Family Law I: Sources and Schools, Marriage and its Dissolution, Matrimonial Remedies and Theories of Divorce, Live-in Relationships, and Recognition of Foreign Matrimonial Decrees

Unit VII is "Family Law". India has no single family code: marriage and divorce are governed by personal laws that differ by religion, alongside a secular option under the Special Marriage Act 1954. This chapter takes the unit's first five items: sources and schools, marriage and its dissolution, matrimonial remedies and the theories of divorce, live-in relationships, and the recognition of foreign decrees. Each personal law is stated as the statutes and courts state it, neutrally and without comparing faiths. NET Sociology treats marriage and family as social institutions; this chapter treats them as legal relations with conditions, remedies and procedures.

1. Sources and schools of Hindu and Muslim law

Sources and schools
SystemSourcesSchools
Hindu lawAncient: shruti (the Vedas), smriti (Manu, Yajnavalkya, Narada), commentaries and digests, and custom. Modern: justice, equity and good conscience, precedent, and legislation, which since the 1950s codifies most of the lawMitakshara (Vijnaneshwara's commentary on the Yajnavalkya Smriti), with Benares, Mithila, Bombay and Dravida sub-schools; Dayabhaga (Jimutavahana), in Bengal and Assam
Muslim lawPrimary: the Quran, the Sunna (traditions of the Prophet, recorded in Hadith), Ijma (consensus of jurists) and Qiyas (analogical deduction). Secondary: custom, judicial decisions and legislation, including the Muslim Personal Law (Shariat) Application Act 1937Sunni: Hanafi (followed by most Indian Muslims), Maliki, Shafi'i and Hanbali; Shia: Ithna Ashari, Ismaili and Zaidi

The difference between the two Hindu schools lies chiefly in the joint family. Under Mitakshara a son acquires an interest in ancestral property by birth and the property devolves by survivorship; under Dayabhaga the sons take only on the father's death, and each coparcener holds a defined share. The Hindu Succession Act 1956, especially after its 2005 amendment, has narrowed the practical importance of the distinction. Christians and Parsis are governed by their own statutes: the Indian Christian Marriage Act 1872 and the Divorce Act 1869, and the Parsi Marriage and Divorce Act 1936.

⚠️ Custom still counts in Hindu law
Codification did not abolish custom. The Hindu Marriage Act 1955 permits marriage within prohibited degrees or between sapindas where a custom or usage governing both parties allows it, and defines a valid custom in section 3(a). A question claiming that the Act overrides every custom is wrong.

2. Marriage and its dissolution

Marriage under the principal laws
LawNature and conditions of marriageVoid and voidable
Hindu Marriage Act 1955Applies to Hindus, Buddhists, Jains and Sikhs. Section 5: monogamy; capacity to consent; bridegroom 21 and bride 18; not within prohibited degrees and not sapindas unless custom permits. Section 7: a marriage is solemnised by customary rites, and where saptapadi is part of them it is complete on the seventh stepVoid (s.11): bigamy, prohibited degrees, sapindas. Voidable (s.12): non-consummation owing to impotence, incapacity to consent, consent obtained by force or fraud, pre-marriage pregnancy by another
Muslim lawNikah is a civil contract, as Mahmood J explained in Abdul Kadir v Salima (1886), requiring proposal and acceptance at one meeting, competent parties and, for Sunnis, two witnesses; dower is an incident of the marriageValid (sahih), irregular (fasid, curable, such as a marriage without witnesses) and void (batil, such as within prohibited relationships); Ithna Ashari law also recognises the temporary muta marriage
Special Marriage Act 1954A civil marriage open to any two persons irrespective of religion: neither has a living spouse, both are of sound mind, the man is 21 and the woman 18, and they are not within prohibited degrees; thirty days' notice is published and objections may be raisedDivorce on grounds (s.27) or by mutual consent after one year's separation (s.28); in Supriyo Chakraborty v Union of India (2023) the Supreme Court declined to read the Act as permitting same-sex marriage, leaving the question to Parliament

Muslim law recognises several modes of dissolution. The husband may pronounce talaq: talaq-ul-sunnat, in the ahsan form (a single pronouncement during a period of purity followed by abstinence for the iddat) or the hasan form (three pronouncements in three successive periods of purity), and talaq-e-biddat, three pronouncements at once. In Shayara Bano v Union of India (22 August 2017) a five-judge bench set aside talaq-e-biddat by a 3:2 majority. The Muslim Women (Protection of Rights on Marriage) Act 2019 then declared any pronouncement of talaq-e-biddat void and illegal (section 3), made it punishable with imprisonment up to three years and fine (section 4), and entitled the wife to a subsistence allowance and custody of minor children. Divorce by agreement takes the forms of khula (at the wife's instance, usually with consideration) and mubarat (mutual). A wife may obtain a judicial decree under the Dissolution of Muslim Marriages Act 1939 on grounds including the husband's unknown whereabouts for four years, failure to maintain for two years, imprisonment for seven years, failure to perform marital obligations for three years, impotence, insanity, cruelty and the option of puberty.

ℹ️ Bigamy and conversion
A Hindu husband who converts to Islam and marries again without dissolving his first marriage commits bigamy: the first marriage, solemnised under the Hindu Marriage Act, is not dissolved by conversion (Sarla Mudgal v Union of India, 1995; Lily Thomas v Union of India, 2000). Bigamy by a Hindu is punishable under section 17 of the Act read with the Penal Code's bigamy provision (formerly IPC s.494), now carried into the BNS.

3. Matrimonial remedies and theories of divorce

Matrimonial remedies
Remedy under the Hindu Marriage ActRule and authority
Restitution of conjugal rights (s.9)Where a spouse has withdrawn from the other's society without reasonable excuse; upheld in Saroj Rani v Sudarshan Kumar Chadha (1984) after the Andhra Pradesh High Court had struck it down in T. Sareetha (1983); its validity has again been challenged before the Supreme Court
Judicial separation (s.10)On any ground available for divorce; the parties need not cohabit, but the marriage subsists
Divorce on fault grounds (s.13)Adultery, cruelty, desertion for two years, conversion, incurable unsoundness of mind, communicable venereal disease, renunciation of the world, and not being heard of for seven years; the leprosy ground was removed by the Personal Laws (Amendment) Act 2019. Mental cruelty was illustrated in Samar Ghosh v Jaya Ghosh (2007); desertion needs the intention to end cohabitation (Bipinchandra Jaisinghbhai Shah v Prabhavati, 1957)
Divorce after a decree (s.13(1A))Either party may seek divorce if there has been no resumption of cohabitation for one year after a decree of judicial separation, or no restitution for one year after a decree of restitution
Mutual consent (s.13B)Inserted in 1976; the parties must have lived separately for one year; the second motion follows after six months; in Amardeep Singh v Harveen Kaur (2017) the Supreme Court held the six-month period directory, capable of waiver

Three theories explain divorce law. The fault (guilt) theory allows divorce only when one spouse has committed a matrimonial offence against the other. The mutual consent theory allows the parties to end the marriage by agreement. The irretrievable breakdown theory looks to the state of the marriage rather than to fault. Indian statutes have not adopted breakdown as a ground, though the Law Commission's 71st Report (1978) recommended it and the Court urged it in Naveen Kohli v Neelu Kohli (2006). In Shilpa Sailesh v Varun Sreenivasan (2023) a Constitution Bench held that the Supreme Court may dissolve a marriage on the ground of irretrievable breakdown in exercise of its power to do complete justice under Article 142.

🧠 Breakdown is a power of the Supreme Court, not a statutory ground
A family court cannot grant divorce on irretrievable breakdown under the Hindu Marriage Act, because the ground is not in section 13. Only the Supreme Court, under Article 142, can dissolve a marriage on that basis, as Shilpa Sailesh (2023) confirmed.

4. Changing dimensions of marriage: live-in relationships

No statute generally regulates live-in relationships, but the courts have given them legal consequences. Long cohabitation raises a presumption of marriage (Badri Prasad v Deputy Director of Consolidation, 1978; Dhannulal v Ganeshram, 2015). Cohabitation between consenting adults is not an offence (Lata Singh v State of Uttar Pradesh, 2006; S. Khushboo v Kanniammal, 2010). The Protection of Women from Domestic Violence Act 2005 protects a woman in a "relationship in the nature of marriage"; in D. Velusamy v D. Patchaiammal (2010) the Supreme Court required that the couple hold themselves out as spouses, be of legal age to marry, be otherwise qualified to marry, and have cohabited voluntarily for a significant period, and in Indra Sarma v V.K.V. Sarma (2013) it set out further guidelines. Children born of such relationships are treated as legitimate (Tulsa v Durghatiya, 2008).

  • The Uttarakhand Uniform Civil Code Act 2024, in force from 27 January 2025, requires live-in relationships within the State to be registered and gives a woman deserted by her live-in partner a right to claim maintenance.
  • Same-sex couples: Navtej Singh Johar (2018) decriminalised consensual relations, and Supriyo Chakraborty (2023) held there is no fundamental right to marry, while recognising the right of queer persons to choose a partner and cohabit free of harassment.
⚠️ Not every live-in relationship is protected
Velusamy excludes a casual relationship, a "keep" maintained for sexual purposes or as a servant, and, in Indra Sarma's application, a relationship in which the woman knew the man was already married. Protection under the 2005 Act depends on the relationship having the characteristics of a marriage.

5. Recognition of foreign decrees on marriage and divorce

A foreign judgment is conclusive in India as to any matter directly adjudicated between the same parties, under section 13 of the Code of Civil Procedure 1908, except where it was not pronounced by a court of competent jurisdiction, was not given on the merits, is founded on an incorrect view of international law or a refusal to recognise Indian law where applicable, was obtained in proceedings opposed to natural justice, was obtained by fraud, or sustains a claim founded on a breach of any law in force in India. Section 14 presumes a certified copy to have been pronounced by a competent court.

In Y. Narasimha Rao v Y. Venkata Lakshmi (1991) the Supreme Court applied these exceptions to matrimonial decrees. A husband had obtained a divorce in Missouri on a ground not available under the Hindu Marriage Act, having resided there only for the jurisdictional period, and the wife had not submitted to the court. The Court held that the jurisdiction assumed by the foreign court, and the ground on which relief is granted, must be in accordance with the matrimonial law under which the parties were married, unless the respondent voluntarily and effectively submitted to the jurisdiction and contested the claim on a ground available under that law, or consented to the relief. Earlier, in Satya v Teja Singh (1975), a Nevada divorce obtained by misrepresenting domicile was refused recognition as a fraud on the court.

🎯 Why the marriage law governs, not the forum's law
Without this rule a spouse could move abroad, satisfy a short residence requirement and obtain a divorce on a ground the parties' own law does not recognise, leaving the other spouse, often a wife in India who never appeared, without remedy. Narasimha Rao ties recognition to the law under which the marriage was made, which protects the absent spouse while still respecting decrees she accepted.

Key takeaways

  • Hindu law: Mitakshara (right by birth, survivorship) and Dayabhaga (right on the father's death); Muslim law: Quran, Sunna, Ijma, Qiyas, with Sunni (Hanafi, Maliki, Shafi'i, Hanbali) and Shia schools.
  • HMA 1955: conditions in s.5, void marriages in s.11, voidable in s.12; nikah is a contract; the Special Marriage Act 1954 offers civil marriage with thirty days' notice.
  • Shayara Bano (2017) set aside talaq-e-biddat 3:2; the 2019 Act makes it void and punishable up to three years; wives may seek divorce under the Dissolution of Muslim Marriages Act 1939.
  • Divorce theories: fault, mutual consent (s.13B, cooling period waivable after Amardeep Singh, 2017) and irretrievable breakdown, available only through Article 142 (Shilpa Sailesh, 2023).
  • Live-in relationships gain protection when in the nature of marriage (Velusamy, 2010; Indra Sarma, 2013); foreign matrimonial decrees must accord with the law of marriage (Narasimha Rao, 1991; CPC s.13).

Practice questions (10)

Attempt each one before opening the answer. Every explanation names the tempting wrong option as well as the right one, because that is where marks are lost.

  1. Which school of Hindu law is associated with Jimutavahana and prevails in Bengal and Assam?

    1. Mitakshara
    2. Dayabhaga
    3. Dravida
    4. Hanafi
    Show answer

    Answer: B — Dayabhaga

    Dayabhaga is Jimutavahana's work and governs Bengal and Assam. Mitakshara is Vijnaneshwara's commentary on the Yajnavalkya Smriti; Dravida is one of its sub-schools; Hanafi is a Sunni school of Muslim law.

  2. Under the Muslim Women (Protection of Rights on Marriage) Act 2019, a pronouncement of talaq-e-biddat is:

    1. Voidable at the option of the wife
    2. Valid but punishable with fine only
    3. Void and illegal, and punishable with imprisonment up to three years
    4. Valid if pronounced in writing
    Show answer

    Answer: C — Void and illegal, and punishable with imprisonment up to three years

    Section 3 declares talaq-e-biddat, in any form including written or electronic, void and illegal, and section 4 makes it punishable with imprisonment up to three years and fine. The Act followed Shayara Bano (2017).

  3. Assertion (A): A family court cannot grant a divorce under the Hindu Marriage Act on the ground of irretrievable breakdown of marriage. Reason (R): Irretrievable breakdown is not a ground in section 13, and only the Supreme Court may dissolve a marriage on that basis under Article 142. Choose the correct option.

    1. Both A and R are true, and R is the correct explanation of A
    2. Both A and R are true, but R is not the correct explanation of A
    3. A is true, but R is false
    4. A is false, but R is true
    Show answer

    Answer: A — Both A and R are true, and R is the correct explanation of A

    Both are true and R explains A. Shilpa Sailesh v Varun Sreenivasan (2023) confirmed that dissolution for irretrievable breakdown rests on the Supreme Court's Article 142 power; the statutory grounds available to family courts do not include it.

  4. In Y. Narasimha Rao v Y. Venkata Lakshmi (1991), the Supreme Court held that a foreign divorce decree will generally be recognised only if:

    1. The jurisdiction and the ground accord with the matrimonial law under which the parties married
    2. The petitioner resided abroad for at least ninety days
    3. The decree was registered with an Indian embassy
    4. The decree was passed by a court of a Commonwealth country
    Show answer

    Answer: A — The jurisdiction and the ground accord with the matrimonial law under which the parties married

    The Court tied recognition to the law of the marriage, subject to exceptions where the respondent submitted to the foreign court and contested on an available ground, or consented. Commonwealth origin, residence periods and embassy registration are irrelevant to the test.

  5. Which of the following make a Hindu marriage void under section 11 of the Hindu Marriage Act 1955? Select all that apply.

    1. The parties being within prohibited degrees, without a permitting custom
    2. The parties being sapindas of each other, without a permitting custom
    3. A spouse living at the time of the marriage
    4. Consent obtained by fraud
    Show answer

    Answer: A — The parties being within prohibited degrees, without a permitting custom; B — The parties being sapindas of each other, without a permitting custom; C — A spouse living at the time of the marriage

    Section 11 makes void a marriage in breach of clauses (i), (iv) and (v) of section 5: bigamy, prohibited degrees and sapinda relationship. Consent obtained by fraud makes the marriage voidable under section 12.

  6. In D. Velusamy v D. Patchaiammal (2010), which of the following was NOT listed as a requirement for a "relationship in the nature of marriage"?

    1. Voluntary cohabitation for a significant period
    2. Registration of the relationship with a public authority
    3. Being of legal age to marry
    4. Holding themselves out to society as spouses
    Show answer

    Answer: B — Registration of the relationship with a public authority

    Velusamy required holding out as spouses, legal age, qualification to marry and voluntary cohabitation for a significant period. Registration was not a requirement; compulsory registration of live-in relationships appears only in statute, such as Uttarakhand's 2024 code.

  7. Which of the following are grounds on which a Muslim wife may obtain a decree under the Dissolution of Muslim Marriages Act 1939? Select all that apply.

    1. The husband's whereabouts have not been known for four years
    2. The husband has been sentenced to imprisonment for seven years or more
    3. The husband has failed to provide maintenance for two years
    4. The husband has taken a second wife, even though he treats both wives equitably
    Show answer

    Answer: A — The husband's whereabouts have not been known for four years; B — The husband has been sentenced to imprisonment for seven years or more; C — The husband has failed to provide maintenance for two years

    The first three are grounds under section 2 of the 1939 Act, which also includes failure to perform marital obligations for three years, impotence, insanity, cruelty and the option of puberty. A second marriage is not by itself a ground; the cruelty clause covers a husband with more than one wife who does not treat her equitably in accordance with the Quran.

  8. Assertion (A): A Hindu husband who converts to Islam and marries again without dissolving his first marriage commits bigamy. Reason (R): Conversion by one spouse automatically dissolves a marriage solemnised under the Hindu Marriage Act 1955. Choose the correct option.

    1. Both A and R are true, and R is the correct explanation of A
    2. Both A and R are true, but R is not the correct explanation of A
    3. A is true, but R is false
    4. A is false, but R is true
    Show answer

    Answer: C — A is true, but R is false

    A is true (Sarla Mudgal, 1995; Lily Thomas, 2000). R is false: conversion is only a ground on which the other spouse may seek divorce under section 13(1)(ii); it does not dissolve the marriage by itself.

  9. In Amardeep Singh v Harveen Kaur (2017), the Supreme Court held that the six-month period under section 13B(2) of the Hindu Marriage Act is:

    1. Unconstitutional and void
    2. Applicable only to marriages under the Special Marriage Act
    3. Mandatory, and can never be waived
    4. Directory, and may be waived in appropriate cases
    Show answer

    Answer: D — Directory, and may be waived in appropriate cases

    The Court held the cooling-off period to be directory: a court may waive it where the parties have genuinely settled their differences, the one-year separation is complete and further waiting would only prolong their agony.

  10. Under the Hindu Marriage Act 1955, what is the minimum age, in years, of the bride at the time of marriage? Type the number.

    Numerical answer — type the value.

    Show answer

    Answer: 18

    Section 5(iii) requires the bridegroom to have completed 21 years and the bride 18 years; the Special Marriage Act 1954 sets the same ages.