Showing posts with label Family Law II. Show all posts
Showing posts with label Family Law II. Show all posts

Family Law II_Bars to Matrimonial Reliefs

Bars to Matrimonial Reliefs

  • Section 23 of the Hindu Marriage Act, 1955 only provides the list of grounds/bars to matrimonial reliefs.
  • There are mainly eight bars to matrimonial remedies. They are as follows -
    1.  Doctrine of Strict Proof 
      • The Court cannot merely pass a decree on the basis of admission of the Petition of the parties. 
      • The court may refuse to pass a decree for judicial separation, if it felt that, it was violation of the requirement of doctrine of strict proof enacted in Section 23(1) 
    2. Advantage of one’s own wrong or disability
      • This bar enacted only in the HMA1955.
      • This bars lays down that, if the Petitioner is directly or indirectly responsible for respondent’s wrong the petition cannot be granted.
    3. Accessory
      • This bar is applicable only when the Petition is filed on the ground of respondents’ adultery.
      • Accessory is usually term used in criminal law. It indicates the active participation of the Petitioner in the crime of the Respondent. If such participation is proved then the petitioner cannot get a decree. 
    4. Connivance 
      • The term Connivance is originated from the word connive. It means “to wink at”. 
      • Accessory and connivance have the same quality but in the former one there is an active participation by the Petitioner however, in the latter, there is corrupt intention but not active participation. 
      • Once the intention is proved, the Petitioner cannot entitle a decree.
    5. Condonation 
      • Condonation is applicable to the matrimonial offences of adultery and cruelty.
      • Condonation includes two essential components: forgiveness and reinstatement.
      • Case - Dastane V/s Dastane - In this case the Husband presented the Petition for judicial separation on the ground of wife’s cruelty. However, he was continued to cohabit with wife and few months before presentation of Petition, a child was born. The Supreme Court specifically observed that, the act continuance of sexual intercourse between the parties was nothing but forgiveness and reconciliation.  And therefore it raised a presumption of condonation.
      • It is applicable to all the matrimonial offences, since it is the general bar.
    6. Collusion 
      • We can say collusion means a secret understanding between the persons. 
      • The burden of proof lies on the petitioner to prove that there is no collusion. 
      • The foundation of the doctrine of collusion is on the rule that all those who want relief from the matrimonial court should approach before it with clean hands.
      • Originally under the Hindu Marriage Act, collusion was a bar to all matrimonial reliefs, but the Marriage Laws (Amendment) Act has abolished collusion as a bar to the petition.
    7. Delay
      • Improper or unnecessary delay is bar to matrimonial reliefs under HMA, 1955. The Petition must be presented before the court within reasonable time. 
      • The burden of proof that there has not been improper or unreasonable delay is on the Petitioner. 
    8. Residue Clause, Any other legal ground
      • It may be noted that, since this is general bar applicable to all matrimonial remedies. 
      • The residue clause has not yet come up for interpretation before the Indian Courts.

Family Law II_Doctrine of Pious Obligation

Doctrine of Pious Obligation

  1. Under the Hindu Law, debt is considered to be the sin.
  2. The ancient Doctrine of Pious Obligation was governed by the Smriti Law. 
  3. Pious obligation is the moral liability of the sons, grandsons and great-grandsons to pay or discharge the debts of father/ grandfather/great grandfather. 
  4. Extent of the liability of Son, Son’s Son and Son’s Son’s Son under the Hindu law – 
    • Son was required to pay the debt of father with interest accrued thereon 
    • The grandson was liable to pay only the principal amount 
    • The great-grandson was required to pay only to the extent to the joint family property in his hand. 
  5. The son and grandson were made personally liable to pay the debt but the great-grandson was not held personally liable. 
  6. The debt should not be avyavaharika i.e. debt taken for an immoral or illegal purpose. 
  7. When a debt is contrary to or against good moral it is called avyavaharika debt. E.g. – Debts due for gambling, Unpaid fines, unpaid tolls, debts due to lust, etc. 
  8. The debt should not be time barred. The sons are not bound to pay time barred debt of their father. 
  9. The debt must be antecedent. 
  10. This doctrine is not recognized by under the Dayabhaga School.

Family Law II_Vidyadhan


  1. It is also known as gains of learning. 
  2. It means those gains which are made on account of some learning.
  3. Learning includes education such as elementary, technical, special, scientific or general and training of every kind. 
  4. The object of gains of learning to qualify a person to pursue any trade, business, profession or undertaking to earn his livings. 
  5. The acquisition of property made with the help of learning is considered as a Separate Property.
  6.  In the year 1930, the Hindu Gains of Learning Act, 1930 came into force, which removed the irregularities which were existing previously. 

Family Law II_Disqualification of Heirs under Hindu Succession Act, 1956

Disqualification of Heirs under Hindu Succession Act, 1956

  1. Sections 24 to 26 of the Hindu Succession Act, 1956 provides for disqualification of heirs under Hindu Succession Act, 1956.
  2. The grounds for Disqualifications – 
    • Certain widows remarrying - Section 24 of the Hindu Succession Act 1956 disqualifies the widow of a predeceased son, the widow of a brother if, she has remarried. 
    • Murderer -  The person who commits a murder or abets the commission of murder has been disqualified under Section 25 of the Hindu Succession Act.
    • Convert’s descendants - Section 26 of the Hindu Succession Act 1956 also disqualifies a convert's descendants from inheritance. A Hindu has ceased to be Hindu by conversion to another religion, children born to him or her after such conversion and their descendants shall be disqualified.
    • Succession when heir disqualified - If a person is disqualified from inheriting any property under this Act, it shall devolve as if such person had died before the intestate.
  3. Section 28 of the HS Act, 1956, provides that, no person shall be disqualified from inhering any property on the ground of any disease, defect or deformity.

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