Indian Institute of Technology Kharagpur

The Rajiv Gandhi School of Intellectual Property Law

Semester I

Subject Name: Family Law I

Subject Code: IP60111

Objective:
This course presents an overview of marriage, adoption and guardianship related issues in
Hindu law. In doing so, both the theoretical framework and practical dimensions of Hindu
law would be examined. Its continuing relevance, despite the rapid changes that has taken
place in human civilization, would be duly demonstrated in various areas of law.

By the end of the course students should be able to:

 Think critically on the issues raised in contemporary debates;

 Take on both written and oral study and debate on important issues;
 Carry out research in the field of Hindu law.

Teaching Methodology:

The predominant teaching method used in this course will be analysis and discussion using
experiential exercises, case studies, self-assessments and student presentations. This
method requires substantially different preparation than the routine lecture method.
Student shall be given regular assignments. Students are expected to be fully prepared to
discuss exercises/assignment and reading materials.

Evaluation Pattern

Credit 3-1-0
Internal Assessment: 20 Marks
Mid Term 30 Marks
End Term 50 Marks

Test-I: Class test on modules I-VI (Before mid sem)

Test-II: Class test on modules VII-XI (Before end sem)

Test-III: Case presentation and discussion

I. History and background of Family Law in India: [1 Class]

 Structural functionalism and the concept of family – Oedipal family model and fascism
– Theory of Michael Foucault, Deleuze & Guattari

II. Right to marry: [1 Class]

Article 21 of Indian Constitution – Article 16 of UDHR, 1948

[Cases: Mr. X v. Hospital Z, 1999; Mr. X v. Hospital Z, 2003; Lata Singh v. State of U.P.,
2006]

III. Hindu Marriage Act, 1955: [2 Classes]

Section 1(2), Section 2(1)(a), (b) and (c) of HMA

[Cases: Vinaya Nair v. Corporation of Kochi, 2006; Minoti Anand v. Subhash Anand,
2009]

Who is Hindu? - Section 2 of HMA

[Cases: Shastri v. Muldas, 1966; Peeruml v. Poonuswami, 1971; Mohandas v. Dewaswan

Board, 1975]

IV. Essential conditions of valid Hindu marriage: [2 Classes]

Section 5 of HMA – Sapinda relationship and degrees of prohibited relationship –

Bigamy – Mental capacity - Impotency

V. Ceremonies of Hindu marriage: [1 Class]

Section 7 of HMA – Capacity to marry – Inter-religious marriage

VI. Matrimonial causes under Hindu Marriage Act

(1)Nullity of marriage: [4 Classes]

Void and voidable marriage - Section 11 & 12 of HMA

Bigamy - The nature – First wife’s option to obtain injunction to stop second
marriage under Order XXXIX of CPC read with section 39 of Specific Relief Act –
Section 494 IPC

[Cases: Santosh Kumari v. Harish Kumar, 2005; Balwinder Kaur v. Gurumukh Singh,
2007]

Force/Coercion…Fraud/Misrepresentation - The nature – Concealment of

pregnancy or diseases – application of Section 112 of Indian Evidence Act – need
for DNA test – legal bars
 Impotency - Meaning of the term in the context of matrimonial relief – whether
impotency curable or not is important –delay in filing petition

[Cases: Samar v. Snigdha, 1977; Sunil Mirchandani v. Reena Mirchandani, 2000;

Kumar Samal v. Jotsnamayee Samal, 2005]

Insanity/Mental disorder - Meaning and ambit

[Cases: Rajeswari Mishra v. Sidhartha Pandit, 2010; R. Lakshmi Narayan v. Santhi,

2001; Ajitrai Shivprasad Mehta v. Bai Vasumati, 1969]

Pre-marriage pregnancy – Burden - Section 112 of Indian Evidence Act -

Importance of DNA test

[Cases: Dukhtar Jahan v. Mohammed Farooq, 1987; Anil Kumar v. Turaka Kondala
Rao, 1999; Kanti Devi v. Poshi Ram, 2001; N.D. Tiwari Case]

Marriage of minors - Prevention of Child Marriage Act, 2006

(2)Restitution of conjugal rights: [2 Classes]

Section 9 of HMA – Nature and scope - Constitutional validity of RCR

[Cases: Smt. Saroj Rani v. Sudarshan Kumar Chadha, 1984; T. Sareetha v. T. Venkata
Subbaiah, 1983; Harvinder Kaur v. Harmander Singh Choudhry, 1983; Smt. Asha
Rani v. Madan Gopal, 2008; Smt. Maya Devi v. Kailash Chander, 2013; Ou v. H, 2014]

(3)Judicial separation: [1 Class]

Section 10 of HMA – Nature and scope - Difference between judicial separation

and divorce

[Cases: Narayan Ganesh Dastane v. Sucheta Narayan Dastane, 1975; Manisha Tyagi
v. Deepak Kumar, 2010; Ms. Jordan Diengdeh v. S.S. Chopra, 1985; State Of U.P. v.
Smt. Gaya Kunwari And Ors., 2005]

(4)Theories of divorce: [1 Class]

Guilt theory, consent theory, irretrievable breakdown theory

(5)Different grounds of divorce: [9 Classes]

 Divorce on fault grounds (Section 13 of HMA): Adultery, Cruelty, Desertion,
Mental illness, Venereal diseases, Conviction, Conversion/Apostasy and Minority –
Wife’s special grounds

‘No fault’ divorce (Section 13B, 14 of HMA): Necessary ingredients - Withdrawal

of consent – Waiver of statutory period – Customary practices
Breakdown of marriages: Taking advantage of one’s own wrong – Economic
settlements for wife and children

[Mid-Term Exam]

VII. Maintenance and Alimony: [4 Classes]

Rights that flow from marriage or breakdown of relationship (Section 24 and 25

of HMA; Section 125 of CrPC): Ancillary and independent relief - Maintenance of
wife /husband - Maintenance of children/aged parents/widowed daughter - Claim in
spousal property - Principles for determination – Procedural aspects

[Cases: Mohd. Ahmed Khan v. Shah Bano Begum And Ors, 1985; Danial Latifi & Anr v.
Union Of India, 2001; Md. Siddique Ali v. Mustt Fatema Rashid, 2007; Shabana Bano v.
Imran Khan, 2009; T.P. Sudesh Babu v. Sherly P., 2010; Chauhan v. Chauhan, 2011; Smt.
Paras Devi v. Suresh Chand, 2012]

VIII. Bars to matrimonial reliefs under HMA: [2 Class]

Taking advantage of wrong or disability, collusion, condonation, delay, one year bar

IX. Hindu Minority and Guardianship Act, 1956: [3 Classes]

Natural guardians of a Hindu Minor – Nature and extent of guardian ship – Court’s
parens patriae – Custody rights over relatives

[Cases: Ms. Githa Hariharan & Anr v. Reserve Bank of India & Anr, 1999;
Mrs.K.Rajeswari v. M.V.Shanmugam, 2011; Manish Sehgal v. Meenu Sehgal, 2013]

X. Hindu Adoptions and Maintenance Act, 1956: [3 Classes]

Salient features – Capacity to adopt and to give in adoption – Who can be adopted –
Factum of proof – Consent of other spouse – Multiple adoption - Provisions under
Juvenile Justice Act
 [In the matter of adoption @ Sharinee Vinay Pathak, 2009; Sandhya v. U.O.I, 1998;
Shamalbhai Ramchandbhai Dhos v. Virabhai Jethabhai Bhut, 2013]

XI. Hindu Succession Act, 1956 : [6 Classes]

XII. Presentations and discussions: [6 Classes]

Selected Bibliography

1. The Origin of the Family, Private Property and the State by Friedrich Engles (1884)
2. Hindu Law, Mulla, Lexis Nexis
3. Family Law, Paras Diwan, Allahabad Law Agency
4. Law of Marriage & Divorce, Paras Diwan, Shailendra Jain, Peeyushi Diwan, Universal
5. Modern Indian Family Law, Werner Menski, Psychology Press
6. Family Law I, S R Myneni, Asia Law House
7. Family Law I, Kusum, Lexis Nexis

*** List of cases is not exhaustive