or he
habitually resides with the concubine elsewhere;
 57

f. The husband has ceased to a Hindu by conversion to any other religion;

g. Any other cause justifying her separate living;

4.5.4 Bar to relief

Even if one of these grounds exists in favour of the wife, she will not be
entitled to relief if she has indulged in adulterous relationship or has converted herself
into any other religion thereby ceasing to be a Hindu. It is also important to note here
that in order to be entitled for the relief, the marriage must be a valid marriage. In
other words, if the marriage is illegal then the matrimonial relationship between the
husband and wife is non-existent and therefore no right of maintenance accrues to
wife. However, thanks to judicial activism, in particular cases the presumption of
marriage is given more weightage and the bars to maintenance are removed.

4.5.5 Other dependants who can claim maintenance

Apart from the relationship of husband and wife other relations in which there
is economic dependency are also considered to be entitled to maintenance by the
Hindu Adoptions and Maintenance Act, 1956. Accordingly a widowed daughter-in-
law is entitled maintenance from her father-in-law to the extent of the share of her
diseased husband in the said property. The minor children of a Hindu, whether
legitimate or illegitimate, are entitled to claim maintenance from their parents.
Similarly, the aged and infirm parents of a Hindu are entitled to claim maintenance
from their children. The term parent here also includes an issueless stepmother.31
31
http://www.legalserviceindia.com/articles/hmcp.htm
 58

CHAPTER 5

MUSLIM PERSONAL LAW

Muslim Law is applicable only to Muslims. A person one who believes that
there is only one God and that Mohammed is his Prophet is a Muslim. Muslims
consist of two sects namely Sunnis (governed by Sunni Law) and Shia (governed by
Shia Law). There are some differences between these laws but the sources of these
laws are one and same, namely the Holy Quran, the Sunnat and the Ijma.1 The
―Muslim Personal Law‖ is based upon the Shariat. Roughly, the Shariat can be
explained as the provisions in the Quran as well as the teachings and practices of
Prophet Mohammad. However, the origin, evolution and the applicability of the
Shariat is far more twisted than that. Article 14 of the Indian Constitution grants
―equal protection of law‖ to all its citizens. But when it comes to personal issues
(marriage, divorce, inheritance, custody of children etc), Muslims in India are
governed by the Muslim Personal Law which came into force in 1937. The Muslim
Personal Law (Shariat) Application Act was passed in 1937 with the aim to formulate
an Islamic law code for Indian Muslims.

The British in time of governing India, were trying to ensure that Indians be
ruled according to their own cultural norms. When it came to distinguishing between
laws made for the Hindus and those for the Muslims, they laid out the statement that
―clear proof of usage will outweigh the written text of the law‖ in the case of Hindus.
For the Muslims on the other hand, the writings in the Quran would be of foremost
importance. Since 1937 therefore, the Shariat Application Act mandates aspects of
Muslim social life such as marriage, divorce, inheritance and family relations. The
Act lays out that in matters of personal dispute the State shall not interfere.2

Muslim personal law in today‘s India is interpreted in and applied by the

Constitution‘s secular courts. Why, then, the fear of its codification in a common civil
code? There are two fears. First, Hindus would be legislating on Islam, and second,
the law likely would be ―reformed‖ in the process of codification, as was Hindu law
to some extent. The Muslims believe they had foretaste of this in the Shah Bano Case,

http://www.webindia123.com/law/family_law/personal_laws.htm
http://indianexpress.com/article/research/shariat-muslim-personal-law-sharia-history-shayara-
2
bano-shah-bano-triple-talaq-personal-laws-religious-laws-uniform-civil-code-2784081/
 59

when the Supreme Court granted a divorced woman a greater maintenance allowance
than that provided for in the Shariat. Also, if personal law were codified, the ‗ulama‘
and the Muslim Personal Law Board would lose much—perhaps all—of their
authority to interpret the law, for it no longer would be the province solely of the
Muslim community.3

For the sake of clarity on the Muslim personal laws this chapter deals with the
‗Marriage and Divorce under Muslim Law‘, ‗Succession under Muslim Law‘,
‗Guardianship under Muslim Law‘, ‗Adoption under Muslim Law‘, and
‗Maintenance under Muslim Law‘.

5.1 Marriage and Divorce under Muslim Law

Under Mulsim Law Marriage is referred to as Nikah, an Arabic term which

means ―the union or the sexes‖. According to muslin law marriage is a civil contract.
It is a contract for legalizing sexual intercourse and procreation of children. Marriage
is a union of a man and women for the purpose of sexual intercourse and procreation
and legitimation of children and lives in peace and tranquility according to the
commandments of Allah. Allah has commanded the Muslims to marry for the Quran
says:

"And marry those among you who are single…."

A Muslim marriage is complete when other accepts an offer for marriage.

5.1.1 The Nature of Marriage

 Under the Muslim law, marriage is defined to be contract, which has for its
objects legalisation of sexual intercourse and procreation and legalisation of children.
According to Ameer Ali, marriage is an institution ordained for the protection of
society and in order that human beings may guard themselves from foulness and
unchastely. This definition is based on Quran and traditions. Mahmood J. in Abdul

3
Edited by Gerald James Larson; Religion and Personal Law in Secular India: A Call to Judgment;
p.22 (2001).
 60

Kadir v. Salima4 observed ‗Marriage among Mohammedans is not a sacrament, but

purely a civil contract‘.5

5.1.2 Void and Voidable marriages

A marriage according to Muslim law may be: (1) valid (sahih); or (2) void
(batil); or (3) irregular (fasid).

(1) Valid marriage (sahih)

A marriage that conforms in all respects with the law is termed as sahih, that
is, valid, in regard to legal requirements. For a marriage to be valid it is necessary that
there should be no prohibition affecting the parties. Prohibition may be either
perpetual or temporary. If the prohibition is perpetual, the marriage is void; if
temporary, the marriage is irregular.

(2) Void marriage (batil)

A marriage that has no legal results is termed void or batil. It is the semblance
of marriage without reality. A marriage forbidden by the rules of blood relationship,
affinity, or fosterage is void. The issue of such a union is illegitimate. A void
marriage produces no mutual rights and obligations between the parties. Death of one
does not entitle the other to inherit from the deceased.

(3) Irregular marriage (fasid)

 An irregular marriage is one that is not unlawful in itself but unlawful ‗for
something else‘, as where the prohibition is temporary or where the irregularity arises
from an accidental circumstance, such as the absence of witnesses. Thus, the
following marriage are irregular. Namely;

(a) a marriage contracted without witnesses;

(b) a marriage with a fifth wife by a person having four wives;

(c) a marriage with a woman undergoing iddat;

(d) a marriage prohibited by reason of difference of religion;

(1886) ILR 8 All 149.

5

K. B. Agrawal, Family Law in India, p.108, (2010).

 61

(e) a marriage with a woman so related to the wife that if one of them had been a
male, they could not have lawfully married; and

(f) marriage with a pregnant woman.

Irregular marriage does not create mutual rights of inheritance between

husband and wife. The Shia School does not recognise the distinction between
irregular and void marriages. According to that school a marriage is either valid or
void. Marriages that are irregular under the Sunni school are void under the Shia
school.

5.1.3 Divorce

Despite the precept of the Prophet, ―Oh, Allah, the most detestable of all
permitted things is divorce‖, divorce is the most copious and uninhibited aspect of
Muslim matrimonial law. Another remarkable feature of Muslim law of divorce is
that in most cases no judicial or non-judicial authority is needed to effect dissolution
of marriage.6

The following is the classification of divorce in Muslim law:

— By the death of either spouse

— By the act of parties

— By mutual consent

— By judicial process.
By the Death of Either Spouse

The death of the husband or the wife automatically operates dissolution of

marriage under Muslim law. If the wife dies, the husband can remarry immediately
but the widow has to wait until expiry of the iddat period (period of abstinence); that
is, four months and ten days, in case of pregnancy until her delivery.

6
Judicial divorce was introduced only in 1939 by the Dissolution of Muslim Marriage Act of that
year and under the Act only wife can sue for divorce.
 62

By the Act of Parties

It is in the following ways:

(1) By the Husband:

Under the Muslim law it is open to the husband to divorce his wife without
intervention of court and without assigning any reason for his action.7Such a
proceeding although abominable is nevertheless lawful. The divorce operates from the
time of the pronouncement of talak. Talak comes from the root ‗tallaqa‘ which means
to release, to free the wife from the bondage of marriage. In Hanafi law, no special
form is necessary, whereas Ithna Ashari law insists on a strict formula being used.
The words used must indicate a clear and unambiguous intention to dissolve the
marriage.

The pronouncement of talaq may be either revocable or irrevocable. As the

Prophet of Islam did not favour the institution of talaq, the revocable forms of talaq
are considered as the approved and the irrevocable forms are treated as the
disapproved form. Talaq may be in oral or in writing. The forms talaq are:

(a) Talaq-us-Sunna (i.e., in conformity with the dictates of the Prophet). It is in

two ways:

(i) Ahsan (the most approved);

(ii) Hasan (approved).

(b) Talaq-ul-Bida (i.e., of innovation, therefore not approved). It is in the

following ways:

(i) three declarations (the so-called triple divorce) at one time; or

(ii) one irrevocable declaration.

 (a) Talaq-us-Sunna: It is divied into two forms:

(i) Ahsan Form: It consists of one single pronoun cement in a period of turh
(purity; that is, when the women is free from menstrual courses) followed
by abstinence from sexual intercourse during iddat (period of abstinence).
A pronouncement made in the ahsan form is revocable during iddat. This
period is three months from the date of declaration or if the woman is
pregnant till delivery. The husband can revoke the divorce at any time

7
Prof. G.C.V.Subba Rao’s, Family law in India, p.642, (2012).
 63

during the iddat. After the expiration of the iddat, the divorce becomes
irrevocable. Such revocation may be by words or resumption of conjugal
intercourse.

(ii) Hasan Form: It consists of three successive pronouncements during three

consecutive period of turh. Each of these pronouncements should have
been made at a time when no intercourse has taken place during that
particular perid of turh. The divorce is effective on the third
pronouncement.

(b) Talaq-ul-Bida:

(i) The Triple Declaration: It is in this form that three pronouncements are
made in a single turh, either in one sentence, for example, I divorce thee
thrice or in three sentences, I divorce thee, I divorce thee, I divorce thee.
This is also called talaq-ul-Bain (irrevocable). Hanafi law recognises it

but in Ithna Ashari it is not permissible.

(ii) Single Irrevocable Declaration: A single irrevocable pronouncement is

made either during the period of turh or even otherwise. This form is also
called talaq-ul bain and may be given in writing.

In the ahsan form, the divorce is effective on the expiration of the iddat. In the
hasan form, the divorce is effective on the third pronouncement. In the talaq-ul bain
or bida the divorce is effective from the moment of pronouncement or the execution
of the writing of divorce (talaq nama).

Constitutional Validity of the ‗Triple Talaq‘

The ‗Triple Talaq‘ is cruel.— Observing that the judicial conscience is

'disturbed', the Allahabad High Court in December, 2016, held that triple talaq is
'cruel' and raised a question whether the Muslim Personal law could be amended to
alleviate the sufferings of Muslim women. Coming down heavily on the practice, the
court has held that this form of 'instant divorce' is 'most demeaning' which 'impedes
and drags India from becoming a nation'.8

8
http://indiatoday.intoday.in/story/triple-talaq-hyderabad-man-divorces-wife-through-
newspaper-ad/1/920519.html
 64

The Supreme Court of India on 30th March 2017 referred the ‗triple talaq‘
and related matters to the Constitution Bench. The Bench headed by CJI J S Khehar
said that a constitution bench will hear petitions challenging the constitution validity
of triple talaq, polygamy and nikah halala from May 11th 2017. The Supreme Court

had on February 16th 2017 asked all sides including aggrieved women petitioners,
Centre, All India Muslim Personal Board and women rights bodies to submit written
submissions by 30th March 2017 on the issue of triple talaq, polygamy and nikah
halala. The Chief Justice had said a detailed hearing of petitions challenging the
validity of the practices will commence from May 11 th 2017.9 In this case the
government had argued that these are a violation of fundamental rights guaranteed by
the Constitution and do not form a part of the "essential religious practices" in Islam.
Law Minister Ravi Shankar Prasad had said the government is in favour of triple talaq
being abolished. The Muslim personal law board, however, firmly believes that the
court cannot interfere in matters of faith.10

There has been numerous instances of talaq via email, Whatsapp, there came
another shocker of an incident wherein a man divorced his wife through an
advertisement published in a newspaper. A Hyderabad man, who works at a bank in
Riyadh, Saudi Arabia, announced 'talaq' with his wife in an advertisement published
in an Urdu daily on March 4 2017.11 Yet against raising controversy over the triple
talaq practice, when a Muslim woman in Uttar Pradesh's Kanpur city received talaq
through speed post within three month of her marriage.12

(2) Divorce by the Wife

(a) Talaq-i-tafwid (Delegated Divorce):

The husband in Mohammadan law has the power to delegate his own
right of pronouncing divorce to some third person or to the wife herself. A
 stipulation that under certain specified condition, the wife can pronounce
divorce upon herself is valid. This form of delegated divorce is perhaps the

9
http://www.livelaw.in/breaking-sc-refers-triple-talaq-case-constitution-bench/

10
http://www.ndtv.com/india-news/hyderabad-man-arrested-over-triple-talaq-postcard-to-his-
bride-1677132

11
http://indiatoday.intoday.in/story/triple-talaq-hyderabad-man-divorces-wife-through-
newspaper-ad/1/920519.html
12
http://www.newkerala.com/news/fullnews-237364.html
 65

most potent weapon in the hands of a wife to obtain freedom without

intervention of a court and is now fairly common in India. The wife can seek
divorce provided the condition is not absolute but conditional, and secondly,
the conditions are reasonable and not opposed to public policy.

(b) Ila (Vow of Continence):

In Ila (vow of continence) the husband swears not to have intercourse

with the wife and abstain for our months or more. The husband may revoke
the oath by resumption of marital life. After the period of four months the
marriage is dissolved in the Hanafi Anshari school, but in the Ithna Ashari
school and Shia school, legal proceedings are necessary.

(c) Talaq-i-Zihar (Injurious assimilation):

It is an inchoate divorce. In this form, the husband expresses

dissatisfaction with his wife by comparing her with the back of hus mother,
sister, or other woman within the degrees of prohibition. In this form if the
husband intends to revoke this declaration, he has to pay money by way of
expiration. After the oath has been taken, the wife has a right to go to the court
and obtain a divorce. Among the Ithana Ashari school, Zihar form must have
been made before the two competent witnesses during the period of turh.
Although these two forms, Ila and Zihar, are mentioned in Section 20 of the
Shariat Act, 1937, they are very rare in India and therefore are of no practical

importance.13

By Mutual Consent
 (1) Khula:

The word “Khula” literally means ―to put off‖. In the context of matrimonial
law it means ―laying down by a husband of his right and authority over his wife for an
exchange.‖14 When a woman feels that she cannot continue to live in matrimony, she can
release herself from the marriage tie by giving some property to her husband, in

13
K. B. Agrawal, Family Law in India, pp.137-138, (2010).
14
Baillie 38, Hedaya, 112.
 66

consideration of which the husband may give her Khula.15 Prior to Islam, the wife
had practically no such position to ask for the divorce.16

(2) Mubaraa or mubaraat:

When aversion is mutual, the proposal for divorce may emanate from either
side. This is called mubaraa. It is submitted that mubaraa may be considered as
divorce by mutual consent.17

Khula and mubaraa operate as a single, irrevocable divorce. The martial life
cannot be resumed by mere reconciliation. A formal remarriage is necessary. The
observance of iddat is compulsory.18

By Judicial Process

The wife under the Muslim Law can secure divorce under the Dissolution of
Muslim Marriage Act of 1939. Section 2 of the Act gives the grounds in which a
woman married under Muslim law shall be entitled to obtain a decree for the
dissolution of her marriage on any one or more of the following grounds:

(i) Husband‘s whereabouts not known for four years;

(ii) Maintenance not provided to wife for two years;

(iii) Husband sentenced to imprisonment for seven years;

(iv) Husband not performing matrimonial obligations for three years;

(v) Impotency of husband from the time of marriage;

(vi) Husband‘s insanity for two years;

 (vii) Leprosy or venereal disease of husband; and

(viii) Legal cruelty.

Under the Muslim law the wife was originally in a disadvantageous position.
When the marriage turned out to be unhappy she had no remedy to put an end to the
marriage. The law has been gradually reformed. Now a Muslim woman can exercise a

15
Dr. Paras Diwan, Family Law, p.196, (2011).
16
K. B. Agrawal, Family Law in India, p.139, (2010).

17
Dr. Paras Diwan, Family Law, p.196, (2011).

18
K. B. Agrawal, Family Law in India, p.139, (2010).
 67

right of divorce in certain circumstances under the Dissolution of Muslim Marriage

Act, 1939.19

5.2 Succession under Muslim Law

Succession to the property of the deceased opens on his death. Under the
Muslim law governing intestate succession, succession opens on the death of the
owner of property. When a question arises as to whether a man is alive or dead,
according to Section 107 of the Indian Evidence Act, and if it is shown that he was
alive within thirty years, the burden of proving that he is dead is on the person who
affirms it. However, under Section 108 of the Act, when the question is whether a
man is alive or dead, and it is proved that he has not been heard of for seven years by
those who would naturally have heard of him if he had been alive, the burden of
proving that he is alive is shifted to the person who affirms it. These provisions and
the Indian Evidence Act, 1872, have an overriding effect and, therefore, over-rule

Muslim law and all customs.20

5.2.1 Sunni Law

According to the Sunni school, the heritable property first goes to the relations
of the deceased, who, based on their preferential claim, have been divided into the
following three groups:

(1) Sharers: They are those relations whose shares have been specifically fixed
under Muslim law.

(2) Residuaries: They are those who succeed to the residue, if any left after
satisfying the sharers.
 (3) Distant Kindred: They are those relations who are neither sharers nor
residuaries.

(1) Sharers

There are twelve sharers they are as follows:

Father: Where there is a son, or son‘s son (how low so ever will be stated as h.l.s.

hereinafter), the father takes one-sixth.

19
Prof. G.C.V.Subba Rao’s, Family law in India, p.650, (2012).
20
K. B. Agrawal, Family Law in India, p.227, (2010).
 68

Mother: Where there are children, or son‘s children, h.l.s. or two or more brothers and
sisters, the mother takes one-sixth. However, where there are both a wife or husband
and a father, in which case she takes one-third of what remains after the share of the
widow or widower has been satisfied.

Husband: The share of the husband in his deceased wife‘s estate is one-fourth where
there are children or son‘s children, and if there are no such heirs, he takes one-half.

Wife: The widow takes one-eighth of the deceased husband‘s estate where there are
children or son‘s children h.l.s., and if there are no such issues then she takes one-
fourth. The share of two or more wives is precisely the same, viz., one-eighth or one-
fourth to be divided equally between them.

True grandfather: Whether there is a father, the true grandfather is excluded from
participating in the inheritance. Where there is a son, or son‘s son h.l.s. and no father
the true grandfather takes one-sixth. (True grandfather means a male ancestor
between whom and the deceased no female intervenes. A false grandfather is any
male ancestor between whom and the deceased a female intervenes.)

True grandmother: True grandmothers are excluded from participating in the

inheritance by the mother, and paternal grandmothers are excluded where there is a
father. (A true grandmother is a female ancestor between whom and the deceased no
false grandfather intervenes. Similarly a false grandmother is a female ancestor
between whom and the deceased a false grandfather intervenes.) Similarly paternal
female ancestors h.h.s. (how high so ever), except the father‘s mother are excluded by
the grandfather. The share of the grandmother is one-sixth, and the same is the share
of the paternal grandmother where there is no father. Two or more true grandmothers
of equal degree divide the one-sixth equally. The grandmothers nearer in degree
exclude the more remote.
Daughter: The share of a single daughter is one-half where there is no son, and the
maximum collective share of two or more daughters is two-thirds.

Son‟s daughter: Where there is one daughter only, the son‘s daughter takes one-sixth,
but where there are two or more daughters, they take nothing. Where there is no son,
nor daughter, nor son‘s son, the son‘s daughter inherits as if in the capacity of
 69

daughter and takes two-thirds. If they bee two or more, and if there is a single son‘s
daughter she takes one-half of the estate.

Sister: Where there is no child or son‘s child h.l.s. and no father or true grandfather
and no full brother, a single full sister takes one-half, and if two or more they take
two-thirds to be divided equally between them.

Consanguine Sister: Where there is no child or son‘s child h.l.s. and no father or true
grandfather, and there being neither full brother nor full sister nor consanguine
brother, a single consanguine sister takes one-half, and if two or more they take two-
thirds to be divided equally between them. If there be only one full sister, she will
take her half, leaving only the remainder of the maximum collective share (2/3 – ½ =
1/6) one sixth for the consanguine sister whether one or more.

Uterine sister-uterine brother: They are cognates and they succeed only as sharers and
not as residuaries. Their children are distant kindred. Where there is no child or no
son‘s child or father or true grandfather, the uterine sister takes one-sixth, and if two
or more they take one-third. The uterine brother under similar circumstances is
entitled to one sixth of the estate, if there are two or more they are entitled to the
maximum collective share one-third of the estate. In their case the males and females
share equally.

Fixed portions: The portions fixed by the Quran are six: namely, one-half, one-fourth,
one-eighth, two-third, one-third and one-sixth. The object of the Quran is to give
shares to the females who are excluded under the customary law in ancient Arabia.

Table of Fixed Portion

Fixed Portion Of the Sharers under Certain Circumstances

½ Husband, daughter, son‘s daughter, full sister, consanguine

sister

¼ Husband, wife

1/8 Wife or wives

2/3 Daughters, son‘s daughter, full or consanguine sisters

1/3 Mother, uterine brothers or sisters

1/6 Father, true grandfather, mother, grandmothers, one or more

son‘s daughters, one or more consanguine sisters, uterine

brother or sister
 70

(2) The Residuaries

There are four classes of residuaries, and each of the preceding class must be
exhausted before the next that is excluded; that is, the first excludes the second, the
second excludes the third, the third excludes the fourth.21 The residuaries take what is
left after the claims of the sharers (if any) are satisfied. They are the following

I. Descendants :—

1. Son: Where there is a son, daughter is also a residuary. Son takes a double
portion.

2. Son‘s son, h.l.s. never excludes the remoter. Several son‘s sons takes per
capita. Son‘s daughter (h.l.s.) with equal son‘s son takes as residuary.
Withlower son‘s on, she takes as residuary provided she cannot inherit as
sharer (i.e. if she is excluded as sharer). Son‘s son (h.l.s.) takes double the
portion of son‘s daughter (h.l.s.).

II. Ascendants :—

3. Father

4. True grandfather (h.h.s.). The nearer excludes the more remote.

III. Collaterals :— (A) Descendants of Father :—

5. Full Brother: Full sister takes as residuary with Full brother, the latter
taking a double portion.

6. Full Sister: If residuaries 1 to 5 are not there, she takes as residuary with
daughters or son‘s daughters h.l.s. or with 1 daughter + son‘s daughter
h.l.s.
 7. Consanguine Brothers: Consanguine sister takes with him as residuary a
half-portion of what he takes.

8. Consanguine Sister: She is a residuary, in default of Residuaries 1 to 7. If

there be daughter or daughters; or son‘s daughter (or daughters) h.l.s. or
one daughter + son‘s daughter (or daughters) h.l.s.

9. Full Brother‘s son

10. Consanguine Brother‘s son

21
K. B. Agrawal, Family Law in India, pp.243-245, (2010).
 71

11. Full Brother‘s son‘s son

12. Consanguine brother‘s son‘s son.

Remoter male descendants of No. 11 each step followed by remoter male

descendants of No. 12 successively.

(B) Descendants of True Grandfather h.h.s.

13. Full Paternal Uncle

14. Consanguine Paternal Uncle

15. Full Paternal Uncle‘s son.

16. Consanguine Paternal Uncle‘s son.

17. Full Paternal Uncle‘s son‘s son.

18. Consanguine Paternal Uncle‘s son‘s son.

Male descendants of 17 and 18 step by step successively (i.e. son of 17, son of
18; son‘s son of 17; son‘s son of 18 and so on).

Male descendants of remote True Grandfather in similar order to ranks 13 to

18 above.

It is obvious that the residuaries are agnates. They are related through males
only. The Uterine Brother and Uterine Sister being connected through a female are
not residuaries.

There are only four female residuaries: 1. Daughter; 2. Son‘s daughter, h.l.s.;
3. Full sister; 4. Consanguine Sister.
 Father and True grandfather can have a double capacity (both sharer and
residuary) at the same time in certain circumstances (e.g. when there are only
daughters). The four female heirs who are residuaries are sharers also, but they inherit
only in one of these capacities according to the circumstances. The daughter is
residuary with son but not with son‘s son. The sister is residuary with brother but not
with Brother‘s son. The son‘s daughter is residuary not only with son‘s son but also
with lower son‘s son (i.e. son‘s son‘s son etc.)22

22
Prof. G.C.V.Subba Rao’s, Family law in India, pp.734-736, (2012).
 72

(3) Distant Kindred

The Distant Kindred are those who are neither sharers nor residuaries. They
fall into four classes:

Class 1. Descendants:—

(a) Children of daughters and their descendants.

(b) Children of son‘s daughter h.l.s. and their descendants.

Class 2. Ascendants:—

False grandfather (h.h.s.): false Grandmother h.h.s.

Class 3. Descendants of Parents:—

Brother‘s daughters ad their descendants; Brother‘s son‘s daughters,

and their descendants; sister‘s children and their descendants.

Class 4. Descendants of immediate grandparents and descendants of remoter

ancestors.

Principles :— (i) Each of the above-mentioned classes, excludes the classes that
come later in order; e.g., Class I excludes Class II etc.

(i) In each class the nearer in degree excludes the more remote.
 (ii) In Class II among claimants of same degree, those tracing relationship
through sharers exclude those not so connected.

(iii) In Class III among claimants of same degree, children of residuaries are
preferred to those of Distant Kindred; descendants of Full Brothers exclude
those of consanguine brothers and of sisters.23

23
Prof. G.C.V.Subba Rao’s, Family law in India, p.740, (2012).
 73

5.2.2 Shia Law

Under the Shia school, the heirs have been divided into two classes:

(i) Heirs by consanguinity. They are further subdivided into three groups:
Group I: (a) parents, (b) children and other lineal descendants how low so
ever, Group II: (a) grandparents, (b) brothers and sisters and their
descendants; Group III: (a) paternal uncles and aunts, (b) maternal uncles
and aunts.24

Under Shia law there is no separate category of Distant Kindred. Barring

sharers, all other heirs are residuaries. The descendants of residuaries are also
residuaries. Son‘s daughter for instance, si a residuary. Under Sunni law son‘s
daughter is a sharer. Full Brother‘s daughter who is Distant Kindred under Sunni law
is a residuary under Shia law. Thus the Distant Kindred of Sunni laws are distributed
amongst sharers and residuaries under Shia Law.25

5.3 Guardianship under Muslim Law:

The source of law of guardianship and custody are certain verses in the Koran
and a few ahadis. The Koran, the ahadis and other authorities on Muslim law
emphatically speak of the guardianship of the property of the minor, the guardianship
of the person is a mere inference.26 The court has jurisdiction under the Guardians
and Wards Act, 1890 to appoint a guardian for all persons who are under 18 years of
age. This Act is applicable to Muslims also. When the court acts under this Act it does
so consistently with the personal law of the parties. This means that it takes note of
Muslim Law when dealing with a Muslim.27

5.3.1 Classification of Guardianship

 In Muslim law guardians fall under the following three categories :

(i) Natural guardian,

(ii) Testamentary guardian,

24
K. B. Agrawal, Family Law in India, p.228, (2010).
25
Prof. G.C.V.Subba Rao’s, Family law in India, p.748, (2012).

26
Dr. Paras Diwan, Family Law, p.298, (2011).

27
Prof. G.C.V.Subba Rao’s, Family law in India, p.661, (2012).
 74

(iii) Guardians appointed by the court, and

(iv) De Facto Guardian.

Natural Guardian

Under Sunni Law the mother is entitled to the custody of a male child up to 7
years and a female child till she attains puberty. Under Shia law[14] she has custody
of male child till the age of 2 years and female child till the age of 7 years; She is the
de facto guardian; Under Sunni law failing the mother the custody of a boy up to 7
year and girl up to puberty goes to the following female relatives in order:—

(i) Mother‘s mother h.h.s.;

(ii) Father‘s mother h.h.s.;

(iii) Full sister;

(iv) Uterine sister;

(v) Consanguine sister;

(vi) Full sister‘s daughter;

(vii) Uterine sister‘s daughter;

(viii) Consanguine sister‘s daughter;

(ix) Maternal aunt in like order as sisterl

(x) Paternal aunt in like order as sisters.28

In default of mother and female relatives, the custody goes to the following:

(i) Father;
 (ii) Paternal grandfather (nearest);

(iii) Full brother;

(iv) Consanguine brother;

(v) Full brother‘s son;

(vi) Consanguine brother‘s son;

(vii) Full brother of the father;

(viii) Consanguine brother of the father;

(ix) Son of father‘s full brother;

28
“Removal of Discrimination against Women in Matters Relating to Guardianship and Custody of

Minor Children and the Elaborations of the Welfare Principle”, Law Commission of India, 133rd

Report .
 75

(x) Son of father‘s consanguine brother.29

Under Shia law the custody goes to the mother, failing her to the father and
failing him to the father‘s father.

Under Sunni law the father is entitled to custody of the boy over 7 and an
unmarried girl who has attained puberty and in Shia law to the custody of a male child
over two year and unmarried girl of 7 years. The custody of an illegitimate child goes
to the mother.

In all schools of both the Sunnis and the Shias, the father is recognized as
guardian which term in the context is equivalent to natural guardian and the mother in
all schools of Muslim law is not recognized as a guardian, natural or otherwise, even
after the death of the father. The father's right of guardianship exists even when the
mother, or any other female, is entitled to the custody of the minor. The father has the
right to control the education and religion of minor children, and their upbringing and
their movement. So long as the father is alive, he is the sole and supreme guardian of
his minor children.30

The father's right of guardianship extends only over his minor legitimate
children. He is not entitled to guardianship or to custody of his minor illegitimate
children.

In Muslim law, the mother is not a natural guardian even of her minor
illegitimate children, but she is entitled to their custody.31

Among the Sunnis, the father is the only natural guardian of the minor
children. After the death of the father, the guardianship passes on to the executor.
Among the Shias, after the father, the guardianship belongs to the grandfather, even if
the father has appointed an executor, the executor of the father becomes the guardian
only in the absence of the grandfather. No other person can be natural guardian, not
even the brother. In the absence of the grandfather, the guardianship belongs to the
grandfather's executor, if any.32

29
Shamona Khanna, “Challenging the Unequal position”.
30
Imambandi v. Mutsaddi, (1918) 45 Cal 887.

31
Gohar Begum v. Suggi, (1960) 1 SCR 597.

32
Syed Shah v. Syed Shah, AIR 1971 SC 2184.
 76

Testamentary Guardian

Among the Sunnis, the father has full power of making a testamentary
appointment of guardian. In the absence of the father and his executor, the grandfather
has the power of appointing a testamentary guardian. Among the Shias, the father's
appointment of testamentary guardian is valid only if the grandfather is not alive. The
grandfather, too, has the power of appointing a testamentary guardian. No other
person has any such power.

Among both the Shias and the Sunnis, the mother has no power of appointing
a testamentary guardian of her children. It is only in two cases in which the mother
can appoint a testamentary guardian of her property of her minor children : first, when
she has been appointed a general executrix by the will of the child's father, she can
appoint an executor by her will; and secondly, she can appoint an executor in respect
of her own property which will devolve after her death on her children.

The mother can be appointed a testamentary guardian or executrix by the

father, or by the grandfather, whenever he can exercise this power. Among the Sunnis,
the appointment of a non-Muslim mother as testamentary guardian is valid, but among
the Shias such an appointment is not valid, as they hold the view that a non-Muslim
cannot be a guardian of the person as well as of the property of a minor. It seems that
the appointment of non-Muslim fellow-subject (zimmi) is valid, though it may be set
aside by the kazi. According to the Malikis and the Shafii law, a zimmi can be a
validly appointed testamentary guardian of the property of the minor, but not of the
person of the minor. The Shias also take the same view. It appears that when two
persons are appointed as guardians, and one of them is disqualified, the other can act
as guardian. A profligate, i.e., a person who bears in public walk of life a notoriously
bad character, cannot be appointed as guardian.
 Acceptance of the appointment of testamentary guardianship is necessary,
though acceptance may be express or implied. But once the guardianship is accepted,
it cannot be renounced, save with the permission of the court.

Muslim law does not lay down any specific formalities for the appointment of
testamentary guardians. Appointment may be made in writing or orally. In every case
the intention to appoint a testamentary guardian must be clear and unequivocal. A
testamentary deposition made by a testator may be invalid, but appointment of the
 77

executor may be general or particular. The testator must have the capacity to make the
will at the time when it was executed. This means that the testator should be major
and of sound mind, i.e., at the time of execution of the will, he should be in full
possession of his senses.

The executor of the testamentary guardian is designated variously by Muslim

lawgivers, indicating his position and powers. He is commonly called, wali or
guardian. He is also called amin, i.e., a trustee. He is also termed as kaim-mukam, i.e.,
personal representative of the testator.

Guardian appointed by the Court

On the failure of the natural guardians and testamentary guardians, the kazi
was entrusted with the power of appointment of guardian of a Muslim minor. Now the
matter is governed by the Guardians and Wards Act, 1890. This Act applies to the
appointment of guardians of all minors belonging to any community. The High Courts
also have inherent powers of appointment of guardians, though the power is exercised
very sparingly.

Under the Guardians and Wards Act, 1890, the power of appointing, or
declaring any person as guardian is conferred on the District Court. The District Court
may appoint or declare any person as guardian of a minor child's person as well as
property whenever it considers it necessary for the welfare of the minor, taking into
consideration the age, sex, wishes of the child as well 'as the wishes of the parents and
the personal law of the minor.33

De Facto Guardian
 When a person having no right to do so assumes the charge of another‘s estate
and carries on the administration and management of the estate, this continuous
course of conduct results in conferring on him the status of de facto guardian.
Whether this status gives him some powers, or rights, different systems of law differ,
yet all agree that it imposes on him certain liabilities and obligations. Thus, de facto
guardianship is a concept under which past act results in present status. A de facto
guardian is a self-appointed guardian. A fugitive or an isolated act of a person in

33
K. B. Agrawal, Family Law in India, pp.298-300, (2010).
 78

regard to minor‘s property does not make him a de facto guardian, nor does staying
with the minor for some time confers on him such status. It is only some continuous
course of conduct in respect of a minor‘s property that makes him a de facto guardian.
Tayabji defines a de facto guardian as an (unauthorised) person who as matter of fact
(de facto) has custody and care of the person and/or of his property.34

5.3.2 Rights of Hizanat

In the case of Imambandi v. Mustadi35, the property in the suit belonged to

Ismail Ali Khan (Sunni). It was alleged by the plaintiff that on his death he left three
widows one of whom, Zohra, acting on behalf of herself and her two minor children
purchased the share in the suit for the possession of which they brought action. The
reliefs sought were

(i) Declaration of the title and status of plaintiff‘s vendors;

(ii) A decree for possession of shares covered by the sale deed.

The defendants contended that Zohra was not a married wife and that the
children were not legitimate and that the shares did not pass under the sale. The Privy
Council held that Zohar and her children were entitled to the shares. The important
question was whether the plaintiffs acquired any title to the infant‘s share under the
sale by the mother. The defendants contended that the mother had no power to convey
her children‘s interest to the plaintiffs. It was held that although the mother is entitled
to the custody of the person of the minor, she is not the natural guardian and the father
alone or if he is dead his executor (under Sunni Law) is the legal guardian. The
mother has not power to deal with the minor child‘s property. She may incur
responsibilities but can impose no obligation on the infant. This rule is subject to
certain exceptions provided for the protection of a minor child if there is no de jure
guardian i.e. the court may appoint the mother as a guardian of the property. It was
further held that if the mother pledges (mortgages) the properties of the minor child it
is unlawful unless she is the executrix (of the father) or is authorized by the guardian

34
Tayabji (4th ed.) 213.
35
AIR 1987 SC 554.
 79

of the minor or by the judge. Then it is lawful and the right of possession and user is
established in the Murtahil (pledgee/ mortagagee) without the power of sale.36

5.3.3 Termination of Hizanat

Disqualification of the Hizanat can be categorized into 5 heads:-

General disqualifications – a minor cannot act as a guardian of any minor other than
his own wife or child, a non Muslim parent etc.

(i) Disqualification effecting females – the mother or female‘s relatives can

be disqualified on the following counts-

a. She leads an immoral life –

i. Adultery ;

ii. Becomes a prostitute;

iii. Has committed criminal offence;

iv. Is a professional singer or mourner

b. She neglects the child;

c. She marries a person not related to the child within prohibited degrees

(Rahima Khatoon v. Saburjanesa)37;

d. During subsistence of marriage she goes and resides at a place at a

distance from the father‘s place;

(ii) Disqualification affecting males - No male relative, outside of

prohibited degrees, is allowed to have custody of an unmarried girl.
 (iii) Disqualification affecting parents –

Mother gives up custody of boys after 7 and girls after puberty (Sunni
Law) and boys after 2 and girls after 7 (Shia law). The mother does not
lose her right to custody by divorcing the father.

The father is a natural guardian but will be disqualified by the court

for–

 Cruelty to wife or children;


 Felony;

36
Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).
37
AIR 1976 SC 252.
 80

 Adultery (though not if the woman is not brought into contact with
the child);

 If he is unfit in character and conduct;

 If he is unfit as regards external circumstances;

 If he waives his right of custody;

 If he enters into agreement to the contrary

 If he goes out of the jurisdiction of the court or if intends to go
abroad;38

(iv) Disqualification affecting husband – husband is not entitled to

custody of minor wife unless she attains puberty or such age that
would permit consummation of marriage. In this circumstance, the
mother is the guardian. However, minority of the husband does not
deprive him of his right to guardianship.39

5.4 Adoption under Muslim Law

Adoption is the transplantation of a son from the family in which he is born,

into another family by gift made by his natural parents to his adopting parents. 40
Muslim law does not recognise adoption. Before the Shariat Act, 1937, adoption
among some Muslims was recognised by custom. So, a Muslim never acknowledges
another‘s child as his own and the child is considered to be the direct descendent by
legitimate means.41 If an adoption takes place, then an adopted child retains his or her
own biological family name (surname) and does not change his or her name to match
that of the adoptive family. In all sense, unlike the Hindu law, adoptive parents are not
given the status of the natural parents. Under the Oudh Act, 1869, Section 29, a
Muslim talukadar was permitted to adopt. But it seems, to a very great extent, the
custom of adoption stands abrogated. If no declaration under the Shariat Act has been
made, it is open to a person to plead and prove the custom of adoption and if he
succeeds, it will be given effect to. In Jammu and Kashmir adoption is recognised

38
AIR 1976 SC 252.
39
Arun Kumar, “Guardianship and Custody of the Person of a Minor Child – Conflicting Claims”,

Journal of the Indian Law Institute, Vol. 17: 2, 1975.

40
http://www.legalserviceindia.com/articles/hmcp_adopt.htm

41
https://www.lawteacher.net/free-law-essays/family-law/adoption-in-hindu-law-and-muslim-
law-law-essay.php
 81

under custom.42 In Mohammed Allahabad Khan v. Mohammad Ismail,43 it was held

that there is nothing in the Mohammedan Law similar to adoption as recognized in the
Hindu System.44 Acknowledgement of paternity under Muslim Law is the nearest
approach to adoption. The material difference between the two can be stated that in
adoption, the adoptee is the known son of another person, while one of the essentials
of acknowledgement is that the acknowledgee must not be known son of another.
However an adoption can take place from an orphanage by obtaining permission from
the court under Guardians and wards act. In India Legislative attempts have been
made to make law of adoption to all the communities in India. Muslims vehemently
have opposed application of law of application of law of adoption. Therefore,
Parliament could not enact law of adoption in India for communities other than
Hindus. It is surprising to know that in practice large numbers of Muslims all over
India are adopting children, but it is difficult to know what law is applied in case of
disputes, because the matter does not go to the court of law. It appears that the
disputes are resolved by mutual understanding.45

5.5 Maintenance under Muslim Law

5.5.1 Rules governing the liability of a Muslim to maintain his children and
grand children

Under the Muslim Law a person has to maintain his children during their
minority, i.e., until they attain puberty. After they have reached adulthood, this
obligation ceases in the case of the sons. But in the case of daughters the obligation
continues until their marriage. When the father is too poor to maintain the children,
but the mother is in affluent circumstances the obligation to maintain the children will
be upon her. But if both parents are too poor to support the children, the grandfather
has to shoulder this obligation of course only provided he is having sufficient
resources for the purpose.
42
Md. Ismail v. Noor-ud-Din, AIR 1986 J & K 14.
43
(1886) ILR 8 All 234.

44
Dr. Paras Diwan, Family Law, p.314, (2011).

45
K. B. Agrawal, Family Law in India, p.185, (2010).
 82

5.5.2 Maintenance of Unmarried Daughters

Until the daughter attains puberty it is the mother that is entitled to her
custody. This is so even if the mother is divorced by her husband. As a result of
divorce the mother stays away from the former husband and since she is entitled to
the custody of the daughter the daughter has to live away from her father. The father‘s
obligation to maintain the daughter, therefore, subsists in such a case.

Where the mother has not been divorced, she has to live with her husband
along with her child. Suppose the mother does not do so but lives separately with her
daughter. It may be because her husband has married again or because she has
quarrelled with him. Can she in such a case claim maintenance for the daughter whom
she is having custody / Can she put forward such a claim even if the father expresses
his willingness to keep her and her daughter with him? There is a difference of
judicial opinion on this question. The Bombay High Court considers that in such a
case the daughter is not entitled to maintenance from the father.46 The Madras High
Court has held that even in such a case the daughter is entitled to maintenance from
the father.47 The Madras decision proceeds upon the view that the father‘s obligation
is absolute and that the proper remedy of the father is to sue for restitution of conjugal
rights on the ground that his wife was not staying with him without proper reason.

5.5.3 Maintenance of Wife

The husband‘s duty to maintain wife arises from the time she is old enough for
matrimonial intercourse. The corresponding right of the wife is forfeited if she
withdraws herself from the husband‘s protection without lawful cause. Thus she does
not lose the right if she lives separately owing to legal cruelty on his part. She would
forefeit the right is she defaults in her wifely duties. The husband‘s duty to maintain
the wife comes to an end when there is a divorce, but even in such a case maintenance
may be claimed by the wife during the period of iddat. The death of the husband puts
an end to his duty to maintain the wife so that a widow cannot claim maintenance

even during the period of iddat.48

46
Dinasab Kasimsab v. Mahamad Hussein, 1945 Bom 390.
47
Muhaiddin v. Sainambu Ammal, 1941 Mad 582.

48
Prof. G.C.V.Subba Rao’s, Family law in India, pp.669-670, (2012).
 83

5.5.4 Maintenance of divorced Muslim woman

The "Women (Protection of Rights on Divorce) Act, 1986" spells out the
objective of the Act as "the protection of the rights of Muslim women who have been
divorced by, or have obtained divorce from, their husbands." The Act makes
provision for matters connected therewith or incidental thereto. It is apparent that the
Act nowhere stipulates that any of the rights available to the Muslim women at the
time of the enactment of the Act, has been abrogated, taken away or abridged.

Under the Muslim Law, the Muslim Women (Protection of Rights on Divorce)
Act, 1986 protects rights of Muslim women who have been divorced by or have
obtained divorce from their husbands and provides for matters connected therewith or
incidental thereto.

This Act inter alia provides that a divorced Muslim woman shall be entitled to

(a) reasonable and fair provision and maintenance to be made and paid to her
within the iddat period by her former husband;

(b) where she herself maintains children born to her before or after her divorce, a
reasonable and fair provision and maintenance to be made and paid by her
former husband for a period of two years from the respective dates of birth of
such children;

(c) an amount equal to the sum of mehr or dower agreed to be paid to her at the
time of her marriage or at any time thereafter according to the Muslim Law;
and

(d) all the properties given to her before or at the time of marriage or after her
marriage by her relatives or friends or by husband or any relatives of the
husband or his friends.49
 In addition, the Act also provides that where a divorced Muslim woman is
unable to maintain herself after the period of iddat the magistrate shall order directing
such of her relatives as would be entitled to inherit her property on her death
according to the Muslim Law, and to pay such reasonable and fair maintenance to her
as he may determine fit and proper, having regard to the needs of the divorced
woman, standard of life enjoyed by her during her marriage and means of such

49
Section 3(1).
 84

relatives, and such maintenance shall be payable by such relatives in proportion to the
size of their inheritance of her property and at such periods as he may specify in his
order.

Where such divorced woman has children, the Magistrate shall order only
such children to pay maintenance to her, and in the event of any such children being
unable to pay such maintenance, the magistrate shall order parents of such divorced
woman to pay maintenance to her. In the absence of such relatives or where such
relatives are not in a position to maintain her, the magistrate may direct State Wakf
Board established under Section 13 of the Wakf Act, 1995 functioning in the area in
which the woman resides, to pay such maintenance as determined by him.

The Act lays down under various sections that distinctively lay out the
criterion for women to be granted maintenance. Section (a) of the said Act says that
divorced woman is entitled to have a reasonable and fair provision and maintenance
from her former husband, and the husband must do so within the period of iddat and
his obligation is not confined to the period of iddat.

It further provides that a woman , if not granted maintenance can approach the
Wakf board for grant as under section (b)which states that If she fails to get
maintenance from her husband, she can claim it from relatives failing which, from the
Wakf Board. An application of divorced wife under Section 3(2) can be disposed of
under the provisions of Sections 125 to 128, Cr.P.C. if the parties so desire. There is
no provision in the Act which nullifies orders passed under section 125, Cr.P.C. The
Act also does not take away any vested right of the Muslim woman.

All obligations of maintenance however end with her remarriage and no

claims for maintenance can be entertained afterwards. The Act thus secures to a
divorced Muslim woman sufficient means of livelihood so that she is not thrown on
the street without a roof over her head and without any means of sustaining herself.
 85

CHAPTER 6

CHRISTIAN PERSONAL LAW

Christian law, as a branch of personal law, is primarily applicable to the

Christian community. The Indian Christian Marriage Act, 1872 defines the term
‗Christian‘ as a person professing the Christian religion.1 One may profess
Christianity in any of its forms. Under the Act the term ‗Indian Christian‘ includes
Christian descendants of native Indians converted to Christianity, as well as such
converts.2 Ordinarily a person who is baptizes is Christian, but a person does not
become Christian just because at the time of his birth he is baptized, particularly when
he is not in a position to tell the world as to what is his faith.3 In India the Christians
are governed by the provisions of Indian Christian Marriage Act, 1872, the Indian
Divorce Act, 1869 and the concerts Marriage Dissolution Act, 1936. Christian law
deals with matters such as marriage, divorce, succession, adoption etc.,

To understand the Christian personal laws this chapter deals with ‗Marriage
and Divorce under Christian Law‘, ‗Law of Inheritance for Christians‘,
‗Guardianship under Christian Law‘, ‗Adoption under Christian law‘, and
‗Maintenance under Christian Law‘.

6.1 Marriage and Divorce under Christian Law

According to Christian law, a marriage is considered to be a permanent union

of one man and one woman to the execution of others. Marriage, as is seen in
Christian tradition, is not merely a civil contract nor is it purely a religious contract.
Roman Catholic Church regarded marriage as one of the sacraments. In India
Christian marriages are governed by the Indian Christian Marriage Act of 1872. It
extends to the whole of India except in the state of Travancore-Cochin, Manipur and
Jammu and Kashmir. In the Malabar area the Indian Christian Marriage Act 1872 is
applicable but the Christians of former Travancore area are governed by the
customary law (canon law-personal law of Christian) only and not governed by any
statue.

Section 3.
2
Section 3.

3
Dr. Paras Diwan, Family Law, p.9, (2011).
 86

Matrimonial relief like divorce, judicial separation etc, were not allowed in
Travancore – Cochin till the Indian Divorce Act, 1869 came into force in India.
Hence matrimonial relieves among Christians in the whole of India including the
former Travancore Cochin area governed by the Indian Divorce Act of 1869.4

6.1.1 The Nature of Marriage

Among the Indian Christians, marriage is regarded as a civil contract; that is,
marriage is a conjugal union between man and his wife and arises only from the free
consent of spouse.5 It is usually solemnised by a Minister of Religion licensed under
the Christian Marriage Act, 1872. It can also be solemnised by the Marriage
Registrar.6 Now the Supreme Court of India has ordered the compulsory registration
of all marriages in India, irrespective of the religion.

6.1.2 Requisites for a valid marriage

According to Section 4 of the Indian Christian Marriage Act, 1872, every

marriage between persons, one or both of whom is or are a Christian or Christians,
shall be solemnized by:

(1) any person who has received Episcopal ordination, provided that the marriage
be solemnized according to the rules, rites, ceremonies, and customs of the
church of which he is a minister;

(2) any clergyman of the Church of Scotland, provided that such marriage be
solemnized according to the rules, rites, ceremonies, and customs of the
Church of Scotland;

(3) any minister of religion licensed under this Act to solemnize marriage;
 (4) by or in the presence of a marriage register appointed under this Act; or

(5) any person licensed under this Act to grant certificate of marriage between
Indian Christians.

Section 10 of the Indian Christian Act, 1872, requires every marriage to be

solemnized between the hours of six in the morning and seven in the evening.
4

6
http://www.webindia123.com/law/family_law/christian_law/christian_marriage.htm K. B. Agrawal, Family
Law in India, p.108, (2010). Dr. Paras Diwan, Family Law, p.26, (2011).

87

As regards the place for solemnizing marriage, Section 11 provides that no

clergyman of the Church of England shall solemnize a marriage in any place other than a
Church where worship is generally held according to the forms of the Church of England,
unless there is no such church within five miles distance by the shortest road from such
place.

6.1.3 Void and Voidable marriages

Under the Indian Divorce Act, a marriage is void on the following grounds:7

(3) respondent was impotent at the time of the marriage and at the time of the
institution of suit.

(4) parties are within the prohibited degrees of consanguinity or affinity.

(5) either party was idiot or lunatic at the time of marriage.

(6) the former husband or wife of either party was living at the time of marriage and
the marriage with such former husband or wife was then in force.
(7) the consent of either party was obtained by force or fraud.8

The jurisdiction to pass a decree of nullity on this round is vested in the District
Court.9 Under the Act, a marriage may also be declared null and void if it was performed
within six months of the confirmation of the decree of dissolution of the former
marriage.10 This ground as provided by Section 57 of the Act prior to Amendment Act of
2001 has been totally modified. Now parties are free to remarry once period of appeal is
over or where appeal if filed has been dismissed,11 or on the ground of non-performance
of requisite formalities of the marriage.

6.1.4 Divorce

The Indian Divorce (Amendment) Act, 2001 provides that any marriage
solemnised, whether before or after the commencement of the Act can be dissolved either
by the husband or wife by presenting a petition of the District Court on the certain
grounds. These grounds are available to both the husband and wife.

6
Section 19.
7
Section 19.

8
Aykut v. Aykut, AIR 1940 Cal 75 at the time of marriage, husband represented that he was a
Christian though in fact he was a Muslim, the marriage was declared null and void.
9
As amended by the Indian Divorce (Amendment) Act, 2001.
10
Section 57, Bethi v. Brawn, AIR 1938 Mad 452.
 88

Grounds

The grounds of divorce are when the respondent

(i) has committed adultery; or

(ii) has ceased to be Christian by conversion to another religion; or

(iii) has been incurably of unsound mind for a continuous period of not less
than two years immediately preceding the presentation of the petition;
or

(iv) has, for a period of not less than two years immediately preceding the
presentation of the petition, been suffering from a virulent and
incurable form of leprosy; or

(v) has, for a period of not less than two years immediately preceding the
presentation of the petition, been suffering from venereal disease in a
communicable form; or

(vi) has not been heard of as being alive for a period of seven years or more
by those persons who would naturally have heard of the respondent if
the respondent had been alive; or

(vii) has wilfully refused to consummate the marriage and the marriage has
not therefore been consummated; or

(viii) has failed to comply with a decree for restitution of conjugal rights for
a period of two years or upwards after the passing of the decree against
the respondent; or

(ix) has deserted the petitioner for at least two years immediately preceding
the presentation of the petition; or

(x) has treated the petitioner with such cruelty as to cause a reasonable
apprehension in the mind of the petitioner that it would be harmful or
injurious for the petitioner to live with the respondent.12
 The Act also provides that a wife may present a petition for dissolution of her
marriage on the ground that the husband has, since the solemnisation of the marriage,
been guilty of rape, sodomy or bestiality.13

12
Section 10 of the Indian Divorce (Amendment) Act, 2001.
13
Section 10(2) of the Indian Divorce (Amendment) Act, 2001.
 89

6.1.5 Divorce by Mutual Consent

The provision for divorce by mutual consent was inserted in the Act by the
Amendment Act, 2001. Section 10A of the Act provides for the dissolution of
marriage by mutual consent. It provides that a petition for dissolution of marriage
may be presented to the District Court by both the parties to the marriage together,
whether such marriage was solemnised before or after the commencement of the Act,
on the ground that they have been living separately for period of two years or more,
that they have not been able to live together and they have mutually agreed that the
marriage should be dissolved.

Clause (2) of the Section states that if the petition so filed is not withdrawn by
both the parties after 6 months and before eighteen months from the date of
presentation, the Court shall on being satisfied, after hearing the parties and making
such inquiry, and on being satisfied that a marriage has been solemnised and that the
averments in the petition are true, pass a decree declaring that the marriage to be
dissolved with effect from the date of decree.

6.2 Law of Inheritance for Christians

Christians have varied laws on succession and familial relations. The rules for
succession among the Christians has been codified under the Indian Succession Act,
1925, while on the other hand customary practices also have an influence on the
principles of inheritance.

6.2.1 Estate
  All property owned by an individual, irrespective of the mode of acquisition,
the mode of acquisition is treated as the individual‘ self acquired property and
is free to dispose-off the same in any manner during his lifetime.

 In case the property has not been disposed-off by way of will, then the same
shall devolve upon his/her successors and heirs upon his death.

 Properties or money given by the intestate to a child for his/her advancement
in the life would not be considered at the time of distribution of the intestate‘s
wealth/property.
 90

6.2.2 Descendants and Rules of Inheritance

 The laws of inheritance applicable to Christians are same for both genders.
The property of a person dying intestate is bequeathed to the spouse of the
deceased, or upon those who are kindred of the person deceased. Chapter II of
the Indian Succession Act, 1925 provides for the order and the concerned rules
for the devolution of the estate and the share to be allotted to the heirs. The
Indian Succession Act provides that a widow is not entitled to the property if
by a valid contract made before the marriage she has been explicitly excluded
from the distributive share of her husband‘s estate.

 The term ‗lineal descendants‘, as described under the Act, includes children or
children‘s children and only those born out of a lawful marriage, thereby
excluding relations such as daughters illegitimate son or son‘s illegitimate
daughter or any other illegitimate issue as such illegitimate children are not
considered children by the provisions of the Act. If an intestate has left a
widow and also lineal descendants, 1/3 of the estate shall devolve upon the
widow and the remaining 2/3 shall go to the lineal descendants. If the intestate
has left behind a widow and does not have any lineal descendants, but has left
behind persons who are kindred to him, the property would be divided into
halves, one would divulge to the widow of the intestate and the other half
would divulge to the kindred. However, in case the intestate has left no
kindred, the whole property would be inherited by the widow.

 In cases where an intestate has no child, but only has grandchildren and no
other remote descendant, the property shall go equally to all the
grandchildren.14

6.3 Guardianship under Christian Law

 The Christians in India are governed generally by the provisions of the
Guardians and Wards Act, 1890 in matters relating to guardianship of minors in
respect of their person and property.

14
Divyae Mohan Sherry & Rakesh Kumar Choudhary;
https://www.slideshare.net/DivyaeSherry/christian-personal-laws
 91

6.3.1 Matters to be considered by the Court in appointing Guardian

Section 17 of the Act provides for the matters to be considered by the court in
appointing guardian. The said section runs as follows:

(1) In appointing or declaring the guardian of a minor, the court shall, subject to
the provisions of this section, be guided by what, consistently with the law to
which the minor is subject, appears in the circumstances to be for the welfare
of the minor.

(2) In considering what will be for the welfare of the minor, the court shall have
regard to the age, sex and religion of the minor, the character and capacity of
the proposed guardian and his nearness of kin to the minor, the wishes, if any,
of a deceased parent, and any existing or previous relations of the proposed
guardian with the minor or his property.

(3) If minor is old enough to form an intelligent preference, the court may
consider that preference‖

6.3.2 Court not to appoint Guardian in certain cases

Section 19, which prohibits the Court from appointing guardians in certain
cases, reads:

―Nothing in this Chapter shall authorize the court to appoint or declare a guardian of
the property of a minor whose property is under the superintendence of a Court of
Wards or to appoint or declare a guardian of the person-

(a) of a minor who is married female and whose husband is not, in the opinion
of court, unfit to be guardian of her person; or
 (b) of a minor whose father is living and is not in the opinion of the court, unfit
to be guardian of the person of the minor; or

(c) of a minor whose property is under the superintendence of a Court of Wards

competent to appoint a guardian of the person of the minor.‖

6.3.3 Duties of Guardian of the person

The duties of guardian of the person has been provided under Section 24 of the

Act, which reads as follows:

 92

―A guardian of the person of a ward is charged with the custody of the ward
and must look to his support, health and education and such other matters as the
law to which the ward is subject requires.‖

6.3.4 The title of the Guardian to custody of ward

Section 25 of the Act provides for the title of guardian to custody of ward and
it runs as follows:

(1) If a ward leaves or is removed from the custody of a guardian of his person,
the Court, if it is of opinion that it will be for the welfare of the ward to
return to the custody of his guardian, may make an order for his return, and
for the purpose of enforcing the order may cause the ward to be arrested
and to be delivered into the custody of the guardian.

(2) For the purpose of arresting the ward, the Court may exercise the power
conferred on a Magistrate of the first class by Section 100 of the Code of
Criminal Procedure.

(3) The residence of a ward against the will of his guardian with a person who
is not his guardian does not of itself terminate the guardianship."

6.4 Adoption under Christian Law

In spite of the fact that the Christian marriage Act, 1872, Indian Divorce Act,
1869 (as amended in 2001), and Indian Succession Act, 1925, dealing with family law
of Christians exist, there is no mention of the concept of adoption. The Indian
Parliament tried to enact uniform law of adoption applicable to all thee religious
communities in India. Because of strong opposition from the Muslims, this law could
not be enacted. However, in Philips Alfred Malvin v. VJ Gonsalvez,15the question of
adoption in Christian law arose.16 In this case adoption was made with the help of a
Church. In spite of opposition, the Court held that the law off adoption among
Christians is applicable. The court held that the right of adoption is inherent in the
right of life guaranteed under Article 21 of the Indian Constitution. The Court
remarked:

15
AIR 1999 Ker 187, I (2000) DMC 540.
16
K. Kusum, Family Law Lectures, p. 333, (2008).
 93

―The right of a couple to adopt a son is a constitutional right guaranteed under

Article 21. The right to life includes those things, which make life meaningful, the
Hindu law, the Mohammedan law and Canon law recognize adoption.‖17

However, the Christians in India can adopt children by resorting to Section 41

of the Juvenile Justice (Care and Protection of Children) Act 2006 which provides for
adoption, read with the Guidelines and Rules issued by various State Governments.

6.5 Maintenance under Christian Law

Under the maintenance laws in India, The Indian Divorce Act, 1869 governs
maintenance rights of a Christian wife. The Indian Divorce Act, 1869 recognizes the
right of only wife to maintenance-both alimony pendente lite (during pendency of a
suit) and permanent alimony. However the husband doesn‘t have the same rights
under the said Act. The maximum amount that can be decreed by court as alimony
during the time a matrimonial suit is pending in court is one-fifth of the husband's net
income. In fixing the quantum as permanent maintenance, the court will determine
what is just, bearing in mind the ability of husband to pay, wife's own assets and
conduct of the parties. Later, maintenance can be given either yearly or once for all as
total settlement. A husband cannot claim maintenance under The Indian Divorce

Act.18

A Christian woman can claim maintenance from her spouse through criminal
proceeding or/and civil proceeding. Interested parties may pursue both criminal and
civil proceedings, simultaneously, as there is no legal bar to it. In criminal
proceedings, the religion of the parties does not matter at all, unlike in civil
proceedings.

If a divorced Christian wife cannot support her in the post divorce period she
need not worry as a remedy is in store for her in law. Under Section 37 of the Indian
Divorce Act, 1869, she can apply for alimony/ maintenance in a civil court or High
Court and, husband will be liable to pay her alimony such sum, as the court may
order, till her lifetime. The Indian Divorce Act, 1869 which is only applicable to those

17
K. B. Agrawal, Family Law in India, p.185, (2010).
18
http://www.askfamilyproblem.com/maintenance-under-christian-law.html
 94

persons who practice the Christianity religion inter alia governs maintenance rights of
a Christian wife.

6.5.1 Maintenance under the Indian Divorce Act, 1869

The provisions of THE INDIAN DIVORCE ACT, 1869 are produced herein
covered under part IX – Sections 36-38.

Alimony pendente lite

Section 36 -In any suit under this Act, whether it be instituted by a husband or
a wife, and whether or not she has obtained an order of protection the wife may
present a petition for alimony pending the suit.

Such petition shall be served on the husband; and the Court, on being satisfied
of the truth of the statements therein contained, may make such order on the husband
for payment to the wife of alimony pending the suit as it may deem just:

Provided that alimony pending the suit shall in no case exceed one fifth of the
husband's average net income for the three years next preceding the date of the order,
and shall continue, in case of a decree for dissolution of marriage or of nullity of
marriage, until the decree is made absolute or is confirmed, as the case may be.

Power of High Court to order permanent alimony

Section 37 -The High Court may, if it thinks fit, on any decree absolute
declaring a marriage to be dissolved, or on any decree of judicial separation obtained
by the wife, and the District judge may, if he thinks fit, on the confirmation of any
decree of his declaring a marriage to be dissolved, or on any decree of judicial
separation obtained by the wife,

Order that the husband shall, to the satisfaction of the Court, secure to the wife
such gross sum of money, or such annual sum of money for any term not exceeding
her own life, as, having regard to her fortune (if any), to the ability of the husband,
and to the conduct of the parties, it thinks reasonable; and for that purpose may cause
a proper instrument to be executed by all necessary parties.
 95

Power to order monthly or weekly payments. -In every such case, the Court
may make an order on the husband for payment to the wife of such monthly or
weekly sums for her maintenance and support as the Court may think reasonable:

Provided that if the husband afterwards from any cause becomes unable to
make such payments, it shall be lawful for the Court to discharge or modify the order,
or temporarily to suspend the same as to the whole or any part of the money so
ordered to be paid, and again to revive the same order wholly or in part as to the Court
seems fit.

Court may direct payment of alimony to wife or to her trustee

Section 38 -In all cases in which the Court makes any decree or order for
alimony, it may direct the same to be paid either to the wife herself, or to any trustee
on her behalf to be approved by the Court, and may impose any terms or restrictions
which to the Court seem expedient, and may from time to time appoint a new trustee,
if it appears to the Court expedient so to do.

6.5.2 Maintenance under Section 125 of Cr.P.C.

Alternatively, Section 125 of Cr.P.C., 1973 is always there in the secular

realm. Under the Cr.P.C., right of maintenance extends not only to the wife and
dependent children, but also to indigent parents and divorced wives. Claim of the
wife, etc., however, depends on the husband having sufficient means. Claim of
maintenance for all dependent persons was limited to Rs 500 per month but now it has
been increased and the magistrate can exercise his discretion in adjudging a
reasonable amount. Inclusion of the right of maintenance under the Code of Criminal
Procedure has the great advantage of making the remedy both speedy and cheap.
Order For Maintenance of Wives, Children And Parents

Order for maintenance of wives, children and parents.

(1) If any person having sufficient means neglects or refuses to maintain-

a) his wife, unable to maintain herself, or

b) his legitimate or illegitimate minor child, whether married or not, unable

to maintain itself, or
 96

c) his legitimate or illegitimate child (not being a married daughter) who

has attained majority, where such child is by reason of any physical or
mental abnormality or injury unable to maintain itself, or

d) his father or mother, unable to maintain himself or herself,

a Magistrate of the first class may, upon proof of such neglect or refusal, order
such person to make a monthly allowance for the maintenance of his wife or
such child, father or mother, at such monthly rate not exceeding five hundred
rupees in the whole, as such Magistrate thinks fit, and to pay the same to such
person as the Magistrate may from time to time direct:

Provided that the Magistrate may order the father of a minor female child
referred to in clause (b) to make such allowance, until she attains her majority,
if the Magistrate is satisfied that the husband of such minor female child, if
married, is not possessed of sufficient means.

Explanation- For the purposes of this Chapter, -

(a) "minor" means a person who, under the provisions of the Indian Majority
Act, 1875(9 of 1875) is deemed not to have attained his majority;

(b) "wife" includes a woman who has been divorced by, or has obtained a
divorce from, her husband and has not remarried.

(2) Such allowance shall be payable from the date of the order, or, if so ordered,
from the date of the application for maintenance.

(3) If any person so ordered fails without sufficient cause to comply with the
order, any such Magistrate may, for every breach of the order, issue a warrant
for levying the amount due in the manner provided for levying fines, and may
sentence such person, for the whole or any part of each month's allowance
 remaining unpaid after the execution of the warrant, to imprisonment for a
term which may extend to one month or until payment if sooner made:

Provided that no warrant shall be issued for the recovery of any amount due
under this section unless application be made to the Court to levy such amount
within a period of one year from the date on which it became due:
 97

Provided further that if such person offers to maintain his wife on condition of
her living with him, and she refuses to live with him, such Magistrate may
consider any grounds of refusal stated by her, and may make an order under this
section notwithstanding such offer, if he is satisfied that there is a just ground
for so doing.

Explanation- If a husband has contracted marriage with another woman or keeps

a mistress, it shall be considered to be just ground for his wife's refusal to live
with him.

(4) No wife shall be entitled to receive an allowance from her husband under this
section if she is living in adultery, or if, without any sufficient reason, she
refuses to live with her husband, or if they are living separately by mutual
consent

(5) On proof that any wife in whose favour an order has been made under this
section is living in adultery, or that without sufficient reason she refuses to live
with her husband, or that they are living separately by mutual consent, the
Magistrate shall cancel the order.19

The objective of this section as expressed by Krishna Iyer, J. is to ameliorate

the economic condition of neglected wives and discarded divorcees. Proceedings
under S.125 are not civil, but criminal proceedings of a summary nature. But these
criminal proceedings are of a civil nature. Thus, clause (3) of S.126 which empowers
that Court to make such orders may be just.

It should be kept in view that the provision relating to maintenance under any
personal law is distinct and separate. There is no conflict between the two provisions.
A person may sue for maintenance under Section 125 of Cr.P.C. If a person has
already obtained maintenance order under his or her personal law, the magistrate
while fixing the amount of maintenance may take that into consideration while fixing
the quantum of maintenance under the Code. But he cannot be ousted of his
jurisdiction. The basis of the relief, under the concerned section is the refusal or
neglect to maintain his wife, children, father or mother by a person who has sufficient
means to maintain them. The criterion is not whether a person is actually having

19
Section 125 of Cr.P.C.
 98

means, but if he is capable of earning he will be considered to have sufficient means.

The burden of proof is on him to show that he has no sufficient means to maintain and
to provide maintenance.20
20
http://www.legalserviceindia.com/articles/hmcp.htm
 99

CHAPTER 7

CIVIL CODE OF GOA

In the foregoing chapters the personal laws generally applicable to people

belonging to the Hindu, Muslim and Christian community were discussed. In this
chapter the personal laws that are applicable to these community people in the state of
Goa will be discussed.

Goa, Daman, and Diu was a Union Territory of India from 19 December 1961
to 30 May 1987. The union territory comprised the present-day state of Goa and the
two small coastal enclaves of Daman and Diu on the coast of Gujarat. The territory,
along with Dadra and Nagar Haveli, comprised Portuguese India. The territory was
incorporated into India after the Annexation of Portuguese India in 1961.
Administratively the territory was divided into three districts, Goa, Daman, and Diu,
with the capital at Panjim. In 1987 Goa was granted statehood, and Daman and Diu
was made a separate Union Territory.1 Goa, a Portuguese colony, has a separate Civil
Code, which is based on Portuguese Civil Code (PCC) of 1867. Goa is an exceptional
state. The, rest of India is governed by separate personal laws, for example, the
Hindus, Muslims, Christians, and Parsis have their independent laws, but there is only
one Code for Goans (residents of Goa) irrespective of their religion, ethnicity or any
other consideration. The Goa Civil Code encompasses Family Law, Tort, Property
law, domicile, access and possession.2

When Goa attained liberation from Portugal in 1961, all Indian laws were
extended to the state, except family laws that fall under the PCC.3 For a Code that has
been around since 1870, the legal education and awareness on its several clauses has
been lacking, at times, even among lawyers. One reason has been the fact that the
Code was never properly translated from Portuguese to English — a few translations
of important clauses being an exception.4 On August 2016, the state Assembly has
1

https://en.wikipedia.org/wiki/Goa,_Daman_and_Diu https://blog.ipleaders.in/civil-code-
2
goa-vs-personal-laws-india/ http://www.hindustantimes.com/india-news/all-in-the-family-
is-the-goa-civil-code-a-model-for-the-rest-of-the-country/story-
3 4ImvwP0OrAST2hUnsZxtiL.html Panjim-based lawyer F Elgar Noronha.

4
 100

passed the Goa Succession, Special Notaries and Inventory Proceedings Bill, 2012,
which is an English version of the PCC.5

Goa being the only state in India which still continues to be governed by
Portuguese law, it can be said that it is the most prestigious living legacy left by the
Portuguese colony. In Saeesh Subhash Hegde v. Darshana Saeesh Hegde6, the court

said that the Portuguese Family Law will continue to apply within the State of Goa.7

As per the Civil Code of Goa, citizenship can be acquired either by taking
birth in Goa or also if one‘s father or grandfather is born there and lastly, it can be
acquired through marriage. The PCC dates back to 1867; there is a need to amend the
present Code of Goa, because the Civil Code, which is operating in Goa, had been
repealed in Portugal itself in 1966. Now there is a certain amount of doubt on the
uniformity of the Code in Goa. Many people and groups in Goa are not satisfied with
the draconian code and there is a popular demand to amend the code by national
consensus and popular vote by all the communities and by the real stakeholders.

As per a reality check by United Nations Population Fund (UNPF)8, the code
of Goa promotes bigamy. The provision of the code also promotes inequality as a man
can legally marry a second time if he does not have a baby with his first wife till he is
of age 25 or a male child is not born till 30 years of age.

On one side, it has been opined that the Code of Goa should inspire the
Uniform Civil Code for the whole of India, but the harsh reality is that even this is not
a comprehensive law in itself. The code cannot completely justify itself.9

7.1 Jurisprudence of the Goa Code: Portuguese Civil Code, 1867

The history of Goa under Portuguese rule dates back to late 18th and 19th
centuries when Goa, Daman and Diu had been under colonial rule of Portuguese as
was India under the British Colonial Rule. Being a colony, Portugal laws were made
applicable to Goa as well. And that is how the PCC was made applicable to Goa,

http://www.hindustantimes.com/india-news/all-in-the-family-is-the-goa-civil-code-a-model-
for-the-rest-of-the-country/story-4ImvwP0OrAST2hUnsZxtiL.html AIR 2008 Karnataka HC.
6

7
http://racolblegal.com/the-goan-way-of-civil-code-in-contrast-to-personal-family-laws-in-india-

a-grand-success-or-steep-failure-with-special-reference-to-marriage-regimes/#_ftn21
8
http://www.freepressjournal.in/india/bigamy-allowed-in-goa-says-a-un-study/254150

9
https://blog.ipleaders.in/civil-code-goa-vs-personal-laws-india/
 101

Daman and Diu in 1870. Portuguese ruled for over 450 years before it was liberated
1961. Even after Portugal rule has ended, they have left an important legacy behind
which covers entire gamut of the Civil Laws of the state. The Code is divided into
four sections:

Part I comprising of Articles 1 to 17 deals with the major provisions of the Code.

Pertinent is Article 7, which deals with the principles of racial and gender equality.

Part II enhances the provisions mentioned in Part I.

Part III exclusively deals with property rights in a comprehensive manner.

Part IV deals with matters of civil responsibilities, infringement of rights and their
resolution.

In the year 1910, substantial changes were introduced in the area of family law
due to the replacement of monarchy by the Republic of Portugal. As a consequence of
the change, the performance and registration of marriage before the Office of a Civil
Registrar was made compulsory to consider a marriage valid under the Law. Divorce
was permitted as a result of the changes made in family law. The provisions were
made applicable to all sections of the society uniformly in the State of Goa.10

Goa, Daman and Diu Administration Act was enacted by the legislators in
1962 which was purely based upon the preceding code. However, as of date, the
Portugal Laws have been followed only with respect to family laws i.e. in matters of
marriage, succession, divorce and others.11 Other legislations like Transfer of
Property Act, Contract Act continue to have its application in state of Goa too. They
apply not only to Christians born there during Portuguese administration and to their
descendants, but also to non-Christians in all matters not regulated in their Codes of
usages and Customs. In this sense, the Civil Code in force in Goa, Daman and Diu
should be characterised as a uniform code, not as a personal law. In these territories of
India, the aspiration to a uniform Civil Code, as expressed in article 44 of the Indian
Constitution, has thus become a reality.12

10
https://blog.ipleaders.in/uniqueness-goan-family-laws/
11
http://mmascgoa.tripod.com/id12.html

12
Julio César Rivera; The Scope and Structure of Civil Codes; p. 321.
 102

7.2 Marriage and Divorce laws in the State of Goa

Under the PCC, a marriage is lawful only when it is enrolled in the civil
records with the registrar, with a couple of procedural contrasts between any two
religions. Under the PCC, everyone married under the civil law and both spouses had
equal property rights, as did their children. For the state‘s Catholic population,
however, an exception was made — they could solemnize their marriages in the
Church after declaring their intent of marriage at the office of the civil registrar. The
church would send the marriage document for ratification and registration by the civil
registrar. For non-Catholics, however, only the registered marriage at the office of the
Civil Registrar was recognised. Another exception was made for Hindus — the
practice of bigamy was allowed in case there was no male heir. The contradictions in
uniformity apart, the highlight of the Goa Code is the equal division of property
between husband and wife. The husband cannot sell the property without the wife‘s
consent, and neither can the children, in case the father dies. Despite these clauses that
are meant to protect the woman, there are several loopholes in the law.

A marriage under the Civil law of Goa is governed by a system called

Communion of Assets, whereby, as soon as a person gets married, his spouse gets half
of the undivided right in each other‘s assets. In Goa, marriages take place through four
methods, one of which is by Community Property Law, which is considered a legal
method and the other three are considered conventional. Through Community
Property Law (which is for the benefit of women), each spouse automatically acquires
joint ownership of both the assets owned by them as also those due to them by
inheritance. And therefore these assets may not be disposed of in any way by one
spouse without the express will or consent of the other. In this way, the basic
difference appears in the property law of the rest of the India is that under it, a woman
does not have any such right. In addition to this, there is mandatory registration of
marriage by virtue of which a woman in Goa is capable of establishing her rights from
the very beginning. This is another significant advantage that women living under the
Common Law system do not have. And in the event of legal separation, a woman is
entitled to 50 percent of her husband‘s income, and is not dependent on his charity or
alimony. This way, it is a very advanced legal document.
 103

7.2.1 Essentials of Marriage

The essentials of marriage under Civil Code of Goa are no different to the
essentials of marriage under Uniform Civil Code. However, the important features of
a marriage which are essentially required to validate the contract of marriage are:

Monogamy: There imposes monogamy between the parties. Polygamy is not

permitted, unlike Sharia law, under any marriage except in certain circumstances as
mentioned in the Code, i.e., where the first wife is not able to reproduce till 25.

Age: Male individuals over the age of sixteen and female individuals over the age of
fourteen are legally capable of marrying.13

Registration: The registration of marriage has been made compulsory with the Civil
Registrar. Hence, a marriage is deemed to be valid only when both man and woman
pass their declaration. This can also been seen from the perspective of contract laws
wherein a contract is deemed to be valid only with a valid consent and consideration.
The essence of compulsory registration of marriage has been very well discussed in
the case of Seema v. Ashwani Kumar14, wherein Supreme Court has opined the
reasoning behind mandatory registration. This is so because the compulsory
registration would bring out child marriages, if any, in lime light and help the state to
curb the same. This is also in consonance with the Prohibition of Child Marriage Act
and Entries 5 and 30 of Concurrent List, Seventh Schedule of the Constitution of
India.15

Consent: The contract of marriage cannot end in vanity. The mutual consent of the
parties is an equally important condition to the contract of marriage. Impliedly, the
Sharia Law takes a back seat in contrast to Goa Civil Code wherein contentious forms
of divorce such as triple talaq are strictly prohibited.
13
Article 5 of Decree no. 1, of 25/12/1910.
14
Transfer Petition 291 of 2005.

15
http://racolblegal.com/the-goan-way-of-civil-code-in-contrast-to-personal-family-laws-in-
india-a-grand-success-or-steep-failure-with-special-reference-to-marriage-regimes/#_ftn19
 104

7.2.2 Procedure for Marriage under Goa Civil Code

Under the rule of law as has been followed in Goa, marriage is considered as
one of the forms of contract.16 Hence, it is quite evident and furthermore has been
made compulsory that the marriages under Civil Code to be registered with Registrar.

Under the Portuguese civil code, a marriage is legal only if it‘s registered at
the office of the civil registrar, with a few procedural differences between faiths.

Christian women are better insulated by virtue of an inbuilt protection. A

Christian couple wanting to marry in church has to hand over a no objection
certificate (NOC) from the civil registrar‘s office to the church; and only after they‘ve
signed the church register as man and wife does the church pass on their records for
processing to the civil registrar.

In the case of Hindus, there is no relationship between civil and religious

marriage, but nowadays Hindu priests do insist on a civil marriage certificate, Martins
says. ―A number of Hindu women have been abandoned by their husbands for want
of a civil registration. Some couples had merely applied for an NOC to the registrar,
but had not got their marriages registered.‖

Muslim couples also have to present a marriage certificate before the nikah.

Besides this, there are four different ways by which two couples can validly
marry. These have been penned down and explained thereof in following bullets:

The law of Community property: This is applicable in circumstances where the parties
are not bound by any express contract. Wherein under this form, both the parties
acquire all the assets in possession as joint ownership. The joint ownership extends to
those assets which are due by way of inheritance. At the time of disposal or
encumbrance, the consent of spouse is equally important. In events of separation, the
wife is entitled to half of the husband‘s income. There is no concept of charity in form
of maintenance. Factually, 97% marriage takes place under this form.17

The system of Absolute Community of property is a system of property

relation that treats properties acquired by the spouses during their marriage as jointly-
owned. It consists of all the properties owned by the spouses at the time of the

16
Aditi Pratap Sampat, Uniqueness Of The Goan Family Laws, Ipleader (July 20, 2016).
17
http://mmascgoa.tripod.com/id12.html
 105

celebration of the marriage or acquired thereafter unless the property involved is

expressly excluded by an existing marriage settlement or by the provisions of the
Code. The System of Absolute Community of property is considered as the default
property regime of the spouses. In the absence of a marriage settlement or if one is
considered void, the law itself prescribes such as the operative property system within
the marriage.

Under the Code, the system of Absolute Community of property commences

at the precise moment the marriage is celebrated and any stipulation allowing for the
commencement of such system at a later time shall be considered as void. The rules
governing co-ownership shall apply in all matters not provided for in the Code. In
order to protect third persons such as creditors, the law prohibits a spouse from
making a waiver of interest over his or her share in the community property except in
the case of judicial separation of property. In the event that a judicial separation of
property occurs or when the marriage is dissolved or annulled, any waiver must
appear in a public instrument and shall be registered in the local civil registry where
the marriage contract is recorded as well in the proper registries of property. The
Absolute Community of property encompasses all the properties each spouse owns at
the time of the marriage and thereafter.

Properties excluded from the community of property:

Certain properties however are excluded as determined by Code. These

properties are as follows: Property acquired during the marriage by gratuitous title by
spouse, and the fruits as well as the income thereof, if any, unless it is expressly
provided by the donor, testator or grantor that they shall form part of the community
property; Property for personal and exclusive use of either spouse. However,
jewellery shall form part of the community property; Property acquired before the
marriage by either spouse who has legitimate descendants by a former marriage, and
the fruits as well as the income, if any, of such property. Notice should be taken that
the law presumes a property acquired during marriage as part of the community
unless it can be proved that such property is one of those excluded.

As a rule, the absolute community of property shall answer for the following
charges and debts:
 106

The support of the spouses, their common children, and legitimate children of
either spouse; however, the support of illegitimate children shall be governed by the
provisions of this Code on Support; All debts and obligations contracted during the
marriage by the designated administrator-spouse for the benefit of the community, or
by both spouses, or by one spouse with the consent of the other; Debts and obligations
contracted by either spouse without the consent of the other to the extent that the
family may have been benefited; All taxes, liens, charges and expenses, including
major or minor repairs, upon the community property; All taxes and expenses for
mere preservation made during marriage upon the separate property of either spouse
used by the family; Expenses to enable either spouse to commence or complete a
professional or vocational course, or other activity for self-improvement; Ante-nuptial
debts of either spouse insofar as they have rebounded to the benefit of the family; The
value of what is donated or promised by both spouses in favor of their common
legitimate children for the exclusive purpose of commencing or completing a
professional or vocational course or other activity for self-improvement;

Ante-nuptial debts of either spouse, the support of illegitimate children of

either spouse, and liabilities incurred by either spouse by reason of a crime or a quasi-
delict, in case of absence or insufficiency of the exclusive property of the debtor-
spouse, the payment of which shall be considered as advances to be deducted from the
share of the debtor-spouse upon liquidation of the community; and Expenses of
litigation between the spouses unless the suit is found to be groundless. In the event
that the community property is not sufficient to cover all such claims, the spouses
shall be solidarily liable for the unpaid balance with their separate properties. Both
spouses shall possess joint administration and enjoyment of the community property.
In case of disagreement, the husband‘s decision shall prevail subject to proper
recourse by the wife to the courts for proper remedy. This action on the part of the
latter must be commenced within 5 years from the date of the contract implementing
such. One of the spouses may assume sole administration and exercise powers of
administration if the other spouse is incapacitated or is unable to participate in the
administration of the property. Such power does not confer to the administrator the
authority to dispose or encumber the properties administered unless allowed to by the
court or consented to by the other spouse. In the absence of such consent, the
disposition or encumbrance shall be considered void but the transaction shall be
 107

construed as a continuing offer on the part of the consenting spouse and the third
party that may still be perfected upon the acceptance by the other spouse or upon
authorization of the court. Neither spouse may donate any community property
without the consent of the other except in the case of moderate donations for charity
or on occasion of family rejoicing or family distress. As stated in the Code, the
absolute community is terminated upon the happening of the following: Upon the
death of either spouse; When there is a decree of legal separation; When the marriage
is annulled or declared void; or In case of judicial separation of property during the
marriage.

When the community property is dissolved:

In case the community property is dissolved, the following procedure shall

take place.

- an inventory shall be made listing separately the properties that are

included and excluded from the community property.

- the debts and obligations of the absolute community shall be paid out of its
assets.

- whatever remains of the exclusive properties of the spouses shall thereafter

be delivered to each of them.

- the net assets shall be divided equally between husband and wife unless a
different proportion or division was agreed upon in the marriage
settlements or if there has been a voluntary waiver of such share as
provided under the law.

- the presumptive legitimes of the common children shall be delivered.

- the conjugal dwelling and the lot on which it is situated shall be adjudicated to
the spouse with whom the majority of the common children choose to remain
unless otherwise agreed upon by the parties. Children below the age of seven
years are deemed to have chosen the mother, unless the court has otherwise
decided. If no judicial settlement proceeding is instituted, the surviving
spouse shall liquidate the community property either judicially or extra-
judicially within six months from the death of the deceased spouse. If no
liquidation is made upon the lapse of the six months period, any disposition or
encumbrance involving the community property
 108

of the previous marriage shall be void. Should the surviving spouse

contract a subsequent marriage without compliance with the previous
requirements, a mandatory regime of complete separation of property shall
be imposed upon the property relations of the subsequent marriage.

Absolute Separation of property: The essential element that distinguishes it from the
previous form is that it encompasses all properties that the spouses own at the time of
marriage.18

Separation of assets is prior to marriage: The point of difference with respect to this
form is that communion of property is ascertained before the parties enter contract of
marriage. The extrapolation is made with respect to separation and duration of
marriage.

Communion of property after marriage: The parties have already entered the
agreement of marriage. Where after, the communion of property is ascertained. This
is the rarest of the form which is practiced as on current date.

In the absence of a pre-nuptial agreement, spouses enter into a communion of

assets agreement which makes them equal owners of each other‘s assets, even after
divorce and death. The other option would be a combination of communion and
separation of assets, whereby whatever is acquired or earned before marriage is held
separately while that which is obtained after marriage is held in common. In the case
of common assets, neither spouse can dispose of property without the consent of the
other.

7.2.3 Marriage under Goa Code in contrast to Personal Laws

Hindu Laws in contrast to Goa Civil Code

However, there are certain issues with marriage solemnized under Hindu
Marriage Act in contrast to Goa Civil Code. In first instance, sapinda relationship
constrains marriage between two people who may or may not be related to blood.
Furthermore, unlike Goa Civil Code wherein marriage is equal to contract, a Hindu

18
Aridane cara Santos, What Absolute Community of Property Is (Family Code),
Slideshare.net (Sep 22, 2014).
 109

Marriage is considered to be sacrosanct. Under Hindu Marriage Act, parties are bound
for entire lifetime. Furthermore, Saptapadi is another issue which makes marriage
under Hindu Law much complex. However, marriage under Goa Civil Code can be
solemnized by mere registration.

Christian Laws in contrast to Goa Civil Code

Christian Laws have just one drawback of witnesses, apart from which they
are almost pari materia to the Civil Laws applicable in Goa.

Muslim Laws in contrast to Goa Civil Code

Comparing both the Family laws of Muslims and the Goans, there is a great
contrast between the two. While both of them agree that marriage is a form of contract.
However, the impediments are made to restrict women only. Men are permitted to have
polygamy. This is in stark contrast to Goa Civil Code where Muslim Men are treated with
equal footing opposite to other religions. Polygamy is strictly restricted herein. The
registration of marriage under Goa Civil Code is made compulsory which has not been so
under Muslim Laws. This is preferably advantageous as there is a piece of evidence with
Registrar as to validity of marriage rather than relying upon witnesses during Nikah

which has been so in Muslim Laws.19

7.2.4 Divorce

It was only in the year 1910, when substantial changes were introduced in the
area of family law, divorce was permitted. Chapter I of the Divorce Act of 1910 of the
PCC of 1867 gives the ―Dissolution of the Marriage.‖
 A marriage is dissolved:

1) By the death of one of the spouses;

2) By divorce.20

19
http://racolblegal.com/the-goan-way-of-civil-code-in-contrast-to-personal-family-laws-in-
india-a-grand-success-or-steep-failure-with-special-reference-to-marriage-regimes/#_ftnref14
20
Article 1 of the Divorce Act of 1910.
 110

A divorce may be requested by one of the spouses or by both of them jointly.

In the first case, it is called a contested divorce; in the second case it is called a
divorce by mutual consent.21 Chapter II of the Act deals with the Contested Divorce.

Grounds for Divorce

The following are the only legitimate grounds for a contested divorce:

1) The wife‘s adultery;

2) The husband‘s adultery;

3) The definitive conviction of one of the spouses to any of the major penalties
foreseen in Articles 55 and 57 of the Criminal Code;

4) Ill-treatment or serious injuries;

5) The complete abandonment of the conjugal domicile for at least three years;

6) The absence, where nothing has been heard of the absentee, for at least four
years;

7) The incurable insanity after at least three years have elapsed since it was
pronounced by a ruling in a condition of res judicata, in accordance with
articles 419 et seq. of the Code of Civil Procedure.

8) The de facto separation, freely consented, for ten consecutive years, regardless
of the reason for that separation;

9) A chronic gambling addiction;

10) A contagious disease known to be incurable, or an incurable disease implying

asexual aberration.
Explanation 1) A divorce on the grounds of no.3 of this article may only be requested
if the spouse requesting it has not been convicted as a co-author or an accomplice of
the crime for which the other spouse was convicted.

Explanation 2) If the divorce is requested on the grounds of nos. 3 and 7 of this

article, the defendant shall be represented in the respective legal action by the Public
Prosecutor; the latter shall also represent him/her in the cases of nos. 5 and 6, if the
defendant fails to be present or to have him/herself represented after the summons, to
be carried out in such cases in accordance with the law.

21
Article 3 of the Divorce Act of 1910.
 111

Explanation 3) In the case of no. 8, the evidence shall be restricted to the fact of the
separation, its continuity and duration.

Explanation 4) In the case of no. 10, the legal action may not be initiated without the
verification of the nature and characteristics of the incurable disease, in a previous
examination carried out in accordance with articles 247 and 260 of the Code of Civil
Procedure.22

Effects of the non-granting of the divorce

If the divorce is ultimately not granted, the spouse who requested it may not
request it once again with the same grounds before two years have elapsed, but he/she
is not prevented from requesting it again at once based on different grounds.23

Divorce by Mutual Consent

Chapter III of the Divorce Act of 1910 deals with the ―Divorce by Mutual
Consent‖.

A divorce by mutual consent may only be obtained by spouses married for

more than two years, both having reached, at least, the age of twenty five. 24 In order
to obtain a divorce by mutual consent, the spouses must, in a nonarticulated petition,
present the judge of the court of their domicile with the respective request, together
with the following documents:

1) A marriage certificate;

2) Age certificates;
 3) A specified list of all their property;

4) Any agreement they may have reached on the custody of the minor children,
if there are any;

5) The declaration of the share each shall contribute to the raising and education
of the minor children;

22
Article 4 of the Divorce Act of 1910.
23
Article 34 of the Divorce Act of 1910.

24
Article 35 of the Divorce Act of 1910.
 112

6) A certificate of the prenuptial agreement, as well as its registry, if these

exist.25

After one year, the spouses must, spontaneously or at the request of one of
them, appear once again in person before the judge so as to declare if their intentions
are unaltered, a record of this hearing being drawn up with the same care as foreseen
in Article 37. If the spouses reconcile themselves in this hearing, or have already done
so, their provisional divorce shall be decreed void; if they retain their prior intentions,
their agreement will once again be sanctioned by a judgment, the final divorce then
being decreed.26

Spouses who, having requested the divorce by mutual consent, reconcile

themselves before the divorce is decreed as final, may no longer obtain the divorce by
mutual consent, but they will be allowed to initiate a contested divorce, in accordance
with Chapter II.27

For Hindus, the divorce is permitted only on the grounds of adultery by the
wife. The Catholics marrying in the church are excluded from divorce provisions
under the civil law. For Muslim men there is no provision for a verbal divorce. As per
the provisions of the Portuguese Civil Code of 1867, Canonical marriages are not
entitled to a divorce and the appropriate authority is the Church. The Courts have
declared this to be ultra vires the Indian Constitution and have not applied this proviso
of the Code.

The high court of Bombay at Goa held that properties of divorced spouses can
be partitioned through inventory proceedings in the absence of an amicable settlement
regarding the separation of assets. The court pronounced this verdict on a question of
law on whether a lower court in a suit for dissolution of a marriage can also order the
partition of assets between spouses if one partner did not reply to the other's
counterclaim of division of properties.
 In a matrimonial dispute filed in 1995 before a trial court in Margao, the wife
had sought divorce which was objected to by the husband who also filed a

25
Article 36 of the Divorce Act of 1910.
26
Article 40 of the Divorce Act of 1910.

27
Article 41 of the Divorce Act of 1910.
 113

counterclsaim seeking partition of assets and provided a list of properties belonging to

them. The wife, however, had not responded to the proceedings of partition.28

7.3 Inheritance laws in the State of Goa

The Legislative Assembly on August 5, 2016 unanimously passed the much-

delayed ‗Goa Succession, Special Notaries and Inventory Proceeding Bill, 2012,‘ by
which the government proposed to replace the Portuguese Civil Code on succession,
inventory and notarial law, with State laws, to meet the present day requirements and
to make it workable. The Bill, tabled in 2012 was referred to the House Select
Committee for consideration and it was decided to present the bill in the original
format for passing. Deputy Chief Minister and Minister for Revenue Francis D‘Souza
tabled the Bill in the House. ―Considering the need to take into account the social
changes and the new situations arising from the fact that Goa is now a state of the
Union of India and Goans are citizens of India and considering also that the laws
which in force were applicable to an altogether different set of political circumstances,
it has become necessary to amend the law to meet the present day requirements and to
make it workable,‖ the Bill reads.

Right from Liberation the provisions of the law relating to succession, notaries
and inventory proceeding were dispersed in the Civil Code, 1867, in force with effect
from August 1, 1870, as amended from time to time; the Civil Procedure Code of
1939 in force from January 1, 1941; Notarial law dated November 14, 1952 became
laws of the land by virtue of section 5 of the Goa, Daman and Diu (Administration)
Act, 1962 (1 of 1962) until amended.

The Bill intends to consolidate the various provisions of the law relating to
succession and inventory proceedings in property matters, and notaries into one
‗comprehensive, rational and integrated legislation to facilitate their application and
implementation by the bench, the bar and litigants‘.29
28
Sebastiao Paulo Fernandes v. Filomena Fernandes, Decided on Aug 04 2010 (unreported).

29
http://www.heraldgoa.in/Goa/Finally-Portuguese-Civil-Code-is-replaced/104859.html
 114

Succession under the Succession, Special Notaries and Inventory Proceeding Act,
2012

Part II of the Succession, Special Notaries and Inventory Proceeding Act,

2012 deals with the Succession. It comprises of XV Chapters and Sections 3-295.
According to the Act, Succession is the transmission of the estate of a deceased
person in favour of his successors. Successor is the person who is called to succeed to
the juridical relations of the deceased person and upon whom the assets and liabilities
devolve.30

7.3.1 Types of Succession and Successors

Section 4 of the Act gives the Types of Succession.—

2 Succession may be intestate or legal and testamentary.

3 Testamentary succession is the succession which results from a will left by

the estate leaver and a testamentary heir is a heir instituted by a will.
Contractual succession is illegal, except when expressly authorised by law.

4 Intestate succession is either free or forced. Forced succession is the one

which is reserved by law to the forced heirs and places restrictions on the
freedom of the estate leaver to dispose of his estate.

Section 5 of the Act explains the Types of Successors: Heirs and legatees.—

(6) Heir is the person who inherits or succeeds to the totality of the estate of the
estate leaver or to an undefined share thereof, without specifying the assets
constituting it, while a legatee is the one who succeeds to specific and
determined assets.
 (7) A person who succeeds to the remainder of the estate when the assets
constituting the remainder are not determined, is a heir.

(8) An usufructuary is a legatee even if he be entitled to the usufruct of the totality

of the estate.

(9) The nomenclature used by the testator, if in contravention of the above

provisions, shall not change the character of the successor.

(iii)
Section 3.
 115

The distinction between an heir and a legatee is important, since the heir is
liable for the debts and burdens of the inheritance, in proportion to his/her part of it,
and may be obliged to pay for them from his/her own property, when he/she does not
accept it under the benefit of inventory; on the other hand, the legatee may never be
liable beyond the respective legacy.31

Inheritance or succession of a deceased person comprises of all the properties,

rights and obligations which he leaves upon death. Personal rights which by their very
nature or by operation of law, extinguish upon death of the title holder, do not form
part of the inheritance.32 If the estate leaver and those who succeed him, either by
virtue of a will or by operation of law, die simultaneously in the same accident or on
the same day and it is not possible to ascertain who died the first, it shall be presumed
that all died at the same time and there will be no transmission of the inheritance or
the legacy as between them.33 The succession opens upon the death of the estate
leaver.

7.3.2 Acceptance and renunciation of the inheritance

Chapter IV of the Act deals with the acceptance and renunciation of the
inheritance. It is stated that the acceptance shall be unconditional.34 The person who
renounces the inheritance which devolves on him by one title is not, for that reason,
debarred from accepting the inheritance which devolves on him by another title.35
The acceptance or renunciation of an inheritance is an entirely voluntary and free
act.36 Any person who is capable of managing his assets may, lawfully accept or
renounce the inheritance.37 A married person is not entitled to accept or renounce an
inheritance without written consent of the other spouse. The consent may be made
good by an order of the Court.38 A deaf and dumb person, who is not under
guardianship and who knows to write, may accept or renounce the inheritance, either
personally or through a constituted attorney.39
4.
Articles 1792 and 1793.
5.
Section 6.
6.
Section 7.
7.
Section 21.

8.
Section 22.

9.
Section 23.

10.
Section 25.

11.
Section 26.

12.
Section 28.
 116

Form of acceptance

Section 29 of the Act gives the form of acceptance of inheritance. The Section runs as
follows:

(10) The acceptance of inheritance is express or tacit.

(11) The acceptance is express when in any document the heir accepts the title or
quality of heir. The acceptance is tacit, when the heir does some act from
which the intention to accept has to be necessarily inferred or the act done is
of such a nature that he could not have done it otherwise than as an heir.

(12) However, acts done solely to preserve or to provisionally manage or

safeguard the assets of the inheritance do not imply it‗s acceptance.

A gratuitous transfer of inheritance or share therein in favour of all the co-

heirs to whom it would have belonged in the absence of the transfer, shall be deemed
to be renunciation of the inheritance.40 In the matter of gratuitous disposition of
properties i.e by will or gift, there is a prohibition by which no disposition can exceed
half right of a person. This is called disposable quota and the remaining part is called
non disposable quota. If the said disposition exceeds the disposable quota, there is a
compulsory reduction done in the inventory proceedings which is called
inofficiousness. The donee‘s legatees are expected to bring back the property
gifted/bequeathed to for the limited purpose of evaluation to see if it exceeds the
disposable quota and this process is called ―collation‖. However a donor/ testator can
specifically provide in the instrument that the gift/bequest will not be liable for
collation to save the property from being brought back for collation.

7.3.3 Legal Succession

Chapter VI of the Act deals with the ―Legal Succession‖. Where any person
dies without making a disposition of his assets or making a disposition of only a part
thereof or, having made a will, the will is annulled, revoked, reduced or it lapses, his
legal heirs shall inherit the assets or the part thereof.41 The order of legal succession
is given under Section 52 of the Act, which runs as follows:

(12)
Section30.
(13)
Section 51.
 117

Order of legal succession.—

(5) The legal succession shall devolve in the following order:—

on the descendants;

on the ascendants, subject to the provisions of sub-section (2) of section

72;

on the brothers and their descendants;

on the surviving spouse;

on the collaterals not comprised in clause (iii) upto the 6th degree;

on the State, provided that, in the absence of testamentary or intestate

heir of a beneficial owner or of an emphyteusis, the property shall revert
to the direct owner.

(6) In respect of persons referred to in clauses (i), (ii) and (iii) of sub-section (1),
the agricultural produce or fruits, gathered or growing, meant and necessary
for the maintenance of the couple shall be deemed to be the personal property
of the surviving spouse, provided that on the date of the opening of the
inheritance there is no suit for divorce or separation of persons and properties,
pending or decreed.

Within each group referred to in section 52, the relative closer in degree shall
exclude the more remote, unless the law has conferred on the latter the right of
representation. The relatives who are in the same degree shall inherit per capita or in
equal proportion subject to the provisions of Section 63. In the default of all
testamentary or legal heirs, the State shall succeed.42 The rights and obligations of the

State in respect of the inheritance shall be the same as those of any other heir.43 The
State shall not take possession of any inheritance without prior decision of the court
declaring it‗s rights thereto.44
 The inheritance laws in the state of Goa are particularly interesting. As both
husband and wife own the property together, in the case of the death of one spouse,
the other spouse gets half the property. A parent can will only one half of his or her
share to a chosen beneficiary. And if the couple has one son and one daughter, half of
the remaining property must be shared equally by the couple‘s male and female

(iv)
Section 79.
(v)
Section 80.

(vi)
Section 81.
 118

offspring or grandchildren if an offspring is dead. The parents are not authorized to

disinherit their children completely, but can do it only partially.45

7.3.4 Testamentary Succession

Chapter XI of the Act deals with the ―Testamentary Succession‖. One or more
persons may be instituted as heirs and even where the testator has left them shares in the
inheritance in a certain proportion, they shall nevertheless be considered as heirs. 46

Liability of the heirs.—

The heir is liable to pay the debts and satisfy the legacies within the resources
of the inheritance.47

Liability of the legatee.—

The legatee is not liable for the encumbrances of the legacy beyond the
resources of the legacy.48

Chapter XII of the Act deals with ―Wills‖. A will is an unilateral act whereby a
person makes disposition of the whole or a part of his estate to take effect upon his
death. The testator may either make an unconditional disposition of his estate or he
may dispose of his estate subject to conditions, provided such conditions are not
absolutely or relatively impossible of performance or contrary to law, morality or
public policy. A condition which is impossible of performance or contrary to law
morality or public policy shall be presumed to be inexistent and shall not adversely
affect the heirs or legatees notwithstanding that the testator has provided to the
contrary.49 Types of Wills.—Wills may be of the following categories:–
 (4) Public;

(5) Printed open;

(6) Closed or sealed;

(3)
http://www.hindustantimes.com/india-news/all-in-the-family-is-the-goa-civil-code-a-model-
for-the-rest-of-the-country/story-4ImvwP0OrAST2hUnsZxtiL.html
(4)
Section 122.
(5)
Section 123.

(6)
Section 124.

(7)
Section 200.
 119

(d) Wills made outside Goa.50

7.3.5 Disinheritance

The forced heirs may be deprived by the testator of their legitime or be

disinherited by declaring his wish in the will, only when the law expressly permits
him to do so.51

Grounds for disinheritance.—

Section 190 of the Act gives the grounds of disinheritance. The testator may in
his will disinherit by expressly declaring that he does so, disclosing the grounds on
which he disinherits, the following persons:—

(4) the presumed heir when he is convicted for an offence intentionally committed
against the testator, his spouse, ascendants, brothers, adopter or adoptee,
punishable with imprisonment of more than six months;

(5) the presumed heir who has been convicted for having lodged malicious
prosecution or for perjury against any of the persons mentioned in the clause

(a) above;

(6) the presumptive heir who, without sufficient cause, refused to maintain the
testator and or his spouse.

The effect of disinheritance is that the descendants of the disinherited persons,

who survive the testator, shall be entitled to the legitime which their ascendant was
deprived of, but the ascendant who was disinherited is not entitled to enjoy the
usufruct of the legitime received by his descendants.52

7.3.6 Mandatory Registration of Births and Deaths and Succession

According to the Goan Civil laws, registration of births and deaths is

mandatory. The children of deceased parents are mandatory heirs. The heirs cannot be
disinherited whether male or female, except under extraordinary circumstances. If the
parents die intestate, that is without a will; then all the mandatory heirs are entitled to

2
Section 234.
3
Section 189.

4
Section 191.
 120

an equal share of the estate of the deceased. On the other hand, if there exists a will,
then the parents can only dispose 50% of the estate in the manner as per their choice,
which is called ‗quota disponivel.‘ The remaining 50% must be divided equally
among all the mandatory heirs. A direct effect of this provision is the just distribution
of assets among all the mandatory heirs whether male or female. However, the only
way a woman can be deprived of her inheritance is by her express renunciation, and
such renunciation is valid only if done after the death of the parents.

7.4 Adoption under the Civil Code of Goa

Goa, former Portuguese colony, which still practices the Portuguese Common
Civil Code, does not allow legal adoptions. However, Articles 10 and 11 of the
Family Laws allow adoptions, but only among the Hindus, the concession given by
the then Portuguese rulers to inherit the family property. But such an adoption is
allowed only in absence of a legitimate issue, for only one male and that too from
among the close relatives. Second adoption is prohibited. The redundant Portuguese
law does not allow adoptions by Goan parents even done outside the state as per the
laws prevalent there.

7.4.1 Provisions for Adoption under the Code of gentile Hindu usages and
customs of Goa

Article 10 of Code of gentile Hindu usages and customs of Goa,53 in the

absence of legitimate male children, gentile Hindus, regardless of caste, may adopt a
male child in accordance with the ceremonies set out in their religious rite. The
adopted son shall be chosen from the relatives of the adopting parent who are entitled
to inherit from him/her, with preference to the second born of his brothers, and,
between Brahmins and Kshatriyas, from those not yet initiated into the thread
ceremony. If there is already an adopted son, one may not adopt another.54
 Gentile Hindu widows may also take an adoptive son, under the terms and
conditions foreseen in the preceding articles. When, however, the adoptive son is
taken under permission left by the widow‘s husband in a deed, with or without the
indication of a specific person, the adoptive son will be considered, for all purposes,

(13)
Decree of 16 December 1880.

(14)
Article 11.
 121

as adopted within the constancy of marriage.55 Dancers and ―Bhavinas‖ are allowed

to adopt a relative of the same caste, but only in the absolute absence of children. 56
Adoption may only be carried out through a deed and with the explicit consent of the
adoptive son, if he is pubescent, and of his legitimate parents; in the absence of
legitimate parents, with the permission of the head of the family, of the grandmother
or of a duly appointed guardian.57 Through adoption, adopted sons are removed and
become complete strangers to the families of their parents, and they enjoy within the
family of the adoptive parents all the rights of legitimate children, to which they are
considered equal for civil and religious purposes.58

7.5 Maintenance under the Civil Code of Goa

Section IV of the Divorce Act, 1910 deals with the ―Definitive Maintenance‖.
Either of the spouses is entitled to require that the other pay maintenance to him/her,
if he/she requires such maintenance. The amount of such maintenance shall be
determined in accordance with the need of the spouse receiving it, and the
circumstances of the one paying it; but it may never exceed a third of the net income
of the latter.59 The maintenance may be requested by the spouses together with the

divorce action, or may be so requested following the judgment granting the divorce.60
The determined payment of maintenance may be subsequently reduced at the request
of the spouse paying it, based on evidence that his/ her circumstances prevent him/her
from continuing to pay it in that amount, or that the other spouse, due to his/her
circumstances, no longer needs to receive it in that amount.61

The right to maintenance and the obligation to pay it ceases:

14 If the spouse receiving it is remarried;

15 If the spouse receiving it becomes unworthy of that benefit due to his/her

moral behaviour;
(5)
Article 12.
(6)
Article 13.

(7)
Article 14.

(8)
Article 15.

(9)
Article 29 of the Divorce Act of 1910.

(10)
Article 30 of the Divorce Act of 1910.

(11)
Article 31 of the Divorce Act of 1910.
 122

(5) If the spouse paying it is no longer capable of doing so, or if the one receiving
it no longer needs it.62

Remarrying does not discharge the spouse who is paying maintenance from
this obligation towards the other spouse, nor may it be a ground to request a reduction
in accordance with Article 31.63

7.6 Benefit of Civil Code over Common law for Women

There are clear benefits of a Uniform Code in a state like that of Goa; firstly,
as opposed to Muslim personal law, there is a right to an equal share in the inheritance
of property. There are restrictions even in Hindu law as the Hindu Succession Act
(Amendment) 2005 does not work retrospectively.

A woman, after she gets separated by a divorce, lives a miserable life under
different personal laws, but there is an entirely different scenario in the Code of Goa,
wherein the wife can legitimately demand half of the share of the matrimonial
property. If a woman has these many rights regarding property, she does not become
dependent and even when she is left alone, she can look after her children and parents.
The Code of Goa is made in such a way that it helps all the communities along with
both genders, and there is peaceful co-existence of all religious and cultural groups.64
(5)
Article 32 of the Divorce Act of 1910.
(6)
Article 33 of the Divorce Act of 1910.

(7)
https://blog.ipleaders.in/civil-code-goa-vs-personal-laws-india/
 123

CHAPTER 8

FRENCH CIVIL CODE FOR THE RENONCANTS

IN PONDICHERRY

The personal law as is applicable to the people in other places in India is not
applicable to the Renoncants in Pondicherry. The Renoncants in Pondicherry as
regards the personal laws are governed by the French Civil Code till date. This
chapter discusses about the French Civil Code that is applicable to the Renoncants in
Pondicherry.

The Union Territory of Pondicherry was a French settlement from the end of
the 17th century to mid-20th century. In this Union Territory all local Hindus,
Christians and Muslims are found divided into two groups- the Renoncants and
others; the former being still governed by the French Civil Code and the later by their
personal laws. The four Hindu law enactments of 1955-56 and the Dissolution of
Muslim Marriages Act, 1939 are applicable to the others and these clauses are not
applied to the Renoncants.1

The erstwhile French Settlements of Pondicherry, Karaikal, Mahe and Yanam

have been annexed to the Indian Territory by the De Jure transfer on 16th August, 1962,
consequent to the De facto Agreement between the Government of India and the
Government of France dated 21-10-1954. While effecting the De Jure transfer of the
erstwhile French Settlements with the Indian Territory, both the French and Indian
Governments entered into a Treaty of Cession in and by which they agreed to preserve the
uniqueness of the erstwhile French Establishments wherever possible and the Indian
Administration also guaranteed under the Articles of the Treaty of Cession, Agreed
Process Verbal and the De facto Agreement dated 21st October, 1954 to preserve such
uniqueness. It was agreed that the ―Renoncants‖ will continue to be governed in respect
of personal laws like those relating to marriage, divorce, adoption, succession etc., by the
relevant articles of the French Civil Code dealing with these matters. After the merger of
the then French settlements of Pondicherry, Karaikal, Mahe and Yanam with the Indian
Union, such merged territories became the

(3)
Hindu Marriage Act, 1955, 2 (2A); Hindu Succession Act, 1956, Sec. 2 (2A); Hindu Minorities and
Guardianship Act, 1956, Sec. 3 (2A).
 124

Union Territory of Pondicherry and suitable amendments were made in the Indian
Constitution to add the Union Territory of Pondicherry in Part VIII and Schedule I of
the Constitution of India. It appears that an option to the Indians to switch over to the
French way of life was given under a resolution dated 21.9.1881. By this option, the
inhabitants were allowed to renounce their Personal Law and espouse the French law.
People, who availed this opportunity and exercised the option to renounce their
Personal Laws, emerging out of customary rights and practices, were called
Renoncants.

Therefore, persons, who exercised the option to renounce their customary laws
and adopted the French Code Civil, are not governed by the provisions of their
respective personal laws. But, it must be remembered that by its very nature, the
saving clause applies only to persons, who are inhabitants at the time when the French
Code Civil was extended. Persons, who are descendants of those inhabitants, are also
entitled to the benefit. But, persons, who became inhabitants of Pondicherry after the
application of the French Code Civil, are not entitled to claim that they are
Renoncants.

8.1 Renoncants in Pondicherry

Those persons, who exercised the option to renounce their customary laws
and adopted the French Code Civil are called the ―Renoncants‖. It appears that by
Arrete of the Governor dated 06.4.1818, the French Government made it mandatory
for the Courts to recognise established customs of the local people within the French
Territory. Therefore, when the French Code Civil was made applicable by a
resolution dated 16.01.1819 to the inhabitants of the French Settlement in
Pondicherry, Karaikal, Mahe and Yanam, a saving clause was inserted to enable the
Hindus, Muslims and Christian inhabitants of these settlements to be governed by the
usages and customs of their respective races.
 It appears that thereafter, a local ordinance was passed on 30.10.1827 by the
local Government, constituting a Consultative Committee known as “Comite
Consultatit De La Jurisprudence Indianne‖ with the localites to study the local
customs. This Committee was to enlighten the Courts on the position of Hindu Law
in customary matters. According to a scholarly article written by one
 125

Mr.Ramabathiram, a retired District Judge, this Committee comprised of 9 elderly

Hindus dawn from various castes.

With a view to enable the local population to renounce their personal laws
and to adopt the French Code Civil, a Regulation was passed on 21.9.1881. By this
Regulation, an option was given to the native Indians to renounce their personal
status. Such a renunciation was to be effected by way of a declaration in the office of
the Mayor of the locality. Incentives were also offered to people, who renounce their
personal status. These incentives were in the form of political rights and the
opportunities thrown up for an employment in the government. According to Author
Claude Markovits (A History of Modern India 1480-1950), people professing
Christianity and people belonging to lower castes, were eager to make use of this
opportunity. These persons were actually given a term namely “renoncants”. These
renoncants are governed by the French Code Civil in matters relating to marriage,
divorce and family affairs.

The Pondicherry (Laws) Regulation, 1963, was issued by the President in

exercise of the powers conferred by Article 240 of the Constitution, with a view to
extend certain laws to the Union Territory of Pondicherry. Section 3 of the said
Regulation declared that the Acts as they are generally in force in the territories, to
which they extend, shall also extend to and come into force in Pondicherry on the 1st
day of October 1963, subject to the modifications specified in the First Schedule.
Unfortunately, neither the 1963 Regulation nor the 1968 Act defined the expression
“renoncants”.

But, what is important to note is that according to the Merrian-Webster

Dictionary, the English word “renounce” originated from the Anglo-French word
“renuncer” and from the Latin word “renuntiare”.

The following enactments the Hindu Marriages Act, 19552, the Hindu
Succession Act, 19563, the Hindu Adoption and Maintenance Act, 19564, the Hindu
Minority and Guardianship Act, 19565, the Muslim Personal Law (Shariat)
2

Section 2A of the Act.

3

Section 2A of the Act.

4
Section 2 of the Act.

5
Section 3 of the Act.
 126

Application Act, 19376, the Dissolution of Muslim Marriage Act, 19397, the Indian
Christian Marriage Act, 18728 and the Guardians and Wards Act, 18909 are not
applicable to Renoncants in Pondicherry.

8.2 Marriage and Divorce laws for the Renoncants in Pondicherry

The Renoncants in Pondicherry as stated earlier are still governed by the

French Civil Code as regards the marriage and divorce. Title V of Book 1 of the Code
consisting of Articles 144-227 gives about the marriage and Title VI of Book 1 of the
Code consisting of Articles 228-309 gives about the divorce.

8.2.1 Qualifications and Conditions required for Contracting a Marriage

Chapter I of Title V gives the qualifications and conditions required for

contracting a marriage. They are as follows:

(3) A male and a female may not contract marriage before they have completed

their eighteenth year.10 However the Government procurator of the place

where a marriage is to be celebrated may grant dispensations as to age for
serious reasons.11

(4) Consent of the parties is very important. There is no marriage where there is
no consent.12
(5) No one may contract a second marriage before the dissolution of the first.13

8.2.2 Prohibited Marriages

 The Code prohibits marriage between certain persons they are as follows:

(3) In direct lineage, a marriage is prohibited between all ascendants and

descendants and the relatives by marriage in the same lineage.14
(4) Marriage is prohibited between uncle and niece, aunt and nephew.15

(3)
Section 1 of the Act.
(4)
Section 1 of the Act.

(5)
Section 1 of the Act.

(6)
Section 1 of the Act.

(7)
Article 144 of the Civil Code.

(8)
Article 145 of the Civil Code.

(9)
Article 146 of the Civil Code.

(10)
Article 147 of the Civil Code.

(11)
Article 161 of the Civil Code.
 127

(3) Marriage is prohibited between uncle and niece, aunt and nephew, whether the
relationship be legitimate or illegitimate.16

8.2.3 Annulment of a Marriage

Chapter IV deals with the applications for the annulment of a marriage. A

marriage contracted without the free consent of the two spouses, or one of them, may
be attacked only by the spouses, or by the one whose consent was not free, or by the
Government procurator. The use of coercion on the spouses or on one of them, even
resulting from reverential fear towards an ascendant, constitutes a case of annulment
of the marriage. Where there was a mistake as to the person, or as to essential
capacities of the person, the other spouse may apply for annulment of the marriage.17
The application for the annulment may not be admissible after a period of five years
from the marriage or since the spouse acquired his or her full freedom or the mistake
was discovered by him or her.18 A marriage contracted by spouses who did not yet
have required age, or of whom one of the two had not reached that age, may not be
attacked:

(5) Where six months have elapsed since that spouse or the spouses have reached
the competent age;

(6) Where the wife, who did not have that age, has conceived before six months
elapsed.19

A marriage which was not publicly contracted and which was not celebrated
before the competent public officer, may be attacked by the spouses themselves, by
the father and mother, by the ascendants and by all those having a vested and present
interest, as well as by the Government procurator.20
16
Article 162 of the Civil Code.
17
Article 163 of the Civil Code.

18
Article 180 of the Civil Code.

19
Article 181 of the Civil Code.

20
Article 185 of the Civil Code.

21
Article 191 of the Civil Code.
 128

The marriage is dissolved:

(6) By the death of one of the spouses;

(7) By divorce lawfully pronounced.21

8.2.4 Divorce

Divorce may be declared in cases either:

- of mutual consent; or

- of acceptance of the principle of the breakdown of the marriage; or

- of irretrievable impairing of the marriage tie; or

- of fault.

Divorce by mutual consent

A petition for divorce may be presented jointly by the spouses where they
agree on the breakdown of the marriage and its effects by submitting to the approval
of the judge an agreement which regulates the consequences of the divorce.

The judge shall approve the agreement and decree a divorce where he has
acquired the belief that the intention of each spouse is real and that their consent is
free and well informed. He may refuse approval and not decree a divorce where he
finds that the agreement insufficiently protects the interests of the children or of one
of the spouses.22
Divorce of acceptance of the principle of the breakdown of the marriage

A petition for divorce may be presented by either spouse or by both where

they accept the principle of the breakdown of the marriage without consideration of
the facts from which it originates. This acceptance may not be withdrawn, even
through an appeal. Where he has acquired the belief that each spouse has given freely
his or her consent, the judge shall decree divorce and rule upon its consequences.23

(5)
Article 227 of the Civil Code.
(6)
Article 232 of the Civil Code.

(7)
Articles 233, 234 of the Civil Code.
 129

Divorce of irretrievable impairing of the marriage tie

A petition for divorce may be presented by a spouse where the marriage tie is
irretrievably impaired. An irretrievable impairing of the marriage tie shall result from
the ending of the community of life between the spouses, where they have been living
apart for two years before the summons.

Divorce of fault

A petition for divorce may be presented by a spouse where facts which

constitute a serious or renewed violation of the duties and obligations of marriage are
ascribable to the other spouse and render unbearable the continuance of community
life.24

Following divorce, each of the spouses loses the use of his or her spouse's
name. However, a spouse may keep the use of the other's name, either with his or her
consent, or with the authorization of the judge, where he or she proves that a
particular interest lies therein for him or her or for the children.25 Where divorced
spouses wish to contract another union between themselves, a new celebration of
marriage is required.26

8.2.5 Judicial Separation

Chapter IV of the Title VI of Book 1 of the Code gives for the judicial
separation. Judicial separation may be granted on application of one of the spouses in
the same cases and subject to the same conditions as divorce. Judicial separation does
not dissolve marriage but it puts an end to the duty of cohabitation. Voluntary
resumption of community life puts an end to judicial separation.
8.3 Succession among the Renoncants in Pondicherry

8.3.1 The Right of Legitim

Law of Legitim [French laws] speaks about the absolute ownership of the
Hindu Male and Female. Male descendents will get share from father's property and

18
Article 242 of the Civil Code.
19
Article 264 of the Civil Code.

20
Article 263 of the Civil Code.
 130

female from mother. In the opinion of Sanner in his Droit Civil Applicable aux
Hindus, 1916 has stated: ―preservation of the properties in the family was at the root
of the real estate regime and successoral law in India and that, therefore, legitim was a
necessary part of that law. He observed that there was no obstacle in applying
integrally the provisions of Code Civil in the matter of legitim to Hindus.

Thus, it is seen that the Courts in Pondicherry have consistently allowed to the
children the right to attack the acts of liberalities of their parents when such acts had
the effect of depriving them substantially of their legitimate right to succeed and that
in the course of time the very principle of legitim as understood in French law has
come to be accepted.

The sons have a right of legitim in the property of their father and the
daughters have the same right in the property of their mother.

The French jurists did not make any distinction between ancestral properties
and self-acquired properties, except Laude who stated that the father could not
dispose of the immovables left by the ancestors at his pleasure and that the children
had the right to attack the excessive liberalities by invoking their right of legitim, that
in respect of children to attack it as in the Roman law (querela inofficiosi testament)
in case they were deprived by the father without valid reason. Even this author, only
made a difference only in respect of the remedy but the right of disposal was limited
in both kinds of properties. The right of legitim is allowed on the totality of the estate.
This is in harmony with the full powers conferred on father on both kinds of
properties.

According to Hindu Customary law the sons cannot ask for partition of the
ancestral properties during the lifetime of their father, " because they can institute
against the father proceedings under Chapters 1 and 3 of title 11 of Code Civil which
matters of Depot and Sequestre (Deposit and Receiver) Regarding the properties
acquired by father through his ancestral properties or through fund deriving from his
own labour the sons cannot question if the father during his lifetime has chosen to
dispose of the above properties. In this matter also the liberalities can be asked to be
reduced to 1/8th which constitutes the disposable quota. Here the principle of reserve
 131

applies more to the properties acquired by the father with the help of the ancestral
properties regarding disposable quota of father, i.e., 1/8th of the properties.27

Regarding the third category of the properties acquired by the sons, it is the
settled principle of law that the properties acquired by the sons living under the father
and residing with him are presumed to belong to the chief of the family unless the
contrary proof is made. The properties donated to the son by other persons become
personal properties of the son. The properties acquired by the son from his own
income through separate industry, commerce or business can become personal
properties of the son if it is proved that his income was never gathered or integrated
with the income of the family. Regarding this kind of properties J.Sanner says that the
admission of the father that one of his sons has acquired some particular property with
his own income is binding on the other heirs when there is a dispute between various
heirs of the father. Here also the reservatory heirs are allowed to prove that the
declaration of the father is only a deed feigning the liberality which exceeds the
disposable quota of the father."

The above said decisions of the Pondicherry Courts appreciated and approved
to decide the case in the above cited Division Bench judgment in Maniammal v.
Mangalakshmy.28 Hence, from the above it is clear that according to the Hindu
customary law, sons cannot ask for partition in the property of the father.

The English jurists have found that in Hindu law the father had an unlimited
power of disposal in respect of his self-acquired properties. On the contrary the
French jurists have found in the same Hindu law that the father could give away

Only a portion of his properties, called his disposal quota, and that the
balance, constituted the legitim of the heirs. Law of Legitim speaks about the absolute
ownership of the Hindu male and Female. Male decendents will get share from
father's property and female from mother. This right originates after the demise of
father or mother and he/she can claim within 30 years from the date of death of those
persons.
 When justice was dispensed by kings or chieftains or by a collegial body
consisting of elders of the community, they used to apply the principles so as to suit

J.
Section Hindu Law by Leen Sorg page 198-199.

K.
1986(1) M.L.J. 160.
 132

the circumstances of each case, unfettered by precedents or rigid norms. But the
English and French who took upon themselves the burden of applying Hindu law, on
modern lines, with their hierarchy of courts, were led to systematize and crystallize
Hindu law and in that process they were influenced by their own laws. Though in
Scotland there is some kind of legitim in respect of movables, though the legitim was
in vogue in England also in the early days, by the time the British undertook the
delicate task of applying Hindu law the unlimited power of disposal had become a
well-rooted principle in their homeland. On the contrary, the principle of legitim for
direct heirs had been consistent principle in the legal history in France, and the same
was affirmed with force and precision in its Code Civil. It is how the principle of
legitim is a familiar one for Hindus in Pondicherry whereas it is unknown in the rest
of India. It is worth mentioning that this principle is in harmony with the exclusive
right recognized in Pondicherry of a Hindu father in respect of all properties whether
ancestral or self-acquired and the denial to the sons of any right by birth or any right
to ask for partition during the life-time of their father. Till his death the father is the
sole owner of all the properties with full right of disposal for valuable consideration.

The notion of legitim as it is understood in the French law has to be

distinguished from some proximate notions with which it is sometimes confused. The
legitim is the portion of the estate which a person cannot dispose of by an act of
liberality, if he has heirs in direct line, who are called forced heirs. It is different from
the provision for life maintenance of the widow or of daughters unfit for marriage,
different also from the provision made for marriage expenses of unmarried daughters.
It is also to be distinguished from the right of the child expressly exheredated by his
father to challenge that act of the father as unjust. Such an action is open to the child
whether the estate is depleted or not, and when it is depleted, it does not imply any
disherison. When a person indirectly deprives his forced heirs of the amount of
property which was in their legitimate expectation by disposing away without
valuable consideration in totality or a substantial part of his estate, those heirs are
entitled to show that their legitim has been encroached upon and to have it restored by
way of reduction of excessive liberalities.
 133

8.3.2 Existence of Legitim

The existence of the right of legitim is a matter of settled law now in

Pondicherry. Nobody in the legal field thinks of disputing it, but it would be
interesting to find out how it has come to be accepted by the courts. In dealing with
Hindu law the French courts were mostly guided by the French treatises on Hindu
law, the local usages and the previous decisions of the French courts.

8.3.3 Quantum of Legitim

The principle of legitim had been adopted easily by the French jurists and the
French courts, but they experienced difficulties regarding fixation of the amount. As
per Gibelin the quantum was left to the appreciation of the judge who would take into
account all the circumstances of the judge who would take into account all the
circumstances of the case. Laude hesitated between the quantum as fixed by the Code
Civil and that fixed by Justinian‘s Novels. As per the Code Civil the quantum is half
of the estate in case of one child, 2/3rd in case of two children and 3/4th in case of

three children and more. As per the 18th Novel of Justinian the legitim is 1/3rd when
there are four children and less and ½ when there are more than four children. Sorg
stated unequivocally that as per the custom prevailing in Pondicherry the legitim was
7/8th. Sanner advocated for the apportionment as provided in Code Civil.

The consultative commission on Indian law stated that the bequest of 1/3rd of
the estate when there were male children was contrary to usage. In another opinion it
stated that the disposable quota was proportionate to the estate. In opinion No. 103,
dated 15 May 1857 it stated that a daughter belonging to the community of devadasi
was entitled to half of the share in the ancestral property disposed of by her mother.
The first question in which the commission was called upon to state precisely the
quantum of legitim was answered in opinion No. 10529. In that opinion the
commission quoted several texts. Most of them law down that the father cannot
dispose of the totality of his estate but can dispose only a reasonable portion thereof.
Only one text of Brihaspati gives some precision. The text as quoted by the
commission I French may be translated as follows: ―the surplus of what is needed to
the maintenance of the family may be donated. However, in case of immovables such

JJ.
Dated 13 December 1871, p. 321.
 134

as house, field, garden etc., whether those properties were ancestral or self-acquired
one cannot give away more than 1/8th‖. The commission after perusal of the various
texts quoted by it and also after consulting the local usage, was of the opinion that the
disposable quota of a father was only 1/8th. It repeated the same in two more opinions
as regards the disposable quota of a mother vis-à-vis her daughters. But in another
opinion subsequent to opinion No. 105 the commission was satisfied that a father
could dispose of a portion of the estate provided that the loss to the children was not
sizeable, disclosing thus its reluctance to indicate a precise quantum. Therefore, the
sole opinion No. 105 of the commission that the disposable quota was 1/8th is subject
to some reservation. It cannot be said that the custom was crystallized in that manner.

Turning now to the decisions of the courts, a decision of 17 July 1847 indicates
that the rule followed till then and it was followed in that decision too— was to restrict
the right of disposal to the extent of the right of the fat5her in case of disposal by way of
donation or partition. In other words, the disposable quota was equal to the share of the
father in case of partition. In another decision the court, while observing that in Hindu law
the fixation of the legitim had been left to its own appreciation, applied the quantum of
reserve as in Code Civil. In a decision of 29 November 1859 the father was allowed as
disposable quota the double of the share of the other coparceners as he had to make
provision for maintenance of the widow. In a decision dated 16 July 1887 it was held that
a donation of half of the estate effected by the father having one son was within the limit
of his disposable quota. A decision of 12 May 1917 held that the disposable quota of the
father could not be less than the share of the sons in the estate. But the case of Vasudeva
Naiker v. Krishnasamy Naikar,30made a departure from the previous decisions. After
observing that the Hindu texts do not fix in a precise manner the disposable quota of the
sons and leaves to the court to determine it according to the circumstances of the case, the

court held that the custom generally followed was to consider 1/8 th of the estate as the
disposable quota, if the father had not given any reason to favour in a particular manner
any of his descendants. This viewpoint was followed in another decision. 31 In three other
decisions the court held that the quantum was the same in respect of the estate of the
mother vis-à-vis her daughters : they are Kannusamy v. Swarnathanmalle32;
JJJ.
Decision of 4 February 1936 (unreported).
KKK.
Decision of 6 April 1968.

LLL.
Decision of 29 August 1968 (unreported).
 135

Mouttoukichenapillai v. Govindassamy33; and Diealatchoumianmalle v.

Madouramnalle.34

8.3.4 Decisions of the Courts

The problem whether the Hindu heirs were entitled to legitim or not appears to
have been raised before the courts at an early stage and it has been possible to find
several court decisions on this subject. Some of the decisions of the Court of Appeal
of Pondicherry are discussed below.

The first decision available is that of 17 July 1847 reported by Langlard. In

that decision the court, while observing that there was no elaborate provision of law
safeguarding the interest of heirs, held that the heirs were entitled to ask for before the
courts for the reduction of the liberalities of the propositions if they were excessive
taking into account the dimension of the estate and the number of heirs as determined
by law. In a judgment of 28 June 1881,35 it was observed by the court that in case of
donations the sons had a possibility to interfere immediately and to stop them from
taking effect if they were excessive, that the will was unknown to Hindu law and was
introduced in India by the Muslims and, therefore one could not find practical
measures for the enforcement of legitim in the Hindu texts; that a remedy should be
found now that the will had become a settled practice; that, therefore, the sons could
be given the right to attack the will by analogy to the right enjoyed by the children
under the Roman law if they were exheredated.

In another judgment, dated 3 February 191736 the court recognised to the heirs
the right to attack the acts excessive liberalities made by the father.

In the judgment dated 12 May 191737 the court observed that it had become
well settled that a right of legitim existed in favour of the the children.
 In Kannussamy v. Sornathammalle,38 the court held that the widow could
dispose of only a portion of her properties, the remaining being reserved to her two
heirs namely, the daughters.

20
Decision of 13 August 1968 (unreported).
21
Decision of 21 August 1968 (unreported).

22
Reported in id. at 216.

23
3 Journal Judiciare 1. 55.

24
3 Journal Judiciare 1. 71.
 136

Sockaling Chettiar v. Somu Chettiar,39 lays down in unequivocal terms that the
Hindu father by the simple fact he has children is bound to reserve a share of his
properties to them.

In Ramalingam v. Manicka Gounder,40 held that under the Hindu Law as in

vougue in Pondicherry, all properties held by a father in a joint family are his absolute
properties whatever might be their origin or their modes of acquisition and that all of
them devolve on his death in accordance with the law, which governs succession to a
male Hindu‘s absolute estate. This was the law as administered in Pondicherry, when the
Hindu Succession Act, 1956 came to be extended by the Regulation of the year 1963,
subject, however, to the exception contained in Section 2(2A).

The views expressed by V.Valasubrahmanyam,J in Ramalingam were cited with

approval by Sethuraman,J in Pandurangan v. Sarangapani41. The learned Judge held
that under the Hindu Law in force in the territory of Pondicherry, Hindu sons did not
acquire any interest in the father‘s property by birth, whether the property be a self
acquired property of the father or his ancestral property.

The Division Bench, in Krishnamoorthy Giunder v. Sitarama Gounder,42 was

concerned with the validity of a transfer made by the father. After holding that under the
Customary Hindu Law prevailing in Pondicherry, the son cannot ask for partition during
the lifetime of the father, the Division Bench held that under the French system, the
father does not have an unlimited power in the matter of gratuitous transfer.

It is thus seen that the courts in Pondicherry have consistently allowed to the
children the right to attack the acts of liberalities of their parents when such acts had the
effect of depriving them substantially of their legitimate right to succeed, and that in the
course of time the very principle of legitim as understood in the French law has come to
be accepted. It was held in M.Kadirvelu & ors. v. G.Santhanalakshmi & ors.,43 that
unless the parties had pleaded and proved that they were renoncants, they are not entitled
to claim the benefits of Section 2 (2A) of the Hindu Succession Act,

22
Judgment of 29 May 1956 (unreported).
23
Judgment of 19 November 1963 (unreported).

24
(1981) 94 L.W. 36 = 1980 (2) MLJ 350.

25
(1982) 95 L.W. 318 = 1982 1 MLJ 143.

26
2002 (3) LW 669.
27
2016 3 LW 385.
137

1956. Without any pleading to the effect that they were renoncants, they cannot claim the
benefit of the said Section. This would become more apparent when we deal with the
various aspects of legitim as settled by the courts.

The Christians in Pondicherry are governed by the Hindu customary law. Even
those who convert to Christianity are continued to be governed by the Hindu law, in
French administered Pondicherry. The case of Kanakaraya Mudaliar, a dubash in
Pondicherry, is an interesting one. Kanakaraya converted to Christianity, and he died
leaving his wife and his childless, widowed daughter-in-law. When the question of
deciding who should inherit Kanakaraya's property came up in 1748, Dupleix decided the
case combining Mitakshara law and the concept of ‗legitim' from French jurisprudence.
Legitim means balance of justice. Balancing the interests of the two women was what
Dupleix had to achieve. The two women were given life interest in the property, and after
their lifetime the properties were to go to Kanakaraya's brother Tanappa Mudaliar.

In South India, Mitakshara law was applicable to Hindus. The standard law book
was ‗Smriti Chandrika.' Dupleix used the ‗Smriti Chandrika' in his decision. In
Mitakshara coparcenary, which contains male members of four generations, a woman
would only be given life interest in her husband's property, and after her death, the
property would go to her husband's family. That was the principle Dupleix followed in
the Kanakaraya Mudaliar case.

8.4 Adoption among the Renoncants in Pondicherry

Title VII of Book I of the Civil Code deals with the provisions of adoption. The
Code recognises two types of adoption 1) the plenary adoption and 2) the ordinary
adoption. Chapter I of the Title deals with the plenary adoption and Chapter II with the
ordinary adoption.

8.4.1 Plenary Adoption

Requisites for Plenary Adoption

- Adoption may be petitioned by two spouses not judicially separated, married

for more than two years or who are both older than twenty-eight years.
 138

- Adoption may be also petitioned by a person over "twenty-eight years of

age". Where the adopter is married and not judicially separated, his or her
spouse's consent is required unless this spouse is unable to express his or
her intention. The requirement as to age provided is not imposed in the
case of adoption of the spouse's child.

- The adopters must be fifteen years older than the children whom they
propose to adopt. Where the latter are their spouse's children the required
difference of age is only ten years. The court may, however, if there are
good reasons, make an adoption order where the difference in ages is
smaller than that provided for.

Plenary adoption of the spouse's child is allowed:

1) Where the child has a lawfully established parentage only with regard to that
spouse;

2) Where the parent other than the spouse has been totally deprived of parental
authority;

3) Where the parent other than the spouse is dead and has left no ascendant of the
first degree or where the latter obviously took no further interest in the child. 44

Persons who may be adopted

1) Children to the adoption of whom the father and mother or the family council
have validly consented;

2) Wards of the State;

3) Children declared abandoned in the way provided for in Article 350.

8.4.2 Ordinary Adoption

Ordinary adoption is allowed irrespective of the age of the adoptee. Where

there are serious reasons justifying it, an ordinary adoption of a child who was the
subject of a plenary adoption is allowed. Where the adoptee is over "thirteen", he
must personally consent to the adoption.45 Ordinary adoption confers the name of the
adopter on the adoptee by adding it to the name of the latter. An adoptee and his

44
Article 345-1 of the Civil Code.

45
Article 360 of the Civil Code.
 139

descendants have, in the family of the adopter, the rights to succession provided for in
Book III, Title I, Chapter III.

8.5 Guardianship among the Renoncants in Pondicherry

The Guardians and Wards Act, 1890 does not have any application among the
renoncants of Pondicherry. In Section 1, after sub-section (2), it was insert thus -
―Provided that nothing contained in this Act shall apply to the Renoncants of the
Union territory of Puducherry‖. Also the Hindu Minority and Guardianship Act, 1956
does not apply to the renoncants in Pondicherry. In Section 3, after sub-section (2), it
was inserted thus: ―(2A) Notwithstanding anything contained in sub-section (1),
nothing contained in this Act shall apply to the Renoncants of Union territory of
Puducherry.‖.

Chapter II of Title X of Book I of the Civil Code deals with the Guardianship.
A guardianship must be opened where the father and mother are both dead or are
"deprived of the exercise of parental authority". It must also be opened with respect to
a child who has neither a father nor a mother.

8.6 Maintenance among the Renoncants in Pondicherry

Children owe maintenance to their father and mother or other ascendants who
are in need.46 Sons- and daughters-in-law owe likewise and under the same
circumstances, maintenance to their father- and mother-in-law, but this obligation
ceases where the spouse owing to whom the affinity existed and the children born of
his or her union with the other spouse are dead.47 Maintenance shall be granted only
in proportion to the needs of the one who claims it, and to the wealth of the one who
owes it. The judge may, even of his own motion and according to the circumstances
of the case, couple the periodical payments with a revision clause permitted by the
law in force.

Where the one who provides or the one who receives maintenance is placed
again in such a condition that the one can no longer give it, or the other is no longer in
need of it, a discharge or reduction of it may be applied for. An adoptee owes

46
Article 205 of the Civil Code.
47
Article 206 of the Civil Code.
 140

maintenance to the adopter where he is in need and, reciprocally, an adopter owes

maintenance to the adoptee. The obligation of maintenance continues to exist between
the adoptee and his father and mother. However, the father and mother of the adoptee
are bound to provide maintenance to him only where he cannot obtain it from the
adopter.48
48
Article 367 of the Civil Code.
 141

CHAPTER 9

CONCLUSION

India being a secular country allows its people belonging to different religious
communities to be governed by their own personal laws in their personal matters, but
it is not so in reality. The personal laws in India are not diverse only with respect to
the religious communities but also with respect to the territories in India. As it may be
seen from the study that there is a uniform civil code that governs the Goans and
likewise the Renoncants in Pondicherry have been kept out of the applicability of the
Hindu major enactments and also the provisions of the Muslim personal law are not
applicable to them. The Hindus, Muslims and Christians in Goa and the Renoncants
in Pondicherry are not governed by the personal laws that govern their respective
counterparts in the country.

The Hindus of Goa, now in majority, are still governed by the Portuguese
family and succession laws, subject to some ancient Hindu traditions protected by the
old Gentile Hindu Usages Decree of 1880. The Hindu legal traditions protected by
this Decree relate to marriage, divorce, adoption and joint family belongs to 19th
century regime of Hindu law under which divorce was almost an impossibility,
adoption of or by females was unknown and joint-family property had, under any
circumstances whatsoever, no more than maintenance right to offer to women. The
general Hindus elsewhere enjoy the liberal divorce policy of the Hindu Marriage Act
of 1955, modernized adoption law of the Hindu Adoptions and Maintenance Act of
1956 and the property law enforced by the Hindu Succession Act, 1956.

The second largest community in Goa, are the Christians and in respect of
marriage law they are governed by either the Portuguese law of civil marriages or the
1946 Imperial Decree on Canonical marriages. The matrimonial laws applicable to the
Christians in rest of India are the Indian Divorce Act, 1869 and the Christian Marriage
Act, 1872, which are very different from that applicable to the Goan Christian. In respect
of succession, all Goan Christians are governed by the local Portuguese law, the Indian
Succession Act of 1925 being wholly inapplicable in the territory.

As regards the Goan Muslims since the Muslim Personal Law (Shariat)
Application Act of 1937 does not still apply in the state, they are governed by the
 142

Portuguese family and succession laws. The Goan Muslims are thus governed by the
Portuguese family and succession laws. They are thus governed partly by Portuguese
law and partly by ancient Hindu usage.

Recently, the Legislative Assembly on 5 August, 2016 unanimously passed

the much delayed ‗Goa Succession, Special Notaries and Inventory Proceeding Bill,
2012,‘ by which the government proposed to replace the Portuguese Civil Code on
succession, inventory and notarial law, with State laws, to meet the present day
requirements and to make it workable. The Bill was intended to consolidate the
various provisions of the law relating to succession and inventory proceedings in
property matters, and notaries into one ‗comprehensive, rational and integrated
legislation to facilitate their application and implementation by the bench, the bar and
litigants‘.

From the study it is also clear that the Renoncants in Pondicherry, those who
had renounced their personal laws during the French rule in India though would be
less in number are still governed by the French Civil Code which has been discussed
in detail. The personal laws governing the Hindu, Muslim and Christian communities
specifically states that their provisions do not apply to the Renoncants in Pondicherry.

Many of the personal laws in India are state made in the sense that modern
state institutions, mainly legislatures and courts, have been responsible for the
codification of these laws out of a diversity of religious practices and their application
to the different communities. In India and elsewhere, personal laws have both
historically facilitated the consolidation of religious groups, and come to be an
important component of their identities.

Along with allowing people in the country to be governed by personal laws,

the Constitution of India in Article 44 also directs the state to secure a uniform civil
code for the citizens throughout the territory of India. The Constitution did not abolish
the system of personal laws, but only held forth a uniform civil code as an ideal
towards which the state should strive. As it stands today, the Constitution recognises
the existence and permits the continuation of the various personal laws, pending the
realization of the goal of a uniform civil code, for which it does not prescribe any time
limit. However, there is also increasing secular legislative intervention in the field of
family laws and related subjects.
 143

The uniform civil code is one of the controversial issues in the Indian politics
today. The Uniform Civil Code is intended to replace personal laws based on customs
and religion of the major communities of India by one common law covering
marriage, divorce, inheritance, adoption and maintenance and governing every
citizen. As stated above Article 44 of Constitution, a Directive Principle, says that the
State should endeavour to secure for all citizens an Uniform Civil Code throughout
India. However, this provision does not supersede Article 25 on the Fundamental
Right to freedom of religion. Pandit Nehru supported the idea of Uniform Civil Code
but did not want it to be forced upon any community. Recently, the Government of
India urged the Supreme Court to examine the validity of Triple talaq and the legality
of polygamy. The Supreme Court refused to hear the Uniform Civil Code issue along
with the Triple talaq matter. The hearing on Triple talaq will begin in the Supreme
Court on 11 May, 2017.

In India, we have the Special Marriage Act, 1954 which is optional and
enables every Indian citizen to marry outside the realm of his or her religious personal
law. The Special Marriage Act is available throughout India except in Jammu and
Kashmir. Under this Act, polygamy is illegal and inheritance and succession are
governed by the Indian Succession Act. It is sometimes alleged that Goa is one State
in India with a Uniform Civil Code. This is not true. Some usages and customs of
Hindus and Muslims have been safeguarded by the Civil Code operating in Goa. For
instance, Catholic marriages in Church have civil effects automatically whilst in other
communities the marriage has to be registered before the Civil Registrar. Adoption is
not permitted to Catholics and Muslims whilst it is permitted to Hindus.

The suggestion would be to constitute a committee by the Government

consisting of experts in the legal field mainly from the Muslim community, scholars
well-versed in the religious communities in India and women representatives to assess
the viability of a Uniform Civil Code. It should be seen that no community is
offended by the Uniform Civil Code that is to be brought into force. It should uphold
communal harmony in a manner that every community is confident that its religious
and cultural identities are not threatened. Goa‘s Civil Code is worth considering for
promulgation all over India as it provides for common ownership of property and
equal treatment to men and women. It can help in avoiding frequent breaking of
marriages.
 144

BIBILIOGRAPHY

Books Referred

 A.M. Bhattacharjee: Hindu Law and Constitution, Eastern Law House, (1983).


 Dr. Paras Diwan: Family Law, Allahabad Law Agency, Haryana, (2011).


 Gerald James Larson (Ed.): Religion and Personal Law in Secular India:

A Call to Judgment, Indiana University Press, (2012).


 H.M. Seervai: Constitutional Law of India, (1968).


 Julio César Rivera: The Scope and Structure of Civil Codes, Springer Science

& Business Media, (2014).


 K. B. Agrawal: Family Law in India, Kluwer Law International, (2010).


 K. Kusum, Family Law Lectures, Lexis Nexis Butterworths,

Wadhwa, Nagpur, (2008).


 K. Subba Rao: Social Justice and Law, national Publishing House, (1974).


 M.P.Jain: Indian Constitutional Law, Lexis Nexis, (2015).



 Prof. G.C.V. Subba Rao‘s: Family Law in India, S.Gogia & Company,

Hyderabad, (2012).

 Shamona Khanna, Indira Jaising ed.,: “Challenging the Unequal position”,

 Justice for women: The Other India Press, Goa, (1996).

 Tahir Mahmood: Islamic Law in Modern India, N.M.Tripathi Pvt. Ltd.,

Bombay, (1972).

 Tahir Mahmood: Personal Laws in Crisis, Metropolitan, New Delhi, (1986).


 Tahir Mahood: Muslim Personal Law, Role of the State in the Subcontinent,

Vikas Publishing House Pvt. Ltd., New Delhi, (1977).

 145

 Timothy Lubin, Donald R. Davis Jr., Jayanth K. Krishnan (Eds.): Hinduism


and Law: An Introduction, Cambridge University Press, (2010).

Articles

 Aditi Pratap Sampat, Uniqueness Of The Goan Family Laws, Ipleaders (July

20, 2016). Available at https://blog.ipleaders.in/uniqueness-goan-family-

laws/ Viewed last on 20 March 2017.


 Aridane cara Santos, What Absolute Community of Property Is (Family

Code), Slideshare.net (September 22, 2014). Available at

https://www.slideshare.net/ariadnecara/what-is-absolute-community-of-

property-in-the-family-code Viewed last on 22 March 2017.


 Dhivyae Mohan Sherry & Rakesh Kumar Choudhary; Christian Personal

Laws,(January 6, 2017) Available at

https://www.slideshare.net/DivyaeSherry/christian-personal-laws Viewed

last on 24 March 2017.



 Disha Pareek, Civil Code Of Goa Vs Personal Laws in India, Ipleaders (July
17, 2016) Avaiable at https://blog.ipleaders.in/civil-code-goa-vs-personal-
laws-india/#_ftn2 Viewed last on 20 March 2017.

  Gauri Kulkarni, Uniform Civil Code, Legalserviceindia.com (June 18, 2013)

Available at http://www.legalserviceindia.com/articles/ucc.htm Viewed last on

3 April 2017.

 Romit Agrawal, Maintenance: Under Hindu, Muslim, Christian and Parsi

Laws, Legalserviceindia.com (June 17, 2013) Available at

http://www.legalserviceindia.com/articles/hmcp.htm Viewed last on 1 April

2017.
 146

Journals

 Arun Kumar, ―Guardianship and Custody of the Person of a Minor Child –

Conflicting Claims‖, Journal of the Indian Law Institute, Vol. 17: 2, 1975.

 Meher K. Master, ―Personal Laws of Religious Communities in India‖.


Journal of Dharma: Dharmaram Journal of Religions and Philosophies, Vol.


11: 3, 1986.

Statutes and Codes

 Code of Criminal Procedure, 1973.



 Convention on the Elimination of All Forms of Discrimination against

Women (CEDAW)

 Divorce Act, 1910 of the French Civil Code.


 Hindu Adoption and Maintenance Act, 1956.



 Hindu Marriage Act, 1955.



 Hindu Minority and Guardianship Act, 1956.



 Hindu Succession Act, 1956.



 Indian Christian Marriage Act, 1872.



 Indian Divorce Act, 1869 as amended in 2001.



 Portuguese Civil Code, 1867.



 The Constitution of India.



 The Dissolution of Muslim Marriage Act, 1939.



 The Goa Succession, Special Notaries and Inventory Proceeding Act, 2012.


 The Guardians and Wards Act, 1890.



 The Muslim Personal Law (Shariat) Application Act, 1937.

 147

 The Wakf Act, 1995.



 The Women (Protection of Rights on Divorce) Act, 1986.

Web Sources

 http://indianexpress.com/article/research/shariat-muslim-personal-law-sharia-

history-shayara-bano-shah-bano-triple-talaq-personal-laws-religious-laws-

uniform-civil-code-2784081/ Visited on 3 April 2017.


 http://indiatoday.intoday.in/story/triple-talaq-hyderabad-man-divorces-wife-

through-newspaper-ad/1/920519.html Visited on 5 April 2017.


 http://indiatoday.intoday.in/story/triple-talaq-hyderabad-man-divorces-wife-

through-newspaper-ad/1/920519.html Visited on 5 April 2017.


 http://mmascgoa.tripod.com/id12.html Visited on 21 March 2017.


 http://racolblegal.com/the-goan-way-of-civil-code-in-contrast-to-personal-

family-laws-in-india-a-grand-success-or-steep-failure-with-special-reference-

to-marriage-regimes/#_ftnref14 Visited on 20 March 2017.


 http://www.askfamilyproblem.com/maintenance-under-christian-law.html

Visited on 24 March 2017.


 http://www.freepressjournal.in/india/bigamy-allowed-in-goa-says-a-un-

study/254150 Visited on 21 March 2017.


 http://www.heraldgoa.in/Goa/Finally-Portuguese-Civil-Code-is-

replaced/104859.html Visited on 28 March 2017.


 http://www.hindustantimes.com/india-news/all-in-the-family-is-the-goa-civil-

code-a-model-for-the-rest-of-the-country/story-

4ImvwP0OrAST2hUnsZxtiL.html Visited on 20 March 2017.

 148

 http://www.livelaw.in/breaking-sc-refers-triple-talaq-case-constitution-bench/

Visited on 5 April 2017.


 http://www.ndtv.com/india-news/hyderabad-man-arrested-over-triple-talaq-

postcard-to-his-bride-1677132 Visited on 5 April 2017.


 http://www.newkerala.com/news/fullnews-237364.html Visited on 5 April

2017.

 http://www.webindia123.com/law/family_law/christian_law/christian_marriag

e.htm Visited on 31 March 2017.


 http://www.webindia123.com/law/family_law/personal_laws.htm Visited on 5

March 2017.

 https://en.wikipedia.org/wiki/Goa,_Daman_and_Diu Visited on 20 March

2017.

 https://www.lawteacher.net/free-law-essays/family-law/adoption-in-hindu-

law-and-muslim-law-law-essay.php Visited on 4 April 2017.


 https://www.telegraphindia.com/1151104/jsp/opinion/story_51223.jsp#.WOd8

p_mGPIU Visited on 28 March 2017.

Reports
  ―Laws on Registration of Marriage and Divorce – A Proposal for

Consolidation and Reform‖, Law Commission of India, 221st Report.


 ―Removal of Discrimination against Women in Matters Relating to

Guardianship and Custody of Minor Children and the Elaborations of the


Welfare Principle‖, Law Commission of India, 133rd Report.