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1. Bisawanath Mitra Vs Anjali mitra AIR 1975 Cal.45 ( Sec.30 Special Marriage Act)
The question involved in this case was when a divorced person can remarry

Section .20 of the Special Marriage Act 1954, deals with the right of divorced person to
remarry. This section says as follows:-

Where a marriage has been dissolved by a decree of divorce, and

a) When there is no right of appeal against the decree, or

b) Though there is such a right of appeal, the time has expired without any appeal
having been presented, or

c) When an appeal has been presented, but has been dismissed,

either party to the marriage may marry again.

In the case of Biswanath Mitra Vs Anjali Mitra the facts are A and B married under the Special
Marriage Act,1954. Their marriage was dissolved by a decree of divorce in 1958. A married another
person C within one year from the date of Divorce decree and also had two Children by C. Thereafter
disputes arose Between A and C, and A sought for judicial separation from C on the ground of cruelty.
C contended that their marriage was void. As it took place before the stipulated period of one year laid
down in Section.30 of S.M.Act.

Before the Amendment of 1976. Originally Sec.30 did not permit for immediate marriage after
obtaining divoorce.The words “ and one hear has elapsed thereafter but not sooner” were present in
sec.30. There fore atleast One year period was to be taken for another marriage after obtaining divorce.
The period of one year will be calculated from the date of divorce decree, or from the date of the
disposal of appeal, confirming the decree for divorce.

Here the Calcutta High Court admitted the argment of C and granted a decree of nullity of marriage,
however pronounced that the children as legitimate

After 1976 Amendment. The re3striction of one year limitation after the divorce decree imposed in
se.30 was criticized by the lawyers. Thus the words” and one year has elapsed thereafter but not
sooner’ were removed from sec.30 by the amendment of 1976. Now the
parties can marry again immediately after obtaining the decree of divorce

2. Sita bai Vs Ramachandran (AIR 1970 Sc 345)


Kalyan and Anand were brothers of a copacenary family. Both having no children. Kalyan died
leaving behind his wife saritha. Saritha started living with illicit contract with Dharma and begotten
Raja , Illegitimate son. Saritha adopted a boy, by name Suresh., Later Anand wrote a will
bequeathing all the properties to Raja, Illegitimate son. Suresh the adopted child of Saritha sued for
share in the property. Later Anand Died. The dispute arose between Sure sh and Raja


Sc held Suresh. Adopted son acquired the copacenary rights in the adoptive amily He became the
son of Kalyan by adoption and so a coparcener in the jt family, on the death of Anand, he is the sole
surviving coparcener. Anand’s will cannot affect the rights of Suresh in the joint family property. As
regards, lands , Surresh, as brother’’s son is preferable to Raja who is only an illegitimate son

3. Dr Abdul Rahim Undre Vs Smt AQbdul Rahim Undre AIR 1982 Mah,243)

Ans A secular marriage was performed out side India and was registered according to the law
prevailed in England. If any matrimonial dispute arises between them, while residing in England,
they shall have to approach the English court according to the English laws.

However , if any matrimonial dispute arises between them after coming to India, ssuh a marriageis
treated as amarriage performed under S,M Act 1954 irrespective of the religion of the spouses

Facts of the case Dr Abdul Rahim Undre

S.C held that their marriage in England was a secular marriage and can be treated equivalent to the
marriage solemnized under S,M. Act. Therefore personal laws would not apply in this case
thereafter, appellant could not give unilateral talak

4. ( Lata Kamat Vs Vilas ( AIR 1989 SC 1477

Formerly, the viewof the courts was that sec.15 applied in those cases
where the marriage has been dissolved by a dint of a decree of dissolution
of marriage under Sec.13. It did not apply to the cases where the decree of
nullity had been passed under Sec.12 of the Act.
In Jambu Prasad Jain Vs. Smt. Malati Prabha AIR 1979 ALL.260
Where a decree of nullity had been passed under sec.12, the parties to
such decree could marry afresh separately according to their will
immediately after the decree was passed
Case Lata Kamat Vs. Vilas AIR 1989 SC 1477
In this case a marriage was dissolved by a decree of the court of
competent jurisdiction. But before an appeal against the said decree was
filed, he married again and pleaded for dismissal of the appeal,
subsequently filed, on the ground that he had lawfully married again. His

objection was upheld by the lower and High Courts. But the supreme
court however did not agree with the aforesaid decision According to the
S. C, , sec.15 of the Act only means that where relationship of marriage
has been brought to an end by the intervention of the court by a decree,
this decree will include a decree under Sec.11 ,12 and 13 of the Act

5. Savan Ram Vs Kalawati AIR 1967 , SC 1761 Q.

Incase of adoption by a widow under Sec.12 of HAMA would the adopte3d child be deemed to
be child of the deceased husband
Facts: A, a Hindu died in 1948 leaving behind his widow without children.Widow took her
husband;’ properties as limited estate owner. In 1954, the widow, W made a gift of certain
lands of her husband’s properties to her grand niece G. X, a collateral of the deceased A was a
peresumptive reversioner. X challenged the alienation by WAY OF GIFT BY Wto G under a
suit for the declaration that the gift to G was not binding on him. The trial coutrt granted the
declaration infavour of X. G appealed. While the appeal was pending in1959 W the widow of
A, adopted G’s son, GS. After taking in adoption, in the same year W died
The questionarose whether the adoption of W adopting GS was vaoid, If so GS would be
preferable heir than X and he would be deemed as the adopted son of A
The SC held that the adoption of GS by W was valid, and GS was preferableheir of A when
compared to X
6. in Daniel Latiff Vs. Union Of India (2001) AIR SC 3958
Constitutional validity of Muslim Women ( Protection of Rights on Divorce) Act, 1986 was
challenged on the ground that it infringed Art.14, 15, and 21 .
Muslim Women ( Protection of Rights on Divorce) Act, 1986 was passed afer the decision in
Mohd. Ahmed Khan Vs Shah Bano Begum AIR 1985 SC 945, which held that if the divorced
woman is able to maintrain herself, the husband’s liability cceases with the expiration of the
iddeat, but if is unable to maintain herself after the period of iddat, she is entitled to have
recourse to the provision of Sec.125 Cr P C. Muslim Women ( Protection of Rights on Divorce)
Act, 1986 was passed with the intentionto make the decision of shah Bano ineffective
The above Act provides inter alia the following
A muslim divorced women shall be entitled to a reasonable and fair provision and maintenance
within the period of iddat, by her former husband . Incase she maintenance the children born
to her before or after her divorce, such reasonable provision of maintenance would be
extended to a period of two years from the date of their birth. She will also be entitled to her
mehr and all the properties given to her by her relatives, friends husband and the husband’s
relatives. She is entitled to apply to the magistrate for an order directing the husband to the
above benefits.
2, Where a muslim divorced woman is unable to maintain herself after the iddat period, the
magistrate is empowered to make an order for the payment of maintenance by her relatives
who would be entitled to inherit her property on her death, in proportion of which they would
inherit her property.. In any on of such relatives is unable to pay, the magistrqaate would
direct the other relativesss to pay the shares of these relatives. Where a divorced woman has
no such relatives, the magistrate would order the State Wakf Board to pay te maintenance
ordered by him .

The above provisions contained in Sec.3, 4 of othe above said Act were challenged
The maingrounds for challenge
!. Sec.125 is a provision made in respect of women belonging to al religions and exclusion of
muslim womenfrom it’s benefits would be discrimination between women and women
2. Apart from gender justice caused, this discrimination further leads to a monstrous proposition
of nullifying a law declared by this court in Shab Bano. Thus there is a violation of not only
equality before law but also equal protection of laws and inherent infringement of Art.21
3. If the object of Sec.125 is to avoid vagrancy, the remedy there under cannot be denied to
muslim woman
5. The Act is un-islamic, ubnconstitutional and it has the potential of suffocating the muslim
women, and it undermines the secular character which is the basic feature of the courts
6. There is no reason todeprieve themuslim women from the applicability of Sec,125 and
consequently the present Act must be held to be discriminatory and violativve of Art.14

7. Rashid Ahmed Vs ANsia Khatoon PC 1932 59 IA 21

Q. Whether the cohabitation after the triple talak VALID AND the children can share in the estate
as heirs of the husband, even though the father acknowledged them as his children?
A hanafi muslim gave talaq to his husband by three pronouncements in the same breath in these
terms I divorce You I divorce You and I divorce you, However after talak, wife and husband lived
together, and five children were born to them. The father acknowledged them as his children. After
the death of the father, the collateral heirs raised the dispute that the children were illegitimate and
were not entitled to share in the properties of the father, as there was no re-marriage between wife
and husband after talak.

The PC held that the children could not be treated as legitimat and no share would be awarded to
them. It held that the divorc by the husband created a bar in this case. The bar could only be
removed by halal. AS these conditions were not proved, remarriage between them cannot be
preseumed hence the children could not be held to be legitimte

7. Ashok Hurra Vs. Rupa Bipin zaveri AIR 1997 SC 1266

Can a divorce decree by consent be passed even after consent has been withdrawn by one of
the parties?
Parties marrid in 1970. Fourteen yeats later they filed a d joint petition for divorce under
section 13B of H M Act. About eight months after filing the petition, the husband alone
moved the court and pressed his application for eivorce. Notice was sent to the wife and on
application of both, the case was adjourned. There were several adjournments and
unsuccessful attempts bythe trial court for reconciliation. Within one year of filing the
petition, the husband remarried and also had a child. The wife filed a criminal case for
declaring the marriage( Second marriage ) Illeggal and the child illegitimate After about 19
months of the filing of the petition for divoorce, The wife withdrew her consent and sought
dismissal of the petition. The husband contended that she had no right to withdraw after 18
The trial court held tha since the wife withdrew her consent, the divorce decree could not be
passed.. The husband filed an appeal before a single judge of Gujrat Higfh Court. The court
came to the conclusion that since the wife had not withdrawn the petition within 18 months
and also as the marriage had irretrievabkley broken down, the divorce decree should be
Here wife filed a letters Patent Appeal before the Division bench before the Gujrat High
a) The consent should continue till the decree of divorce is passed. In this case there was
no consent, as the wife had withdrawn her consent
b) Irretrievable breakdown of marriage is no ground for divorce/
C) Even if iit was a case where decree could have been passed, the same could not have been
passed with retrospective effect from the datew of the petition , but only from he date of
d) In theis case the husband had remarried during the subsistence of the first marriage at a
time when the divorce petition was pending. Besides he had participated in reconciliation
proceedings knowing well that he could not accept the party as his wife
Divisoion bench refused to grant divorce. The husband fiuled an appeal before SC.
A two-judge bench incoked it’s jurisdiction under Art.142, the court proceeded to grant a
divorce condition on the husband paying an amount of Rs.10 Lakh plus Rs.50,000 as litigation
expenses as the husband had clearly commiited a wrong by entering into a bigamous
marriage pending divorce decreee
8. A. Yousuf Vs Sowramma AIR 1971 Ker. 261
Whether the muslim wife is entitled to get a divorce if the husband failed to perform marital
Sowrama and Yousuf both belonged to Hanafi Sect of Islam. They married in 1962. A t the
time of their marriage, she was 15 years and he was 30. On the day of marriage, they
participated in sexual intercourse. Next day he left his wife in his parent’s house and went away.
She remained in in-laws house for one month ,. During this period he did not visit and care her.
Later she went away to her parents house. After two years, she filed a petition before the
matrimonial court praying to dissolve their marriage. The trial court dismissed her petition. On
appeal, the subordinate court granted decree. During this petition the husband remarried another
girl. He appealed to the Kerala H C contending that the decree of dissolution by the subordinate
court was contrary to muslim law. The High court by dismissing the appeal by layingdown the
following principles:
a) The muslim wife is entitled to claim divorce, if the huswband fails to perform , without
reasonable cause, his marital obligations for a petiod of three years
b) The laws particularly Dissolution ofMuslim Marriageds Act, 1939 should be interpreted to
protect the weaker sections of community like women.
9. Ramanathan Vs. Palaniappa ( AIR 1939 Mad. 531)
The powers of testamentary guardians are defined by the will of the testator. He has also the
power of natural guardian subject to any restrictions that may have been imposed upon them
by the will appointintg him as testasmentary guardian
A executed a will appointing B as executor of the will and authorizing his(A’s) widow to
adopt a son. Till the son became a major, the executor was to manage the property which
consisted of an ancestral money-lending business. The widow later on adopted a son. In the
course of business, B appointed an agent for conducting the business borrowed from a Bank
executing a promissory note along with C, each taking a half of the money.. C had to pay the
whole a amount to the bank. After paying the whole amount to the Bank, C sued the minor
for contribution. The minor’s plea was that B or his agent could not borrow so as to bind his
estate.. It was held that B was a testamentary guardian and had also powers of a natural
guardian as defined in Hanuman Prasad’s case. The appointment of an agent for a business of
the kind was held to be within the powers of Hindu Law natural guardian. The continuing of
the business was also within his powers ‘ even apart from the directions contained in the
will”. The borrowing was for the benefit of the minor’s estate, and so the suit for
contributions was decreed.
Under Sec.8 the powers of the natural guardians have been curtailed in regard to the making
of alienation, . In other respects their powers are still those recognized by the doctrine of
necessity of benefits as laid down in Hanuman Prasad’s case . So the testasmentary guardian
can exercise the powers of natural guardian subject to a) to the statutory restrictions there
on under Sec.8 and b) subject to the directions in the wil itself

11. Kailash Wati Vs. Ayodhya Parkash 1977,79 Punj.L.R 216

Desertion in the context of wife’s employment – Refusal to give up her

job and join husband
 Case Kailash wati Vs, Ayodhya Prakash 1977 Hindu Law reporter 175
 Appellant wife married to the respondent in 1964 At the time of marriage
both were teachers at different places. After marriage the wife was
transfefrred to the station of her husband and they stayed together for 9
months. There after the wife got herself transferred back to her original
placeand started living there with her parents against the wishes of her
husband Husband foiled a suit for restitution. Wife took the plea that she
has never refused to honour her matrimonial obligation but was firm in her
stand that she would not resign.
 According to her, the husband knew at the time of marriage that she was
working therefore she was under no obligation to live with her husband.
She contended that she never denied access to her husband as and when
possible at her place of posting where she was residing with her parents

A wife is not entitled to unilaterally withdraw from matrimonial home and live
else where by taking the shelter behind the plea thet she would not deny access
to the husband a and when possible. The wife’s withdrawal was held to be
unilateral and without reasonable cause. The Husband has waited patiently in
the wings for the best part of his life and it would perhaps be bordering on the
cruelty to require him to keep on waiting in suspense

12. Swaraj Garj Vs K.M. Garg AIR 1978 Del.296.

 Matrimonial home, when both the spouses working at different places-

Wife’s withdrawal not un reasonable
 Case Swaraj Garg V.s. K. M. Garg AIR 1978 Del.296
 Husband wife both were gainfully employed. Both of them were highly
qualified. But unfortunately husband was not so well employed as his wife
was and thus the wife was getting higher salary than her husband. The wife
proposed to the husband that he should resign and stay with her. On the

 other hand the husband asked her to resign and live with him. Husband
filed a suit for restitution. The court dismissed the petition and held that
there were sufficient reasons for the wife to stay separately hence the
petition must fail.

14. Hitesh Bhatnagar Vs Deepa Bhatnagar AIR 2011 SC 1637

Can a decree of divorce bymutual consent under Sec.13B of the H M Act be passed not withstanding
withdrawal of consent by one of the parties.

Here the parties married in 1994 and had a daughter. Due I sine differencezs they stat=rted living
separately . In 2001 they filed a petitionhn for divorce by consent under Sec.13B of H M Act.
However before ther second motion, the wife withdrew her consent and the petition was dismissed
by the District Cour on this ground. The husband’s appeal against such dismissal before the p AND H
High court was aolso dismissed in2006, hence he present appeaaaal before the S C.

The court after referring to several cases came to the conclusion that the consent of booth the
parties until the final decree is mandatory. The husband sought to invoke the fact that the marriage
having irretrievably broken, should be dissolved notwithstanding withdrawal of consent by wife. The
husband’s appeal was dismissed as the court thought that iw would be a travwaty of justice to
dissolve the marriage as having broken.. zthough there is bitterness amongst the parties and they
have not even lived as husband and wife for the past 11 years, we hope that they will give this union
nother chance for the future of their daughter

16. Case Baldev Raj Miglani Vs. Smt. Urmila Kumari, AIR 1979 SC 879

Pregnancy of the respondent at the time of the mqarriage by some other person
other than the petitioner.
Inapetition for annulmentofthe marriage on this ground the petitioner has to
prove beyond reasonable doubt that the respondent was pregnant by some one
else at the time of marriage

In Mahendra Vs sushila bai, AIR 1965 SC 364, SC held that wwwwwhere the wife
admitted her pregnancy from before the solemnization of marriage, when the
husband had not met her, the case would be covered under Sec.12(1)(d) and the
husband would be entitled to get a decree od nullity

Here the petitioner was married to the respondent wife on8.10.1962. After the
intercourse with her for some time, the petitioner came to know on 30.10.1962
that the wife was pregnant at the time of marriage. On this knowledge, he
ceased to have sexual intercourse with her and filed the petition of nullity of
marriage.. It was contested by the wife that the child whom she gave birth on
20.5.63 was conceived by hisw contact and it was conceived only after marriage.
The court rejected the plea and gave the decree of nullit on8.10.1962. After the
intercourse with her for some time, the petitioner came to know on 30.10.1962
that the wife was pregnant at the time of marriage. On this knowledge, he
ceased to have sexual intercourse with her and filed the petition of nullity of
marriage.. It was contested by the wife that the child whom she gave birth on
20.5.63 was conceived by hisw contact and it was conceived only after marriage.
The court rejected the plea and gave the decree of nullit infavour of the husband

There are however 3 limitations under Sec.12(2)(b) (i),(ii), and(iii), that no

petition for annulling a marriage onthis ground shall be entertaine4d unless the
court is satisfied :-

(i) the petitioner was at the time of marriage ignorant of the alleged facts
(ii) the proceedings have been instituted, in the case of marriage
solemnisedbefore the commencement of the Act, within one year of such
and in the case of marriage solemnisedafter such commencement within
one year from the date of marriage
(iii) marital intercourse with the consent of the petitioner has not taken place,
since the discovery by the petitioner of the existence of the grounds for a decree

17. Bipin Chandra Vs. Prabhavathi AIR 1957 Sc 176

Does mere physical departure without any intention to put an and to

cohabitation, constitute desertion and adultery

Case Bipin Chandra Vs. Prabhavathi AIR 1957 Sc 176

Wife used to reside with husband along with his parents. Their marital life was
happy and a son was born to them. Later the husband left for England. During
the absence of the husband , the wife developed intimacy with the old friend of
the husband. There was aoso exchange of letters, between that friend. One of the
letters containing objectionable contents was intercepted by the father-in-law of
the wife. On return of the husband, father told him everything.. When the
husband asked her to explain, she refused and on the very next day left for her
parents house. Later the husband wrote a letter to her asking her to send the
child. Some attempts to reach an underzstanding were made. When the mother
of wife sent a telegram to the petitioner to receive his wife on station, the reply
sent back by the husband was that she should not be sent.

After some time the husband filed a petition for divorce on the ground of
desertion by the wife.

The defence of the wife was that it was the petitioner who by his treatment
made her life unbearable and compelled her to leave her matrimonial home

The Supreme Court held that even though the wife leaves the matrimonial home
without any excuse, she will not be guilty of desertion, if later she shows an
inclination to return and is prevented from doing so by the petitioner. To
constitute desertion, it is necessary to prove that the deserting spouse persisted
in the intention to desert through out the statutory period
A.C. Mathivanan v B. Sathyabama, 2016 SCC OnLine Mad 8884,
decided on 03.08.2016]

Madras High Court: An appeal against the order and decree passed by the Family Court.,
Madras High Court., set aside the decision of the Family Court dismissing the joint petition for
dissolution of marriage of the appellants for want of reasons for separation

In the present case, the appellants had filed a joint petition under Section 13B (2) of the 1955
Act with mutual consent seeking for dissolution of marriage as the appellants were living
separately and there was no chance of any re-union.
However their petition was dismissed as the Family Judge noted that the parties have not
mentioned the reasons for their separation.
Perusing the facts of the case, the Court said that the parties have been living separately and
as per the affidavit presented by the appellants there has been no cohabitation between
them since the stated date of separation. The only requisite of Section 13B (2) is that the
parties applying for dissolution of marriage must be living separately for a period of one
year or more, irrespective of any reason . When the ingredient was satisfied it was
unnecessary for the Family Court to enquire about the reasons behind their separation.
As per the provision the only duty of the Family Court was to ensure that whether the
marriage has been solemnised and that the averments in the petition are true. when the
parties were willing to part ways as their marriage had turned out to be a failure, the
Family Court should have respected the sentiments of the parties and should have granted
the divorce.

The Court further observed

Family Courts are not allowed to enlarge the scope of enquiry under Section 13B (2) of the
Hindu Marriage Act, 1955, and once it is satisfied that the essential requirements under
Section 13B (2) has been fulfilled
( Yamunabhai Aantarao Adhav Vs Anantarao Shivaram Adhav AIR 1988 SC 644

Petitioner got married to a person who had a living spouse. She filed an application for maintenance
under Sec.125 Cr.P.C. Here the husband had already a lawful living spouse, he couldnot have married
the petitioner under the law which enjoins monogamy. The marrieage being void under Sec.11 being in
in contravention of Sec..5(1) of the Hindu Marriage Act the wife was not entitled to maintenance. The
expression wife under Sec.125 Cr P C means a legally wedded wife The explanation unde4r this section
includes a divorced wife also but according to the court, a woman could not be a divorcee unless there
was a marriage in the eye of law preceding the status. The fact that the wife was not informed of the
first marriage did not in the opinion of the court, make any difference. Thus in the view of the voidness
of the marriage, the wife was held to have no status and hence not entitled to maintenance from the
husband. Even though she was defrauded she could not rely on the principle of estoppel so as to defeat
the provisions of the Act.

In that case the daughter in law widow’s adoption was invalid for want of
espress authority from herhusband which was necessary under the Bengal School
of Hindu Law by whuiich she was governed. Still it was held hat the mother in
law’s adoption was invalid. The mother in law’s powe to adopt comes to an end in
two contingencies: a) when her son has procreated a son or adopted ason b)
when her son dies issue less but leaving his widow.. It is true that when the
daughter in lawis in no position to continue the line either for want of express
authority or because of positive prohibition by the husband, it would be a great
hardship to deny to the mother in law the right to adopt to her husband and
continue the line. But the Sc has affirmed the rule. So the conclusion iss that
themother in law’s power of adoption has come to an end and cannot be revived

Important Questions

. “ the whole law of adoption is evolved from the two texts and a metaphor” Explain?

Define “ Domestic Violence “ ? What are the salient features of Protection of Women from
Domestic Violence Act, 2005
Critically examine the concept of ‘ option of puberty ‘ under Muslim Law

Define “ Domestic Violence “ ? What are the salient features of Protection of Women from
Domestic Violence Act, 2005

Write short on
A) Khula
B) Mubara ‘at
C) Taeweez
D) Zihar
E) I’la

. “ Under the Shastric Hindu Law there is no limit of time within which a widow can make a valid
adoption to her deceased husband. The Privy council, however on grounds of public policy imposed a
limit upon the widow’s power of adoption. The limit is not a durational limit measured in years. It is a
contingent limit. Mention the contingencies in which the widow’s power of adoption comes to an
end.”. In the light of the above statement mention the law involved in the law of adoption with the
decided cases ( Bhoobun Moyee Vs Ramkishore, 10 MIA 279

Special powers of the Supreme Court Under Article 136 and Article 142 and the circumstances in
which they could be exercised Under Sec.12 of H M Act and Protection of women under Domestic
Violence (Case Manish Goel Vs. Rohini Goel, AIR 2010 SC 1099

Whether the Family Courts are allowed to enlarge the scope of enquiry under Section 13B (2) of
the Hindu Marriage Act, 1955 Elucidate your answer with decided case law (A.C. Mathivanan v B.
Sathyabama, 2016 SCC OnLine Mad 8884

Can a divorce decree by consent be passed even after the consent has been withdrawn by one of the
parties? Discuss the relevant case law in this regard with reference to the constitutional provisions .
(Ashok Hurra Vs Rupabipin Zaveri AIT1997 Sc 1266

Whether a woman who marries an already married man is entitled to maintenance under the
provisions of Sec.125 Cr.P.C, eventhough the wife was kept in dark of the husband’s earlier marriage.
Discuss the provision along with the case law on the point ( Yamunabhai Aantarao Adhav Vs
Anantarao Shivaram Adhav AIR 1988 SC 644

Guide lines of Supreme Court in Lakshmi Pandey’s Case