Divorce, Maintenance

and
Succession rights of
females under Hindu
Law By:
C. Pratyusha
Matrimonial relief under Hindu
.
Law
S. 9 Restitution of Conjugal Rights
.

S.10 Judicial Separation

S.13 Divorce

.
Restitution of Conjugal Rights
When either of the spouses has, without any reasonable
excuse, withdrawn from the society of the other, the
aggrieved party may apply, by petition to the district
court, for restitution of conjugal rights and the court, on
being satisfied of the truth of the statements made in
such petition and that there is no legal ground why the
application should not be granted, may decree restitution
of conjugal rights accordingly.
Essentials:
1. The other spouse has withdrawn from the
society of the petitioner.
2. There is no reasonable excuse for such
withdrawal. Should the respondent allege
reasonable excuse, the burden of proof lies on
him/her.
3. The courts satisfaction as to the truth of the
statements made in the petition.
4. No legal grounds exist for refusing the decree.
The object of this section is to preserve the
matrimonial tie as far as possible.
S.10 Judicial Separation
Either party to a marriage may present a petition
praying for a decree for judicial separation Where a
decree for judicial separation has been passed, it shall no
longer be obligatory for the petitioner to cohabit with the
respondent.
Grounds are: Desertion(2yrs), cruelty, leprosy,
venereal disease in communicable form(3yrs), unsound
mind(2yrs), adultery.
Section 13 of the Act provides that if there is no
resumption of co-habitation between the parties one year
after the decree for judicial separation is passed, the
parties can get a decree for divorce on this ground itself.
 Divorce

Mutual Irretrievable breakdown

Fault theory Consent of marriage

Living apart No resumption of co

since 1 year habilitation
No restitution of CR

Venereal Renounced
Adultery Cruelty Desertion Conversion Leprosy
Disease The World
 Theories of Divorce
There are basically three theories for divorce-fault theory, mutual
consent theory & irretrievable breakdown of marriage theory.
S. 13(1): grounds for divorce
(i) Adultery-
Voluntary sexual intercourse between a married person while the
marriage is still subsisting and a person of the opposite sex,
the two being not married to each other.
Burden of proof
In Prem Masi vs. Kumudani Bai (AIR1974MP88) the court held
that a civil standard of proof of adultery was enough and not proof
beyond reasonable doubt. Since such acts are done in utmost
secrecy in some cases even circumstantial evidence is accepted.
13(1)(ia)Cruelty
When a spouse is subjected to any kind of mental and physical
injury that causes danger to life, limb and health he/she can file
for divorce.
Mental Cruelty
Physical Cruelty
The intangible acts of
causing physical injury
cruelty through mental
being dangerous to life or
torture are not judged upon
limb ex:
one single act but series of
Domestic violence
incidents. Certain instances
the food being denied,
like continuous ill
denying access to physical
treatment, abuses to
relationship and such are
acquire dowry, neglect,
included under cruelty.
coldness and insult
Cases on cruelty Dastane vs. Dastane
Sayal vs. Sarla The wife abused the
The wife administered a husband and his relatives
deadly poison thinking it profusely, and humiliated
was love potion to her him and his father, she
husband so that he would would say burn your
be in her palm. The fathers books and smear
husbands petition far the ashes on your head ,
divorce was granted. you are a monster in a
humans body , she would
beat the child mercilessly,
lock him of the house, turn
he light at the husband at
night and nag him. The
husband got a divorce on
the ground of mental
cruelty.
13(1)(ib) Desertion
One of the spouses voluntarily abandons his/her partner for at least
a period of two years, the abandoned spouse can file a divorce case
on the ground of desertion.
Conditions to constitute a In Bipinchandra v.
desertion: Prabhavati the Supreme Court
1. factum of separation held that where the respondent
2. animus deserdendi (intention to leaves the matrimonial home
desert) with an intention to desert, he
3. without reasonable cause will not be guilty of desertion
4. without consent of other party if subsequently he shows an
5. statutory period of two years inclination to return & is
must have run out before a prevented from doing so by the
petition is presented. petitioner.
Constructive desertion: Jyotish
chandra vs. Meera
13(1)(ii)Conversion
When either of the spouses ceases to be a Hindu by conversion
to another religion.

13(1)(iii)Insanity
Conditions:
i) The respondent has been incurably of unsound mind
ii) The respondent has been suffering continuously or
intermittently from mental disorder of such a kind and to
such an extent that the petitioner cannot reasonably be
expected to live with the respondent.

Alka vs. Abhinash

She was held to be suffering from schizophrenia .
13(1)(iv)Leprosy
When either of the spouse is suffering from
a virulent and incurable form of leprosy.
'Virulent' in the context of s. 13(1)(iv) is not
a medical term The decisions of the different
High Courts and the Privy Council where
the word 'virulent' has been used for
interpreting the Hindu Law on the subject
have used it to describe the leprosy of the
most serious and aggravated type.
13(1)(v) Venereal Disease
If either of the spouses is suffering from a
Venereal disease in a communicable form
for more than 3 years is a ground for
obtaining a decree for dissolution of
marriage. Syphilis, gonorrhoea or soft
chancre are recognized as venereal diseases
under the (English) Venereal Diseases Act
1917.
13(1)(vi)Renunciation of the
World
When either of the spouse has renounced the world by entering any
religious order. Such renunciation by entering into a religious order
must be unequivocal & absolute.
Mere renunciation is not enough. The spouse much enter the
religious order through valid ceremonies.
Conditions:
First, the respondent must have renounced the worldly affairs, and
secondly, the respondent has thereafter entered into a religious
order.
13(1)(vii)Presumption of Death
If either of the spouses has not been heard to be alive for a
period of seven years or more by people who would have
naturally heard of it, had the party been alive.
A decree of divorce granted under this clause is valid &
effective even if it subsequently transpires that the respondent
was in fact alive at the time when the decree was passed.
Evidence as to reasonable inquiry or search about the
respondent is necessary to be adduced by the petitioner. But the
onus of proving that the respondent is alive lies on the person
who pleads so.
S.13(2)Special Grounds Available to wife
1. In case of marriage solemnized before the commencement
of HMA, that the husband has remarried or has a living
wife at the time of solemnization of marriage with the
petitioner.
2. The husband is guilty of rape, sodomy or bestiality
3. Co habilitation b/w the parties has not been resumed for
one year or upwards since the passing of the decree of
maintenance under s.18 HMA or s.125 CrPC against
the husband.
4. Her marriage was solemnized before she attained 15 years
age and had repudiated the marriage after turning 15 but
before 18years.
S13(1A) Irretrievable breakdown of Marriage
Either party to marriage, may present a petition on
the ground-
A. that there is no resumption of cohabitation
between the parties for a period of one year or
upwards after passing a decree of judicial
separation.
B. That a there has been no restitution of conjugal
rights between the parties for a period of one year
or upwards after passing a decree of restitution of
conjugal rights.
13B Divorce by Mutual Consent

Both parties can file a petition for

divorce on the ground that they have
been living separately for a period of 1
year or more, that they have not been
able live together and have mutually
agreed to dissolve the marriage.
Maps
Divorce rate in major cities in
India
2003 2009 2010 2014

Mumbai - - 5245 1667

Kolkata 2388 - - 8347

Lucknow - -300 - 2000

 Maintenance

Hindu Adoption
Hindu
Marriage Act
and Maintenance CrPC
Act
Maintenance under
HMA 1956:
S24 : Maintenance pendate
lite and expenses of
proceedings Either of the
parties to marriage if do not
have sufficient income for
his/her support and necessary
expenses of the of the
proceedings, the may, on
application order the
respondent to pay the
petitioners expenses of the
proceeding and monthly
during the proceeding.
S 25: Permanent Alimony and
maintenance: The court on application
of either the husband or wife may
pass an order that the respondent shall
pay a sum for the maintenance and
support monthly or periodically. On
remarriage, that person can no longer
seek maintenance.
In case Prem Kumari vs. Om
Prakash AIR 2000 P H 311 The wife
had done B.Ed and was earning some
money through tuitions, but her
application was not dismissed on this
ground because she is entitled to live
the same live as she would have had
she continued to live with her
husband.
Maintenance under Hindu Adoption and
Maintenance Act, 1956
Under S.18 the wife is entitled to live separately from her
husband and claim maintenance (as long as she remains chaste
and a Hindu) provided her living apart is justified. Ex:
desertion, cruelty, leprosy, Bigamy, concubine, conversion.
S. 19 Maintenance of widowed daughter-in-law: A Hindu
wife is entitled to be maintained by her father in-law after the
death of her husband.
To the extent that she is unable to maintain herself even out
her own property or property obtained from the estate of
the husband. Such an obligation will cease on her remarriage.
The court shall decide how much maintenance is to be given
with regard to the position, capacity and requirement of the
parties.
Narinder Pal Kaur Chawla vs. M S Chawla[148
(2008), Delhi Law Times 522 (DB)]
The Second wife duped left remediless as she is not
a lawfully wedded wife thus is not entitled to a
remedy.
women placed in the position of second wife, like
Narinder Kaur Chawla, can be treated as legally
wedded wives and entitled to maintenance. The Delhi
High Court judgment lays down that a second wife
duped by her husband through concealment of his first
marriage can be treated as a legally wedded Hindu
wife and is entitled to maintenance under Section 18
of the Hindu Adoption and Maintenance Act.
Maintenance under CrPC
S. 125 Order for maintenance of wives, children
and parents
Under this section:
Wife includes divorced wife.
Only lawfully wedded wife can claim
Wife must be unable to maintain herself
Her right terminates if she is living in adultery
and on remarriage.
Savitaben Somabhai Bhatiya vs. State of
Gujarat( AIR 2005 SC 1809)
A man concealed his first marriage and married
savitaben.

Later, when she claims for maintenance, the

husband pleads that s125 only caters for lawfully
wedded wives and thus the second wife her, not
being a lawfully wedded wife is left remediless.
While the Domestic Violence Act recognises the
right of a woman in a live-in relationship to
maintenance from the man, Section 125 postulates a
situation in which only a legally wedded wife, aged
parents and children are entitled to maintenance
from the man.
The apex court said it was a general proposition
that where a man and woman are proved to have
lived together as man and wife, the law will
presume, unless the contrary is clearly proved, that
they were living together in consequence of a valid
marriage and not in a state of concubinage
 Succession
rights

Mother- Daughters
Wife/ Widow Equal share (class I heir)
as her son coparceners

Equal share Equal share

share on as her sons as sons
partition on partition coparceners
Inheritance rights of females under Hindu
Succession Act
Daughter
The Hindu Succession (Amendment) Act, 2005 removes
gender discriminatory provisions in the Hindu Succession Act,
1956 and gives the following rights to daughters
The daughter has the same rights in the coparcenary property
as she would have had if she had been a son;
The daughter shall be subject to the same liability in the said
coparcenary property as that of a son;
The daughter is allotted the same share as is allotted to a son;
The daughter of a coparcener shall by birth become a
coparcener in her own right in the same manner as the son;
Dwelling house
The 2005 amendment removed s.23 which disentitled a female class
I heirs from claiming partition of the dwelling house.
Now, if the female desires, she can ask for partition regardless the
male heir living in it or unwilling to partition.

Mangatmul V. Punni Devi (AIR 1996 SC 172)

- "maintenance must necessarily encompass a provision for
residence. Maintenance is given so that the lady can live in a manner
more or less to which she is accustomed. The concept of
maintenance must therefore include provision for food and clothing
and the like and take into account the basic need of a roof over the
head
No other female except the daughter can become a coparcener
under the Mitakshara joint Hindu Family
Female members who are entitled to
maintenance only
Wife
Entitled to maintenance, support and shelter from her
husband, or if her husband belongs to a joint family,
then from the family.
Upon partition of a joint family estate, between her
husband and his sons, she is entitled to a share equal to
as any other person.
Widow
Upon the death of her husband, she is entitled to an
equal share of his portion, together with her children
and his mother.
Mothers
She is entitled to maintenance from
children who are not dependents. She
is also a Class I heir.
A widowed mother has a right to take
a share equal to the share of a son if a
partition of joint family estate takes
place among the sons.
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