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Void and Voidable marriages (sections 11 and 12) NULLITY OF MARRIAGE [Sections 11 and 12] Marriage under the Act is the voluntary union of one man with one woman to the exclusion of all others, satisfied by the solemnisation of the marriage. There are three types of marriages under this Act,
1. Valid,
2. Void and
3. Voidable.
This distinction relates to the pre-marriage impediments to marriage which are clearly enunciated in Section 5 of the Act. If absolute impediments exist, a marriage is void ab initio. Section 11 deals with void marriages. If relative impediments exist, a marriage is voidable. Section 12 deals with voidable marriages. All other marriages which are not covered by these two Sections are valid. VOID MARRIAGES [Section 11] A Void Marriage contravenes some tenet which is envisaged as basic to the institution of the marriage. Section 11 states that any marriage solemnized at the commencement of this Act shall be null and void and may, on a petition presented by either party thereto against the other party be so declared by a decree of nullity if it contravenes any of the conditions specified in clauses (1), (4) and (5) of Sections. Thus a marriage will be void ab initio,
- if any party to marriage has a spouse living at the time of the marriage [Section 5(1)]
- if the parties are within the degree of prohibited relationship unless the custom or usage governing each of them permits such a marriage [Section 5 (4)]
- If the parties are sapindas of each other, unless the custom or usage governing each of them permits such a marriage [Section 5(5)]. Provision is prospective but decree of court has retrospective operation, Section 11 of this Act is prospective in nature. It is only applicable to marriages solemnized after the commencement of HINDU MARREAGE ACT, 1955. It is not applicable to marriages solemnized before the commencement of the HINDU MARREAGE ACT, that is before 18th^ May, 1955 , though such marriages may be void. But the decree of nullity passed in the case of a void marriage has retrospective operation. It annuls the marriage not from the date of its passing but from the date of the solemnization of marriage. Effect of a Void Marriage, The expression "Void Marriage" is simply a convenient phrase. A Void Marriage is no marriage. It is void since its inception. A void marriage does not alter or affect the status of the parties nor does it create any rights and obligations between the parties which normally arise from a valid marriage. The relationship of husband and wife does not come into existence from a void marriage. The position of the wife of a void marriage is not better than concubine. The issues from a void marriage are illegitimate unless legitimized by law (as per, Section 16, HINDU MARREAGE ACT) in some way. In M.M. Malhotra Verses. UOI , the Apex Court observed that the marriages covered by Section 11 are void ipso jure, that is, void from the very inception and have to be ignored as not existing in law at all if and when such a question arises. Although the Section permits a formal declaration to be made on the presentation of the petition, it is not essential to obtain in advance such a formal declaration from a court in a proceeding commenced for the purpose. If one withdraws from the society of the other, the other party has no right to the restitution of conjugal rights. If one of them marries again, he or she is not guilty of bigamy and the validity of later marriage is not affected because of the first so called marriage. "On a petition presented by either Party thereto", It is only the parties to marriage who can move a petition for the declaration of nullity of marriage. The first wife, during the subsistence of whose marriage the husband takes second wife, has no right to move for declaration of nullity of the subsequent marriage under this Section. However, there is nothing in the Section or any other provision of any law to debar a person affected by an illegal marriage from filing a regular suit in a civil court for its declaration as void, if such party was affected by such marriage. There can be a civil suit by a person for declaration that the marriage of A with B was a nullity and for consequential relief’s under the Specific Relief Act, 1963, if
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Restitution of Conjugal Rights (Section 9) RESTITUTION OF CONJUGAL RIGHTS The expression "restitution of conjugal rights" in the normal sense means restoration of conjugal rights which were enjoyed by the parties previously. The text of Hindu law recognised the principle "let mutual fidelity continue until death." Hindu law enjoined on the spouses to have the society of each other. While the old Hindu law stressed on the wife's implicit obedience to her husband, it did not lay down any procedure for compelling her to return to her husband against her will. It became necessary to find some remedies and procedures so as to see the marriage tie intact and would not be disturbed by some petty quarrels between the spouses. As a measure of positive relief in the form of restitution of conjugal rights, Section 9 of the HINDU MARREAGE ACT grants statutory recognition to the right of the couple to have consortium of each other. Anyone spouse leaving the other without just cause and excuse would be proceeded against by the other in a court of law praying for a decree of restitution of conjugal rights. The concept of the existence of the court's power to give this relief was borrowed from English law. It must be noted here that this is the only positive relief under the Hindu Marriage Act while other remedies tend to weaken or disrupt marriage. Section 9, HINDU MARREAGE ACT reads as under, "When either the husband or the wife has, without 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. Explanation, Where a question arises whether there has been reasonable excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society." Foundation of this Right, It is the well settled principled of law that the foundation of the right to bring a suit for restitution of conjugal rights is the fundamental right of matrimonial law that one spouse is entitled to the society and comfort of the other spouse and where either of the spouses has abandoned or withdrawn from the society of the other without reasonable excuse or just cause there should be a decree for restitution of conjugal rights. Pre-requisites for grant of Restitution of Conjugal Rights (1) The respondent has withdrawn from the society of the petitioner. (2) The withdrawal by the respondent party is without a reasonable excuse. (3) The court is satisfied that the statements made in the petition are true. (4) There is no legal ground for refusing to grant application. Withdrawal from the Society, The expression, "society" used in this Section should be understood as marital cohabitation that is to say that the husband cherishing and supporting his wife as a husband should do and a wife rendering duties as a housewife. Though they may not live under the same roof yet there would be cohabitation in the wider sense of the term if they fulfil the mutual duties to each other as husband and wife. The expression "withdrawal from the society of the other" involves a mental process besides physical separation. It means withdrawal from the totality of conjugal relationship, such as refiisal to stay together, refusal to give comfort to other, refusal to have marital intercourse and refusal to discharge matrimonial obligations. Where the husband throws out or leave a wife who is guilty of matrimonial offence (adultery, cruelty or apostasy), it can not be said that she has withdrawn from the society of the husband. The reason is that she has not left the husband on her own. Withdrawal by the respondent takes place when the respondent does it voluntarily. In cases where husband compelled his wife to leave the matrimonial home is not withdrawal by the wife from the husband's society. Desertion and Withdrawal from the Society, In the case of judicial separation under Section 1. read with Section 13 "desertion" has to be proved. The word "desertion" is not used in Section 9. The quality of permanence is one of the essential elements which differentiates "desertion" from "withdrawal from the society". Failure to render conjugal duties, refusal to stay together or of marital
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intercourse with the other spouse, would normally constitute withdrawal from the society of the other spouse. Petitioner must have bona fide Intention, The decree of divorce grantable under Section 13(1 A)(2) is a consequence of the decree of the restitution of conjugal rights. Where it finds that the mind of the petitioner is stuffed more with the idea of divorce than regaining comfort consortium then the court may refuse this relief. If the petitioner wants to use the decree as a stepping stone for divorce in the long run, the court may refuse to grant this decree because the object of the petitioner is not to restore living together. There must be a bona fide desire to resume cohabitation. Restitution will be refused where the petition is not bona fide or filed with an ulterior motive or where it will be unjust to pass a decree. In Sushil Kumari Dang Verses. Prem Kumar, where a petition for restitution of conjugal right is filed by the husband and the husband also accuses the wife of adulterous conduct, the court held that these two claims cannot stand side by side. They are incompatible. The mere fact that seven days after the decree of the restitution by lower court the husband moved another petition for judicial separation, shows the extent of his sincerity and the interest in keeping the wife with him. Observing thus, the Delhi High Court set aside the decree of restitution which was granted by the lower court. Effect of non compliance of Decree of Restitution, Order 21 Rules 32 and 33 of the CPC lay down the procedure for the execution of the decree for the restitution of conjugal rights. If the party against whom a decree is passed will-fully disobeys it, the decree may be enforced by the attachment of his property. He or she cannot be detained in the civil prison for that. If the party does not obey even after the attachment of property the decree can be used as a device to obtain divorce. WITHDRAWAL WITHOUT REASONABLE EXCUSE If the withdrawal by one spouse from the society of the other is founded on a reasonable excuse no decree can be passed under this Section. The expression "reasonable excuse" is not defined in the Act. The grounds on which judicial separation or nullity of marriage or divorce under Section 10,12 or 13 of this Act can be taken as reasonable excuses within the meaning of the Section but the court may consider any other ground as a ground just or sufficient as reasonable excuse on the part of respondent to live separately from the other spouse. What would be a reasonable excuse cannot be reduced to a formula and would vary with time and circumstances and will have to be determined by the Court in each individual case in the light of the features peculiar to it. It cannot be said that a reasonable excuse cannot exist except in the form of a ground recognised by the Act as valid for judicial separation or for divorce. Something less than such a ground of a matrimonial offence may, therefore, amount to a "reasonable excuse" within the meaning of Section 9 (1) of the Act. Burden of Proof, By the explanation added to the Section, the burden of proving existence of justification or reasonable excuse has been placed on the person against whom, the allegation of withdrawal is made. The Section unequivocally indicates that once the factum of withdrawal from society by one of the spouses is proved, the reasonableness of the withdrawal has to be proved by the withdrawing spouse. Cases of reasonable excuse In the following circumstances the courts held that there was a reasonable excuse for the respondent to withdraw from the society of the petitioner and for the reason restitution was refused, (1) Marriage was not solemnized in accordance with the customary rites. (2) The petitioner is guilty of physical and mental cruelty. (3) The petitioner is guilty of persistent neglect of the respondent and continued to be indifferent towards the respondent. (4) The petitioner was impotent towards the respondent. (5) The petitioner has another wife living. (6) The husband was living with the widow of his brother. (7) The petitioner is living with a concubine. (8) Husband's false accusation of adultery or immorality. (9) The petitioner is himself guilty of deserting the respondent. (10) The petitioner has committed adultery. Cases of absence of reasonable excuse
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Judicial Separation [sections 10 and 13 (IA)] GROUNDS FOR JUDICIAL SEPARATION [Section 10(1)] Judicial separation is temporary suspension of marital rights between the spouses as a result of decree passed by the Court on any one of the grounds mentioned in the Section. Section 10(1) provides that either party to Marriage may present a petition praying for a decree of judicial separation on any of the grounds specified in Section 13(1) and in case of wife besides the above ground she can have additional grounds available as mentioned in Section 13(2) of the Act. Thus, it is Manifest that the grounds for judicial separation and divorce are virtually the same. Whatever the grounds of divorce under Section 13(1) and (2 have been laid down, they have been similarly adopted in Section 10. Thus under Section 10 now the grounds of judicial separation are, (1) Adultery, Under the Marriage Laws (Amendment) Act, 1976, the expression "living in adultery" has been dispensed with and it has been replace* by a simple requirement of adultery, that is, where the other party has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse. And thus, even a single act of adultery may be sufficient now for the relief under this head. (2) Cruelty, Cruelty is a ground for matrimonial reliefs under all matrimonial laws. Where the other party has treated the petitioner with cruelty, the petitioner can claim the relief of judicial separation. The term cruelty is nowhere defined, nor is it capable of any definition. It has no parameters, it is subjective and relative. It would differ from place to place, from person to person and would also vary depending upon social and cultural backgrounds of the parties. (3) Desertion, Judicial separation may be granted where the other party has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition. The expression "desertion" means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party and includes the wilful neglect of the petitioner by the other party to the marriage. (4) Unsoundness of Mind, To get relief on this ground the petitioner has to .prove that, (1) the respondent has been incurably of unsound mind or, has been suffering continuously or intermittently from mental disorder of and (2) the nature and degree of the disease is such that the petitioner cannot reasonably be expected to live with the respondent. Both the elements must be established for the grant of the relief. The expression 'mental disorder' means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind, and includes schizophrenia. Further, the expression psychopathic disorder means a persistent disorder or disability of mind which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment. (5) Conversion/Apostasy, If a party to Marriage has renounced the Hindu religion and embraced some other religion, it is a ground for the other party to petition for judicial separation. If a person leaves the Hindu religion to embrace some other religion that he goes out of the fold of the definition of Hindu as given under Section 2 of the Act, then he is said to have converted himself. (6) Virulent and Incurable Leprosy, One of the grounds for Judicial separation is that the respondent has been suffering from a virulent and incurable form of leprosy. The expression 'Virulent' has been interpreted as Malignant or Venomous. (7) Venereal Disease, Judicial separation is obtainable if the respondent has been suffering from venereal disease in a communicable form. (8) Renunciation of World, Under Hindu law renouncing from the worldly affairs by entering any religious order amounts to civil death and it may amount to desertion of the petitioner.
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(9) Presumed death (Missing Spouse), A person may present a petition for judicial separation on the ground that the other party to the marriage 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 him or her had that other party been alive. ADDITIONAL GROUNDS TO WIFE TO CLAIM DECREE The Section has further laid down additional grounds to wife to claim decree for the judicial separation on the ground of, (1) Bigamy, In the case of a marriage solemnized before the commencement of this Act, a wife is entitled to present a petition for judicial separation on the ground (a) that the respondent husband had married again before the commencement of the Act or (b) that any other wife of the respondent husband to whom he was married before such commencement was alive at the time of the solemnization of the marriage of the petitioner with the respondent. A petition by a wife for judicial separation will lie on either of the these grounds provided that the other wife is alive at the time of the presentation of the petition. (2) Rape, Sodomy or Bestiality, A wife can seek judicial separation on the ground that since the solemnization of the marriage the husband has been guilty of rape, sodomy or bestiality. (3) Non-resumption of Cohabitation after decree or Order of Maintenance, A wife can seek judicial separation where a suit under Section 18, HINDU ADOPTION AND MAINTENANCE ACT or in a proceeding under Section 125 Cr.P.C., a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards. (4) Option of Puberty (Repudiation of the Marriage), If a girl is married before she completes the age of 15 years she is given an option to repudiate that marriage after completing the age of 15 years. This option must be exercised before attaining the age of 18 years. The Act provides no particular form of repudiation. It may be by, filing a petition or by an overt act. If she has exercised this option to repudiate her marriage she can petition for judicial separation or divorce on this ground after completing 18 years of age.
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permits divorce by mutal consent under Section 13B. One may well say that from an unbreakable bondage under the Smritis, a Hindu Marriage has been transferred under the Hindu Marriage Act into a consensual union between one man and one woman. Everything static must drop and die and ideas of marriage and divorce are no exception. (5) Irretrievable Breakdown Theory A marriage is a union of husband and wife for the whole life, but it may happen that their relations might be strained and they would like to live away from each other. It is to be remembered that owing to their sexual relations, interdependence and social censure it is difficult for them to live without each other for a long time. Therefore there must be some stronger reason for them to live apart and get divorce. There should be complete absence of emotional attachment between them and there must develop intense hatred and acrimony between them, so much so, that their marriage is only in name, a dead one or like a shell sans substance. It is now beyond the hope of salvage. It is therefore an irretrievable breakdown of marriage. The breakdown of marriage is defined as "such failure in the matrimonial relationship or circumstances so adverse to that relation that no reasonable probability remains for the spouses to live together as husband and wife." If a marriage has broken down beyond all possibilities of repair, then it should be brought to an end, without looking into the causes of breakdown and without fixing any responsibility on either party. Such marriage should be dissolved even if one of the parties to the marriage does not desire it. The empty shell is to be destroyed with the maximum fairness and minimum bitterness, distress and humiliation. In Yousuf Verses. Sowramina , the learned judge said, "While there is no rose which has no thorns but if what you hold is all thorn and no rose, better throw it away. The ground for divorce is not conjugal guilt but breakdown of marriage." In some countries, grounds like "incompatibility of temperament", "profound and lasting disruption", etc. have been added which helped in claiming divorce under the breakdown theory. Sometimes the determination of the question whether in fact a marriage has broken down or not is left to the courts. At other times, the legislature lays down the criterion of breakdown of a marriage and if that is established, the courts have no option but to dissolve the marriage. For instance, the petitioner must show that before the presentation of the petition he has been living separate from the respondent for a specified period [as per, Section The Law Commission of India in its Seventy first Report (Reforms of the Grounds for Divorce) has recommended that irretrievable breakdown of marriage should be made a ground of divorce for Hindus. It suggests the period of three years' separation as a criterion of breakdown. But its recommendation have not been implemented so far.
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Question. 3. What are the grounds of divorce under the Hindu Marriage Act? Answer. Under the Hindu Marriage Act, divorce can be obtained by one spouse through court on the ground of following types of conduct or circumstances of the other spouse, (1) adultery, (2) treating with cruelty, (3) desertion for at least 2 years, (4) conversion to another religion (of the other spouse), (5) incurable insanity or mental disorder, (6) incurable and virulent leprosy, (7) venereal disease in a communicable form (not contacted from the petitioning spouse), (8) renouncing the world and becoming a Sanyasi, (9) not being heard of for seven years, (10) non-resumption of cohabitation after a decree of judicial separation, for at least one year, (11) non-compliance with a decree of restitution of conjugal rights for at least one year, (12) husband being guilty of rape or unnatural sex after marriage, (13) husband failing to pay the wife maintenance ordered by a court, and (14) mutual consent. Besides this, there can be customary divorce.
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Mutual Consent DIVORCE BY MUTUAL CONSENT [Section 13B] Section 13B is in pari materia with Section 28 of the Special Marriage Act, 1954. This provision was not made originally in the HINDU MARREAGE ACT. It was inserted by the Marriage Law (Amendment) Act, 1976. The provision is retrospective as well as prospective from the commencement. Hence parties to a marriage whether solemnized before or after the Amending Act can avail themselves to this provision. Section 13B reads as follows, "(1) Subject to the provisions of this Act, a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved. (2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree." Compromise by itself does not dissolve the marriage, If both the parties have agreed to dissolve their marriage, they may do so in an amicable manner which is certainly a more civilized and cultured way than by quarrelling between themselves in a court. They may petition together under Section 13B in a district court that they may be granted a decree of divorce. The parties have to get it processed in a Matrimonial court. Even proceedings before a Panchayat does not effect divorce.
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Hindu Marriage Act, 1955, sections.24 and 25 RIGHT TO MAINTENANCE OF A HINDU WIFE In the present Chapter, right of maintenance of a Hindu wife is to be discussed at length. Three different types of provisions regarding maintenance to a wife have been provided in three different piece of legislation, (1) Hindu Marriage Act, 1955, Sections 24 and 25. (2) Hindu Adoption and Maintenance Act, 1956, Section 18. (3) Code of Criminal Procedure, 1973, Section 125. Object of Section 24, HINDU MARREAGE ACT 1955 , This provision is intended to sustain the indigent Party (wife or husband) during litigation for any of the reliefs under the HINDU MARREAGE ACT. This right arises with the start of the proceedings and ends with the proceedings under the HINDU MARREAGE ACT. The award of maintenance under Section 18, HINDU ADOPTION AND MAINTENANCE ACT creates no bar for filing an application under Section 24, HINDU MARREAGE ACT. The only limitation is that the maintenance awarded under Section 18, HINDU ADOPTION AND MAINTENANCE ACT should be kept in view while passing an order under Section 24, HINDU MARREAGE ACT. Object of Section 25, HINDU MARREAGE ACT , 1955, This Section confers discretionary power upon the Court to grant a right on either spouse to claim permanent alimony and maintenance when a decree is passed granting any substantial Matrimonial relief under the HINDU MARREAGE ACT. The Supreme Court held that the right of Maintenance under Section 25, HINDU MARREAGE ACT depended on the Court passing a decree of the kind envisaged under Sections 9 to 14 of the HINDU MARREAGE ACT. Section 24 and Section 25, HINDU MARREAGE ACT are distinct, These two Sections of the HINDU MARREAGE ACT are independent and distinct of each other. The former grants maintenance pendente lite whereas the latter makes provision for the grant of permanent alimony. The dismissal of an earlier application under Section 24 of the Act does not affect the application under Section 25 of the Act. Object of Section 18, HINDU ADOPTION AND MAINTENANCE ACT , A Hindu wife has a right to get maintenance from her husband for her entire life. The obligation to maintain a wife is personal in character, and arises from the very existence of the relation between the parties. Section 18, HINDU ADOPTION AND MAINTENANCE ACT substantially reiterates that right. The forum for Application under this Section is Civil Court, and not the matrimonial court under the HINDU MARREAGE ACT. Is there any Inconsistency between Sec. 25, HINDU MARREAGE ACT and Sec. 18 HINDU ADOPTION AND MAINTENANCE ACT ?, There is no inconsistency between these two different provisions. The jurisdiction vested in the court under both the enactment is separate and distinct. The Supreme Court in Chand Dhawan Verses. Jawaharlal Dhavvan, (1993) 3 SCC 406 makes it manifest that claim of maintenance under Section 25 is awardable when the marriage is "diseased or broken" as an ancillary or incidental remedy to the strained marital status due to passing of a decree for restitution of conjugal rights, or of judicial separation in favour of or against her or of nullity or divorce with or without her consent. Where there is no disruption of marital status by Court's intervention under the HINDU MARREAGE ACT, she is entitled to claim maintenance under Section 18, HINDU ADOPTION AND MAINTENANCE ACT.
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The Hindu Adoptions and Maintenance Act, 1956 CAPACITY OF A FEMALE HINDU TO TAKE IN ADOPTION^5 Section 8 makes a radical change in the old Hindu law under which a woman had no right to take in adoption at all during the lifetime of the husband without his express consent. Even in such a case the adoption would be the husband's act and not the wife's and she could be only an agent on his behalf. The question of adoption by an unmarried female Hindu was unimaginable. This Act confers oh the female Hindu a right to adopt for herself. Section 8 reads as follows, "Any female Hindu—(a) who is of sound mind, (b) "who is not a minor, and (c) who is not married, or if married,—(1) - whose marriage has been dissolved, or (2) whose husband is dead, or (Hi) has completely and finally renounced the world, or (4) has ceased to be a Hindu, or (5) 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, " In the case of a man, the right is subject to the vetoing power of the wife or wives as the consent of wife or wives is necessary, but in the case of woman that right can be exercised absolutely during the period of her maidenhood, divorce-hood, widowhood and conditionally during the continuance of marriage if her husband has 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. During the Continuance of Marriage the wife has no right to adopt except where the husband is suffering from any of the disabilities. Thus the wife assumes independent power of adopting a child where the husband has (a) completely and finally renounced the world, which means that he has become Sanyasi, or (b) has become a convert by embracing other religion like Christianity and Islam, or (c) has been declared to be of unsound mind by a court of competent jurisdiction. It may be noted that such a declaration must actually be obtained, merely on the basis of unsoundness of mind of the husband, the wife does not acquire the competence to adopt a child independently. Adoption by the Divorcee, A divorcee can adopt a child in her own right and in such a case the divorced husband stands in no relation to the child at all. However, if the divorcee later marries, the husband is in the position of step father to the adopted child whereas the female adopting will in her own right be the adoptive mother of the child.. Adoption by the Widow, Formerly, a widow tould not adopt without the consent and express authority of her deceased husband or in some cases without the consent of her sapindas. But the Act removes any such bar to an adoption by a widow. Moreover, formerly a woman could adopt only to her husband but now she can adopt for herself. Section 8 recognizes the right of a Hindu Widow to'adopt a son or daughter to herself in her own right. But such adoption will not only be to herself but also to her (deceased) husband. The effect of adoption by a widow of a son or daughter will be to clothe the adopted son or daughter with all the rights of a natural born son or daughter in the adoptive family and to create all the ties of the child in
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the. family (Section 12). The result is that for all purposes (subject to rules laid down >^ in Section 12) the adoptee in effect becomes the son or daughter not only of the widow but of her deceased husband as well. The adoptee acquires the same status as that of a natural-born child with all the consequences and incidents of that status. As such, the deceased husband becomes the adoptive father of the child adopted and not a step father. It is to be noted that on adoption by a widow, the adopted son becomes the son of the deceased adoptive father and the position under the old Hindu law as regards ties in the adoptive family is not changed, Ankush Narayan Verses. Janabai, AIR 1966 Bom 174. The provision that a widow can now adopt a son or daughter to herself in her own right only indicates the unequivocal right and freedom of the widow to adopt without the express consent and authority of the deceased husband or the consent of sapindas. Adoption by Married woman during the subsistence of Marriage (in the lifetime of her husband), A married woman cannot adopt at all during the subsistence of the marriage except when her husband 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 the husband is not under such disqualification the wife cannot adopt even with the consent of the husband whereas the husband can adopt with the consent of the wife, Sitabai Verses. Ramachandra, (1969) 2 SCC 544. CHANGED POSITION OF LAW AFTER 2010 AMENDMENT The newly enacted Section 8 reads as under, "Any female Hindu who is of sound mind and is not a minor has the capacity W take a son or daughter in adoption, Provided that, if she has a husband living, she shall not adopt a son or daughter except with, the consent of her husband unless the husband 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."
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wife by her husband is a matter of personal obligation arising from the very existence of the, relation, and quite independent of the possession of the husband of any property ancestral or self-acquired. There is an absolute right vested in Hindu wife to be maintained by her husband and this maintenance is dependent on her living with him and discharging the duties as wife. The wife will also be entitled to claim maintenance while living separately from her husband, if any of the conditions laid down in Section 18(2) is fulfilled. She is entitled to maintenance so far as she is Hindu and chaste. The husband shall not be absolved from his liability to maintain his wife simply because he has ceased to be Hindu. Section 18(3) takes away the right of wife to claim maintenance if she ceases to be Hindu by conversion to another religion. The effect of husband ceasing to be Hindu would be that the wife would be entitled to separate residence and claim for maintenance. Impediments to the Adoption of a Son, Section ELEVEN (1) Impediments to the Adoption of a Son, Section ELEVEN (1) If a son is to be adopted, the adoptive father or mother must have no living son, grandson (son's son) or great grandson (son's son's son), whether natural or adopted. The word "living" at the time of adoption, is significant because under the old law a child in the womb was considered a child in existence for some purposes. But under the present Act, it is only when a son or grandson etc. is living at the time of the adoption that the right to adopt cannot be exercised. Hence, subsequent birth of a son, cannot invalidate the adoption of a son. A person can adoption in the presence of a stepson also because he is not a son by legitimate blood relationship. It is necessary that the son or grandson or great grandson whose presence bars adoption must be a Hindu. If he has ceased to be a Hindu by apostasy to a non-Hindu religion, his existence does not bar adoption. Though existence of an illegitimate son is not a bar to the adoption of a son the existence of a son out of a void or voidable marriage or out of marriage which is dissolved by a decree of divorce, acts as an impediment to the person taking in adoption as in those cases the sons are considered legitimate under Section 16 HINDU MARREAGE ACT. (2) Impediments to the Adoption of a Daughter, Section ll(2) The adoption of a daughter is an innovation made by the Act. Under the old law it was not permissible. If the adoption is to be made of a daughter the adoptive father or mother must not have a Hindu daughter or son's daughter living at the time of adoption. The existence of a stepdaughter or step granddaughter is not a bar to the adoption of a daughter. The daughter or granddaughter must be a Hindu. If she is converted to a non-Hindu religion then her father or mother may adopt a daughter. The fact that the daughter or granddaughter is married or not, is not material. Existence of an Illegitimate daughter is not, however, a bar to a male or even a female Hindu taking a daughter in adoption, although the illegitimate daughter is entitled under the Hindu Succession Act to succeed to the property of the mother. However, the existence of a daughter who is to be deemed to be legitimate daughter of the parents by operation of Section 16 of the HINDU MARREAGE ACT, 1955, would be a bar to the father's or mother's right to take a daughter in adoption. (3) Age-gap between Adopter and Adoptee, Section ll(3) & (4) If the adopter and the adoptee belong to the same sex, there is no rule relating to the age-gap between them. But if the adopter and the adopted child belong to the opposite sexes, the adopter must be 21 years older than the adopted child. The rule is mandatory and is not subject to variation by any custom or usage to the contrary. It is a condition of precaution, lest the institution of adoption be turned into an institution of ulterior purposes and corruption. Illustration, 1. A, a Hindu male of 25 years of age adopted a daughter of 14 years of age. The adoption is invalid as A (adoptive father) is not twenty-one years older than the female adoptee.
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- A, a Hindu male of 25 years of age adopted S, a son of 14 years of age. The adoption is valid because in a case where the adopter and the adoptee are of the same sex the condition regarding the disparity in age is not at all applicable. (4) Simultaneous Adoption Prohibited, Section ll(5) A child can not at the same time be the son or daughter of two or more adoptive fathers or mothers. Whereas Section 10(2) prohibits the giving or taking in adoption of a person already adopted this clause removes the possibility of the simultaneous adoption of the child by two or more persons. An adoption by a husband and wife together is not a case of joint adoption. It is adoption by the husband only. They constitute one family. There would be a case of joint adoption if there are two or more adoptive fathers, or two or more adoptive mothers, or two or more adoptive families. Under the old law also similar prohibition was in force. (5) Giving and taking of the Child, Section 11 (6) This clause states in express terms that there must be actual giving and taking of the child with intent to transfer the child from the family of its birth to the family of its adoption. The physical act of giving and receiving was absolutely necessary (sine qua non) for the validity of an adoption under the law as it existed before coming into force of the present Act, and the position under the Act is identical. The Section, however, does not prescribe any particular mode or manner for the act of giving and taking. What is essential that there should be some overt act to signify delivery of the child from one family to another. Where the act of giving and taking is lacking, the adoption is invalid and there is no scope for applying the doctrine of factum valet. The requirement of the Act of giving and taking is necessary not only in the case of a minor but also in the case of an adult where adoption of an adult is perimssible, Dhanraj Verses. Suraj Bai. The onus lies on the plaintiff to prove the adoption, namely giving and taking. (6) Ceremony of Datta Homam not necessary, Proviso to Section ll(6) The law of adoption is made manifestly secular and temporal by rendering the Datta Homam non-essential. Performance of 'Datta Homam' was imperative under Shastric Hindu law but after the commencement of the HINDU ADOPTION AND MAINTENANCE ACT, it is not necessary to be performed, Guradas Verses. Rasaranjan. Even when Datta Homam is performed, the adoption should be taken to have been made when the actual giving and taking had taken place and not when the religious ceremony is performed. To prove valid adoption, it would be necessary to bring on records that there has been an actual giving and taking ceremony.
