Chapter 1.

INTRODUCTION
India is a multi-linguistic, multi-cultural and multi-religious state of more than a billion people, of which almost half comprise females. The principles of fairness and equity are enshrined in the Constitution of India, that unequivocally mandates gender equality. Such equality truly in fact and deed - is imperative for the development of India, for no country if it is to prosper can afford to underutili e or suppress half its human resources that women represent. !iscrimination and violence against women do not "ust victimi e the individual women, but do indeed hold bac# whole sections of society. $uaranteeing rights to women is an investment in ma#ing the whole nation stronger and self-reliant. In India, it is particularly the %ersonal law that principally governs the lives of women, though to many, the e&act dimension and how it controls the lives of each one of us may not be very clear. Simply stated, %ersonal law is the set of rules which govern the behavior of individuals vis a vis their family i.e. spouse, parents, children etc. 's often seen, law by itself is no deterrent against crime. In fact it is the attitude of society in general and the individual in particular that determines the effectiveness of any legal system. Thus, laws are nothing but codified social behaviour, so in order to ma#e the law effective there is equally a bac#-up requirement for social education and social transformation. 's a matter of fact, conditioned by the old historical and patriarchal social baggage even the provisions of personal law often betray a certain underlying bias that tends to treat women as if they essentially were the property of a man and that all her entitlements are not a function of her right but a function of her status as the property of the male vis a vis whom her rights are sought to be enforced. It has been widely observed that the rights that women have under personal law are often usurped. Though the law provides for a "udicial procedure to enforce the law by way of courts as well as the penalty for violating the law, women being socially and economically subservient are either unaware or unable to enforce these legal rights through courts. (ost common people are apprehensive and reluctant to approach the court because the language of the law is difficult and the procedure often e&tremely complicated, for e&ample, if two people are faced with the same legal problem, depending on where they reside, their religion etc., the court of "urisdiction and remedy available to them may be different.

WHY THE NEED FOR THIS DIRECTORY?

The whole purpose of preparing this directory is to de-mystify the law and the legal process for women, so that women and women)s organi ations can #now and enforce their legal rights. It proceeds from the premise that perfect #nowledge casts out fear and liberates. Ironically, as far as rights of women are concerned mostly their rights and legal entitlements are not only often inadequate but merely in letter, never being implemented. This !irectory besides being a tool for lawyers, will play an important role in familiari ing ordinary non-legal people with their legal rights and entitlements and will ensure that people armed with this information will be more vigilant, thereby preventing their rights from being curtailed and also more confident thereby more eager to have their rights enforced.

*hile this !irectory facilitates, on the one hand, the dissemination of legal information and enables the user to supplement their cases with "udgments to get "ustice in court, it on the other hand also facilitates a comparative and holistic study of personal laws in India. 'fter +, years of independence, when we evaluate the rights guaranteed to women under the various personal laws, we find the laws inadequate and unequal on the touchstone of the Constitutional $uarantee of the -ight to .quality. 's discussed in detail in the introduction to each section the reader will find that the laws governing women)s rights accord a woman often a secondary status to their male counter parts. /owever, a study of the case law compiled in this !irectory also at the same time points to an encouraging trend whereby courts by their liberal interpretation of the statutory provisions have leveled the playing field for women by ma#ing the implementation of law more egalitarian.

THE INDIAN LEGAL SYSTEM

The Indian legal system is based on a three-tier structure of courts. 't the bottom of the system are the !istrict Courts. In each district there is a court, which is headed by a !istrict "udge. Subordinate to the !istrict "udge are the civil "udges 0who ad"udicate upon civil disputes, arising in the "urisdiction of the district1 and magistrates 0who ad"udicate upon criminal matters arising within the area of the police station under their "urisdiction1. Similarly each state has a /igh Court having "urisdiction over the whole state, and the 2nion of India has a Supreme Court that has "urisdiction over the whole country. $enerally spea#ing 0though there maybe specific provisions for appeal and revision in each law1 any party who is aggrieved by an order of a Civil 3udge or a (agistrate can appeal to the !istrict or Sessions 3udge. 'nd if aggrieved by an order of the Sessions 3udge can appeal against the same to the /igh Court. Similarly appeals against the orders of the /igh Court will lie to the Supreme Court. It is important to mention here that both the Supreme Court and /igh Court have original "urisdiction, which means they can hear matters directly. These matters pertain to the enforcement of fundamental rights. 'ny citi en of India whose fundamental rights have been violated can approach either a /igh Court of their state or the Supreme Court and see# direction for enforcement of their fundamental rights. (any readers may be wondering what is the difference between a fundamental and legal right. To understand this it is important to understand the three-tier structure of the law in India. The supreme legal document, which defines the basic rights of every citi en of the country and which lays the foundation for the legal and administrative system in the country, is the Constitution of India. The Constitution of India gives certain basic rights to all its citi ens, which are #nown as the 4undamental -ights. These include the right to equality which provides that every citi en is equal before the law5 the right to life so that no citi en is deprived of their life or liberty e&cept by the due process of law5 the right to religious freedom and the right against e&ploitation. These fundamental rights if violated can be enforced directly through the Supreme Court or the /igh Courts. Then, there are statutory laws that are enacted by the %arliament or state legislatures, which govern various aspects of social and commercial intercourse. These statutes are bound to be in consonance with the Constitution and cannot have any provision that violates any right or entitlement provided under the Constitution. Statutory law includes laws such as the Indian %enal Code, Customs 'ct, Contract 'ct, etc. These laws apply uniformly to all citi ens

irrespective of their religion or caste. /owever, family interaction and entitlement in India is governed by personal law, which is the law whether codified by the legislature or not, but which is laid down by the religion which governs a particular individual.

PROBLEMS OF WOMEN
*omen in India though common in need and circumstance are divided by caste, religion, social and regional customs. /ence, even after +, years of Independence, issues fundamental to all women such as, maintenance, custody, physical and mental security in marriage, fair and equal divorce entitlements, continue to elude them . To understand the importance and utility of this !irectory it is very important to understand the social and economic status of women in India. 's the readers of this boo# may be aware, in India we do not have a uniform civil code and therefore family and succession related issues are governed by the relevant personal law. !espite facing common problems the legal rights of women are different depending on the entitlements under the personal law. It is in this conte&t that compilations li#e this become important in bringing together in a single te&t all the laws that effect women. *omen in India face multiple hurdles in getting legal redress of their problems. These problems arise not only as a result of different laws governing women but also from the fact that there is no common court having "urisdiction over women)s issues. 's a result women have to run to different forums to see# each relief separately. 4or e&ample, /indu women are governed by the /indu (arriage 'ct for divorce, /indu 'doption and (aintenance 'ct for maintenance, $uardians and *ards 'ct for custody, and the /indu Succession 'ct for inheritance5 (uslims are governed by the Shariat 'ct and the (uslim *omen %rotection of -ights 'ct5 Christian women are governed by the Indian !ivorce 'ct and the Indian Succession 'ct. .ach of these 'cts vests "urisdiction in a different court. This multiplicity of litigation increases the physical and financial burden of litigation manifold. 'bove all, there is the problem of ignorance of the law. (ost women and many service providers including doctors, social wor#ers and often lawyers are not aware of the specific scope and e&tent of the legal rights of women both under the statute and "udicial precedent. The inability of women to access "ustice through the legal system is magnified by the fact that most women are not economically independent and lac# the financial capacity to contest a legal battle. .ven socially, women are mostly restricted within the sphere of family and home, and live outside the legal system. Therefore, when women face issues of domestic violence and the family support structure brea#s down they find themselves vulnerable and remediless. It is this socio-economic vulnerability that encourages discrimination and violence against women.

OBJECTI E OF THIS DIRECTORY

Thus, the primary ob"ective of this manual is to provide the reader the latest "udgments on all aspects of civil law concerning women. The intended target readership of this boo# include mainly service providers such as lawyers, 6$7)s wor#ing in grass root areas, women litigants themselves and even "udges. 7n account of the wide ambit of proposed usership for this boo#, the methodology adopted in compiling the !irectory has been #ept simple. The basic idea behind the preparation of this compilation being to provide quic# and easy access to the law-governing

women of different religions on their civil rights on the issues of marriage, divorce, maintenance, dowry and inheritance. Thus the ob"ective of compiling this !irectory is 8 9 9 9 9 9 To create awareness in the language of the people5 To shed light on violence against women by bringing to life "udgments through cases law5 To raise awareness towards issues of women and children5 To place emphasis on the rights of women in order to understand that the freedom to choose is fundamental to dignity5 To spread awareness of law through "udgments of the Supreme Court and /igh Courts.

The !irectory has been formulated li#e a dictionary wherein catch words have been identified under each of the above categories and catalogued in alphabetical order, all the Supreme Court "udgments under each catch word have been sourced and reproduced in the manual. ' reading of these "udgments will not only familiari e the reader with the "udicial precedent and the prevailing law on that issue, but the said "udgments can also be cited by legal service providers in court matters. 4or e&ample, under the title of maintenance, various relevant catchwords have been identified such as quantum, right to residence and "udgments on the said issue have been compiled together. The undeniable conclusion from this e&ercise of e&haustive compilation is that law is both an instrument of social change and a function of social structures and morality. *hile domestic violence and succession issues continue to be governed by personal laws and are symbols of the continuance of a feudal patriarchal structures in society, the constitutional recognition of equality has accelerated change in legal entitlements both in terms of legislation and statutory interpretations by the "udiciary. /owever, the impact of positive legislation and interpretation can only percolate social change if women are empowered with the #nowledge and means to access the law. This boo# is an effort to hand women an instrument to understand and use the law.

Chapter !. CONSTITUTION
:'ll /uman -ights for 'll;, was the mandate of the 2niversal !eclaration of /uman -ights 02!/-1 adopted by the 2nited 6ations on <, th !ecember, <=>? nearly +< years ago,. 'fter India attained independence, the people of India gave to themselves a new Constitution, containing fundamental rights, which incorporated all the human rights, mentioned in the 2!/-. The language of human rights carries great rhetorical force of uncertain practical significance. In other words, the meaning and scope of each right has to be clarified, the content and location of any co-relative duties to which it gives rise must be spelt out, and the permissible range of e&ceptions and limitations specified. HISTORY The framers of our Constitution were men of vision and ideals. They wanted an idealistic and philosophical base upon which to raise the administrative superstructure of the Constitution. The %reamble to the Constitution declares India)s goal and %art III gives a constitutional mandate for certain /uman -ights - called 4undamental -ights and also provides modes of enforcing them. The only restriction or the only basis of discrimination in any of the rights will be as mentioned under the Constitution in conte&t of rational grounds such as health, morality, public order. Special provisions for special categories such as women, children, schedule castes and schedule tribes are provided. PHILOSOPHY BEHIND THE FUNDAMENTAL RIGHTS 'ddressing the Constituent 'ssembly, %andit 6ehru told the members8 : the first tas# of the 'ssembly is to free India through a new Constitution, to feed the starving people, and to clothe the na#ed masses, and to give every Indian the fullest opportunity to develop himself according to his capacity.; The Constitution of India is thus the first and foremost a social document which symbolises the hopes and aspirations of the people. It was in an atmosphere surcharged with human suffering and yet a firm resolve not to succumb to it, that the Constituent 'ssembly which was set up to frame the Constitution, embar#ed upon its tas# on !ecember =, <=>@. They were aware of the full blossoming of the concept of /uman -ights in the writings of the :philosophies; such as Aoltaire, -ousseau, !iderot, -ayal, d)'lembert and others, and of the concrete e&pression given to it in the various !eclarations of -ights of the 'merican Colonies and in the 'merican !eclaration of Independence. They were aware of the fact that the first ten amendments to the Constitution of the 2nited States of 'merica contained certain rights a#in to /uman -ights5. the Constitution of .ire contained a chapter headed :4undamental -ights; and another headed :!irective %rinciples of State %olicy;5 and that the Constitution of 3apan also contained a chapter headed :-ights and !uties of the %eople;. E"UALITY# HUMAN DIGNITY AND ALUE The Constitution of India assures equality for both se&es. 'rticle <> of the Constitution provides equality before law. 'rticle <+ prohibits discrimination on the basis of se&, but permits discrimination in favour of women. Some !irective %rinciples of State %olicy of the Constitution of India apply to women specifically. 'rticle B= states that the State shall direct its policy towards securing that men and

women equally have the right to an adequate means of livelihood. That there is equal pay for equal wor# for both men and women and that the health and strength of wor#ers, men and women, and the tender age of children are not abused and that citi ens are not forced by economic necessity to enter avocations unsuited to their age or strength. 'rticle >C ma#es provision for "ust and humane conditions of wor# and maternity relief . RIGHT TO LIFE .ach e&pression used in the 4undamental -ights enhances human dignity and value. It lays foundation for a society where rule of law has primacy and not arbitrary or capricious e&ercise of power. -ight to life as guaranteed by the Constitution was given new dimension in Francis Coralie Mullin vs. The Administrator, Union Territory of Delhi, 0<=?<1 C SC- +<@ where the question arose as whether it was limited to protection of limb or faculty or does it go further and embrace something more. The Supreme Court held that :*e thin# that the right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and e&pressing oneself in diverse forms, freely moving about and mi&ing and commingling with fellow human beings.; The right to life is also available to non-citi ens. In the case of Chairman, Railway Board and Others vs. Chandrima Das Mrs! and Others, 0C,,,1 C SCC >@>, the Supreme Court held that Smt. /anuffa Dhatoon, was, nevertheless, entitled to all the constitutional rights available to a citi en so far as :right to life; was concerned. She was entitled to be treated with dignity and was also entitled to the protection of her person as guaranteed under 'rticle C< of the Constitution. PERSONAL LAW The Constitution promises equality but a parallel regime of personal laws prevails and is "ustified on the ground that they are permitted in view of the e&press guarantee of the freedom of religion under 'rticle C+ of the Constitution of India. INTERNATIONAL CO ENANTS AND DECLARATIONS The Supreme Court has held that the International Covenants and !eclarations as adopted by the 2nited 6ations have to be respected. The meaning given to the words in the !eclarations and Covenants, has to be such as would help in effective implementation. In the case of "isha#a $ Ors v. %tate of Ra&asthan E<==F 0,,@1 SCC C>< SC 8 <==F 0,?>1 'I- B,<< SCG the Supreme Court held that :it is now an accepted rule of "udicial construction that regard must be had to international conventions and norms for construing domestic law when there is no inconsistency between them and there is a void in the domestic law.; TRINITY OF LIBERTY# E"UALITY AND FRATERNITY 'ccording to !r. 'mbed#ar in his closing speech in the Constituent 'ssembly the principles of liberty, equality and fraternity are not to be treated as separate entities but in a trinity. They form the union of trinity in the sense that to divorce one from the other is to defeat the very purpose of democracy. Hiberty cannot be divorced from equality. .quality cannot be divorced from liberty. 6or can equality and liberty be divorced from fraternity. *ithout equality, liberty would produce supremacy of law. .quality without liberty would #ill individual initiative. *ithout fraternity,

liberty and equality would not become a natural course of things. Courts, as sentinel qui vive, therefore must stri#e a balance between the changing needs of the society. COURTS AS SENTINELS Courts, play an important role in stri#ing a balance between the changing needs of the society and protection of the freedom of the individual. 4reedom can never e&ist without order. It is essential that freedom be e&ercised under authority and order should be enforced by authority which is vested solely in the e&ecutive. The Supreme Court and the /igh Courts are the protectors of constitutional rights. Courts by way of several "udgements have elaborated the e&act e&tent and nature of the guarantee given by the Constitution. These "udgements in fact have clarified the law to a large e&tent. The purpose of collating cases pertaining to the constitutional rights of women is to show how courts have either struck down statutory provisions, customs, social practices which are derogatory to women, or treat women unequally to men, or have interpreted them in a manner that they stop offending the fundamental rights provided under the Constitution of India. CONSTITUTION OF INDIA
PART III !"#A$%"TA& RI'(T) Article *+. %quality ,efore law.' The %tate shall not deny to any (erson e)uality *efore the law or the e)ual (rotection of the laws within the territory of +ndia. Article *-. Prohi,ition of discrimination on grounds of religion, race, caste, se. or place of ,irth.' ,! The %tate shall not discriminate a-ainst any citi.en on -rounds only of reli-ion, race, caste, se/, (lace of *irth or any of them. 0! 1o citi.en shall, on -rounds only of reli-ion, race, caste, se/, (lace of *irth or any of them, *e su*&ect to any disa*ility, lia*ility, restriction or condition with re-ard to' a! access to sho(s, (u*lic restaurants, hotels and (laces of (u*lic entertainment2 or *! the use of wells, tan#s, *athin- -hats, roads and (laces of (u*lic resort maintained wholly or (artly out of %tate funds or dedicated to the use of the -eneral (u*lic. 3! 1othin- in this article shall (revent the %tate from ma#in- any s(ecial (rovision for women and children. 4 5! 1othin- in this article or in clause 0! of article 06 shall (revent the %tate from ma#in- any s(ecial (rovision for the advancement of any socially and educationally *ac#ward classes of citi.ens or for the %cheduled Castes and the %cheduled Tri*es.7 Article */. %quality of opportunity in matters of pu,lic employment. ' ,! There shall *e e)uality of o((ortunity for all citi.ens in matters relatin- to em(loyment or a((ointment to any office under the %tate. 0! 1o citi.en shall, on -rounds only of reli-ion, race, caste, se/, descent, (lace of *irth, residence or any of them, *e ineli-i*le for, or discriminated a-ainst in res(ect of, any em(loyment or office under the %tate. 3! 1othin- in this article shall (revent 8arliament from ma#in- any law (rescri*in-, in re-ard to a class or classes of em(loyment or a((ointment to an office 4under the 9overnment of, or any local or other authority within, a %tate or Union territory, any re)uirement as to residence within that %tate or Union territory7 (rior to such em(loyment or a((ointment.

4 5A! 1othin- in this article shall (revent the %tate from ma#in- any (rovision for reservation in matters of (romotion to any class or classes of (osts in the services under the %tate in favour of the %cheduled Castes and the %cheduled Tri*es which, in the o(inion of the %tate, are not ade)uately re(resented in the services under the %tate.7 4 5B! 1othin- in this article shall (revent the %tate from considerin- any unfilled vacancies of a year which are reserved for *ein- filled u( in that year in accordance with any (rovision for reservation made under clause 5! or clause 5A! as a se(arate class of vacancies to *e filled u( in any succeedin- year or years and such class of vacancies shall not *e considered to-ether with the vacancies of the year in which they are *ein- filled u( for determinin- the ceilin- of fifty (er cent. reservation on total num*er of vacancies of that year.7 :! 1othin- in this article shall affect the o(eration of any law which (rovides that the incum*ent of an office in connection with the affairs of any reli-ious or denominational institution or any mem*er of the -overnin- *ody thereof shall *e a (erson (rofessin- a (articular reli-ion or *elon-in- to a (articular denomination. 0*. Protection of life and personal li,erty .' 1o (erson shall *e de(rived of his life or (ersonal li*erty e/ce(t accordin- to (rocedure esta*lished *y law. #IR%CTI1% PRI"CIP&%) 2 )TAT% P2&IC3 Article 45. Certain principles of policy to ,e followed ,y the )tate.6 The %tate shall, in (articular, direct its (olicy towards securin-' a! that the citi.ens, men and women e)ually, have the ri-ht to an ade)uate means of livelihood2 *! .... c! .... d! that there is e)ual (ay for e)ual wor# for *oth men and women2 e! that the health and stren-th of wor#ers, men and women, and the tender a-e of children are not a*used and that citi.ens are not forced *y economic necessity to enter avocations unsuited to their a-e or stren-th2 f! that children are -iven o((ortunities and facilities to develo( in a healthy manner and in conditions of freedom and di-nity and that childhood and youth are (rotected a-ainst e/(loitation and a-ainst moral and material a*andonment. Article +0. Provision for 7ust and humane conditions of work and maternity relief.6 The %tate shall ma#e (rovision for securin- &ust and humane conditions of wor# and for maternity relief. Artilce +4. &iving wage, etc., for workers.6 The %tate shall endeavour to secure, *y suita*le le-islation or economic or-anisation or in any other way, to all wor#ers, a-ricultural, industrial or otherwise, wor#, a livin- wa-e, conditions of wor# ensurin- a decent standard of life and full en&oyment of leisure and social and cultural o((ortunities and, in (articular, the %tate shall endeavour to (romote cotta-e industries on an individual or co'o(erative *asis in rural areas.
LIST OF CASES CRIMES AGAINST WOMEN C1. Sanaboina Satyanaryana vs. Govt. of A.P. & Others

NO PERSON CAN BE COMPELLED TO BE WITNESS AGAINST HIMSELF C2. Mrs.Teeku Dutta vs. State & Another NUMBER OF CHILDREN C3. Jave & Others vs. State of !aryana & Others

PREFERENCE TO WOMAN FOR APPOINTMENT OF PRINCIPAL C". #i$ay %aksh&i vs. Pun$ab 'niversity & Others PROCEDURE FOR ARREST OF WOMAN C(. )a*a Peo+,e-s Move&ent of !u&an .i*hts vs. 'nion of /n ia RIGHT TO POSITIVE DISCRIMINATION C0. Air /n ia Cabin Cre1 Asso2iation vs. 3esha1inee Mer2hant & Others SEX SELECTION/SEX DETERMINATION TESTS C4. Centra, 5n6uiry into !ea,th & A,,ie the&es & Others vs. 'nion of /n ia & Others SEXUAL HARASSMENT C7. A++are, 58+ort Pro&otion Coun2i, vs. A.9. Cho+ra

STATUS OF FEMALE C:. State of Ja&&u & 9ash&ir & Others vs. Dr. Sushee,a Sa1hney WOMEN WORKERS C1;. S&t. <i&,a .ani & Others vs. A++e,,ate Authority 56ua, .e&uneration A2t= 1:40= The Coo+erative Store %t . C11. Muni2i+a, Cor+oration of De,hi vs. >e&a,e 1orkers ?Muster .o,,@ & Another

Chapter 3 MARRIAGE AND DIVORCE (arriage is the formal union of a man and a woman, typically as recogni ed by law, by which they become husband and wife. It is of tremendous social and legal importance. It is at the center of how we structure our families5 it is the primary way that people ac#nowledge, and accept responsibility for, the person they have chosen, above all others, to be with for the rest of their lives. The foundation of marriage is based on religion. 'll religions delineate a moral and social code of conduct. .very religious te&t provides for the method of a valid marriage, the duties of the spouses the nature and circumstances that entitle a spouse to a divorce. In India marriage and its dissolution is regulated by personal laws but the Child (arriage -estraint 'ct <=C= supercedes personal law. In essence personal law determines the qualification for being entitled to get married, the manner in which the marriage is to be solemni ed, the number of spouses 0wivesI husbands1 that a person is entitled to marry. There has been continuous development of personal law by amendment and "udicial interpretation which has made them far more egalitarian. Illustratively spea#ing prior to the amendment a Christian women could only get a divorce if they could prove that their husband was guilty of two matrimonial offences such as cruelty and adultery, however subsequent to the amendment they are entitled to a divorce by merely proving one matrimonial offence such as adultery. Similarly the provision for divorce on the grounds of cruelty under the /indu (arriage 'ct has been e&panded by successive "udgments, which have broadened the scope of cruelty to encompass mental cruelty such as neglect, taunts and verbal abuse as grounds for divorce. Courts of law have suo moto interpreted Shariat 'ct liberally on several occasions granting relief under muslim personal law and clarifying the legal rights of women under the Shariat. This has been further followed by a proactive stance ta#en by the (uslim %ersonal Haw Joard which has proposed to frame and circulate a model ni#ahnama to secure the interests of women and delineate the right of #hulla 0divorce at the behest of a women1 guaranteed under the Shariat to muslim women. The ma"or problem in law governing marriage and divorce is the piece meal nature of the law which has slotted divorce, maintenance and custody as independent causes of action. 's a result women have to face and initiate litigation in multiple fora. To remedy this situation the Hegislature enacted the 4amily Courts 'ct, which provides for single window relief in matrimonial matters. 2nfortunately most states have failed to enact and set up family courts therefore this legislation has remained ineffective. It has been "ustifiably argued that there is a need for a 2niform Civil Code homogenising the personal laws. In the Constitution of India, 'rticle >>, under the !irective %rinciples of State %olicy specifically states that :The State shall endeavour to secure for the citi ens a uniform civil code throughout the territory of India;. /owever, due to certain reasons this has not been complied with. It has been suggested that the Haw Commission draft a comprehensive legislation, incorporating the :present-day concept of human rights for women;. THE HINDU PERSONAL LAW ;Om sam&natu vishwedev sam(o hridaynino %amatvishwa sandhat samohdrishti dadhatunoh< '%hu#la =a&urveda

7riginally marriage under /indu Haw was considered a religious and sacramental union. In the above quotation the couple is invo#ing the blessings of the $ods to combine their hearts and souls, and to ma#e their union inseparable li#e the union of the two sacred rivers $anga and Kamuna. !espite the fact that they are two bodies they should be one in soul. /indus conceived of marriage as a union primarily meant for the performance of religious and spiritual duties. It could not ta#e place without the performance of sacred rites and ceremonies and it was considered a permanent and eternal union. There was no requirement for the consent of the parties to a marriage and a marriage was not rendered null and void due to lac# of consent. Therefore marriages of lunatics and minors were legal. In fact even courts of law in India have upheld such a marriage as was held in Amirthammal vs. "allimayil 'I- <=>C (ad. @=B.Therefore the concept of divorce was unimaginable and did not e&ist. The /indu personal law has been codified in the form of /indu (arriage 'ct 0for short :the 'ct;1, <=++ and is applicable to /indus, Juddhists, 3ains or Si#hs, any person who is born to /indu parents and any person who is not a (uslim Christian, %arsi or 3ew, and who is not governed by any other law. 4or the first time the concept of divorce was introduced in the /indu (arriage 'ct by way of amendment. /indus can see# to put an end to their marriage by either obtaining a declaration that the marriage between them was a nullity on grounds specified in Section << or to dissolve the marriage between them on any ground mentioned in Section <B of the 'ct. Section C= of the 'ct saves the rights recogni ed by customs or conferred by special enactment to obtain the dissolution of marriage before or after commencement of the 'ct. The seven grounds of divorce provided under the 'ct include8 incurable virulent disease, insanity, mental disorder, incurable or virulent leprosy, cruelty, adultery and change of religion. In various "udgments wherein it has been held that a party cannot ta#e advantage of its own conduct and where it is found that either party to a marriage conducted itself in a manner resulting in marital misconduct by the other party such party was not entitled to any relief. The right to divorce by mutual consent was recogni ed by the /indu (arriage 'ct <=++ after amendment in <=F@, wherein it is recogni ed that marriages fail not because of fault or guilt of any party to the marriage, but because the couple reali e that they are temperamentally incompatible and they are unable to live together. The scope and definition of these rights have been defined and redefined by successive "udicial pronouncements. 4or instance the concept of cruelty has e&panded over the years from being merely physical cruelty by a spouse to mental cruelty. *hile defining the scope and intensity of cruelty the court has also in many instances ta#en into account the educational and social status of the women. This reflects social and legal acceptance of the fact that marriage is not eternal and individual happiness of the spouses out weighs the social significance of continuing a marriage. MUSLIM PERSONAL LAW The Luran says8

And amon- >is si-ns is this, that >e created for you mates from amonyourselves, that you may dwell in tran)uillity with them, and >e has (ut love and mercy *etween your hearts. Undou*tedly in these are si-ns for those who reflect. 3?@0,! And Allah has made for you your mates of your own nature, and made for you, out of them, sons and dau-hters and -randchildren, and (rovided for you sustenance of the *est. ,A@B0! These verses clearly show that in contrast to other religions, which consider celibacy or monasticism as a great virtue and a means of salvation, Islam considers marriage as one of the most virtuous and approved institutions. The importance of the institution or marriage receives its greatest emphasis from the following hadith of the %rophet, ;Marria-e is my sunna. Chosoever #ee(s away from it is not from me.< The word .awa& is used in the Luran to signify a pair or a mate. Jut in common parlance it stands for marriage. The Shariat prescribes rules to regulate the functioning of the family so that both spouses can live together in love, security, and tranquillity. (arriage in Islam has aspects of both Mibadah) 0worship1 of 'llah and Mmu)amalah) 0transactions between human beings1. 's described in the /oly Luran marriage is a contract between two sane consenting persons. *ho if minors at the time of marriage have the right to repudiation on attaining ma"ority. The Luran accords a special solemnity and status to this contract. /owever it grants complete freedom to the parties to settle their own terms, including restricting each other from such actions which Islam permits but does not ma#e obligatory including the freedom of a man to contract a second marriage. The unique feature of (uslim personal law is that consent is a prerequisite for marriage. Courts in India have held that the marriage of a girl without her consent is invalid and is voidable at her instance. >assan Dutti vs. Eaina**a 'I- <=C? 0 (ad1 <C?+, %ayyad Mo*in vs. Dhati&a 'I- <=B= Jom >?=, Adam vs. Manmad 0 <==,1 < DHT F,+. 's mentioned earlier the Child (arriage -estraint 'ct <=C= supercedes personal law. The minimum age of marriage prescribed by it has been incorporated in the codified personal laws but since (uslim law is not codified, it is pertinent to reiterate here that it applies to (uslims also and any adult contracting the marriage of a minor will be liable to punishment under the 'ct. The 'ct does not effect the legality and validity of the marriage as such which will be governed by personal law and can be invalidated only at the option of the minor on attaining ma"ority by e&ercise of her right to repudiation. The courts in India have held that any #ind of "udicial verdict in any "udicial proceeding confirming the e&ercise of the option of puberty is enough for this purpose. Mafi.uddin "s. Rahima Bi*i 'I- <=B> Cal <,>, Batoolan vs. Fa*oor 'I- <=+C (J B,, 1i..amuddin vs. >useni 'I- <=@, (% C<C, 8irmo*amed vs. %tateof Madhya 8radesh 'I- <=@, (% C>. (uslim personal law unli#e other personal laws always recognised the right to divorce unilaterally by either party, consensually by both parties and by operation of the guilt theory. 2nli#e other personal laws the whole of the (uslim law in India has not been codified e&cept for three statutes, The (uslim %ersonal Haw 0Shariat1 'pplication 'ct <=BF, !issolution of (uslim (arriage 'ct <=B= and (uslim *omen 0 %rotection of -ights on !ivorce 1 'ct <=?@.

2nilateral right of divorce granted to a man under (uslim personal law is #nown as tala). ' detailed study of Islam which is unfortunately not adopted in social practice defines the conditions in which tala) ought to be pronounced. These are of dissuasive nature and men are discouraged from e&ercising this right. 's per the Guran men pronouncing tala) may follow the model code of conduct by pronouncing tala) three times at the gap of three menstrual cycles, this is the preferable form of tala) and is #nown as tala) e sunnat. ' man may also pronounce tala) three times in one sitting however this is denounced and such conduct is #nown as improper tala). .ven the %a#istan /igh Court has frowned upon such tala) and in its "udgments has only accepted the proper form of tala). 't this stage it is relevant to point out that a proper perspective on tala) has been given by Jarul Islam 3. of the 'ssam /igh Court in Fiauddin Ahmed vs. Anwar Be-um 0 <=F?1 and Ru#hia Dhatton vs. A*dul Dhalif Hasha# 0<=F=1 Islamic and Comparative Haw quarterly Aol. II <=?C p. B? N C<B Simultaneously a (uslim women has a parallel right of #hulla, in which she is entitled to dissolution of the marriage by #hulla at her instance without the consent of her husband. The only difference between #hulla and tala) is that a women-see#ing #hulla may at the instance of her husband forsa#e her right to Mahr 0dower1. In addition, women in India are entitled to see# divorce under the (uslim %ersonal Haw 0 Shariat1 'pplication 't <=BF, !issolution of (uslim (arriage 'ct <=B= on the ground of the husband)s disappearance for a period of four years or more, if the husband fails to provide his wife maintenance, impotency of husband, if the husband is suffering from insanity, cruelty, option of puberty. It is important to mention here that bigamy and differentiation between co- wives has been regarded by courts in India as a ground of cruelty entitling a woman to resist a plea of restitution of con"ugal rights. The court has held in +twari vs.Ashari 'I- <=@, 'll @?> and -a vs.'mina 'I- <=F@ Dant C,< that such conduct amounts to cruelty. CHRISTIAN PERSONAL LAW ;>ave you not read that the one who made them male and female, And said, IFor this reason a man shall leave his father and mother And he who &oined to his wife, and the two shall *ecome one flesh %o they are no lon-er two *ut one flesh.J Therefore what 9od has &oined to-ether, let no one se(arate.< -Matthew ,6@ 5' A Christianity regarded marriage as indissoluble. The -oman Church became the supreme ecclestic authority governing matrimonial matters. The ecclesiastic court recogni ed the right to separation but no spouse had the right to remarry during the life of the other spouse. The issue of divorce or dissolution of marriage was in many respects responsible for the division of the Christian world into the Catholics and %rotestants. The %rotestants considered marriage as a dissoluble union and under the "urisdiction of civil courts. It was in these circumstances that the Church of .ngland separated from the Aatican. In <?+F, the first (atrimonial Causes 'ct was passed and the "urisdiction in .ngland was transferred from the ecclesiastic courts to the civil court.

!uring the early days of .nglish settlement in India, the marriage laws prevailing in .ngland were sought to be introduced over marriage of native Christians. The law prior to <?+, was laid down by Sir .r#ine %erry, the Chief 3ustice of Jombay in Maclean v. 9ristall 8erryJs O.C. B:!. %riests were not necessary in the days of the .ast India Company. Collectors and "udges acted as their substitutes. The Indian Christian (arriage 'ct <?FC was enacted to consolidate and amend the law relating to the solemni ation in India of the marriages of Christians. This 'ct was the product of consolidation of different small statutes of marriage of the Indian Christians. It also amended certain laws on the sub"ect and repealed 'ct + of <?+C and 'ct + of <?@+. The Indian !ivorce 'ct came into force in <?@=. In <=BF by way of amendment desertion, insanity and cruelty were added as grounds for divorce. In C,,< the Indian !ivorce 'ct was further amended to remove gross gender inequalities, and women got the right to divorce on a single count of adultery or cruelty without having to prove two matrimonial offences of adultery coupled with cruelty. (utual consent was also added as a ground for divorce. The Courts have always ta#en a liberal interpretation and in fact, prior to amendment by way of legislation, a !ivision Jench of the Derala /igh Court directed the State $overnment to bring in an amendment see#ing to delete the provision under Section <F of the Indian !ivorce 'ct which says that a decree for a dissolution of a Christian marriage passed by !istrict Courts should be confirmed by a 4ull Jench of the /igh Court. The Court observed that the procedure prescribed by the provision :prolongs the agony of the affected parties, even though none of the parties is desirous of preferring an appeal; against the !istrict Court decrees. Therefore, there was :no "ustification for the continuation of this procedure;, especially when no such procedure had been prescribed by other 'cts dealing with dissolution of marriages, vi , the Special (arriage 'ct <=+> and the /indu (arriage 'ct <=++. The Jench said that there was :an urgent need; for ma#ing suitable amendments to the 'ct. Luoting Supreme Court verdicts, the 3udges said that the :remedy lies in the legislature in the instant case; as the sub"ect matter fell under .ntry + of the Concurrent Hist in the Fth Schedule of the Constitution. 0The State $overnment has the power to bring an amendment to the 'cts on sub"ects falling under the concurrent list1.

THE PARSI PERSONAL LAW

' group of Ooroastrians came to India, having fled religious persecution in %ersia 0now +ran1 and came to be #nown as %arsis. The personal law has been codified in the %arsi (arriage and !ivorce 'ct, <=B@. The number of %arsis is small and is now diminishing at an alarming rate. The %arsi personal law is one of the most comprehensive and modern laws. Jigamy is not only prohibited but Section + also provides for punishment for bigamy. Section > not only incorporates the minimum age prescribed by the Child (arriage -estraint 'ct, <=C= but also Section << incorporates provisions for penalty for solemni ing marriage contrary to Section >. Confidentiality is ensured in matrimonial cases and Section >B specifically states that suits are to be heard in camera and may not be printed or published.

SPECIAL MARRIAGE ACT# 1$%&

This introduction would be incomplete without mentioning that though in India we don)t yet have a 2niform Civil Code, but the Special (arriage 'ct was enacted by the legislature in <=+> and provides a uniform law for any citi en of India and by all nationals in foreign countries irrespective of the faith, which either party to the marriage may profess. The parties may observe any ceremonies for the solemni ation of their marriage but certain formalities are prescribed before the marriage can be registered by the magistrate officers. 4or the benefit of Indian citi ens abroad, the 'ct provides for the solemni ation and registration of the marriage between citi ens of India in a foreign country. The provisions of the Special (arriage 'ct are a#in to the provisions of the /indu (arriage 'ct with the e&ception that the solemni ation of the marriage is solemni ed before a registrar after giving B, days prior notice of the intended marriage in the presence of two witnesses. The conditions relating to solemni ation of Special (arriage are given in Section > according to which the parties should not be within the degrees of prohibited relationship. /owever there is a proviso which states :provided that where a custom governing at least one of the parties permits of a marriage between them, such marriage may be solemni ed, notwithstanding that they are within the degrees of prohibited relationship;. This section came into criticism by some sections of the (uslim community as being e&clusionary since Islam permits marriage amongst cousins.
T(% C(I&# $ARRIA'% R%)TRAI"T ACT *505 )ection 4@ Choever, *ein- a male a*ove ei-hteen years of a-e and *elow twenty one, contracts a child marria-e shall *e (unisha*le with sim(le im(risonment which may e/tend to fifteen days or with fine which may e/tend to one thousand ru(ees, or with *oth!. )ection 0@ Definitions K +n this Act, unless there is anythin- re(u-nant in the su*&ect or conte/t@ a! ;Child< means a (erson who, if a male, has not com(leted twenty one years of a-e, and if a female, has not com(leted ei-hteen years of a-e2! *!;Child marria-e< means a marria-e to which either of the contractin(arties is a child2 c!; Contractin- (arty ; to a marria-e means either of the (arties whose marria-e is or is a*out to *e! there*y solemni.ed2 and >indu Marria-e Act, ,6::. )ection -@ Conditions for a (indu $arriage K A marria-e may *e solemni.ed *etween any two >indus, if the followin- conditions are fulfilled, namely@ ' iii! the *ride-room has com(leted the a-e of twenty one years and the *ride, the a-e of ei-hteen years at the time of the marria-e2 )ection *4 80 9. A wife may also (resent a (etition for the dissolution of her marria-e *y a decree of divorce on the -round K iv! that her marria-e whether consummated or not! was solemni.ed *efore she attained the a-e of fifteen years and she has re(udiated the marria-e after attainin- the a-e *ut *efore attainin- the a-e of ei-hteen years. L/(lanation K This clause a((lies whether the marria-e was solemni.ed *efore or after the commencement of the Marria-e Haws Amendment Act ,6BA.

T(% (I"#! $ARRIA'% ACT, *5-)ection -. Conditions for a (indu marriage.' A marria-e may *e solemni.ed *etween any two >indus, if the followin- conditions are fulfilled, namely@' iii! the *ride-room has com(leted the a-e of twenty'one years and the *ride, the a-e of ei-hteen years at the time of the marria-e2 T(% #I))2&!TI2" 2 $!)&I$ $ARRIA'%) ACT *545 )ection 0:'rounds for decree for dissolution of marriage @ A women married under Muslim Haw shall *e entitled to o*tain a decree for dissolution of her marria-e on anyone or more of the followin- -rounds, namely@ ' vii! that she, havin- *een -iven in marria-e *y her father or other -uardian *efore she attained the a-e of fifteen years, re(udiated the marria-e *efore attainin- the a-e of ei-hteen years@ (rovided that the marria-e has not *een consummated. T(% I"#IA" C(RI)TIA" $ARRIA'% ACT, *;<0 )ection /=. 2n what conditions marriages of 8Indian9 Christians may ,e certified@Lvery marria-e *etween +ndian! Christians a((lyin- for a certificate, shall without the (reliminary notice re)uired under 8art +++, *e certified under this (art, if the followin- conditions *e fulfilled and not otherwise @' ,! the a-e of the man intendin- to *e married shall not *e under twenty one years and the a-e of the women intendin- to *e married shall not *e under ei-hteen years. T(% PAR)I $ARRIA'% A"# #I12RC% ACT, *54/ )ection 4. Requisites to validity of Parsi $arriages4 ,!7 1o marria-e shall *e valid if' c! in the case of any 8arsi whether such 8arsi has chan-ed his or her reli-ion or domicile or not! who, if a male, has not com(leted twenty'one years of a-e, and if a female, has not com(leted ei-hteen years of a-e.

LIST OF CASES
LIST OF CASES AGE M1. M2. M3. ADULTER! M". M(. M0. BIGAM! M4. M7. M:. M1;. M11. M12. M13. M1". Mst. Shabna& vs. Moh . Shafi6 .a&esh vs. .a$+ati MuAaffar A,i Sa$$a & Others vs. State of An hra Pra esh Dr. 9iran .obinson vs. A$eet Ma,2o,& .obinson & Others .a& 9u&ar B .a&en er 9u&ar vs. S&t. .aksha B Ga,abo A$ant <huiya vs. S&t. %airin&a1ii 9hian*te Muha&&a %atheef= sCo 9. Sainu heen vs. )ishath D. Jeyara$ vs. The Mana*in* Dire2tor= Ta&i, )a u A*ro /n ustries Cor+oration %t . 5,iAabeth Skariah vs. Aby Skariah & Others D. #i$ay,aksh&i vs. D. San$eeva .e y S. .a&a B #i$aya,aksh&i vs. State of An hra Pra esh Muru*esan & 1( Others vs. .a&a,aksh&i S.G. Jin*a e & Others vs. S&t. Satyavathi Dr. Pre& Mitta, vs. State of .a$asthan & Others

CRUELT! M1(. Muha&&a %atheef vs. )ishath M10. D.). Shar&a vs. 'sha Shar&a M14. #i$ay 9u&ar .a&2han ra <hate vs. )ee,a #i$ay 9u&ar <hate

M17. M1:. M2;. M21. M22. M23. M2". M2(. M20. M24. M27. M2:. M3;. M31. M32. M33. M3".

Dr.P.9.To&ar vs. S&t. Ar2hana Poona& Gu+ta vs. Ghanshya& Gu+ta Dr. 9iran .obinson vs. A$eet Ma,2o,& .obinson & Others Monika San2tis vs. !enry Jose+h & Another S&t. Push+a vs. Mukesh 9u&ar Mrs. /n u <a,a To++o vs. >ran2is Dav,er To++o )avneet 9u&ar vs. Meena 9u&ari #eeran Sayvu .avuthar vs. <eevathu&&a 9atherine vs. Mr. Sa&ue, Denia, B Chan Piyush 9u&ar .asto*i vs. S&t. Ar2hana #arshney A&na 9hatoon vs. M . 9ashi& Ansari EAF vs. E<F %ini Mohan John vs. Mohan John Ga$en ra vs. S&t. Ma hu Mati Devra& <i,ve vs. /n u&it S&t. Abha A*ar1a, vs. Suni, A*ar1a, S&t. De+ika B <aby vs. )aresh Chan ra Sin*hania

CUSTOM M3(. Subra&ani & Others vs. Chan ra,ekha M30. Jasbir Sin*h vs. /n er$eet 9aur M34. Dr. Sura$&ani Ste,,a 9u$ur vs. Dur*a Charan !ans ah & Another DESERTION M37. Dr. 9iran .obinson vs. A$eet Ma,2o,& .obinson & Others M3:. 9ishan Chan vs. S&t. Munni Devi M";. Chetan Dass vs. 9a&a, Devi M"1. Ms Santosh 9u&ari vs. Shiv Prakash Shar&a M"2. Ga$en ra vs. S&t. Ma hu Mati FRAUD M"3. <enny Mathe1 vs. Phi,o&ena M"". Au*ustine & Another vs. 9un$a&&a 9uriakose & Another M"(. )eena Abraha& vs. .a$i 5a++en M"0. %i,,y 9utty Mathe1 vs. C.J. Si&on IRRETRIEVABLE BREAKDOWN M"4. Mohinu in Mi ya vs. State of Gest <en*a, & Another M"7. Geeta Mu,,i2k vs. <ro$o Go+a, Mu,,i2k Misra M":. Sus&ita A2harya vs. .abin ra 9u&ar Misra M(;. Chetan Dass vs. 9a&,a Devi M(1. Su hir Sin*ha, vs. )eeta Sin*ha, M(2. Ga$en ra vs. S&t. Ma hu Mati M(3. A&na 9hatoon vs. M . 9ashi& Ansari IMPOTENCE M(". <has1ati Sarakar ?nee Mukho+a yay@ vs. An*shu&an Sarakar M((. Surin er Sin*h vs. )ir&a,$it 9aur "UDICIAL SEPARATION M(0. #. Sree evi vs. #. #ar ara$an LIMITATION M(4. Savitry Pan ey vs. Pre& Chan ra Pan ey M(7. Su+riya Chakraborty vs. Cha&+ak 9u&ar Chakraborty MA"OR M(:. Paya, Shar&a B 9a&a, Shar&a a,ias Paya, 9atara vs. Su+erinten ent )air )iketan 9a,in ri #ihar= A*ra & Others . MEDICAL TEST M0;. Shar a vs. Dhar&+a, MENTAL DISORDER/UNSOUNDNESS OF MIND M01. T. !ari 9u&ar )ai u vs. S&t. Pra&ee,a M02. Su hir Sin*ha, vs. )eeta Sin*ha, M03. J. Su hakara Shenoy vs. Mrs. #rin a Shenoy & Another M0". 9aka,i Muker$ee vs. Gauta& Muker$ee M0(. %issy vs. Jaison MUTUAL CONSENT M00. S&t Chan er 9anta vs. Mohin er Prata+ Do*ra NO ENTITLEMENT TO RESERVATION ON BASIS OF MARRIAGE M04. San hya Thakur vs. #i&,a Devi 9hush1ah & Others M07. Sobha !y&avathi Devi vs. Setti Gan*a harara S1a&y & Others

NON PA!MENT OF MAINTENANCE M0:. Ab urahi&an vs. )assera M4;. MehafoA A,a& Dasta*irsab 9i,,e ar vs. Sha*ufta PERMANENT ALIMON! M41. S&t. Abha A*ar1a, vs. Suni, A*ra1a, M42. Pavitra vs. Arun #ar&a ?De2ease @ throu*h %..s PRIVAC! M43. Sur$it Sin*h Thin vs. 9an1a,$it 9aur M4". Ms. EDF vs. Mr. EHF PROMISE TO MARR! M4(. Dee,i+ Sin*h B Di,i+ 9u&ar= Petitioner vs. State of <ihar SECOND MARRIAGE AFTER CONVERSION M40. %i,y Tho&as vs. 'nion of /n ia & Others VALID MARRIAGE M44. Joyita Saha vs. .a$esh 9u&ar Pan ey VOID M47. S&t. Devi Shar&a vs. Chan er Mohan Shar&a VOIDABLE M4:. ..%aksh&i )arayan vs. Santhi WAITING PERIOD M7;. S&t Chan er 9anta vs. Mohin er Prata+ Do*ra

Chapter &. MAINTENANCE

(ost women perform the role of homema#ers and child bearers. Though these functions have immense social and economic contribution, they are not valued financially and women get no independent remuneration for this wor#. Consequentially they are financially dependant on their spouse. /indu personal law grants both men and women a right to maintenance from a spouse who is earning a better income, while only a wife is entitled to maintenance under (uslim and Christian %ersonal law. The provision for maintenance is to secure to women and children an allowance up#eep and survival. The right to maintenance is inherent to marriage as it is presumed by law that a man is under obligation to ensure the financial security of his wife. The criteria for determination of quantum of maintenance have been defined by courts to include, the husband)s income, property and his legitimate e&penses, e&tent of the wife)s income and property, conduct of parties, financial needs of the wife. It is important to note that over the years the definition of financial needs of the wife have been broadened by courts beyond "ust needs for bare survival to the right of a wife to maintain a standard of living, which is in consonance with the standard en"oyed by her at the matrimonial home. In fact the right to maintenance has been defined by courts to include the right to residence also. It is not necessary for a husband and wife to be see#ing a divorce to be entitled to the right to maintenance. 'ny spouse who neglects to maintain his wife and child even while married is sub"ect to the "urisdiction of the Court.

I' (a)e *+ a H,'-. /*0a'

' /indu woman can as# for maintenance under section <? of the /indu 'doption and (aintenance 'ct, <=+@ if she is not divorced and under Section C> of the /indu (arriage 'ct, <=++ during divorce proceedings in court by either party.

I' (a)e *+ a M.)1,0 /*0e'

' (uslim woman see#ing maintenance 0after divorce1 can file a case within the "urisdiction of the court where she resides. 2nder section B0<1 a N b of the (uslim *omen)s 0%rotection of -ights on divorce1 'ct, <=?@, the husband is obliged to provide a reasonable and fair maintenance to be made and paid to the woman within the iddat period. /owever for children born out of wedloc# have to be given a reasonable and fair maintenance to be made and paid to the mother on behalf of the children for a period of two years from the date of birth. The amount of maintenance the woman gets is in addition to the mehr amount. Mehr is a predetermined lump sum amount payable to a women by her husband during the course of the marriage or at the time of divorce before the completion of the iddat period.

I' the (a)e *+ Chr,)t,a' a'- Par), W*0e'

' Christian woman is entitled to see# maintenance under Chapter IP of the !ivorce 'ct, <?@=. *hereas a %arsi woman is entitled to see# maintenance under Sections B= to >< of the %arsi (arriage and !ivorce 'ct, <=B@.

A11 /*0e' maintenance can see# maintenance under Section <C+ of the Code of Criminal %rocedure 0Cr.%.C.1. 'n order under this section is in the nature of a summary order which does not determine the rights of the parties, but it)s aim is to ameliorate the plight of destitute and hapless women. The benefit of the provisions of Section <C+ is that being a provision of criminal law no court fee is payable. /owever a (uslim woman after divorce would require her husbands consent to being governed under this 'ct. If the husband does not consent then she can claim maintenance under the (uslim *omen)s 0%rotection of -ights on divorce1 'ct, <=?@. Ironically procedural hurdles in the enforcement of the right to maintenance leave many women. To see# maintenance a women has to approach the court by way of a civil suit and pay court fee on the basis of <, years maintenance claimed. This amount is often prohibitive leaving destitute women remedyless due to their inability to approach the court. *hile the Code of Civil %rocedure 0C.%.C1 entitles a women who cannot pay court fee to approach the court as an indigent person but often determination of indigent person applications ta#e very long. Deeping this in mind many courts have started granting interim maintenance during the pendency of the indigent person petition. Courts have ta#en a liberal interpretation in favour of women and held that a man is bound to maintain his spouse and orders to grant maintenance under Code of Criminal %rocedure 0Cr.%.C.1 are independent of Section C> of the /indu (arriage 'ct or that matter even the 'rmy 'ct. /owever, there is still a long way to go before the law, procedure and "udicial mindset ensure that women without being sub"ected to indignity and poverty are entitled to, and can enforce their right to maintenance.
T(% (I"#! A#2PTI2") > $AI"T%"A"C% ACT, *5-/ )ection *;. $aintenance of wife ,! %u*&ect to the (rovisions of this section, a >indu wife, whether married *efore or after the commencement of this Act, shall *e entitled to *e maintained *y her hus*and durin- her life time. 0! A >indu wife shall *e entitled to live se(arately from her hus*and without forfeitin- her claim to maintenance K a! +f he is -uilty of desertion that is to say, of a*andonin- her without reasona*le cause and without her consent or a-ainst her wish, or willfully ne-lectin- her2 *! +f he has treated her with such cruelty as to cause a reasona*le a((rehension in her mind that it will *e harmful or in&urious to live with her hus*and2 c! +f he is sufferin- from a virulent from of le(rosy2 d! +f he has any other wife livin-2 e! +f he #ee(s a concu*ine in the same house in which his wife is livin- of ha*itually resides with a concu*ine elsewhere2 f! +f he has ceased to *e a >indu *y conversion to another reli-ion2 -! +f there is any other cause &ustifyin- livin- se(arately. 3! A >indu wife shall not *e entitled to se(arate residence and maintenance from her hus*and if she is unchaste or cease to *e a >indu *y conversion to another reli-ion. )ection 0*. #ependants defined KFor the (ur(ose of this Cha(ter ;de(endants< mean the followin- relatives of the deceased@' i! his or her father2 ii! his or her mother2 iii! his widow, so lon- as she does not re'marry2

his or her son or the son of his (redeceased son or the son of a (redeceased son, so lon- as he is a minor2 (rovided and to the e/tent that he is una*le to o*tain maintenance, in the case of a -randson from his fatherJs or motherJs estate, and in the case of -reat -rand'son, from the estate of his father or mother of fatherJs or fatherJs mother2 v! his or her unmarried dau-hter, or the unmarried dau-hter of his (redeceased son or the unmarried dau-hter of a (redeceased son of his (redeceased son, so lon- as she remains unmarried @ (rovided and to the e/tent that she is una*le to o*tain maintenance, in the case of a -rand'dau-hter from her fatherJs estate and in the case of -reat'-rand'dau-hter from the estate of her father or mother of fatherJs father or fatherJs mother2 vi! his widowed dau-hter@ (rovided and to the e/tent that she is una*le to o*tain maintenance' a! from the estate of her hus*and, or *! from her son or dau-hter if any, or his her estate, or c! from her father'in'law or his father or the estate or either or them2 vii! any widow of his son or of a son his (redeceased son, so lon- as she does not remarry @ (rovided and to the e/tent that she is una*le to o*tain maintenance from her hus*andJs estate or from her son or dau-hter, if any, or his or her estate, or in the case of a -randsonJs widow, also from her father'in'lawJs estate2 viii! his or her minor ille-itimate son, so lon- as he remains a minor2 i/! his or her ille-itimate dau-hter, so lon- as she remains unmarried. )ection 00. $aintenance of dependants?6 ,. %u*&ect to the (rovisions of su*'section 0! the heirs of a deceased >indu are *ound to maintain the de(endants of the deceased out of the estate inherited *y them from the deceased. 0. Chere a de(endant has not o*tained , *y testamentary or intestate'succession, any share in the estate of a >indu dyin- after the commencement of this Act, the de(endant shall *e entitled, su*&ect to the (rovisions of this Act, to maintenance from those who ta#e the estate. 3. The lia*ility of each of the of the (ersons who ta#es the estate shall *e in (ro(ortion to the value of the share or (art of the estate ta#en *y him or her. 5. 1otwithstandin- anythin- contained in su*'section 0! or su*'section 3!, no (erson who is himself or herself a de(endant shall *e lia*le to contri*ute to the maintenance of others, if he or she has o*tained a share or (art, the value of which is, or would if the lia*ility to contri*ute were enforced, *ecome less than what would *e awarded to him or her *y way of maintenance under this Act. T(% (I"#! $ARRIA'% ACT, *5-)ection 0-. Permanent alimony and maintenance ,!Any court e/ercisin&urisdiction under this Act may, at the time of (assin- any decree or at any time su*se)uent thereto, on a((lication made to it for the (ur(ose *y either the wife or the hus*and as the case may *e, order that the res(ondent shall (ay to the a((licant for her or his maintenance and su((ort such -ross sum or such monthly or (eriodical sum for a term not e/ceedin- the life of the a((licant as, havinre-ard to the res(ondentJs own income and other (ro(erty, if any, the income and other (ro(erty of the a((licant, the conduct of the (arties and other circumstances of the case, it may seem to the court to *e &ust and any such (ayment may *e secured, if necessary, *y a char-e on the immova*le (ro(erty of the res(ondent.

iv!

0! +f the court is satisfied that there is a chan-e in the circumstances of either (arty at any time it has made an order under su*'section ,! it may at the instance or either (arty, vary, modify or rescind any such order in such manner as the court may deem &ust. 3! +f the court is satisfied that the (arty in whose favour an order has *een made under this section has re'married or, if such (arty is the wife, that she has not remained chaste or, if such (arty is the hus*and, that he has had se/ual intercourse with any woman outside wedloc#, it may at the instance of the other (arty vary modify or rescind any such order in such manner as the court may deem &ust. T(% #I12RC% ACT, *;/5 )ection 4<. Power to order permanent alimony K Chere a decree of dissolution of the marria-e of a decree of &udicial se(aration is o*tained *y the wife, the District Court may order that the hus*and shall, to the satisfaction of the Court, secure to the wife such -ross sum of money, or such annual sum of money for any term not e/ceedin- her own life, as havin- re-ard to her fortune if any!, to the a*ility of the hus*and, and to the conduct of the (arties, it thin#s reasona*le2 and for that (ur(ose may cause a (ro(er instrument to *e e/ecuted *y all necessary (arties. Power to order monthly or weekly payments.6 +n every such case the Court may ma#e an order on the hus*and for (ayment to the wife of such monthly or wee#ly sums for her maintenance and su((ort as the Court may thin# reasona*le2 8rovided that if the hus*and afterwards from any *ecomes una*le to ma#e such (ayments, it shall *e lawful for the Court to dischar-e or modify the order, or tem(orarily to sus(end the same as to the whole or any (art of the money so ordered to *e (aid and a-ain to revive the same order wholly on in (art, as to the Court seems fit. )ection 4;. Court may direct payment of alimony to wife or to her trustee .' +n all cases in which the Court ma#es any decree or order for alimony, it may direct the same to *e (aid either to the wife herself or to any trustee on her *ehalf to *e a((roved *y the Court, and may im(ose any terms or restrictions which to the Court seem e/(edient, and may from time a((oint a new trustee, if it a((ears to the Court e/(edient so to do. T(% PAR)I $ARRIA'% A"# #I12RC% ACT , *54/ )ection +=. Permanent alimony and maintenance.6 ,! Any Court e/ercisin&urisdiction under this Act may, at the time (assin- decree or at anytime su*se)uent thereto, on an a((lication made to it for the (ur(ose *y either the wife or the hus*and, order that the defendant shall (ay to the (laintiff for her or his maintenance and su((ort, such -ross sum or monthly or (eriodical sum, for term not e/ceedin- the life of the (laintiff as havin- re-ard to the defendantJs own income and other (ro(erty, if any the income and other case, it may seem to the Court to *e &ust , and any such (ayment may *e secured, if necessary, *y a char-e on the mova*le or immova*le (ro(erty of the defendant. 0!The Court if it is satisfied that there is chan-e in the circumstance of either (arty at any time it has made an order under su*'section ,!, it may, at the instance if either (arty, vary, modify, or rescind any such order in such manner as the Court may deem &ust. 3! The Court if it is satisfied that the (arty in whose favour an order has *een made under this section remarried or, if such (arty is the wife, that she has not remained chaste or, if such (arty is the hus*and, that he had se/ual intercourse with any woman outside wedloc#, it may, at the instance of the other (arty, modify or rescind any such order in such manner as the Court may deem &ust. )ection +*. Payment of alimony to wife or to her trustee.6 +n all cases in which the Court shall ma#e any decree or order for alimony it may direct the same to *e (aid either to the wife herself, or to any trustee on her *ehalf to *e a((roved *y the

Court or to a -uardian a((ointed *y the Court may seem e/(onent and may from time to time a((oint a new trustee or -uardian the Court e/(edient so to do. T(% )P%CIA& $ARRIA'% ACT, *5-+ )ection 4<. Permanent alimony and maintenance :6 ,! Any court e/ercisin&urisdiction under Cha(ter " or Cha(ter "+ may, at the time (assin- any decree or at any time su*se)uent to the decree, on a((lication made to it for the (ur(ose, order that the hus*and shall secure to the wife for her maintenance and su((ort, if necessary, *y a char-e on the hus*and (ro(erty such -ross sum or such monthly or (eriodical (ayment or money for a term not e/ceedin- her life as, havin- re-ard to her own (ro(erty, if any, her hus*andJs (ro(erty and a*ility the conduct of the (arties and other circumstances of the case, it may seem to the court to *e &ust. 0! +f the district is satisfied that there is a chan-e in the circumstances of either (arty at any time after it has made an order under su*'section ,!, it may, at the instance of either (arty, vary, modify or rescind any such order in such manner as it may seem to the court to *e &ust.

3!+f the district court s satisfied that the wife in whose favour an order has *een made under this section has re'married or is not leadin- a chaste life, it may, t the instance of the hus*and vary, modify or rescind any such order and in such manner as the court may deem &ust.

DAUGHTER2IN2LAW3S RIGHT TO MAINTENANCE

T(% (I"#! A#2PTI2") > $AI"T%"A"C% ACT, *5-/ )ection *5. $aintenance of widowed daughter6in6law:6 ,.A >indu wife, whether married *efore or after the commencement of this Act, shall *e entitled to *e maintained after the death of her hus*and *y her father'in'law@ 8rovided and to the e/tent that she is una*le to maintain herself out of her own earnin-s or other (ro(erty or, where she has no (ro(erty of her own, is una*le to o*tain maintenance' a! from she estate of her hus*and of her father or mother, or *! from her son or dau-hter, if any, or his or her estate. 0. Any o*li-ation under su*'section ,! shall not *e enforcea*le if the father'in' law has not the means to do so from any co(arcenary (ro(erty in his (ossession out of which the dau-hter'in'law has not o*tained any share and any such o*li-ation shall cease on the re'marria-e of the dau-hter'in'law.

DI ORCED WOMAN3S RIGHT TO MAINTENANCE

T(% $!)&I$ @2$%" 8PR2T%CTI2" 2 RI'(T) 2" #I12RC%9 ACT, *5;/

)ection 4.$ahr or other properties of $uslim woman to ,e given to her at the

time of divorce.6 ,.1otwithstandin- anythin- contained in any other law for the time *ein- in force, a divorced woman shall *e entitled to K a! a reasona*le and fair (rovision and maintenance to *e made and (aid to her within the iddat (eriod *e her former hus*and2 *! where she herself maintains the children *orn to her *efore or after her divorce, a reasona*le and air (rovision and maintenance to *e made and (aid *y her former hus*and for a (eriod of two years from the res(ective dates of *irth of such children2 c! an amount e)ual to the sum of mahr or dower a-reed to *e (aid to her at the time of her marria-e or at any time thereafter accordin- to Muslim law2 and

d!

all the (ro(erties -iven to her *efore or at all the time of marria-e or after the marria-e *y her relatives or friends or the hus*and or any relatives of the hus*and of his friends.

0!Chere a reasona*le and fair (rovision and maintenance or the amount of mahr or dower due hasnJt *een made or (aid or the (ro(erties referred to in clause d! of su*' section ,! have not *een delivered to a divorced woman on he divorce, she or any one duly authori.ed *y her may, on her *ehalf, ma#e an a((lication to a Ma-istrate for an order for (ayment of such (rovision and maintenance, mahr or dower or the delivery of (ro(erties, as the case may *e. 3! Chere an a((lication has *een made under su*'section 0! *y a divorced woman, the Ma-istrate may, if he is satisfied that@ a! her hus*and havin- sufficient means has failed or ne-lected to ma#e or (ay her within the iddat (eriod a reasona*le and the (rovision and maintenance for her and the children2 or *! the amount e)ual to the sum of mahr or dower has not *een (aid or that the (ro(erties referred to in clause d! of su*'section ,! have not *een delivered to her. Ma#e an order, within one month of the date of the filin- of the a((lication, directin- her former hus*and to (ay such reasona*le and fair (rovision and maintenance to the divorced woman as he may determine as fit and (ro(er havinre-ard to the needs of the divorced woman, the standard of life en&oyed *e her durin- her marria-e and the means of her former hus*and or, as the case may *e for the (ayment of such mahr or dower of the delivery of such (ro(erties referred to in clause d! of su*'section ,! to the divorced woman@ 5! +f any (erson a-ainst whom an orders has *een made under su*'section 3! fails without sufficient cause to com(ly with the order, the Ma-istrate may issue a warrant for levyin- the amount of maintenance or mahr or dower due in the manner (rovided for levyin- fines under the Code of Criminal 8rocedure, ,6B3 0 of ,6B5! and may sentence such (erson, for the whole or (art of any amount remainin- un(aid after the e/ecution of the warrant, to im(risonment for a term which may e/tend to one year or until (ayment if sooner made, su*&ect to such (erson *ein- heard in defence and the said sentence *ein- im(osed accordin- to the (rovisions of the said Code. )ection +.2rder for payment of maintenance. ' ,.1otwithstandin- anythincontained in the fore-oin- (rovisions of this Act or in any other law for the time *ein- in force, where the Ma-istrate is satisfied that a divorced woman has not re' married and is not a*le to maintain herself after the iddat (eriod, he may ma#e an order directin- such or her relatives as would *een titled to inherit her (ro(erty on her death accordin- to Muslim law to (ay such reasona*le and fair maintenance to her as he may determine fit and (ro(er, havin- re-ard to the needs of the divorced woman, the standard of life en&oyed *y her durin- her marria-e and the means of such relatives and such maintenance shall *e (aya*le *y such relatives in the (ro(ortions in which they would inherit her (ro(erty and at such (eriods as he may s(ecify in his order. 8rovided that where such divorced woman has children, the Ma-istrate shall order only such children to (ay maintenance to her, and in the event of any such children *ein- una*le to (ay such maintenance, the ma-istrate shall order the (arents of such divorced woman to (ay maintenance to her2 8rovided further that if any of the (arents is una*le to (ay his or her share of the maintenance ordered *y the Ma-istrate on the -round of his or her not havin- the means to (ay the same, the Ma-istrate may, on (roof of such ina*ility *ein-

furnished to him, order that the share of such relatives in the maintenance ordered *y him *e (aid *y such of the other relatives as may a((ear to the ma-istrate to have the means of (ayin- the same in such (ro(ortions as the ma-istrate may thin# fit to order. 0! Chere divorced woman is una*le to maintain herself and she has no relative as mentioned in su*'section ,! or such relatives or any one of them have not enou-h means to (ay the maintenance ordered *y the Ma-istrate or the other relatives have not the means to (ay the shares of those relatives whose shares have *een ordered *y the Ma-istrate to *e (aid *y such other relatives under the second (roviso to su* Ksection ,!, the Ma-istrate may, *y order direct the %tate Ca#f Board esta*lished under section 6 of the Ca#f Act, ,6:5 06 of ,6:5!, or under any other law for the time *ein- in force in a %tate, functionin- in the area in which the woman resides to (ay such maintenance as determined *y his under su*'section ,! or, as the case may *e, to (ay the shares of such of the relatives who are una*le to (ay, at such (eriods as he may s(ecify in his order. )ection -. 2ption to ,e governed ,y the provisions of section *0- to *0; of Act 0 of *5<+.' +f on the date of the first hearin- of the a((lication under su*'section 0! of section 3, a divorced woman and her former hus*and declare, *y affidavit or any other declaration in writin- in such form as may *e (rescri*ed either &ointly or se(arately, that they would (refer to *e -overned *y the (rovisions of sections,0: to ,0M of the Code of Criminal 8rocedure, ,6B3 0 of ,6B5!2 and file such affidavit or declaration in the court hearin- the a((lication, the Ma-istrate shall dis(ose of such a((lication accordin-ly. E4p1a'at,*'52 For the (ur(ose of this section, ;date of the first hearin- of the a((lication< means the date fi/ed in the summons for the attendance of the res(ondent to the a((lication.

PENDENTE LITE6 PENDING LITIGATION

T(% (I"#! $ARRIA'% ACT, *5-)ection 0+. $aintenance pendente lite and e.penses of proceedings:6 Chere in any (roceedin- under this Act it a((ears to the court that either the wife or the hus*and as the case may *e, has no inde(endent income sufficient for her or his su((ort and the necessary e/(enses of the (roceedin-, it may on the a((lication of the wife or the hus*and, order the res(ondent to (ay to the (etitioner the e/(enses of the (roceedin- and monthly durin- the (roceedin- such sum as, havin- re-ard to the (etitionerJs own income and the income of the res(ondent it may seem to the court to *e reasona*le. 8rovided that the a((lication for the (ayment of the e/(enses of the (roceedin- and such monthly sum durin- the (roceedin-, shall, as far as (ossi*le *e dis(osed of within si/ty days from the date of service of notice on the wife or the hus*and, as the case may *e.

T(% #I12RC% ACT, *;/5 )ection 4/. Alimony pendente lite.6 +n any suit under this Act, whether it *e instituted *y a hus*and or a wife, and whether or not she has o*tained an order or (rotection the wife may (resent a (etition for e/(enses of the (roceedin-s and alimony (endin- the suit.

%uch (etition shall *e served on the hus*and and the Court, on *ein- satisfied of the truth of the statements therein contained, may ma#e such order on the hus*and for (ayment to the wife of the e/(enses of the (roceedin-s and alimony (endin- the suit as it may deem &ust@ 8rovided further that the (etition for the e/(enses of the (roceedin-s and alimony (endin- the suit, shall as far as (ossi*le, *e dis(osed of within si/ty days of service of such (etition on the hus*and. T(% PAR)I $ARRIA'% A"# #I12RC% ACT , *54/ )ection 45. Alimony pendente lite.6 Chere in any suit under this Act, it a((ears to the Court that either the wife or the hus*and, as the case may *e, has no inde(endent income sufficient for her or his su((ort and the necessary e/(enses of the suit, it may, on the a((lication of the wife of the hus*and, order the defendant to (ay to the (laintiff, the e/(enses of the suit and such wee#ly or monthly sum, durinsuit, as havin- re-ard to the (laintiffJs own income and the income of the defendant, it may seem to the Court to *e reasona*le. 8rovided that the a((lication for the (ayment of the e/(enses of the suit and such wee#ly or monthly sum durin- the suit shall as far as (ossi*le, *e dis(osed or within si/ty days from the date or service of notice on the wife or the hus*and as the case may *e. T(% )P%CIA& $ARRIA'% ACT, *5-+ )ection 4/. Alimony pendente lite:6 Chere in any (roceedin- under Cha(ter " or Cha(ter "+ it a((ears to the district court that the wife has no inde(endent income sufficient for her su((ort and the necessary e/(enses of the (roceedin-, it may, on the a((lication of the wife, order the hus*and to (ay to her the e/(enses of the (roceedin-, and wee#ly or monthly durin- the (roceedin- such sum as havinre-ard to the hus*andJs income, it may seem to the court to *e reasona*le.

8rovided that the a((lication for the (ayment of the e/(enses of the (roceedin- and such wee#ly or monthly sum durin- the (roceedin- under Cha(ter " or Cha(ter "+, shall, as far as (ossi*le, *e dis(osed of within si/ty days from the date of service of notice on the hus*and.

SECTION 1!% CODE OF CRIMINAL PROCEDURE

C(APT%R IA: 2R#%R PAR%"T) 2R $AI"T%"A"C% 2 @I1%), C(I&#R%" A"#

)ection *0-. 2rder for maintenance of wives, children and parents.B ,! +f any (erson havin- sufficient means ne-lects or refuses to maintain.N a! his wife, una*le to maintain herself, or *! his le-itimate or ille-itimate minor child, whether married or not, una*le to maintain itself, or c! his le-itimate or ille-itimate child not *ein- a married dau-hter! who has attained ma&ority, where such child is, *y reason of any (hysical or mental a*normality or in&ury una*le to maintain itself, or d! his father or mother, una*le to maintain himself or herself, a Ma-istrate of the first class may, u(on (roof of such ne-lect or refusal, order such (erson to ma#e a monthly allowance for the maintenance of his wife or such

child, father or mother, at such monthly rate as such ma-istrate thin#s fit, and to (ay the same to such (erson as the Ma-istrate may from time to time direct@ Provided that the Ma-istrate may order the father of a minor female child referred to in clause *! to ma#e such allowance, until she attains her ma&ority, if the Ma-istrate is satisfied that the hus*and of such minor female child, if married, is not (ossessed of sufficient means. Provided further that the Ma-istrate may, durin- the (endency of the (roceedinre-ardin- monthly allowance for the maintenance under this su*'section, order such (erson to ma#e a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the e/(enses of such (roceedin- which the Ma-istrate considers reasona*le, and to (ay the same to such (erson as the Ma-istrate may from time to time direct@ Provided also that an a((lication for the monthly allowance for the interim maintenance and e/(enses of (roceedin- under the second (roviso shall, as far as (ossi*le, *e dis(osed of within si/ty days from the date of the service of notice of the a((lication to such (erson2 %.planation.QFor the (ur(oses of this Cha(ter.N a! ;minor< means a (erson who, under the (rovisions of the +ndian Ma&ority Act, ,MB: 6 of ,MB:! is deemed not to have attained his ma&ority2 *! ;wife< includes a woman who has *een divorced *y, or has o*tained a divorce from, her hus*and and has not remarried.

0! Any such allowance for the maintenance or interim maintenance and e/(enses of (roceedin- shall *e (aya*le from the date of the order, or, if so ordered, from the date of the a((lication for maintenance or interim maintenance and e/(enses of (roceedin-, as the case may *e.
3! +f any (erson so ordered fails without sufficient cause to com(ly with the order, any such Ma-istrate may, for every *reach of the order, issue a warrant for levyinthe amount due in the manner (rovided for levyin- fines, and may sentence such (erson, for the whole, or any (ort of each monthJs allowance allowance for the maintenance or the interim maintenance and e/(enses of (roceedin- , as the case may *e remainin- un(aid after the e/ecution of the warrant, to im(risonment for a term which may e/tend to one month or until (ayment if sooner made@ Provided that no warrant shall *e issued for the recovery of any amount due under this section unless a((lication *e made to the Court to levy such amount within a (eriod of one year from the date on which it *ecame due@ Provided further that if such (erson offers to maintain his wife on condition of her livin- with him, and she refuses to live with him, such Ma-istrate may consider any -rounds of refusal stated *y her, and may ma#e an order under this section notwithstandin- such offer, if he is satisfied that there is &ust -round for so doin-. %.planation.N+f a hus*and has contracted marria-e with another woman or #ee(s a mistress, it shall *e considered to *e &ust -round for his wifeJs refusal to live with him. 5! 1o wife shall *e entitled to receive an allowance for the maintenance or the interim maintenance and e/(enses of (roceedin- , as the case may *e from her hus*and under this section if she is livin- in adultery, or if, without any sufficient reason, she refuses to live with her, hus*and, or if they are livin- se(arately *y mutual consent. :! On (roof that any wife in whose favour an order has *een made under this section is livin- in adultery, or that without sufficient reason she refuses to live with her hus*and, or that they are livin- se(arately *y mutual consent, the Ma-istrate shall cancel the order.
LIST OF CASES ACCESS TO MATRIMONIAL HOME MT1. Anu Seth & Others vs. .ohit )arain Seth & Others

APPEAL AGAINST INTERLOCUTOR! ORDER MT2. .avi Saran Prasa B 9ishore vs. S&t. .ash&i Sin*h ARM! OFFICERS LIABILIT! MT3. Ca+t. Sunee, vs.'nion of /n ia & Others CONTEMPT OF COURT MT(. Shahe a Sar1ar 9han vs. Sar1ar Ah&e .auf 9han DATE FROM WHICH MAINTENANCE IS EFFECTIVE MT0. Pra ee+ 9u&ar Pra han vs. Da,i&ba Sahu DAUGHTER#IN#LAW$S RIGHT TO MAINTENANCE MT4. <a,bir 9aur & Another vs.!arin er 9aur & Others MT7. Master Da,$it Sin*h & Others vs. S. Dara Sin*h & Others DIVORCED WIFE$% RIGHT TO MAINTENANCE MT:. Pan itrao Chi&a$i 9a,ure vs. Gayaba, MT1;. Tri+ura <oar of Gakf & Another= vs. S&ti Tahera 9hatoon MT11. 9ari& Ab u, .eha&an Shaikh= vs. ShehnaA 9ari& Shaikh & Others EDUCATIONAL EXPENSES MT12. %t Co,. .avee Sahara1at vs. S&t. '$$1a, Sahara1at EVIDENCE OF HUSBAND$S INCOME MT13. A,ka vs. #ar h&an B Pushkara$ B )aren er HUSBAND DEN!ING MARRIAGE MT1". <asanti Mohanty a,ias .aut vs. Parikhit .out INTERIM MAINTENANCE MT1(. S&t. <ubu, Sa&antaray & Others. vs. Dhiren ra 9u&ar MT10. Shivani Chatto+a haya vs. Si arth Chatto+a haya. MT14. S&t. Prafu,,aben Dhirubhai 9an$iya vs. Dhirubhai 9a2harbhai 9an$iya MT17. 9a,aben 9a,abhai Desai vs. A,abhai 9ara&shibhai Desai MT1:. Merubhai Man anbhai O e ara vs. .aniben Merubhai O e ara MT2;. Pre& 9u&ar vs. O& Prakash LIMITATION MT21. ShahnaA <ano a,ias ShahnaA 9han vs. Perves Ah&e 9han LUMP SUM MAINTENANCE MT22. S&t. Parti&a <is1a, vs. A&u,ay 9u&ar MONTHL! MAINTENANCE TILL PERMANENT ALIMON! PAID MT23. /ra Das a,ias / a Das vs. .a&esh .an$an Ma,,i2k NO DISTINCTION BETWEEN A WIFE AND DIVORCED WIFE MT2". S&t. San*hsa&itra Sin*h vs. 9a,ish Chan ra Sin*h ORDER OF MAINTENANCE UNAFFECTED B! DECREE OF DISSOLUTION OF MARRIAGE MT2(. G.#.). 9a&esh1ara .ao vs. G. Jabi,,i PENDENTE LITE/ PENDING LITIGATION MT20. Sa&bit Pari$a. vs. S&t. Surita Pari$a MT24. A&ar$it 9aur vs. !arbha$an Sin*h & Another MT27. #. 'sha .ani vs. 9.%.). .ao MT2:. #a,,abhaneni 3e ukon a,u B 9arunakara ra vs. #a,,abhaneni )a*es1ara&&a B 9aruna 9u&ar PETITION FOR MAINTENANCE FILED SUBSE&UENTL! MT3;. .enu Dhin*ra vs. #i$ay Dhin*ra PUNISHMENT FOR NON#PA!MENT MT31. An*re$ Sin*h B Ar$an Sin*h vs. State of Pun$ab & Others POWERS UNDER SECTION '() Cr P C MT32. #e&u,a+a,,i .a$aniku&ari vs. #e&u,a+a,,i Sarath <abu & Another &UANTUM MT33. S&t. Menu Cho+ra vs. Dee+ak Cho+ra MT3". <ansi har Mohanth vs. S&t. Jyoshnarani MT3(. %aksh&i Sharan vs. Anura* Sharan

RIGHT OF ENFORCEMENT AGAINST TRANSFEREE OF PROPERT! MT30. 9an*a, & Others vs. S&t. At1ariya Devi RIGHT OF RESIDENCE INHERITABLE OR NOT MT34. Shee,a .ani ? e2ease by %.s@ vs.Ja* ish Chan er Shar&a RE&UIREMENT OF FOREIGN MATRIMONIAL "UDGEMENT MT37. S&t. Anubha vs. #ikas A**ra1a, & Others SECOND WIFE ENTITLED TO MAINTENANCE OR NOT MT3:. )arin er Pa, 9aur Cha1,a vs. Man$eet Sin*h Cha1,a MT";. Suresh 9hu,,ar vs. #i$ay SECTION *)+ CODE OF CRIMINAL PROCEDURE, *-.3 MT"1. Danie, %atifi & Another vs. 'nion of /n ia MT"2. Aher Mensi .a&si vs. Aherani <ai Mini Jetha MT"3. Patna& #ahe u,,ah 9han vs. P. Ashia 9hatoon & Another MT"". 9u&aresh <ra&bha vs. <ani Das & Others MT"(. #eena Devi vs. Ashok 9u&ar Man a, WIFE EARNING MT"0. Ti,ak 9u&ari & Another vs. Sh. Anan VALIDIT! OF MARRIAGE DISPUTED MT"4. Susi,a&a vs. Chan ra++a

Chapter + DOWR!
!owry is a social evil, and the greed for it is growing day by day. The newspapers are replete with news items of young brides being tortured and brutally #illed by burning them as a result of unsatisfied dowry demands. Civil society is outraged by the brutality of dowry to which women are sub"ected in their homes. Inspite of stringent measures, sections of society are still boldly pursuing this chronic evil to fulfil their greedy desires. The !owry %rohibition 'ct, <=@< was enacted with the aim to chec# the growing menace of the social evil of dowry and ma#e punishable not only the actual receiving of dowry but also the very demand of dowry made before, or at the time, or after the marriage where such demand is referable to the consideration of marriage. The Statements and 7b"ects and -easons for enactment of the legislation are telling of the social circumstances in which the said 'ct was enacted. ;The o*&ect of this Bill is to (rohi*it the evil (ractice of -ivin- and ta#in- of dowry. This )uestion has *een en-a-in- the attention of the 9overnment for some time (ast, and one of the methods *y which this (ro*lem, which is essentially a social one, was sou-ht to *e tac#led *y the conferment of im(roved (ro(erty ri-hts on women *y the >indu %uccession Act, ,6:A. +t is, however, felt that a law which ma#es the (ractice (unisha*le and at the same time ensures that any dowry, if -iven, does ensure for the *enefit of the wife will -o a lon- way to educatin- (u*lic o(inion and to the eradication of this evil. There has also *een a (ersistent demand for such a law *oth in and outside 8arliament. >ence, the (resent Bill.< The 'ct was further amended vide 'ct 6o. >B of <=?@. The Hegislature in its wisdom while providing for the definition of :dowry; has emphasi ed that any money, property or valuable security given as consideration for marriage :before, at or any time after; the marriage would be covered by the e&pression : dowry :, and this definition as contained in Section C of the 'ct has to be read whenever the e&pression : dowry : occurs in the 'ct. 2nder Section B of the 'ct, if a person gives or ta#es or abets the giving or ta#ing dowry shall be punished. 2nder Section > of the 'ct mere demand of dowry is sufficient to bring home the offence to an accused. Thus, any demand of money, property or valuable security, made from the bride or her parents or other relatives, or the bridegroom or his parents or other relatives, or vice versa, would fall within the mischief of : dowry : under the 'ct, where such demand is not properly referable to legally recogni ed claim and relatable only to the consideration of the marriage.; 7ther salient features of the amended 'ct are 8 0a1 The minimum punishment for ta#ing or abetting the ta#ing of dowry under Section B of the 'ct has been raised to five years and a fine of rupees fifteen thousand. The burden of proving that there was no demand or dowry will be on the person who ta#es or abets the ta#ing of dowry. The statement made by the person aggrieved by the offence shall not sub"ect him to prosecution under the 'ct.

0b1 0c1

0d1

'ny advertisement in any newspaper, periodical, "ournal or any other media by any person offering any share in his property or any money in consideration of the marriage of his son or daughter is proposed to be banned and the person giving such advertisement and the printer or publisher of such advertisement will be liable for punishment with imprisonment of si& months to five years or with fine up to fifteen thousand rupees. 7ffences under the 'ct are made non-bailable. %rovision has also been made for appointment of !owry %rohibition 7fficers by the State $overnment for the effective implementation of the 'ct. The !owry %rohibition 7fficers will be assisted by the 'dvisory Joards consisting of not more than five social welfare wor#ers 0out of whom at least two shall be women1.

0e1 0f1

Consequently the Hegislature introduced an amendment in <=?B in the Indian %enal Code by introducing a new Section >=?' relating to cruelty to married woman. Jy an amendment in <=?@ the offence of Mdowry death) was also inserted as Section B,>J. The law of evidence was also amended by inserting Section <<B relating to presumption of abetment of suicide. It is a well-#nown rule of interpretation of statutes, that the te&t and the conte&t of the entire 'ct must be loo#ed into while interpreting any of the e&pressions used in a Statute. The Courts have always loo#ed to the ob"ect which the statute see#s to achieve while interpreting any of the provisions of the 'ct. In %tate of >.8. 0<==+ Cri H3 ><?>1 0SC1 the Supreme Court has held that the aforesaid definition 0definition of : dowry :1 ma#es it clear that the property or the valuable security need not be as a consideration for marriage, as was required to be under the unamended definition. This apart, the addition of the words :any time; before the e&pression :after the marriage; would clearly show that even if the demand is long after the marriage, the same could constitute dowry, if other requirements of the section are satisfied. In 8awan Dumar v. %tate of >aryana 0<==?1 B SCC B,= 8 0<==? Cri H3 <<>>1 the Supreme Court has held that it is significant that Section > of the <=@< 'ct, was also amended by means of 'ct @B of <=?>, under which it is an offence to demand dowry directly or indirectly from the parents or other relatives or guardian of a bride. The word :agreement; referred to in Section C has to be inferred on the facts and circumstances of each case. The interpretation that the appellant see#s, that conviction can only be if there is agreement for dowry, is misconceived. This would be contrary to the mandate and ob"ect of the 'ct. :!owry : definition is to be interpreted with the other provisions of the 'ct including Section B which refers to giving or ta#ing dowry and Section > which deals with penalty for demanding dowry, under the <=@< 'ct and the Indian %enal Code. This ma#es it clear that even demand of dowry on other ingredients being satisfied is punishable. In 8rem %in-h 0supra1, the Supreme Court re"ected the argument that any additional demand of dowry would not be covered by the definition of :dowry; under Section C. The definition of : dowry :, the ob"ect of the 'ct and the above decisions of the Supreme Court clearly show that any property or valuable security given or agreed to be given comes within the purview of : dowry : on three occasions in which any property or valuable security comes within its purview. They are - 0i1 before the marriage, 0ii1 at the time of marriage, and 0iii1 :at any time; after the marriage. The

third occasion may appear to be an unending period, but the crucial words are :in connection with the marriage of the parties;. This means, giving or agreeing to give any property or valuable security on any of the above three stages should have been in connection with the marriage of the parties. 2nless there is a strong awareness in the minds of the people, unless the entire society believes that dowry is an evil, unless the entire society ob"ects to the demand for dowry, and refuses to give dowry, the evils of dowry will remain in society. 2nfortunately, despite amendments in the law to ma#e the offence of dowry or cruelty against women stringent domestic violence is still a common occurrence in society. To ma#e the law effective and fruitful, people should be aware of the law. It is in this light that this directory assumes significance. The purpose of compiling this directory is to ma#e both women and men aware about a women)s right against dowry demands and to live a life free from fear and violence.
#2@R3 PR2(ICITI2" ACT, *5/* )ection0. #efinition of Ddowry6 +n this Act, ;dowry< means any (ro(erty or valua*le security -iven or a-reed to *e -iven either directly or indirectly' a. *y one (arty to a marria-e to the other (arty to the marria-e2 or *. *y the (arents of either (arty to a marria-e or *y any other (erson, to either (arty to the marria-e or to any other (erson, at or *efore or any time after the marria-e! in connection with the marria-e of the said (arties, *ut does not include dower or ImahrJ in the case of (ersons to whom the Muslim 8ersonal Haw %hariat! a((lies.< L/(lanation ++@ The e/(ression ;valua*le security< has the same meanin- as %ection 3? of the +ndian 8enal Code 5: of ,MA?!. )ection 4. Penalty for giving or taking dowry. ' +f any (erson, after the commencement of this Act, -ives or ta#es or a*ets the -ivin- or ta#in- of dowry, he shall *e (unisha*le with im(risonment for a term which shall not *e less than five years, and with fine which shall not *e less than fifteen thousand ru(ees or the amount of the value of such dowry, whichever is more@ 8rovided that the Court may, for ade)uate and s(ecial reasons to *e recorded in the &ud-ment, im(ose a sentence of im(risonment for a term of less than five years. 0! 1othin- in su*'section ,! shall a((ly to or, in relation to,' a! (resents which are -iven at the time of a marria-e to the *ride without any demand havin- *een made in that *ehalf!@ 8rovided that such (resents are entered in a list maintained in accordance with rule made under this Act2 *! (resents which are -iven at the time of marria-e to the *ride-room without any demand havin- *een made in that *ehalf!@ 8rovided that such (resents are entered in a list maintained in accordance with the rules made under this Act2 8rovided further that where such (resents are made *y or on *ehalf of the *ride or any (erson related to the *ride, such (resents are of a customary nature and the value thereof is not e/cessive havin- re-ard to the financial status of the (erson *y whom, or on whose *ehalf, such (resents are -iven. )ection +. Penalty for demanding dowry. '+f any (erson demands directly or indirectly, from the (arents or other relatives or -uardian of a *ride or *ride-room, as the case may *e, any dowry, he shall *e (unisha*le with im(risonment for a term which shall not *e less than si/ months *ut which may e/tend to two years and with fine which may e/tend to ten thousand ru(ees@

8rovided that the Court may, for ade)uate and s(ecial reasons to *e mentioned in the &ud-ment, im(ose a sentence of im(risonment for a term of less than si/ months. )ection +6A. Can on advertisement '+f any (erson,' a! offers, throu-h any advertisement in any news(a(er, (eriodical, &ournal or throu-h any other media, any share in his (ro(erty or if any money or *oth as a share in any *usiness or other interest as consideration for the marria-e of his son or dau-hter or any other relative. *! (rints or (u*lishes or circulates any advertisement referred to in clause a!, he shall *e (unisha*le with im(risonment for a term which shall not *e less than si/ months, *ut which may e/tend to five years, or with fine which may e/tend to fifteen thousand ru(ees@ 8rovided that the Court may, for ade)uate and s(ecial reasons to *e recorded in the &ud-ment, im(ose a sentence of im(risonment for a term of less than si/ months. )ection -. Agreement for giving or taking dowry to ,e void. 6 Any a-reement for the -ivin- or ta#in- of dowry shall *e void. )ection /. #owry to ,e for the ,enefit of the wife or her heirs.6 ,! Chere any dowry is received *y any (erson other than the woman in connection with whose marria-e it is -iven, that (erson shall transfer it to the woman' a! if the dowry was received *efore marria-e, within three months after the date of marria-e2 or *! if the dowry was received at the time of or after the marria-e within three months after the date of its recei(t2 or c! if the dowry was received when the woman was a minor, within three months after she has attained the a-e of ei-hteen years2 and (endin- such transfer, shall hold it in trust for the *enefit of the woman. 0! +f any (erson fails to transfer any (ro(erty as re)uired *y su*'section ,! within the time limit s(ecified therefore or as re)uired *y su*'section 3!, he shall *e (unisha*le with im(risonment for a term which shall not *e less than si/ months, *ut which may e/tend to two years or with fine which shall not *e less than five thousand ru(ees, *ut which may e/tend to ten thousand ru(ees or with *oth. I"#IA" P%"A& C2#% 8ACT "2.+- 2 *;/=9 )ection 4=+C. #owry #eath6 ,! Chere the death of a woman is caused *y any *urns or *odily in&ury or occurs otherwise than under normal circumstances within seven years of her marria-e and it is shown that soon *efore her death she was su*&ected to cruelty or harassment *y her hus*and or any relative of her hus*and for, or in connection with any demand for dowry, such death shall *e called ;dowry death< and such hus*and or relative shall *e deemed to have caused her death. L/(lanation ' For the (ur(ose of this su*'section IdowryJ shall have same meaninas in %ection 0 of the Dowry 8rohi*ition Act, ,6A, 0M of ,6A,!. 0! Choever commits dowry death shall *e (unished with im(risonment for a term which shall not *e less than seven years *ut which may e/tend to im(risonment for life. )ection 4=/. A,etment of suicide6 +f any (erson commits suicide, whoever a*ets the commission of such suicide, shall *e (unished with im(risonment of either descri(tion for a term which may e/tend to ten years, and shall also *e lia*le to fine. )ection +5; A. (us,and or relative of hus,and of a woman su,7ecting her to cruelty ' Choever, *ein- the hus*and or the relative of the hus*and of a woman

su*&ects such woman to cruelty, shall *e (unished with im(risonment for a term which may e/tend to three years and shall also *e lia*le to fine. L/(lanation' For the (ur(ose of this section, IcrueltyJ means' a! any willful conduct which is of such a nature as is li#ely to drive the woman to commit suicide or to cause -rave in&ury or dan-er to life, lim* or health whether mental or (hysical! of the woman2 or *! harassment of the woman where such harassment is with a view to coercin- her or any (erson related to her to meet any unlawful demand for any (ro(erty or valua*le security, or is on account of failure *y her or any (erson related to her to meet such demand. )%CTI2" **4 C %1I#%"C% ACT, *;<0 )ection **4C. Presumption as to dowry death6 Chen the )uestion is whether a (erson has committed the dowry death of a woman and it is shown that soon *efore her death such woman has *een su*&ected *y such (erson to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall (resume that such (erson had caused the dowry death. L/(lanation' For the (ur(oses of this section I dowry deathJ shall have the same meanin- as in %ection 3?5'B of the +ndian 8enal Code 5: of ,MA?!.
LIST OF CASES
ABETMENT OF SUICIDE D1. 9. Pre&a S. .ao & Another vs. 3a ,a Srinivasa .ao & Others D2. Asha Shuk,a vs. State of '. P. & Another ANTICIPATOR! BAIL D3. <harat Chau hary & Another vs. State of <ihar & Another APPEAL AGAINST AC&UITAL D". State of 9arnataka vs. 9. Go+a,akrishna APPRECIATION OF EVIDENCE D(. State of 9arnataka vs. M.#. Man$unathe*o1 a & Another. CRUELT! D0. 9a,iya+eru&a, & Another vs.State of Ta&i, )a u D4. State by 9a&akshi+a,ya Po,i2e= <an*a,ore vs. Mare*o1 a & Others DISAPPEARANCE OF EVIDENCE D7. Dhain Sin*h & Another vs. State of Pun$ab DELA! IN FILING FIR D:. .a& 9ishan Jain & Others vs. State of Ma hya Pra esh DOWR! DEMAND D1;. The State of An hra Pra esh vs. .a$ Go+a, Asa1a & Another D11. The Pub,i2 Prose2utor= !i*h Court of An hra Pra esh vs.)ese Ji,ara Sreera&u,u DOWR! DEATH D12. 3asho a & Another vs. State of Ma hya Pra esh D13. Dhain Sin*h & Another vs. State of Pun$ab D1". Satvir Sin*h & Others vs. State of Pun$ab & Another D1(. 9a,u .a& vs. State of .a$asthan D!ING DECLARATION D10. Muthu 9uty & Another vs. State by /ns+e2tor of Po,i2e= Ta&i, )a u D14. Moh . Moein vs. State of De,hi D17. )a,,a& #eera Stay anan a& & Others vs. The Pub,i2 +rose2utor= !i*h Court of A.P D1:. S&t.%a8&i vs. O& Prakash & Others D2;. Arvin Sin*h vs. State of <ihar EVIDENCE D21. 9ans .a$ vs. State of Pun$ab & Others &UASHING OF FIR

D22.

<. S. Joshi & Others vs. State Of !aryana & Another

MEDICAL WITNESS D23. Dhan a+ani vs. State by The /ns+e2tor of Po,i2e OMISSION OR DEFECT IN FRAMING CHARGE D2". 9. Pre&a S. .ao & Another vs. 3a ,a Srinivasa .ao & Others PUNISHMENT D2(. 9. Pre&a S. .ao & Another vs. 3a ,a Srinivasa .ao & Others SOON BEFORE D20. 9a&esh Pan$iyar & 9a&,esh Pan$iyar vs. State of <ihar D24. The State of An hra Pra esh vs. .a$ Go+a, Asa1a & Another SUICIDE NOTE D27. State by 9a&akshi+a,ya Po,i2e= <an*a,ore vs. Mare*o1 a an Others VALIDIT! OF MARRIAGE IN CHALLENGE D2:. .ee&a A**ar1a, vs. Anu+a& & Others

Chapter 7. PROPERTY
The male control over property or wealth in society has necessarily tended to concentrate power in the hands of men as decision ma#ers. The inverse and inescapable consequence of economic dependance of women is that women have been socially vulnerable and unable to resist any e&cesses by men. .mpowerment of women, leading to an equal social status in society hinges, among other things, on their right to hold and inherit property. 'c#nowledging this causal relationship the legislature brought about amendments in the /indu Succession 'ct thereby amending /indu law and vesting women or female heirs with rights in ancestral property. These developments have caused social regeneration and ushered in an atmosphere of greater equality and respect for women. In fact women owning property are less li#ely to encounter physical violence. *hen a married woman owns property it reduces violence against her significantly. .ven some access to an asset, land or house, dramatically reduces the ris# of violence. /ence, many state governments provide for a lower registeration charges when the property is registered in the name of a woman. Ket, gender bias e&ists in many state laws and equal status for women remains illusive. In the !elhi Hand -eforms 'ct, modelled after a similar law in 2ttar %radesh and %un"ab, a woman)s chance to inherit a piece of agricultural land after the death of her husband is difficult and if she is unmarried the tas# is ne&t to impossible. This is because her claim can only stand if no one in a long list of claimants sta#es a claim. %roperty can be divided into two principal categories, one is ancestral property which has devolved upon an individual after the death of an ancestor, and the other is self acquired property which is the self earned property of an individual. Hi#e right to maintenance, custody and spousal rights, the right to property is also a function of the personal law that a woman is governed by. A H,'-. /*0a'3) r,8ht t* pr*pert9 ,) 8*:er'e- ;9 the H,'-. S.((e)),*' A(t# 1$%7. %rior to the enactment of the /indu Succession 'ct, <=+@ a female /indu only had a right to maintenance from ancestral property and a widow had a limited estate which she was disentitled to part with. The amendment in the act has gone a long way to ma#e the law far more egalitarian.

6ow, as an heir a daughter is identically placed to a son as far as inheritance of ancestral property is concerned. The only disability put on a female heir under Section CB of the /indu Succession 'ct is that a female heir cannot see# partition of the dwelling house till the male members choose to have such a partition even though if the female heir is single or widowed she has a right of residence and maintenance. /owever, there is a substantial difference in the right to succession of the property of a woman. *hile a man)s property devolves upon his children, wife and mother at the first instance and upon his e&tended family at the second, the property of a woman devolves upon her children at the first instance, her husband at the second and his relatives at the third. 7nly in the event that her husband does not have any family does any right accrue to the family of the women. The only e&ception to this rule is that her family inherits property, which devolves upon a woman from her family. The /indu Succession 0'mendment 1 Jill C,,> proposes to remove the discrimination as contained in section @ of the /indu Succession 'ct, <=+@ by giving equal rights to daughters in the /indu (ita#shara coparcenary property as the sons have. It is based on the recommendations of the Haw Commission of India as contained in its <F>th -eport on :%roperty -ights of *omen8 %roposed -eform under the /indu Haw;. The amendment which will have far reaching implications is the proposal to omit Section CB so as to remove the disability on female heirs contained in that section. Section CB of the 'ct disentitles a female heir to as# for partition in respect of a dwelling house wholly occupied by a "oint family until the male heirs choose to divide their respective shares therein. Chr,)t,a' a'- Par), /*0e'3) r,8ht t* pr*pert9 ,) S.((e)),*' A(t# 1$!%. 8*:er'e- ;9 the I'-,a'

Chapter C, Sections B< to >? of the Indian Succession 'ct, <=C+ provide rules of succession for Christians. Joth Christian men and women have identical right of succession to ancestral property. If a man or a women dies intestate the property will devolve such that the spouse will get a <IBrd share and the children will get a CIB rd share. If the parties have no children then the property will be divided such that the spouse will get half a share and the #indred descendants or relatives will get half a share. /owever, if the property is not worth more than +,,, I- the whole amount will go to the widow. Christians are entitled to bequeath their estate by will. Joth men and women en"oy this right. 2nder the law applicable to children the mother of a deceased can only get a share in the property where there are no lineal descendants. Chapter B, Section +, to +@ of the Indian Succession 'ct, <=C+ provide special rules for %arsis dying intestate. 7n the death of a party the entire estate is divided equally among the widow or widower, whoever survives the deceased and the children. If the deceased is spouseless the property is divided equally among the children. If the deceased is survived by parents, each parent will get a share equal to half a share of each child. R,8ht t* pr*pert9 *+ a M.)1,0 /*0a' (uslims are governed by the (uslim %ersonal Haw Shariat 'pplication 'ct. 2nder the (uslim %ersonal Haw there is no concept of self-acquired or ancestral property. 'll property is deemed to be owned by an individual in whom it vests completely.

*omen under Islam are considered competent heirs and inherit property absolutely in there own right. There is no concept of a limited estate of a widow in Islam and the rights of women are not restricted merely to that of maintenance. The Luranic rule of li.'.a#ari misli ha..'il'unsayain 0for the male the share of two females1 applies to competing heirs of an equal degree in most cases but not to parents and uterine brothers and sisters. It has been argued that this, however, is based on the respective family responsibilities of the males and females and is not merely a gender based discrimination. The Luran stipulates the shares to which each individual is entitled, and the quantum of the share to which an heir is entitled increases or decreases depending on the number of heirs at the time of the death of the deceased. ' surviving wife invariably inherits from her deceased husband and is entitled to a <I> th share of the property if he has not left a child or son)s or grandson)s child5 and if he has she gets <I?th share. If, a person has left behind two wives they have to share this entitlement equally. *hereas a surviving husband is entitled to a <IC share of his wife)s estate if she has not left a child or son)s or grandson)schild5 and <I>th share if she has. The mother of every deceased person always inherits. She gets <IB rd if the deceased has left a child, or son)s or grandson)s child5 and <I@th otherwise. !aughters of a deceased will become Luranic heirs in the absence of any son5 in the presence of a son they will be non-Luaranic heirs placed with him in the preferential class of the agnates. Islam does not permit the right of inheritance of an individual to be ta#en away by any action of even the property holder. Therefore, though a (uslim is empowered I entitled to ma#e a wasiat 0will1 to avoid discord between heirs, Islam mandates that the testator obtain a :no ob"ection; from the other heirs upon the will of the testator. It is only with such a no ob"ection that the will shall be valid.
I"#IA" )!CC%))I2" ACT, *50)ection 44. @here intestate has left widow and lineal descendants, or widow and kindred only, or widow and no kindred.B Chere the intestate has left a widowN a! if he has also left any lineal descendants, one'thirds of his (ro(erty shall *elon- to his widow, and the remainin- two'thirds shall -o tohis lineal descendants, accordin- to the rules hereinafter contained2 *! save as (rovided *y section 33A if he has left no lineal descendant, *ut has left (ersons who are of #indred to him, one'half of his (ro(erty shall *elon- to his widow, and the other half shall -o to those who are #indred to him, in the order and accordin- to the rules hereinafter contained2 c! if he has left none who are of #indred to him, the whole of his (ro(erty shall *elon- to his widow. )pecial Rules or Parsi Intestates )ection -=. 'eneral principles relating to intestate succession.B For the (ur(ose of intestate succession amon- 8arsisN

a! there is no distinction *etween those who were actually *orn in the lifetime of a (erson deceased and those who at the date of his death were only conceived in the wom*, *ut who have *een su*se)uently *orn alive2 *! a lineal descendant of an intestate who has died in the lifetime of the intestate without leavin- a widow or widower or any lineal descendant or a widow or widower of any lineal descendant7 shall not *e ta#en into account in determinin- the manner in which the (ro(erty of which the intestate has died intestate shall *e divided2 and c! where a widow or widower of any relative of an intestate has married a-ain in the lifetime of the intestate, such widow or widower shall not *e entitled to receive any share of the (ro(erty of which the intestate has died intestate, and such widow or widower shall *e deemed not to *e e/istin- at the intestateJs death. )ection -*. #ivision of intestateEs property among widow, widower, children and parents.B ,! %u*&ect to the (rovisions of su*'section 0!, the (ro(erty of which a 8arsi dies intestate shall *e divided,N a! where such 8arsi dies leavin- a widow or widower and children, amon- the widow or widower, and children so that the widow or widower and each child receive e)ual shares2 *! where such 8arsi dies leavin- children, *ut no widow or widower, amon- the children in e)ual shares. 0! Chere a 8arsi dies leavin- one or *oth (arents in addition to children or widow or widower and children, the (ro(erty of which such 8arsi dies intestate shall *e so divided that the (arent or each of the (arents shall receive a share e)ual to half the share of each child. T(% (I"#! )!CC%))I2" ACT, *5-/ )ection *+. Property of a female (indu to ,e her a,solute property. N ,! Any (ro(erty (ossessed *y a female >indu, whether ac)uired *efore or after the commencement of this Act, shall *e held *y her as full owner thereof and not as a limited owner. L/(lanation.N+n this su*'section, ;(ro(erty< includes *oth movea*le and immovea*le (ro(erty ac)uired *y a female >indu *y inheritance or devise, or at a (artition, or in lieu of maintenance or arrears of maintenance or *y -ift from any (erson, whether a relative or not, *efore, at or after her marria-e, or *y her own s#ill or e/ertion, or *y (urchase or *y (rescri(tion, or in any other manner whatsoever, and also any such (ro(erty held *y her as stridhana immediately *efore the commencement of this Act. 0! 1othin- contained in su*'section ,! shall a((ly to any (ro(erty ac)uired *y way of -ift or under a will or any other instrument or under a decree or order of a Civil Court or under an award where the terms of the -ift, will or other instrument or the decree, order or award (rescri*e a restricted estate in such (ro(erty. )ection *-. 'eneral rules of succession in the case of female (indus N ,! The (ro(erty of a female >indu dyin- intestate shall devolve accordin- to the rules set out in %ec. ,A,N a! firstly, u(on the sons and dau-hters includin- the children of any (re' deceased son or dau-hter! and the hus*and2 *! secondly, u(on the heirs of the hus*and2 c! thirdly, u(on the mother and father2 d! fourthly, u(on the heirs of the father2 and e! lastly, u(on the heirs of the mother, 0! 1otwithstandin- anythin- contained in su*'section ,!,N

a! any (ro(erty inherited *y a female >indu from her father or mother shall devolve, in the a*sence of any son or dau-hter of the deceased includin- the children of any (re'deceased son or dau-hter! not u(on the other heirs referred to in su*'section ,! in the order s(ecified therein, *ut u(on the heirs of the father2 and *! any (ro(erty inherited *y a female >indu from her hus*and or from her father'in'law shall devolve, in the a*sence of any son or dau-hter of the deceased includin- the children or any (re'deceased son or dau-hter! not u(on the other heirs referred to in su*'section ,! in the order s(ecified therein, *ut u(on the heirs of the hus*and.

)ection*/. 2rder of succession and manner of distri,ution among heirs of a

female (indu.N The order of succession amon- the heirs referred to in %ec.,:, shall *e and the distri*ution of the intestateJs (ro(erty amon- those heirs shall ta#e (lace accordin- to the followin- rules, namely@ Rule *.NAmon- the heirs s(ecified in su*'section ,! of %ec.,:, those in one entry shall *e (referred to those in any succeedin- entry and those includin- in the same entry shall ta#e simultaneously. Rule 0.N+f any son or dau-hter of the intestate had (re'deceased the intestate leavin- his or her own children alive at the time of the intestateJs death, the children of such son or dau-hter shall ta#e *etween them the share which such son or dau-hter would have ta#en if livin- at the intestateJs death. Rule 4.NThe devolution of the (ro(erty of the intestate on the heirs referred to in Cls. *!, d! and e! of su*'section ,! and su*'section 0! of %ec.,: shall *e in the same order and accordin- to the same rules as would have a((lied if the (ro(erty had *een the fatherJs or the motherJs or the hus*andJs, as the case may *e, and such (erson had died intestate in res(ect thereof immediately after the intestateJs death.
LIST OF CASES CHRISTIAN P1. John #a,,a&atto& & Another vs. 'nion of /n ia HINDU P2. <. Chan rashekhar ?D@ by %.s. vs. State of An hra Pra esh P3. S&t. Dhanistha 9a,ita vs. .a&akanta 9a,ita an Others P". 3e&ana++a Du a++a Marve & Others vs. S&t. 3e,,ubai & Others P(. <ha*at .a& ?D@ by %.s. vs. Te$a Sin*h ?D@ by %.s. P0. Sitaben vs. <hanabhai Ma aribhai P4. #i ya ?S&t@ vs. )an .a& a,ias Asoo+ .a& ?Dea @ by %.s. P7. #e,a&uri #enkata Siva+rasa vs. 9othuri #enkates1ar,u MUSLIM P:. Moh&e bhai .asu,bhai Ma,ek & Others vs. A&irbhai .ahi&bhai Ma,ek

Part II CHILD

Chapter <. CHILD RIGHTS

India has the largest child population in the world. 'round >,, million children are under the age of eighteen constituting >,R of the population, of which around <+, million children, constituting <F.+R of India)s population, are below the age of @ years. ' large number of them live in economic and social environment that impede the child)s physical and mental development. These conditions include poverty, poor environmental sanitation, disease, infection, inadequate access to primary health care, inappropriate child caring and feeding practices. These ma#e them vulnerable preys to Child labour and Traffic#ing.

'n emphasis on child rights is important not only because it is the duty of adults ta#ing care of a child to ensure its care and protection, but also because it is only when such rights are ta#en care of will the children grow up to be productive adults.

CONSTITUTIONAL SAFEGUARDS
The best interests of the child are guaranteed in %art III of the Constitution of India by way of 4undamental -ights and in %art IA by way of !irective %rinciples. 'rticle <+ 0B1 guarantees that the State can ma#e special provisions for children. 6o child below the age of <> years shall be employed to wor# in a factory, mine or any other ha ardous employment 0'rticle C>1. 'rticle B= 0f1 provides that the tender age of children is not abused and that citi ens are not forced by economic necessity to enter avocations unsuited to their age or strength E'rticle B= 0e1G, and that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that youth are protected against e&ploitation and against moral and material abandonment. 'rticle >+ provides the State shall endeavour to provide early childhood care and education for all children until they complete the age of si& years. 'ccording to 'rticle +<' it is a 4undamental !uty of a parent or guardian to provides opportunities for education to his child or ward between the ages of si& and fourteen years. (ost important of all is the amendment in 'rticle C< wherein the right of life includes the right to education. 'rticle C<' guarantees that the State shall provide free and compulsory education to all children of the age of si& to fourteen years. It is hoped that the induction of 'rticle C<' and the national policy of Sarvashi#sha 'bhiyan will go a long way in eliminating child labour and ensuring quality life to the millions of children.

LEGAL DEFINITION OF CHILD

!ifferent statutes define a child differently. The /indu 'doption and (aintenance 'ct governing the right to maintenance of a child defines a child as one who has not attained the age of <?. /owever under the /indu (arriage 'ct the marriageable age for two consenting adults is <? for a girl and C< for a boy. The age prescribed for the applicability of the Child (arriage -estraint 'ct, which ma#es the marriage of children criminally culpable is also <? for a girl and C< for a boy. /owever appropriate amendment has not been made in Indian %enal Code according to which the age for statutory rape i.e. age below which a child is considered incapable of giving consent is delineated as <@, while for a married woman the age of statutory rape is defined as <+. This illustration reflects the arbitrary manner in which a child has been defined in law. /owever despite its shortcomings the law ac#nowledges that persons below the age of <? years are a special interest group, and on account of their young age are vulnerable emotionally, mentally and physically and are less able to fend for themselves and therefore require the care and protection of elders.

INTERNATIONAL CON ENTIONS

It is a well-settled principle of international law that children require special care and assistance because of their vulnerability, their dependence on adults and their developmental needs. India is signatory to the Convention on the -ights of the Child which has been ratified by over <?+ countries. The Convention emphasises social reintegration of child victims, to the e&tent possible without resorting to "udicial proceedings. The most important rights are enshrined in 'rticle C :the right to be protected from discrimination; and 'rticle B : the right to have his or her best interest ta#en into account in all actions which concern him or her;. India being a signatory to the aforementioned convention has ratified the convention by incorporating the provisions of the said Convention in its municipal law and hence the amendment in the 3uvenile law. The introduction of the 3uvenile 3ustice 0Care and %rotection of Children1 'ct, C,,,, specifically state that several provisions of the Constitution including Clause 0B1 of 'rticle <+, clauses 0e1 and 0f1 of 'rticle B=, 'rticles >+ and >F also impose on the State a primary responsibility of ensuring that all the needs of children are met and that their basic human rights are fully protected. Since the Convention emphasises social re-integration of child victims, to the e&tent possible without resorting to "udicial proceedings, the $overnment of India has found it e&pedient to re-enact the e&isting law relating to "uveniles bearing in mind the standards prescribed in the Convention of the -ights of the Child, the 2nited 6ations Standard (inimum -ules for 'dministration of 3uvenile 3ustice, <=?+ 0The Jei"ing -ules1, the 2nited 6ations -ules for the %rotection of 3uveniles !eprived of their Hiberty 0<==,1 and all other relevant international instruments. The present statute is a remedial statute actuated by a policy and beneficial ob"ect behind it. 's 3ustice Drishna Iyer has said :They are liberally interpreted in favour of the class of citi ens 0in the present case the children1 for the benefit of whom such legislation are passedS.Their legitimate purpose is to advance human rights and relationships.; Thus special protection for minors is provided under different laws.

CRIMINAL LAW
The criminal law treats both child offenders and child victims separately from their adult counter parts. The Indian %enal Code recognises the inability of a child to bear criminal intent. Section ?C of the Criminal %rocedure Code provides that, : 6othing is an offence which is done by a child under seven years of age;. *hile Section ?B provides that, :6othing is an offence which is done by a child above seven years and under twelve, who has not attained sufficient maturity to understand to "udge the nature and consequences of his conduct on that occasion<. The Indian %enal Code, raises a presumption in favour of children where the child is a victim or complainant and the accused is an adult the burden of proof, which lies on the complainant to prove the allegation against the accused beyond reasonable doubt is transferred upon the accused. It is however relevant to mention here that child se&ual abuse which is rampant, remains a neglected issue in India. Joth male and female children are a sub"ect of se&ual abuse and the law and the legal system are both inadequate to cope with this issue.

CI IL LAW

Civil law also recognises the inability of a minor to #now hisIher best interest and provides the right to repudiate any action done in the name of a minor once heIshe attains the age of ma"ority which is <? years 0 Indian (a"ority 'ct, <?F+1. Civil law also provides the minor a right to sue through a guardian. /owever, no contract or agreement is enforceable against a minor since the minor is held under the law of contract to be incapable of giving informed consent.

GUARDIANSHIP AND CUSTODY

This brings us to the concept of guardianship. The determination of guardianship of a child is a function of the religion to which the child is #nown to belong as it is governed by personal law. Issues of child custody often arise where the parents of a child see# to separate or be divorced, or where either or both parents of the child dies while the child is still a minor i.e. below <? years of age. The concept of maintenance of a minor also arises from the need to protect a minor and provide for his basic needs for survival and the onus to maintain a minor has been squarely fastened on the parents of the minor by personal law. 2nder the /indu and Christian personal law the father is considered the natural guardian of the child and it is only after the father that the mother is considered the guardian. In (uslim personal law the mother is considered the natural guardian of a minor below the age of + while the father is considered the guardian above that age. 7ver time the parameters of determining custody of the child have undergone a drastic change. *hereas earlier, child custody issues were determined #eeping in mind the rights of the parents wherein the minor was considered chattel of the parents. Jy and large, courts considered the father as the preferred guardian and custodian of the minor children. /owever today the rights approach, ushered in by several international conventions and child rights movements, has changed the criteria of determining custody issues from the rights of the parents to the welfare of the child. The welfare approach has brought into focus the ac#nowledgement of the identity of the child as an individual and the wishes e&pressed by a child are ta#en into consideration as criteria to determine the welfare of the child. The Courts have often ta#en an activist approach. In the case of 9aurav Eain vs.Union of +ndia and Others E0<==F1? Supreme Court Cases <<>G the Supreme Court answered the question as to what procedure is efficacious to prevent e&ploitation of se& wor#ers and to bring them and their children into the social mainstream by giving care, protection and rehabilitation. It held that the three MCs), vi , counseling ca"oling and correction, are necessary and passed an order to set up an 'dvisory Committee to ma#e suggestions for eradicating child prostitution and to point out social aspects for the care, protection treatment, development and rehabilitation of the young victims, children)s and girl prostitutes from re-light area, and get them freed from the abuses of prostitution to amend the e&isting law or to enact a new law, if so warranted5 to prevent se&ual e&ploitation of children and to ta#e various measures for effective enforcement thereof. In the $ita /ariharan case the Supreme Court diluted the severity of the /indu 'doption and (aintenance 'ct which declares a father as the sole natural guardian by e&panding the definition of 6atural $uardian and declaring the circumstances in which a /indu (other could also be treated as a natural guardian.

CASE LAW
The case law summarised in this section of the directory has sought to collate "udgements of the various /igh Courts and the Supreme Court, pertaining mainly to the rights of a minor as a ward, to maintenance and to succession. These "udgements reflect the changing approach to custody from that of parents right to welfare of the minor. They also reflect the right of maintenance of a minor both under personal law and under Section <C+ of the Code of Criminal %rocedure. The criteria of determination of maintenance has also changed from that of bare e&istence or subsistence to the right to en"oy the same standard as en"oyed by the parent held liable to pay such maintenance.
LIST OF CASES
ADOPTION C!1. )a& ev #yankat Gha *e & Others vs Chan rakant Gan+at Cha *e & Others C!2. 9abia Dusa hin vs. Se1ak Dusa h & Others C!3. #i$aya,aksh&a&&a & Another vs. <. T. Shankar CHILD BORN TO SECOND WIFE C!". <aby Devi & Others vs. Arun 9u&ar A&an CHILD TAKES CASTE OF FATHER C!(. Sobha !y&avathi Devi vs. Setti Gan*a harara S1a&y & Others CUSTOD! C!0. 9u&ar #. Jah*ir ar vs. Chetana 9. .a&atheertha C!4. Govin Sin*h At1a, vs. Mankirat 9aur At1a, C!7. Pau, Mohin er Gahun vs. State of )CT of De,hi & Others C!:. Sye Sa,ee&u in vs. Dr. .ukhsana & Others C!1;. Gian Chan vs. Su ha & Another DECLARATION AS REGARDS THE ILLEGITIMAC! OF THE CHILD C!11. .enuba,a Moharana & Another vs. Mina Mohanty DIVORCE SUB"ECT TO PA!ING MAINTENANCE FOR FEMALE CHILD C!12. Sus&ita A2harya vs. Dr. .abin er 9u&ar Mishra FATHER$S OBLIGATION C!13. )ishat 9ari&i vs. /ftekhar A. 9ari&i C!1". Mathe1 #ar*hese vs. .osa&&a #ar*hese C!1(. )oor Saba 9hatoon vs. Moh . Iuasi& GIFT C!10. 9. <a,akrishnan #. 9. 9a&a,a& & Others C!14. M. #i$ayaku&ari & Another vs. #.9. Devaba,an & Others GRANDFATHER$S RIGHT TO CUSTOD! C!17. Mahen ra Mo i vs. Gobar han %a, C!1:. A&it <eri & Another vs. S&t. Sheeta, <eri 1ife of A&it <eri HABEAS CORPUS C!2;. <. 9a&sa,a vs. <o&&i= The /ns+e2tor of Po,i2e & The Su+erinten ent of Po,i2e C!21. Surabhai .aviku&ar Mina1a,a vs. State of Gu$arat INTERIM CUSTOD! C!22. S&t. Ana&itra Dutta Gu+ta vs. Sou&ey Duta Gu+ta "URISDICTION C!23. Man&ohan Suri & Another vs. Suni, 9u&ar Arora & Others C!2". )avin Sin*h vs. S&t. Jyoti Parashar & Another MAINTENANCE C!2(. ). Sreera&u u= sCo. ). )arayanavs. 9u&. ). %ahari C!20. A&it 9u&ar Shar&a vs. #/th A i= <i$nor & Others MOTHER AS GUARDIAN C!24. 9eshav sCo Gan+atrao !e au vs. Da&o har sCo ' ara&$i 9an rikar C!27. #ivek 9u&ar vs. Ashok C!2:. <a,bir 9aur vs. S&t. Jit 9aur & Others

PARENTAGE OF CHILD C!3;. Mrs. 9an2han <e i & Another vs. Gur+reet Sin*h <e i PATERNIT! OF CHILD C!31. 9anti Devi & Another vs. Poshi .a& PREFERENCE OF CHILD C!32. <uta .a& vs. #eeru .a& SEXUAL ABUSE C!33. Pavan 9u&ar Jha vs. Sa+na Mou *i, Jha WELFARE OF THE CHILD C!3". <i&,a vs. Daya .a& & Others C!3(. Chetnaben 1Co Mukun2han ra <a,krishna <hatt vs. )at1ar,a, >oo,shanker Joshi C!30. <hu+in er Sin*h vs. S&t. 9an2han .ani !i&a2ha, C!34. Sarita Shar&a vs. Sushi, Shar&a C!37. Jai Prakash 9ha ria vs. Shya& Sun er A*ar1a,,a WITNESS /CHILD0 C!3:. Meenu Shar&a & Another vs. State & Others

Disposing off Mohammad Naseem Bhat Versus Bilquees Akhter, a petition for maintenance, Mr Justice Hasnain Masoodi of the J&K High ourt ruled that Muslim man!s po"er to di#orce his "ife is not $unrestricted or unqualified%& 'he ()*page +udgment is #ital to the con+ugal litigations and the Muslim ,ersonal -a"& .n pu/lic interest, Kashmir Life reproduces the entire +udgment deli#ered on April )0, (01(&

Hon`ble Mr. Justice Hasnain Masoodi

HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR 561-A No. 158/2009 IA No. 6/2009 !ate o" order# 0 / 0$ /2012 %%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%% Mohammad Naseem Bhat

Versus Bil uees A!hter a"d a"r# %%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%% Coram$ Ho"%&le Mr# Justi'e Has"ai" Massodi( Jud)e %%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%% A**eari") Cou"sel$ &or t'e a((ellant)s*# Mr. H. I. Hussain+ Ad,ocate &or t'e res(ondent)s*# Mr. -. H. .'a/ur+ Ad,ocate %%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%% %%%%% i. 0'et'er a((ro,ed "or re(ortin1 in 2ress/Media# 3es/No/4(tional ii. 0'et'er to be re(orted in !i1est/Journal# 3es/No %%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%% %%%%% 1. 2etitioner see/s 5uas'6ent o" 7e,isional 8ourt order dated 15.10.2009 in 8ri6inal 7e,ision 2etition No. 9/2009 titled :il5uees Nasee6 ;s. Nasee6 A'6ad :'at <'ereb= t'e 7e,isional 8ourt 'as re,ersed t'e "indin1 recorded b= t'e .rial 8ourt t'at :il5uees Nasee6 <as di,orced b= 'er 'usband Mo'a66ad Nasee6 :'at disentitlin1 'er "ro6 clai6in1 6aintenance under -ection $88 8r. 2. 8. .'e ad6itted and undis(uted "acts are as under#2. Mo'a66ad Nasee6 :'at and :il5uees A/'ter alias :il5uees Nasee6> (etitioner and res(ondent No. 1 in t'e (resent (etition+ contracted 6arria1e on 2$.08.2002 and out o" <edloc/ :ab= ?areena Nasee6- res(ondent No. 2 in t'e (etition+ <as born on 06.06.200 . .'e= 'o<e,er+ so6e ti6e a"ter res(ondent No. 2 <as born+ "ell a(art. .'e (arties 'a,e t'eir o<n ,ersions as re1ards reasons "or t'eir se(aration. . :e t'at as it 6a=+ res(ondent No. 1 on 'er be'al" and on be'al" o" 'er 6inor dau1'ter-res(ondent No. 2 on 0.01.2006 "iled an a((lication under -ection $88 8r. 2. 8. in t'e 8ourt o" JMI8/ rd Additional Munsi"" -rina1ar. .'e res(ondent@s case be"ore t'e .rial Ma1istrate <as t'at t'e (resent (etitioner not 'a((= t'at res(ondent No. 1 'ad be1otten a "e6ale c'ild+ subAected 'er to in'u6an treat6ent and t're< 'er out alon1-<it' :ab= ?areena Nasee6 "ro6 'er 6arital 'o6e+ lea,in1 'er <it'out an= source to "all bac/ u(on. It <as insisted t'at t'e (etitioner <as a 6an o" substance+ 'ad an inco6e o" 7s. 0+000/- (er 6ont' and 'ad su""icient resources to 6aintain t'e res(ondents. .'e res(ondents as/ed "or 7s. 000/- (er 6ont' to eac' o" t'e6+ as 6aintenance allo<ance. .'e (etitioner

resisted t'e a((lication on t'e 1rounds t'at 'e 'ad di,orced res(ondent No. 1 on 22.12.2005 and 'e <as not under an= obli1ation to (a= 6aintenance allo<ance to res(ondent No. 1. .'e (etitioner denied t'at t'e res(ondents <ere t'ro<n out and insisted t'at t'e res(ondent No. 1 le"t 'is 'ouse on 'er o<n+ ta/in1 <it' 'er all 'er belon1in1s includin1 orna6ents and a((arel and e,en 1ot "alse and "ri,olous case re1istered a1ainst 'i6 at 0o6en@s 2olice -tation+ 7a6ba1'+ -rina1ar. $. Bearned .rial Ma1istrate on (erusal o" (leadin1s and a((reciation o" e,idence brou1't on t'e "ile+ 'eld res(ondent No. 1 to 'a,e been di,orced b= (etitioner be"ore res(ondent No. 1 a((roac'ed t'e .rial Ma1istrate <it' 'er a((lication under -ection $88 8r. 2. 8. and t'us not entitled to recei,e an= 6aintenance "ro6 t'e (etitioner. Ho<e,er+ t'e (etitioner <as directed to (a= an a6ount o" 7s. 1800/- (er 6ont' to res(ondent No. 2 "ro6 t'e date o" "ilin1 o" t'e a((lication. 5. .'e res(ondent a11rie,ed <it' t'e order o" t'e .rial Ma1istrate dated 0.06.2009+ <'ereb= 'er clai6 "or 6aintenance <as reAected+ 5uestioned it t'rou1' 6ediu6 o" a re,ision (etition be"ore 1st Additional -essions Jud1e+ -rina1ar. Bearned 7e,isional 8ourt on (erusal o" t'e record and a"ter 6a/in1 a sur,e= o" la< on t'e subAect+ set aside t'e .rial Ma1istrate order dated 0.06.2009 'oldin1 it to be (er,erse+ ille1al and (assed in a 6ec'anical 6anner. .'e 7e,isional 8ourt as/ed t'e .rial Ma1istrate to deter6ine t'e 5uantu6 o" 6aintenance allo<ance to <'ic' res(ondent <as entitled in t'e "acts and circu6stances o" t'e case. 6. .'e order o" 7e,isional 8ourt is 5uestioned in t'e (etition on 'and on t'e 1rounds set out in t'e (etition. It is insisted t'at t'e .rial 8ourt order is <ell reasoned+ in con"or6it= <it' la< and does not su""er "ro6 an= error+ ille1alit= or i6(ro(riet= so as to <arrant inter"erence under -ection $ 5 8r.2.8. .'e 7e,isional 8ourt order+ accordin1 to (etitioner+ a6ounts to abuse o" (rocess o" 8ourt and deser,es to be 5uas'ed in eCercise o" in'erent (o<ers ,ested in t'e 8ourt under -ection 151-A 8r.28. 9. I 'a,e 1one t'rou1' t'e (etition as also .rial 8ourt and 7e,isional 8ourt record. I 'a,e 'eard 8ounsel "or t'e (arties. 8. 0'et'er a Musli6 'usband 'as an absolute and un5uali"ied (o<er to (ronounce di,orce on 'is <i"e and <ri11le out o" 'is obli1ations under t'e 6arria1e contractD .'e "ate o" t'e (resent re,ision (etition 'in1es on ans<er to t'is 5uestion. It needs to be (ointed out at t'e outset t'at a Musli6 in t'e 6atters o" 6arria1e+ di,orce+ ado(tion+ 6aintenance and in'eritance etc. is in ter6s o" Ja66u and ?as'6ir -'ariat Act+ 2009+ 1o,erned b= t'e -'ariat Ba<. .'e (ri6ar= sources o" -'ariat Ba< are Euran+ and -unna-(ractice and sa=in1s o"

2ro('et. IA6a+ Ei=as and IAti'aad su((le6ent t'e (ri6ar= sources. .o "ind out t'e ans<er to t'e 5uestion+ and 6anner in <'ic' t'e 6arria1e 6a= be dissol,ed or t'e 6arria1e contract 6a= co6e to an end+ <e 'a,e to 1o to t'e "unda6ental sources o" -'ariat Ba< and to understand t'e conce(t o" 6arria1e in Isla6+ t'e ri1'ts o" t'e (arties to t'e 6arria1e contract i.e. 'usband and <i"e+ and t'e 6ode and 6anner t'e 6arria1e contract is dissol,ed. 9. .'e 6arria1e is a social institution t'at "or6s bedroc/ o" "a6il= and -ociet=. .'e -u(re6e 8ourt in F.;.7ao ;s. B.H.; 2rasad and ot'ers )2000* -88 69 called 6arria1e Gsacred cere6on=+ t'e 6ain (ur(ose o" <'ic' is to enable t'e =oun1 (eo(le to settle do<n in li"e and li,e (eace"ull=H. In -6eda Na1(al ;s. -tate o" !el'i and ot'ers )2000* 9 -88 9$5+ t'e -u(re6e 8ourt 'oldin1 t'at Gbasic unit o" -ociet= is a "a6il=+ obser,ed t'at G6arria1e creates t'e 6ost i6(ortant relation in li"e+ <'ic' in"luences 6oralit= and ci,iliIation o" (eo(le+ t'an an= ot'er institutionH. .'e conce(t o" 6arria1e in Isla6 is no di""erent. Marria1e in Isla6 is a Gsole6n co,enantH. It is union o" lo,e+ a""ection+ 6utual res(ect+ lo=alt= and obedience. .'e Institution o" 6arria1e in Euran is described as si1n o" 6erc= o" Al6i1't= Alla' <it' t'e obAect to brin1 (eace and tran5uillit= to t'e 'usband and t'e <i"e. Euran>8'a(ter 0 ,erse 21 ordains.
GAnd a6on1st His si1ns is t'at 'e created "or =ou s(ouses "ro6 a6on1 =oursel,es+ t'at =ou 6a= "ind (eace in t'e6+ and 'e (ut bet<een =ou a""ection and 6erc=. ;eril= in t'at t'ere are si1ns "or t'ose <'o re"lectH.

10. In Isla6 6arria1e+ is not onl= 6eans to ac'ie,e e6otional and biolo1ical 1rati"ication but also Ibada' as b= contractin1 6arria1e+ t'e (arties to t'e 6arria1e dis(la= obedience to Alla' and to t'e -unna'. .'ere is no celibac= in Isla6. .'e 6arria1e is a reli1ious dut=+ a 6oral sa"e1uard and a social necessit= as it enables t'e 6arr=in1 cou(le to establis' a "a6il= as a "unda6ental unit o" t'e societ=. .'e 2ro('et is re(orted to 'a,e said G6arria1e is 6= tradition <'osoe,er /ee(s a<a= t'ere "ro6 is not "ro6 a6on1st 6e.H 11. -ince t'e 6arria1e is based on 6utual lo,e+ a""ection and lo=alt=+ Isla6 does not 1i,e (re"erence to eit'er o" t'e (arties to a 6arria1e. .'e 6essa1e in 8'a(ter 0 ;erse 21 is not 1ender s(eci"ic. It does not address a Musli6 6an or Musli6 <o6an. It does not sa= t'at Al6i1't= Alla' created "or a 6an+ <o6an as 'is s(ouse or ,ice-,ersa. It+ on t'e ot'er 'and+ addresses bot' 6en and <o6en sa=in1 t'at He created s(ouses and it is a si1n o" His 6erc=. .'is clearl= indicates t'at a 6an and <o6an are e5ual (artners in a 6arria1e. A1ain Euran uses eC(ression GJa<AH "or bot' 'usband and <i"e. It 6eans eit'er o" t'e (air. 0'ere,er Euran 6a/es 6ention o" ideal (artners in a 6arria1e+ it re"ers to t'e6 as GJa<AH and not 'usband or <i"e. .'is a1ain 6a/es it clear t'at 'usband and <i"e in Isla6 are e5ual (artners and 'a,e e5ual status.

12. 0it' t'e abo,e baseline+ Isla6 does not (re"er or encoura1e a (articular (attern o" li"e "or a 6arried cou(le. It 1i,es t'e6 co6(lete "reedo6 to decide on li"e (attern and assi1n roles as lon1 as suc' (atterns or roles are not in con"lict <it' "unda6ental (rinci(les o" Isla6. .'e 'usband and <i"e+ at t'e ti6e t'e 6arria1e is contracted+ 6ust be co6(etent to enter into a contract. .'e contract is to be based on 6utual consent i.e. o""er and acce(tance. .'is "urt'er rein"orces t'e (ro(osition t'at a 6an and <o6en 'a,e e5ual ri1'ts+ e5ual role and e5ual (o<er <'ile contractin1 6arria1e. .'e (arties a"ter t'e= contract 6arria1e retain t'eir (ersonal ri1'ts as a1ainst eac' ot'er and as a1ainst ot'ers. Ha,in1 re1ard to t'e obAect o" t'e 6arria1e and its basis+ it does not re5uire an= e6('asis+ t'at 6arria1e in Isla6 is not te6(orar= "eature. It is 6eant to continue and re6ain intact "or t'e entire s(an o" li"e. 1 . In Isla6 'usband and <i"e (rotect eac' ot'er. Euran calls t'e6 G1ar6ents "or eac' ot'erH. .'e ,erse is to indicate t'e le,el o" (roCi6it= or inti6ac= bet<een t'e s(ouses. Here a1ain Euran does not 6a/e an= di""erence bet<een <i"e and 'usband. A 1ar6ent does not onl= (rotect a (erson "ro6 'eat and cold or bodil= inAur= but also is so6et'in1 close to t'e bod= o" a (erson. .'e eC(ression G1ar6ents "or eac' ot'erH t'ere"ore+ 6eans t'at no ot'er (erson can be as (rotecti,e and close to 'usband or <i"e as 'is or 'er s(ouse. .'e lo,e+ a""ection+ care and (rotection t'at 6arria1e creates bet<een s(ouses 'a,e (ositi,e s(ill o,er "or t'e "a6il=+ t'e societ=+ t'e <orld and t'e uni,erse. .'e 6arria1e in Isla6 t'ere"ore "or6s buildin1 bloc/ "or t'e uni,ersal lo,e and (eace. 1$. .'ou1' Isla6 does not treat 6arria1e as a te6(orar= relation and eC(ects it to create an eternal bond bet<een t'e s(ouses based on lo,e+ a""ection+ "idelit=+ and 6utual res(ect+ =et it does not rule out a situation <'ere because o" reasons be=ond control o" t'e (arties 6arria1e 6a= brea/ do<n. Isla6 reco1nises t'ree 6odes o" dissolution o" 6arria1e. It 6a= be dissol,ed b= )i* 6utual consent o" t'e s(ouses>?'ula+ )ii* di,orce b= t'e 'usband>.alaa/ or )iii* b= inter,ention o" t'e 8ourt>Audicial di,orce. Ila+ Ie'er+ 6ubara@at are ot'er 6odes o" dissolution o" 6arria1e. In t'e (resent case <e are concerned <it' di,orce b= 'usband>.alaa/. It 6a= ta/e t'ree "or6s# )i* .alaa/ a'san>sin1le (ronounce6ents o" di,orce 6ade durin1 a tu'r )(eriod bet<een 6enstruations* "ollo<ed b= abstinence "ro6 seCual intercourse "or t'e (eriod o" iddat. )ii* .alaa/ 'asan>t'ree (ronounce6ents o" di,orce 6ade durin1 successi,e tu'rs+ <it'out an= intercourse durin1 an= o" t'e t'ree tu'rs+ )iii* .alaa/ bid@i>t'ree (ronounce6ents>o" di,orce 6ade durin1 a sin1le tu'r eit'er in one sentence or in t'ree sentences or an= ot'er "or6 li/e in

<ritin1+ indicatin1 intention o" t'e 'usband to irre,ocabl= dissol,e t'e 6arria1e. 15. It is i6(ortant to note t'at .alaa/ a'san+ <'ereb= a 'usband (ronouncin1 di,orce durin1 tu'r i.e. (eriod o" (urit=+ be"ore 'a,in1 an= seCual relations <it' 'is <i"e+ is onl= "or6 o" di,orce t'at "inds a((ro,al o" Euran. .'is is t'e a((ro,ed "or6 o" di,orce+ as it lea,es roo6 "or reconciliation. .alaa/ a'san+ in a <a=+ is a 6ec'anis6 o" eC(eri6ental te6(orar= se(aration+ <'ere s(ouses "allin1 a(art 'a,e ade5uate o((ortunit= to (roceed on an on<ard Aourne= and understand ne1ati,e s(ill o,er o" se(aration on t'e6 and t'ose around t'e6. .alaa/ 'asan is neCt to .alaa/ a'san in t'e de1ree o" acce(tabilit=. Ho<e,er a"ter di,orce is (ronounced t<ice i.e. in t<o consecuti,e (eriod o" tu'r+ t'e (arties t'erea"ter 'a,e a c'oice to eit'er li,e to1et'er as 'usband and <i"e "ore,er or to se(arate "ore,er ne,er t'in/in1 o" reunion. 4nce t'e t<o consecuti,e eC(eri6ents o" reconciliation "ail+ t'ird di,orce o(erates as .alaa/i bai@n. Euran in 8'a(ter 2 ,erse 229 co66ands Ga di,orce is onl= (ronounced t<iceK a"ter t'at t'e (arties eit'er to 'old to1et'er on e5uitable ter6s or se(arate <it' /indnessH. .alaa/i bid@i is a later inno,ation and does not "ind a((ro,al o" -'ariat Ba<. It is a 6edicine t'at <as concei,ed to cure t'e 6enace o" 6ulti(le di,orces at one ti6e+ but turned out to be 6ore let'al t'an t'e disease it <as to cure. It nonet'eless+ o(erates i66ediatel=+ dissol,es 6arria1es+ lea,in1 t'e di,orcee <it' ri1'ts+ li/e ri1't to clai6 6aintenance and ri1't to s'elter durin1 t'e (eriod o" iddat. Most des(ised and discoura1ed o" all "or6s o" talaa/+ t'e talaa/ bid@i is "re5uentl= used de,ice to dissol,e 6arria1e. 16. In case o" irre,ocable di,orce <'ere 'usband (ronounces di,orce t<ice i.e. t<o consecuti,e tu'r@s and t'erea"ter decides not to li,e <it' 'is <i"e or (ronounces a t'ird di,orce+ t'e 'usband (ronounces tri(le di,orce or uses an= ot'er "or6 o" di,orce to 6a/e it clear t'at it is to o(erate irre,ocabl=+ 'e cannot re6arr= t'e di,orcee. Euran in 8'a(ter 2 ,erse 22 0 ordains Gso i" a 'usband di,orces 'is <i"e irre,ocabl=+ 'e cannot a"ter t'at re6arr= 'er until a"ter s'e is 6arried to anot'er (erson and 'e 'as di,orced 'erH. .'ere is no suc' bar in case o" .alaa/ a'san. 8'a(ter 2 ,erse 2 2 (ro,ides G<'en =e di,orce <o6en+ and t'e= "ul"ill t'e ter6 o" t'eir )iddat*+ do not (re,ent t'e6 "ro6 6arr=in1 t'eir )"or6er 'usbands* i" t'e= 6utuall= a1ree on e5uitable ter6sH. Ho<e,er+ as t'e .alaa/ bid@i is t'e 6ost "re5uentl= used 6et'od o" di,orce+ t'e discussion is to re6ain "ocused on t'e said "or6 o" .alaa/. 19. .'ou1' Isla6 ,isualises a situation <'ere a 6arria1e 6a= run into rou1' <eat'er+ "or reasons be=ond control o" t'e (arties to t'e 6arria1e and (ro,ides "or a 6ec'anis6 to end or dissol,e t'e relations'i( in suc' case+ =et e6('asis re6ains on 6a/in1 e,er= e""ort to 'el( t'e 6arria1e <or/+ and to re5uire t'e

(arties to 6arria1e realiIe+ t'at t'e <e"t and <ar( o" 6arria1e is lo,e+ a""ection+ lo=alt=+ care+ acco66odation and understandin1 and di""erences are to be resol,ed on t'e basis o" said (rinci(le. .'e de,ice o" di,orce is to be used as a last o(tion <'en t'e 6arital relations 'a,e irretrie,abl= bro/en do<n and onl= <a= in t'e interest o" bot' t'e (arties and t'e societ= is to 'el( t'e6 se(arate+ to 6a/e a ne< be1innin1 and start a ne< li"e+ so t'at t'e= are in a (osition to (la= t'e roles "or t'eir <ell bein1 and better6ent o" ot'er 6e6bers o" t'e -ociet=. In ot'er <ords+ Isla6 is stron1l= a1ainst t'e di,orce and <ants it to be a,oided unless t'ere is no alternati,e+ eCce(t se(aration. 18. A closer loo/ at t'e Euranic ,erses dealin1 <it' t'e subAect o" di,orce+ as also -unna rele,ant to t'e subAect+ 6a/es it abundantl= clear t'at t'e di,orce is discoura1ed and an e""ort is 6ade to 6a/e it di""icult and incon,enient "or a 'usband to (ronounce .alaa/. 4n t'e ot'er 'and e,er= e""ort is 6ade to "acilitate reconciliation+ <'ere t'e relations'i( is 6arred b= dis(utes and disa1ree6ents. 8'a(ter 65 ,erse 1 and 2+ re"erence to <'ic' <ould be 6ade durin1 course o" t'is Aud16ent+ (lace restrictions on di,orce and at t'e sa6e ti6e ensure t'at conditions are created "or reconciliation. .'e <i"e e,en a"ter .alaa/ is (ronounced is to sta= in t'e 'ouse o" t'e 'usband. .'e 'usband is under co66and not turn out t'e di,orcee "ro6 'is 'ouse. .'e obAect is to 6a/e t'e cou(le li,e under sa6e roo"+ durin1 t'e <aitin1 (eriod and 'el( t'e6 realiIe t'eir i6(ortance "or eac' ot'er and <'at t'e= 6ean to eac' ot'er+ so t'at t'e 'usband is (ro6(ted to 1i,e a second loo/ to 'is decision and ta/e bac/ 'is <i"e in 6arital "old. 19. .'e 2ro('et is re(orted to 'a,e said GJabra@il )Fabriel* so 6uc' co66ended t'e cause o" t'e <o6en+ and so counselled 6e as to 1i,e 6e t'e i6(ression t'at+ eCce(t in t'e case o" adulter=+ t'e <i"e does not deser,e to be di,orcedH. I6a6 Ja@"ar -adi5 5uotes t'e 2ro('et as sa=in1#
G.o Fod no 'ouse is dearer t'an t'e 'ouse <'ere t'ere is t'e union o" 6arria1e+ and no 'ouse eCists <'ic' deser,es His <rat' 6ore t'an t'at in <'ic' t'e union o" 6arria1e is bro/en b= di,orce.H Accordin1 to I6a6 as--adi5# G.'e <ord .ala5 )di,orce* occurs re(eatedl= in t'e Eur@an+ and t'at t'e details o" t'e 6atter o" di,orce 'a,e been 'onoured <it' t'e attention o" t'e Hol= Eur@an. .'e reason "or t'is is t'at Fod is an ene6= o" se(arationH. .abarasi in Ma/ari6u @l-a/'la5 5uotes t'e Hadit' GFet 6arried+ but do not di,orce because t'e t'rone o" Alla' s'udders <'en t'ere is di,orce.H I6a6 as--adi5 sa=s# GNo la<"ul t'in1 is t'e obAect o" so 6uc' <rat' and 'ate in t'e e=es o" Alla' as di,orce is. Alla' considers t'e 6an <'o re(eatedl= di,orces as His ene6=.H Abu !a<ud in ?itab -unna' 5uotes Hadit' GAlla' declared la<"ul not'in1 so abo6inable to Hi6 as di,orce.H Jalalu-

!in-7u6i re"ers to t'e tradition o" 2ro('et+ Gas "ar as (ossible do not ste( into se(aration+ "or t'e 6ost detestable t'in1 to 6e is di,orceH.

20. .'e 2ro('et <as once in"or6ed t'at Abu A==ub Al-Ansari <as deter6ined to di,orce L66 A==ub>'is <i"e. .'e 2ro('et /no<in1 t'at t'e di,orce o" L66 A==ub <as not 1rounded in a 1enuine cause said G;eril= t'e di,orce o" L66 A==ub is t'e 1reat sinH. It "ollo<s t'at 'usband 6ust 'a,e a 1enuine and ,alid reason to di,orce 'is <i"e. .'e (o<er or ri1't to (ronounce di,orce is not to be used arbitraril=+ at <'i6 and ca(rice and in absence o" a ,alid and 1enuine reason. 21. &ro6 t'e abo,e brie" o,er,ie< o" Euran and -unna rele,ant to t'e subAect> t'e "unda6ental sources o" -'ariat Ba< 1o,ernin1 t'e Musli6s in t'e 6atter o" 6arria1e+ di,orce and ot'er "a6il= 6atters+ it e6er1es t'at t'ou1' 'usband under -'ariat la< 'as (o<er to di,orce 'is <i"e =et t'is (o<er is not absolute+ un5uali"ied and unbridled. .'e (ro(osition is "urt'er rein"orced b= EDran 8'a(ter $ ;erse 5 o" -ura' Nisa. It reads#
GI" =e "ear a breac' bet<een t'e6 t<ain+ a((oint )t<o* arbiters+ one "ro6 'is "a6il=+ and t'e ot'er "ro6 'ersK i" t'e= see/ to set t'in1s alri1't+ Alla' <ill cause t'eir reconciliation# "or Alla' lo,et' not t'e arro1ant+ t'e ,ain1loriousK H

22. .'e Euran ordains t'at <'ere,er and <'ene,er t'ere a((ear "issures in t'e 6arital relations'i( and t'ere is disa1ree6ent bet<een t'e s(ouses+ t'e 'usband does not 'a,e an absolute and un5uali"ied (o<er to di,orce 'is <i"e so as to 1et out o" relations'i(+ bruised b= discontent. As t'e "irst ste(+ t<o arbiters are to be a((ointed one "ro6 t'e 'usband@s "a6il= and one "ro6 t'e <i"e@s "a6il= and t'e t<o arbiters so a((ointed are to be 1i,en an ade5uate o((ortunit= to resol,e t'e dis(ute and 1i,e t'eir ,erdict. .'e ,erdict <'ate,er 1i,en b= t'e t<o arbiters is eC(ected to be "ollo<ed b= t'e s(ouses. It is (ertinent to 6ention t'at Euran uses t'e <ord GHa/6H or GarbiterH and not G6ediatorH. .'e arbiters t'ere"ore+ 'a,e not to si6(l= 6ediate but to 1i,e t'eir ,erdict so as to redress t'e 1rie,ances+ and suc' ,erdict is eC(ected to be "ollo<ed b= t'e s(ouses. It is i6(ortant to note t'at a"ter insistin1 on Ga((oint6ent o" arbiters+ GEuran re6inds us t'at GAlla' lo,et' not t'e arro1ant+ t'e ,ain1loriousH. It is to eC'ort t'e (arties to a 6arria1e (la1ued b= dis(utes+ to abide b= t'e ,erdict 1i,en or course su11ested b= t'e arbiters and not to be rude+ obstinate or recalcitrant. 2 . .'e Euran in c'a(ter 65 ;erses 1 and 2 ordains#
1.G 4 2ro('et <'en =e do di,orce <o6en+ di,orce t'e6 at t'eir (rescribed (eriods+ and count )accuratel=* t'eir (rescribed (eriods# and "ear Alla' =our Bord# and turn t'e6 not out o" t'eir 'ouses+ nor s'all t'e= )t'e6sel,es* lea,e+ eCce(t in case t'e= are 1uilt= o" so6e o(en le<dness+ t'ose are li6its set b= Alla'# and an=

<'o trans1resses t'e li6its o" Alla'+ does ,eril= <ron1 'is )o<n* soul# t'ou /no<est not i" (erc'ance Alla' <ill brin1 about t'erea"ter so6e ne< situation. 2. .'us <'en t'e= "ul"il t'eir ter6 a((ointed+ eit'er ta/e t'e6 bac/ on e5uitable ter6s or (art <it' t'e6 on e5uitable ter6sK and ta/e "or <itness t<o (ersons "ro6 a6on1 =ou+ endued <it' Austice+ and establis' t'e e,idence "or t'e sa/e o" Alla'. -uc' is t'e ad6onition 1i,en to 'i6 <'o belie,es in Alla' and t'e Bast !a=. And "or t'ose <'o "ear Alla'+ He )e,er* (re(ares a <a= out.H

.'e abo,e 5uoted ,erses+ ob,iousl= (lace+ certain restrictions on t'e (o<er o" 'usband to (ronounce di,orce. .'e restrictions are t'at t'e 'usband+ e,en <'ere 'e 'as a ,alid reason to di,orce 'is <i"e+ 'as to di,orce 'er at t'e (rescribed (eriod. .'e di,orce is to be (ronounced a"ter end o" 6enstrual c=cle but be"ore t'e 'usband indul1es in seCual intercourse <it' 'is <i"e. In case a"ter 6enstrual c=cle t'e 'usband and <i"e co(ulate durin1 t'e (eriod o" (urit= or tu'r+ t'e 'usband cannot (ronounce .alaa/ durin1 t'at tu'r and 'as to <ait till tu'r co6es to an end+ and t'e second 6enstrual disc'ar1e ends and t'erea"ter (ronounce .alaa/ in neCt tu'r. A1ain di,orce is to be (ronounced in (resence o" t<o <itnesses <'o are endued <it' Austice. .'ere is no sco(e "or disa1ree6ent <it' t'e le1al (ro(osition t'at as Euran and -unna re"er to .alaa/ a'san+ restrictions (laced on use o" said de,ice+ as laid do<n in 8'a(ter 65 ,erse 1 and 2 and else<'ere in Euran and -unna 'a,e re"erence to .alaa/ a'san. Ho<e,er+ t'ere is no reason to conclude t'at t'e said restrictions a((licable to t'e 6ost a((ro,ed "or6 o" di,orce+ s'ould not be a((licable to t'e 6ost des(ised and discoura1ed "or6 o" .alaa/ i.e. .alaa/ bid@i. 4n t'e ot'er 'and restrictions <arrant strict en"orce6ent in case o" .alaa/ bid@i. 2$. .'e di,orce+ ).alaa/* to be ,alid and in accordance <it' Euran and -unna'+ 6ust be (ronounced durin1 tu'r. &urt'er6ore+ in case 'usband a"ter t'e 6enstrual c=cle co6es to an end and t'e (eriod o" (urit= or tu'r co66ences+ 'as seCual intercourse <it' 'is <i"e+ 'e is "orbidden to di,orce 'is <i"e in t'at tu'r and i" 'e (ersists <it' 'is resol,e to (ronounce .alaa/+ 'e 'as to <ait till neCt 6enstruation and (ronounce .alaa/ in tu'r t'erea"ter. .'e le1al (osition is 6ade clear b= t'e case o" Abdulla'- bin L6ar re(orted b= all t'e treatise on Hadit'. Abdulla'-bin L6ar di,orced 'is <i"e A6ina-binti Fa""ar <'en s'e <as in 6iddle o" 6enstrual c=cle. L6er-bin ?'atab>"at'er o" Abdulla'-bin L6er re(orted t'e 6atter to t'e 2ro('et. .'e 2ro('et disa((ro,ed t'e di,orce (ronounced b= Abdulla'- bin L6ar+ as/ed 'i6 to restore relations <it' 'is <i"e 6a/in1 it clear t'at in case L6er bin Abdulla' <as ada6ant in 'is resol,e to di,orce 'is <i"e+ 'e 6a= do so durin1 neCt tu'r. It "ollo<s t'at t'e (ronounce6ent o" di,orce durin1 6enstrual c=cle is strictl= (ro'ibited and an= ,iolation or disre1ard renders di,orce )talaa/* non-est and inconse5uential. 0'= does Euran ordain t'at .alaa/ to be ,alid 6ust be (ronounced durin1 tu'r

and -unna insist on it@s co6(liance+ as is e,ident "ro6 ,erdict rendered in Abdulla'-bin-L6ar@s case+ is not di""icult to understand. .'e 'usband as (er t'e dictates o" Euran is to sta= a<a= "ro6 'is <i"e durin1 t'e (eriod o" 6enstruation. In suc' circu6stances t'e 'usband+ <'en 'e 'as no access to 'is <i"e+ 6a= not be in a (osition to a((reciate in ri1't (ers(ecti,e t'e "allout o" di,orce on 'is li"e and t'at o" 'is "a6il=. He <ould be in a better (osition to realiIe t'e i6(ortance o" 'is <i"e i" 'e 'as access to 'er and t'e= are in a (osition to relis' t'eir 6arital relations and (er"or6 6arital obli1ations. .'e 'usband in suc' situation 6a= "eel dissuaded "ro6 (ronouncin1 .alaa/ on 'is <i"e. .'e restrictions on (ronounce6ent o" .alaa/ a"ter t'e 'usband and <i"e co(ulate+ in t'at tu'r+ is to ser,e t'e sa6e (ur(ose. .'e obAect is to+ as "ar as (ossible dela= t'e di,orce+ so t'at 'usband 'as su""icient ti6e to 1i,e a "res' loo/ to 'is decision. 4nce (eriod o" tu'r in <'ic' 'usband 'as seCual intercourse <it' 'is <i"e co6es to an end+ and t'e <i"e does not 'a,e t'e 6enstrual disc'ar1e indicatin1 t'ereb= t'at s'e 'as concei,ed+ t'e 'usband realiIin1 t'at 'e 'as "at'ered a c'ild 6a= no 6ore be interested in (ronouncin1 .alaa/ and 6a= ,er= <ell abandon t'e idea. .'e end 1a6e is to "acilitate and ensure continuation o" 6arria1e and to a,oid t'e "a6il= brea/do<n. 25. .o 6a/e di,orce>).alaa/* ,alid+ it is not enou1' t'at it is (ronounced in (resence o" t<o <itnesses. .'e Euran (rescribes 5uali"ications o" suc' <itnesses. It e6('asises t'at t'e <itnesses 6ust be endued <it' Austice. .'e (ur(ose is to ensure t'at t'e <itnesses+ (ro6(ted b= t'eir sense o" Austice+ 6a= re5uest+ i6(lore and (ersuade t'e s(ouses on t'e ,er1e o" se(aration+ to cal6 do<n+ resol,e t'eir dis(utes and lead a (eace"ul 6arital li"e. 26. &ro6 t'e abo,e discussion+ it e6er1es t'at a 'usband to <ri11le out o" 'is obli1ations under 6arria1e includin1 one to 6aintain 'is <i"e+ clai6in1 to 'a,e di,orced 'er 'as not 6erel= to (ro,e t'at 'e 'as (ronounced .alaa/ or eCecuted di,orce deed to di,orce 'is <i"e but 'as to co6(ulsoril= (lead and (ro,e# )i* t'at e""ort <as 6ade b= t'e re(resentati,es o" 'usband and <i"e to inter,ene+ settle dis(utes and disa1ree6ents bet<een t'e (arties and t'at suc' e""ort "or reasons not attributable to t'e 'usband did not bear an= "ruit. )ii* t'at 'e 'ad a ,alid reason and 1enuine cause to (ronounce di,orce on 'is <i"e. )iii* t'at .alaa/ <as (ronounced in (resence o" t<o <itnesses endued <it' Austice.

)i,* t'at .alaa/ <as (ronounced durin1 t'e (eriod o" tu'r )bet<een t<o 6enstrual c=cles* <it'out indul1in1 in seCual intercourse <it' t'e di,orcee durin1 said tu'r. 29. It is onl= a"ter t'e 'usband (leads and (ro,es all t'e abo,e in1redients t'at di,orce>.alaa/+ <ould o(erate and 6arria1e bet<een t'e (arties <ould stand dissol,ed so as to enable 'usband to esca(e obli1ations under t'e 6arria1e contract+ includin1 one to 6aintain 'is <i"e. .'e 8ourt in all suc' cases <ould 1i,e a 'ard loo/ to t'e case (roAected b= t'e 'usband and insist on strict (roo". 28. In t'e (resent case t'e (etitioner "ailed to (ro,e t'e abo,e in1redients to 6a/e t'e .alaa/ clai6ed to 'a,e been (ronounced b= 'i6 o(erational and result in dissolution o" 6arria1e. .'ou1' a "eeble atte6(t a((ears to 'a,e been 6ade to (ro,e t'at t'ere <as so6e /ind o" inter,ention b= t'e elders be"ore .alaa/ <as (ronounced b= t'e (etitioner+ =et t'is is o" no a,ail to 'i6+ as all t'e abo,e re5uire6ents or in1redients o" a ,alid di,orce )talaa/* are not (ro,ed. 29. &or t'e reasons discussed+ t'e (etition is dis6issed. .'e order o" t'e 7e,isional 8ourt is u('eld and Bearned Ma1istrate directed to deal <it' t'e 6atter a"res' a"ter issuin1 notices to t'e (arties. .'e trial Ma1istrate as a "irst ste( s'all deter6ine on t'e basis o" t'e (leadin1s+ t'e a6ount o" t'e interi6 6aintenance to be (aid b= t'e (resent (etitioner to t'e res(ondent and ensure t'at t'e interi6 6aintenance is (aid <it' e""ect "ro6 t'e date suc' 6aintenance is directed+ <it'in "our <ee/s "ro6 t'e date o" t'e order. +Has"ai" Massodi, Jud)e Sri"a)ar -.#./#0.10