Family Law for CLAT 2026: A Preparatory Module

Part I: Introduction to Family Law for CLAT

1.1. Understanding Family Law in India: Scope and Significance

Family law in India is a critical branch of civil law that governs the intricate web of relationships within families. It encompasses a broad spectrum of personal matters, including marriage, divorce, child custody, adoption, guardianship, and inheritance.¹ Often referred to as matrimonial law due to the prevalence of marriage-related disputes, its scope extends to regulate the complexities of familial ties and their legal consequences.¹ As a cornerstone of India’s legal system, family law profoundly impacts the lives of citizens across the nation, addressing a wide array of regulations and topics that shape their personal and collective existence.¹

The evolution of family law in India, particularly since independence, reflects a significant transformation from traditional, often patriarchal, norms towards contemporary legal principles that champion gender equality and individual rights.¹ This dynamic nature is evident in legislative reforms and judicial pronouncements that continuously adapt to societal shifts. For CLAT aspirants, understanding this evolutionary trajectory is vital, as it provides context to current legal provisions and the rationale behind them. The subject’s importance is further underscored by its inclusion in preparatory materials for law entrance examinations, which aim to provide clarity and depth on these critical legal matters.²

A distinctive feature of the Indian family law system is the co-existence of various personal laws, primarily based on religious affiliations, alongside secular enactments. For instance, the Hindu Marriage Act, 1955, applies to Hindus, Buddhists, Jains, and Sikhs, but explicitly excludes Muslims, Christians, Parsis, or Jews, who are governed by their respective personal laws or secular legislation like the Special Marriage Act, 1954.³ This plurality creates a complex legal landscape, often leading to debates surrounding the implementation of a Uniform Civil Code, as envisioned in Article 44 of the Constitution of India.

Furthermore, family law serves as a mirror reflecting societal change. The legal framework is not static; it actively responds to and, at times, shapes evolving social values. Landmark judicial interventions, such as the Supreme Court’s striking down of arbitrary practices like Triple Talaq in Shayara Bano v. Union of India ¹ or the recognition of women in live-in relationships as entitled to protection under the Protection of Women from Domestic Violence Act, 2005, in cases like Indra Sarma v. V.K.V. Sarma ¹, exemplify this responsiveness. These developments underscore the judiciary’s role in interpreting laws in a manner that promotes gender justice and individual dignity, adapting to new social realities. For aspiring law students, it is therefore essential to analyze not just the letter of the law but also the socio-legal currents that influence its interpretation and application.

1.2. Family Law in the CLAT Syllabus: Importance and Weightage

Family Law consistently features as an essential component in the Common Law Admission Test (CLAT), particularly at the postgraduate (PG) level, where the difficulty of questions is generally considered moderate to high.⁵ For the CLAT Undergraduate (UG) examination, while Family Law may not always be a distinctly demarcated high-weightage section, its principles are frequently tested within the Legal Reasoning section. The Legal Reasoning section itself carries substantial weightage, typically accounting for about 25% of the total marks, which translates to approximately 28-32 questions.⁶

At the CLAT PG level, the syllabus explicitly includes Family Law as a core subject. It is often grouped with other significant legal domains such as Jurisprudence and Criminal Law, with this combined section carrying a substantial weight of 60 questions and 60 marks.⁶ This necessitates a deep and nuanced understanding of various personal laws, including key areas like judicial separation, divorce, and maintenance under both Hindu and Muslim laws, focusing on specific legal provisions and their interpretations.⁵

The integrated nature of legal reasoning in the CLAT UG exam means that a thorough grasp of fundamental Family Law concepts is indispensable. Questions in this section are often passage-based, requiring aspirants to apply legal principles to hypothetical factual scenarios. Family Law topics, with their distinct statutory provisions (like the Hindu Marriage Act, 1955, or the Dissolution of Muslim Marriages Act, 1939), established grounds for marriage and divorce, and landmark judicial pronouncements, provide fertile ground for constructing such application-based questions.² Success in this section hinges not on rote memorization but on the ability to comprehend, analyze, and apply legal rules with assurance.

Given the specific emphasis on Family Law for CLAT PG, aspirants for this level must delve deeper into the subject matter. However, for CLAT UG aspirants, a robust foundational knowledge of key principles, landmark case law, and the socio-legal context of family laws in India will be crucial for tackling the Legal Reasoning section effectively. This module aims to build that strong foundation, covering the specified topics comprehensively.

Part II: Hindu Law

2.1. Hindu Marriage

2.1.1. Concept and Nature of Hindu Marriage

Traditionally, Hindu marriage is regarded as a samskara, a sacrament, signifying a holy and indissoluble union rather than a mere civil contract.⁷ It is envisioned as a lifelong commitment that enables two individuals, as husband and wife, to jointly pursue the four primary aims of life: Dharma (righteous duty), Artha (prosperity), Kama (physical and emotional desires), and Moksha (spiritual liberation).⁷ This sacred perspective underscores the deep religious and spiritual significance attached to marriage in Hindu philosophy.

The Hindu Marriage Act, 1955 (HMA) codified the law relating to marriage among Hindus, extending its applicability to Buddhists, Jains, and Sikhs by religion or conversion.³ While the HMA has introduced elements that resemble contractual obligations by defining conditions for a valid marriage, establishing grounds for void and voidable marriages, and providing for divorce, the sacramental essence continues to influence judicial interpretation and societal understanding. There exists a discernible tension between the traditional sacramental view and the modern statutory framework. The Act, by its very nature of regulating marriage and its dissolution through legal processes, imbues the institution with significant contractual characteristics.³ The Supreme Court’s observation in Shilpa Shailesh v. Varun Shrinivasan (2023), highlighting that the purpose of marriage is to evolve “a family in future which is a basic unit of Indian society” ⁹, also points to a broader societal and legal recognition that extends beyond a purely private religious ceremony. This duality is pivotal for understanding the contemporary legal status of Hindu marriage.

2.1.2. Conditions for a Valid Hindu Marriage (Section 5, HMA 1955)

Section 5 of the Hindu Marriage Act, 1955, lays down five essential conditions that must be fulfilled for a marriage between any two Hindus to be considered valid.³ These conditions are mandatory, and their contravention can render the marriage void or voidable. The conditions are:

• (i) Monogamy: Neither party must have a spouse living at the time of the marriage. This codifies the principle of monogamy and prohibits bigamy.¹⁰
• (ii) Mental Capacity: At the time of the marriage, neither party:
  • (a) should be incapable of giving valid consent to it in consequence of unsoundness of mind; or
  • (b) though capable of giving valid consent, should have been suffering from a mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or
  • (c) should have been subject to recurrent attacks of insanity.¹⁰ The judicial interpretation of “unsoundness of mind” or “mental disorder” rendering a party “unfit for marriage” has evolved. Courts tend to assess whether the mental condition is such that the individual cannot reasonably fulfill the ordinary duties and responsibilities inherent in a marital relationship, moving beyond mere diagnostic labels to consider the practical impact on married life.
• (iii) Age of Marriage: The bridegroom must have completed the age of twenty-one years and the bride the age of eighteen years at the time of the marriage.³ While contravention of this condition does not render the marriage void or voidable under HMA itself, it is punishable under the Prohibition of Child Marriage Act, 2006.
• (iv) Prohibited Degrees of Relationship: The parties must not be within the degrees of prohibited relationship, unless the custom or usage governing each of them permits of a marriage between the two.¹⁰ Degrees of prohibited relationship are defined in Section 3(g) of the HMA.
• (v) Sapinda Relationship: The parties must not be sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two.¹⁰ Sapinda relationship extends up to three generations through the mother and five generations through the father, the line being traced upwards from the individual concerned, who is counted as the first generation.¹¹

The HMA’s recognition of “custom or usage” as a valid exception to the rules regarding prohibited degrees and sapinda relationships is a significant feature.³ This demonstrates an attempt by the legislature to balance the codification of Hindu law with the diverse practices prevalent within various Hindu communities. However, courts scrutinize claims of custom rigorously, requiring clear and unambiguous proof of a longstanding, uniform, and binding custom to validate a marriage that would otherwise be impermissible under the general provisions of Section 5.¹¹ This careful judicial oversight ensures that the exception is not misused to bypass fundamental marital rules without genuine customary sanction.

2.1.3. Essential Ceremonies: Kanyadaan and Saptapadi

For a Hindu marriage to be validly solemnized, it must be performed in accordance with the customary rites and ceremonies of at least one of the parties.⁷ Section 7 of the HMA specifically addresses this, stating that a Hindu marriage may be solemnized according to such rites and ceremonies. It further clarifies that where these rites and ceremonies include the Saptapadi (the taking of seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and binding when the seventh step is taken.⁹

Among the various rituals, Kanyadaan and Saptapadi are widely recognized as key ceremonies.⁷

• Kanyadaan: This ritual involves the “giving away of the daughter” by her father (or guardian) to the groom.⁷ It is a deeply emotional and symbolic act, signifying the parents’ blessing and the transition of the bride into her new family.¹³ While rich in cultural and spiritual significance, its legal necessity can vary depending on specific community customs.
• Saptapadi: This is often considered the most crucial ritual for the legal validity of a Hindu marriage.³ It involves the couple taking seven steps together, typically around a sacred fire, with each step representing a specific vow or promise they make to each other.⁷ As per Section 7(2) of the HMA, if Saptapadi is part of the customary rites of either party, its completion renders the marriage legally binding and irrevocable.⁹

A recent Supreme Court judgment in 2024 has underscored the paramount importance of performing essential ceremonies. The Court observed that if a Hindu marriage is not solemnized in accordance with the applicable customary rites, such as Saptapadi where it is essential, the marriage may not be construed as a Hindu marriage under the HMA, even if it has been registered.⁹ This ruling clarifies that marriage registration is primarily a proof of marriage, not a substitute for its solemnization through prescribed religious rituals. This has significant implications, particularly for couples who might opt for registration (e.g., for visa purposes) without undergoing the full traditional ceremonies, potentially affecting the legal validity of their union under Hindu personal law. While Kanyadaan holds profound symbolic value, the performance of Saptapadi (or other equivalent essential customary rites) often carries more decisive legal weight in court proceedings when the factum of marriage is disputed.

2.1.4. Void and Voidable Marriages (Sections 11 & 12, HMA 1955)

The Hindu Marriage Act, 1955, distinguishes between marriages that are void and those that are voidable, with different legal consequences.

Void Marriages (Section 11, HMA):

A void marriage is one that is considered invalid from its very inception (void ab initio). It has no legal standing, and the law treats it as if it never existed.11 Either party to such a marriage can petition the court for a decree of nullity. The grounds that render a Hindu marriage void under Section 11 are:

1. Bigamy: If either party had a spouse living at the time of the marriage (contravention of Section 5(i) HMA).³ The Supreme Court in Lily Thomas v. Union of India (2000) held that a Hindu converting to another religion merely to contract a second marriage cannot escape the law of bigamy.¹¹
2. Prohibited Degrees of Relationship: If the parties are within the degrees of prohibited relationship (contravention of Section 5(iv) HMA), unless a valid custom governing both parties permits such a marriage.¹¹
3. Sapinda Relationship: If the parties are sapindas of each other (contravention of Section 5(v) HMA), unless a valid custom governing both parties permits such a marriage.¹¹

The parties to a void marriage do not acquire the legal status of husband and wife, and consequently, they have no mutual marital rights or obligations, such as maintenance arising from that specific void marriage.¹¹ However, a crucial social welfare provision, Section 16 of the HMA, declares that any child born of a void marriage (or a voidable marriage annulled by a decree) is deemed to be legitimate.¹¹ Such children are entitled to inherit the property of their parents. Recent judicial pronouncements, such as an Orissa High Court ruling, have affirmed that children born out of a void marriage are entitled to inherit both ancestral and self-acquired property of their Hindu father.¹⁴ This provision aims to protect innocent children from the legal repercussions of their parents’ invalid marital union.

Voidable Marriages (Section 12, HMA):

A voidable marriage remains legally valid and subsisting until it is annulled by a decree of nullity by a competent court upon a petition presented by one of the parties.3 The grounds for a marriage being voidable under Section 12 are:

1. Impotency: If the marriage has not been consummated owing to the respondent’s impotence.³
2. Contravention of Mental Capacity Conditions (Section 5(ii)): If the marriage was in contravention of the conditions specified in Section 5(ii) HMA, relating to incapacity to give valid consent due to unsoundness of mind, or unfitness for marriage and procreation due to mental disorder, or recurrent attacks of insanity.¹¹
3. Consent Obtained by Force or Fraud: If the consent of the petitioner (or the consent of the guardian in marriage where required) was obtained by force or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent.³ The scope of “fraud” is often litigated, with courts generally requiring proof of fraud concerning material facts that are vital to the marital relationship, such as concealment of a serious disease or prior marital status, rather than trivial misrepresentations. A petition on this ground must be presented within one year after the force had ceased to operate or the fraud had been discovered.
4. Pre-Marriage Pregnancy by Another: If the respondent was at the time of the marriage pregnant by some person other than the petitioner.³ This ground is available only if the petitioner was ignorant of this fact at the time of marriage, proceedings are instituted within one year of marriage, and marital intercourse with the consent of the petitioner has not taken place since the discovery of this fact.

It is important to note that specific limitation periods apply for filing petitions for annulment on certain grounds of voidability, such as fraud or pre-marriage pregnancy.³

Passage : Voidable Marriage and Mental Health – Hidden Truths

Aditya married Smita under Hindu rites. Unknown to Aditya, Smita had been previously diagnosed with paranoid schizophrenia, which she did not disclose before marriage. The condition was stable due to medication, and the marriage was consummated. However, within three months, Aditya noticed erratic behavior and found psychiatric prescriptions. Feeling deceived, he filed for annulment under Section 12(1)(c) of the Hindu Marriage Act, claiming that his consent was obtained by fraud regarding a material fact — her mental illness.

Smita’s counsel argued that schizophrenia is not always disqualifying unless it affects the capacity to perform marital obligations. Moreover, they contended that Aditya had discovered the truth months ago and still continued cohabiting with full consent, which bars relief.

The trial court dismissed the petition, holding that mere non-disclosure of a manageable illness does not constitute fraud as to the “nature of the ceremony” or a material fact sufficient to annul a marriage. The court also noted that the time for filing the annulment petition had lapsed.

🔎 Questions:

Q1. Under Section 12(1)(c) of the Hindu Marriage Act, which of the following is a valid ground for annulment?

A) Refusal to relocate

B) Financial dishonesty

C) Fraud as to the respondent’s pre-existing mental illness

D) Refusal to perform rituals

✅ Answer: C

Q2. Which of the following factors would MOST LIKELY bar Aditya’s claim for annulment?

A) The existence of schizophrenia

B) Medical improvement of the illness

C) His continued marital cohabitation after discovery of fraud

D) The fact that the illness is not genetic

✅ Answer: C

Q3. Why is the concept of limitation critical in voidable marriages under the HMA? A) Because void marriages have no time bar B) Because time limits protect judicial economy C) Because it affects inheritance of children D) Because delay may indicate waiver of objection

✅ Answer: D

Q4. According to judicial interpretation, when is a mental disorder like schizophrenia considered to invalidate consent under Section 5?

A) When diagnosed by any psychiatrist

B) When it prevents understanding of marriage or performance of obligations

C) When one spouse is unaware of it

D) When medication is required

✅ Answer: B

2.2. Divorce under Hindu Law

2.2.1. Theories of Divorce

The concept of divorce under Hindu law has evolved significantly, moving from the traditional notion of an indissoluble sacramental union to a system that permits dissolution under specific circumstances. The grounds for divorce under the Hindu Marriage Act, 1955, are primarily based on certain established theories:

1. Fault Theory (or Guilt/Offense Theory): This is the most traditional theory, where a marriage can be dissolved if one party has committed a matrimonial offense, thereby being “at fault.” The “innocent” party is then entitled to seek divorce.⁵ Most grounds listed in Section 13(1) of the HMA, such as adultery, cruelty, and desertion, are based on this theory. The challenge with a strict fault-based system is that it offers no recourse if both parties are at fault or if the marriage breaks down without a specific offense attributable to one party.
2. Mutual Consent Theory: This theory posits that if a marriage can be entered into by the free will of the parties, its dissolution should also be possible if both parties mutually agree that the marriage has broken down and they can no longer live together.¹⁵ Section 13B of the HMA, introduced by the Marriage Laws (Amendment) Act, 1976, embodies this theory, allowing for divorce by mutual consent.
3. Breakdown Theory: This theory suggests that if a marriage has irretrievably broken down, meaning it has failed in substance and reality with no reasonable prospect of reconciliation, it should be dissolved regardless of fault.¹⁵ The focus is on the factual state of the marriage rather than the commission of a matrimonial offense. While “irretrievable breakdown of marriage” is not yet a statutory ground for divorce that can be invoked by parties before the District Courts or High Courts under the HMA, the Supreme Court of India has increasingly recognized its importance. The Court has exercised its extraordinary powers under Article 142 of the Constitution to grant divorces on this ground in specific cases to do “complete justice”.⁹ There have been consistent recommendations from the Law Commission of India and observations by the Supreme Court advocating for its inclusion as a formal statutory ground.¹⁶ This reflects a pragmatic judicial approach acknowledging that forcing parties to remain in a dead marital tie often leads to prolonged agony and serves no useful purpose.

Understanding these theories provides a crucial conceptual framework for comprehending the diverse grounds for divorce available under Hindu law and the evolving jurisprudence in this area.

2.2.2. Grounds for Divorce (Section 13(1) & 13(2), HMA 1955)

Section 13 of the Hindu Marriage Act, 1955, provides the specific grounds upon which a decree of divorce can be sought to dissolve a Hindu marriage.

Section 13(1) – Grounds available to either husband or wife:

• Adultery: If the other party has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse.³
• Cruelty: If the other party has, after the solemnization of the marriage, treated the petitioner with cruelty.³ The concept of cruelty is not confined to physical violence; it has been judicially expanded to include mental cruelty. Mental cruelty is subjective and depends on the specific facts and circumstances of each case, the socio-economic background of the parties, and their standard of living.³ Illustrative instances of mental cruelty have been laid down in landmark cases like Samar Ghosh v. Jaya Ghosh.¹⁶ Recent High Court rulings have recognized acts like a spouse threatening or attempting suicide ¹⁴ or a wife persistently filing numerous false FIRs against the husband ¹⁴ as constituting cruelty. Conversely, acts like a wife watching pornography or engaging in self-pleasure have been held not to constitute cruelty by themselves ¹⁴, indicating the nuanced application of this ground.
• Desertion: If the other party has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition.³ Desertion means the intentional and permanent forsaking and abandonment of one spouse by the other without that other’s consent and without reasonable cause.
• Conversion: If the other party has ceased to be a Hindu by conversion to another religion.³
• Unsoundness of Mind: If the other party has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.³
• Virulent and Incurable Leprosy: If the other party has been suffering from a virulent and incurable form of leprosy.³ (Note: This ground has been a subject of debate and moves towards its repeal due to advancements in medical treatment and to reduce stigma).
• Venereal Disease: If the other party has been suffering from venereal disease in a communicable form.³
• Renunciation of the World: If the other party has renounced the world by entering any religious order.³
• Presumption of Death: If the other party has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive.³

Section 13(1A) – Divorce after decrees of Judicial Separation or Restitution of Conjugal Rights:

Either party can also seek divorce if:

• There has been no resumption of cohabitation between the parties for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties.³
• There has been no restitution of conjugal rights as between the parties for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.³

Section 13(2) – Additional grounds available only to the wife:

• Husband’s Bigamy (Pre-Act Polygamous Marriage): If the husband had married again before the commencement of the HMA, 1955, or if any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner; provided that in either case the other wife is alive at the time of the presentation of the petition.³
• Husband Guilty of Rape, Sodomy, or Bestiality: If the husband has, since the solemnization of the marriage, been guilty of rape, sodomy, or bestiality.³
• Non-Resumption of Cohabitation after Maintenance Order: If a decree or order has been passed against the husband awarding maintenance to the wife under Section 18 of the Hindu Adoptions and Maintenance Act, 1956, or in a proceeding under Section 125 of the Code of Criminal Procedure, 1973 (or under the corresponding Section 488 of the Code of Criminal Procedure, 1898), and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards.⁸
• Repudiation of Marriage (Option of Puberty): If her marriage was solemnized before she attained the age of fifteen years, and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years.⁸ Such repudiation may be express or implied.

It is important to note that concerns have been raised regarding the potential misuse of certain legal provisions in matrimonial disputes, including some grounds for divorce or related sections like Section 498A of the Indian Penal Code (dealing with dowry harassment).⁸ The Supreme Court has, at times, issued guidelines to prevent the misuse of such provisions.¹⁶ This highlights a practical challenge in family law litigation that requires a balanced approach from the judiciary.

2.2.3. Divorce by Mutual Consent (Section 13B, HMA 1955)

Section 13B of the Hindu Marriage Act, 1955, introduced by the Marriage Laws (Amendment) Act, 1976, provides for divorce by mutual consent. This provision allows a husband and wife to jointly file for divorce, offering a less acrimonious and speedier alternative to contested divorce proceedings.¹⁸

The essential conditions for seeking divorce by mutual consent under Section 13B are:

1. Living Separately: The parties must have been living separately for a period of one year or more immediately preceding the presentation of the petition.¹⁸ “Living separately” does not necessarily mean living in different houses; it can imply that they have not been living as husband and wife, even if under the same roof.
2. Inability to Live Together: They must not have been able to live together.¹⁹
3. Mutual Agreement for Dissolution: Both parties must have mutually agreed that the marriage should be dissolved.¹⁸

Procedure:

1. Joint Petition (First Motion): Both spouses must jointly present a petition for divorce to the District Court on the grounds mentioned above.¹⁹ This petition is often accompanied by a Memorandum of Understanding (MoU) or settlement agreement detailing the terms agreed upon by the parties regarding alimony, division of property, child custody, and any other pertinent issues.¹⁹
2. Cooling-Off Period: After the first motion is granted, the law mandates a “cooling-off” period of six months, which can extend up to eighteen months from the date of presentation of the petition.¹⁹ This period is intended to give the parties time to reflect on their decision and explore any possibility of reconciliation.
3. Second Motion: If, after the expiry of six months from the date of the first motion and not later than eighteen months from the said date, the petition is not withdrawn, both parties must move a second motion before the court.¹⁹ The court, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that the marriage has been solemnized and that the averments in the petition are true, shall pass a decree of divorce declaring the marriage to be dissolved.

Waiver of Cooling-Off Period:

While the six-month cooling-off period is a statutory requirement, the Supreme Court of India, in exercise of its extraordinary powers under Article 142 of the Constitution, has in certain exceptional circumstances waived this period.19 This is typically done in cases where the marriage has irretrievably broken down, the parties have been separated for a long duration, all issues (like alimony and child custody) have been amicably settled, and there is no possibility of reconciliation, making the waiting period a mere procedural formality prolonging the agony of the parties.

The documents required for filing a mutual divorce petition typically include proof of marriage, proof of residence, identification proofs, photographs of the marriage, and the MoU.¹⁹ The cost is generally lower than contested divorces due to fewer court appearances.¹⁹

2.2.4. Irretrievable Breakdown of Marriage: Judicial Approach and Landmark Cases

Irretrievable breakdown of marriage signifies a situation where the marital relationship has deteriorated to such an extent that there is no reasonable probability of the spouses living together again as husband and wife, and any reconciliation is impossible.¹⁷ Currently, irretrievable breakdown of marriage is not an explicit statutory ground for divorce under the Hindu Marriage Act, 1955, that can be invoked by parties before the District Courts or High Courts.¹⁶

However, the Supreme Court of India has repeatedly acknowledged the reality of such failed marriages and, in exercise of its unique and plenary powers under Article 142 of the Constitution (which empowers it to pass any decree or make any order necessary for doing “complete justice” in any cause or matter pending before it), has granted divorces on the ground of irretrievable breakdown.⁹

Judicial Approach and Recommendations:

• The Supreme Court has, in several cases, recommended to the Union of India that the HMA be amended to include irretrievable breakdown as a ground for divorce. Notable among these are:
  • ***Ms. Jorden Diengdeh Vs. S.S. Chopra (AIR 1985 SC 935)***: The Court observed the necessity of introducing this ground.¹⁶
  • ***Naveen Kohli v. Neelu Kohli (AIR 2006 SC 1675)***: The Court strongly recommended amending the HMA.¹⁶
• The Law Commission of India, in its 71st Report (1978) and again in a 2009 report, advocated for the inclusion of irretrievable breakdown as an additional ground for divorce, arguing that restricting divorce to matrimonial offenses causes injustice when a marriage is practically dead.¹⁶
• In ***Samar Ghosh v. Jaya Ghosh ((2007) 4 SCC 511)***, the Supreme Court extensively discussed the concept and the Law Commission’s report.¹⁶
• More recently, in ***Shilpa Shailesh v. Varun Shrinivasan (2023)***, a Constitution Bench affirmed the Supreme Court’s power to grant divorce under Article 142 on the ground of irretrievable breakdown of marriage, even if the parties do not consent, thereby bypassing the procedures of family courts.⁹
• In ***JATINDER KUMAR SAPRA Vs. ANUPAMA SAPRA (2024)***, the Supreme Court again invoked Article 142(1) to grant divorce on this ground, considering a long period of separation and the impossibility of reconciliation.²⁰

Factors Considered by the Supreme Court:

When granting divorce on this ground, the Supreme Court typically considers factors such as:

• The duration of cohabitation.
• The period since the parties last cohabited (often a separation exceeding 6 years is considered significant).¹⁷
• The nature of allegations and counter-allegations made by the parties against each other.
• Orders passed in other legal proceedings between the parties.
• Attempts made towards reconciliation or dispute settlement by family members or mediation, and their failure.¹⁷

Cautionary Approach:

The Supreme Court has also sounded a note of caution. In ***Prabhavathi @ Prabhamani v. Lakshmeesha M.C. (2024)***, it was held that the ground of irretrievable breakdown should not be used to grant divorce in a manner that benefits the party solely responsible for the breakdown of the marriage.9 The Court emphasized that this “bogey” cannot be used to the advantage of a party who has themselves torn down the marital relationship.

The continued use of Article 142 by the Supreme Court for this purpose highlights a judicial response to the practical realities of deadlocked marriages, where forcing spouses to remain tied legally serves no purpose but to prolong their suffering. This judicial activism exists in a context where, despite consistent recommendations, Parliament has not yet amended the HMA to formally incorporate irretrievable breakdown as a statutory ground accessible in all family courts. This creates a situation where such relief is primarily available only at the Supreme Court level, reflecting a gap between judicial recognition of a pressing social need and legislative action. The Marriage Laws (Amendment) Bill, 2013, did propose adding irretrievable breakdown as a ground for divorce under the HMA ²⁰, indicating legislative consideration, but it was not enacted in that form for the HMA.

Passage: Irretrievable Breakdown vs. Fault-Based Divorce: Article 142 Under Fire

Priya and Manish have lived separately for over 10 years. Manish has made several attempts at reconciliation, including court-ordered mediation. Priya, citing emotional trauma and lack of trust, refuses any form of reconciliation. No acts of cruelty or adultery have been proved. The Family Court denies divorce under Section 13 of the Hindu Marriage Act, citing absence of statutory grounds.

Manish appeals to the Supreme Court, invoking Article 142. In Shilpa Shailesh v. Varun Shrinivasan (2023), the Court granted divorce without consent of both parties, recognizing “irretrievable breakdown of marriage” as a valid basis under its plenary powers. However, in Prabhavathi v. Lakshmeesha (2024), the same Court cautioned against using Article 142 to benefit the guilty.

The Supreme Court grants the divorce under Article 142, noting the dead marriage. Priya challenges the verdict, stating that bypassing statutory procedure deprives her of due process and encourages abandonment by spouses under the guise of “irretrievable breakdown.”

🔎 Questions:

Q1. Which of the following BEST describes the legal status of “irretrievable breakdown” as a ground for divorce in ordinary courts?
A) It is a statutory ground under Section 13 of the HMA
B) It is a ground only in mutual consent divorce
C) It is not a statutory ground but used by the Supreme Court under Article 142
D) It can be invoked under Section 125 of CrPC

✅ Answer: C
Explanation: The ground is not recognized in statutory law but has judicial recognition through Article 142

Q2. Which of the following factors is LEAST relevant when granting divorce under Article 142 for irretrievable breakdown?
A) Length of separation
B) Ongoing allegations with no resolution
C) Whether spouse has remarried
D) Mediation attempts and failure

✅ Answer: C
Explanation: Remarriage before divorce is invalid and does not factor into the irretrievable breakdown analysis

Q3. If the Court’s decision disproportionately benefits the party who caused the breakdown, which precedent warns against such misuse?
A) Naveen Kohli v. Neelu Kohli
B) Lily Thomas v. Union of India
C) Prabhavathi @ Prabhamani v. Lakshmeesha
D) Shilpa Shailesh v. Varun Shrinivasan

✅ Answer: C
Explanation: The Prabhavathi judgment explicitly warns that Article 142 should not reward guilty conduct

Q4. Which constitutional argument could Priya most persuasively use to challenge the divorce granted via Article 142?
A) Violation of Article 19(1)(a)
B) Violation of Article 21 (right to life and dignity) without due process
C) Violation of Article 25 (religious freedom)
D) Violation of Article 370

✅ Answer: B
Explanation: Priya may argue deprivation of marital status without due legal process, violating Article 21

2.3. Maintenance under Hindu Law

Hindu law provides for the financial support of spouses, children, and aged parents through various statutory provisions, primarily under the Hindu Marriage Act, 1955 (HMA), and the Hindu Adoptions and Maintenance Act, 1956 (HAMA).

2.3.1. Maintenance Pendente Lite and Permanent Alimony (Sections 24 & 25, HMA 1955)

These sections of the HMA deal with maintenance and expenses during matrimonial proceedings and permanent financial support after the dissolution of marriage or other decrees.

• Section 24: Maintenance Pendente Lite and Expenses of Proceedings:
  This section empowers the court to provide interim financial relief. Where in any proceeding under the HMA (such as divorce, nullity, judicial separation, restitution of conjugal rights), it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner’s own income and the income of the respondent, may seem to the court to be reasonable.21
  This provision is gender-neutral, meaning either spouse can claim it. However, in practice, due to prevailing socio-economic conditions in India where wives are often financially dependent, claims are predominantly made by wives. A recent Karnataka High Court ruling clarified that an able-bodied husband having earning capacity cannot seek permanent alimony (and by extension, likely maintenance pendente lite) from his wife.23 The interim maintenance is payable from the date of presentation of the petition until the dismissal of the suit or the passing of the decree, designed to meet the immediate needs of the petitioner.24
• Section 25: Permanent Alimony and Maintenance:
  This section allows the court, at the time of passing any decree (e.g., divorce, nullity) or at any time subsequent thereto, on application made to it for the purpose by either the wife or the husband, to order that the respondent shall pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent’s own income and other property, if any, the income and other property of the applicant, the conduct of the parties and other circumstances of the case, it may seem to the court to be just.21
  The payment can be secured, if necessary, by a charge on the immovable property of the respondent. The court can also vary, modify, or rescind any such order if there is a change in the circumstances of either party.25 The right to claim permanent alimony ceases if the applicant (if wife) remarries or is found to be unchaste (or if the husband applicant has sexual intercourse outside wedlock).25
  Significantly, the Supreme Court has held that permanent alimony and interim maintenance can be granted even when the marriage is declared void under the HMA.23 This ensures that a party to a void marriage, often the woman, is not left destitute. The Orissa High Court has also ruled that a court can grant maintenance to a wife exceeding the amount she initially claimed, based on a fair assessment of needs and means.23

Factors Determining Quantum of Maintenance:

The amount of maintenance (both pendente lite and permanent) is determined by the court based on several factors, including:

• The income, earning capacity, property, and other financial resources of both parties.²⁵
• The reasonable needs and wants of the claimant, consistent with their standard of living during the marriage.²⁵
• The conduct of the parties.
• The number of persons entitled to maintenance.²⁶
• A recent Delhi High Court judgment clarified that personal loans or EMIs taken by the husband are voluntary financial obligations and cannot override his primary obligation to maintain his wife.¹⁴

It is also important to note that if a wife has been granted permanent alimony under Section 25 of the HMA, a subsequent maintenance petition by her under Section 125 of the Code of Criminal Procedure (CrPC) may not be entertained.²³ This aims to prevent multiplicity of proceedings and ensures that a party does not claim similar relief from different forums simultaneously.

2.3.2. Maintenance of Wife, Children, and Aged/Infirm Parents (Hindu Adoptions and Maintenance Act, 1956 – HAMA)

The Hindu Adoptions and Maintenance Act, 1956 (HAMA) provides a broader statutory framework for maintenance obligations within a Hindu family, extending beyond the context of matrimonial proceedings under the HMA. This Act codifies the personal obligation of a Hindu to maintain certain relatives.

• Maintenance of Wife (Section 18, HAMA):
  • A Hindu wife is entitled to be maintained by her husband during her lifetime.²⁵ This obligation arises from the status of marriage and exists irrespective of whether the marriage was solemnized before or after the commencement of HAMA.²⁶
  • A wife is entitled to live separately from her husband without forfeiting her claim to maintenance on certain specified grounds, such as:
    • Desertion by the husband.
    • Cruelty by the husband.
    • The husband suffering from a virulent form of leprosy.
    • The husband having another wife living.
    • The husband keeping a concubine in the same house or habitually residing with a concubine elsewhere.
    • The husband having ceased to be a Hindu by conversion to another religion.
    • Any other cause justifying her living separately.²⁴
  • However, a wife forfeits her right to separate residence and maintenance if she is unchaste or ceases to be a Hindu by conversion to another religion.²⁴
• Maintenance of Widowed Daughter-in-law (Section 19, HAMA):
  • A Hindu wife, after the death of her husband, is entitled to be maintained by her father-in-law, provided and to the extent that she is unable to maintain herself out of her own earnings or other property, or, where she has no property of her own, is unable to obtain maintenance from the estate of her husband, or from her son or daughter, or their estate.²¹
  • This obligation of the father-in-law exists only if he has the means to do so from any coparcenary property in his possession out of which the daughter-in-law has not obtained any share.
  • The obligation ceases if the widowed daughter-in-law remarries.²⁵
• Maintenance of Children (Section 20, HAMA):
  • A Hindu is bound, during his or her lifetime, to maintain his or her legitimate or illegitimate minor children.²¹ Both parents, mother and father, share this responsibility equally.²²
  • Minor children (below 18 years) are entitled to maintenance.²²
  • An unmarried daughter is entitled to maintenance from her parents until she marries. The parents are also obliged to bear the reasonable expenses of her marriage.²² Even a minor married daughter, if unable to maintain herself, can seek maintenance under Section 125 CrPC.²⁸
  • Section 26 of the HMA also allows courts to pass interim orders regarding the custody, maintenance, and education of minor children during matrimonial proceedings.²¹
• Maintenance of Aged or Infirm Parents (Section 20, HAMA):
  • A Hindu is bound, during his or her lifetime, to maintain his or her aged or infirm parents if they are unable to maintain themselves out of their own earnings or property.²¹
  • This obligation extends to both sons and daughters.²²
  • The term “parent” includes a childless stepmother.²⁵ HAMA is notable for being one of the first statutes in India to impose a clear legal obligation on children to maintain their parents.
• Maintenance of Dependents (Sections 21 & 22, HAMA):
  • Section 21 defines “dependents” of a deceased Hindu, which includes various relatives like his father, mother, widow, minor son, unmarried daughter, etc.
  • Section 22 stipulates that the heirs of a deceased Hindu are bound to maintain the dependents of the deceased out of the estate inherited by them from the deceased.²¹ This ensures that vulnerable family members are not left destitute after the death of the person supporting them.
• Amount of Maintenance (Section 23, HAMA):
  • The determination of the amount of maintenance, whether in arrears or future, is at the discretion of the court.²⁶
  • In determining the amount, the court shall have due regard to:
    • The position and status of the parties.
    • The reasonable wants of the claimant.
    • If the claimant is living separately, whether the claimant is justified in doing so.
    • The value of the claimant’s property .²⁶

HAMA establishes a comprehensive social security framework within the Hindu personal law system. It extends maintenance obligations beyond the spousal relationship to cover a wider range of vulnerable family members, reflecting traditional societal values of familial responsibility. However, these rights are often conditional. For instance, a wife’s right to maintenance under Section 18 can be forfeited upon unchastity or conversion to another religion ²⁶, and a widowed daughter-in-law’s right ceases upon remarriage.²⁷ These conditions indicate that the right to maintenance under HAMA is not absolute but is linked to certain conduct or status, reflecting traditional norms that influence legal entitlements.

2.4. Hindu Law: Recent Updates and Landmark Judgments (2023-2025)

The landscape of Hindu family law is continually shaped by judicial interpretations and legislative initiatives. Staying abreast of recent developments is crucial for CLAT aspirants. The period 2023-2025 has witnessed several significant pronouncements and legislative proposals.

Key Judicial Pronouncements (2023-2025):

• Maintenance and Alimony:
  • The Orissa High Court affirmed that courts possess the discretion to grant maintenance to a wife in an amount exceeding what she initially claimed, based on a fair assessment of needs and the husband’s capacity.²³
  • The Supreme Court reiterated that permanent alimony and interim maintenance can be awarded even if the marriage is declared void under the Hindu Marriage Act, ensuring financial protection for the vulnerable party.²³
  • The Delhi High Court clarified that a husband’s personal loans or EMI obligations, being voluntary financial commitments, cannot take precedence over his fundamental legal and moral obligation to maintain his wife.¹⁴
• Divorce:
  • The Allahabad High Court ruled that a marriage can be dissolved by mutual consent if one spouse files a criminal case against the other within one year of marriage, potentially indicating an irretrievable breakdown or severe acrimony.¹⁴
  • The Bombay High Court held that a spouse threatening to commit suicide and attempting it constitutes cruelty, providing a ground for divorce.¹⁴ Similarly, the Orissa High Court found that a wife registering 45 FIRs against her husband can amount to cruelty, justifying divorce.¹⁴
  • Conversely, the Madras High Court observed that a wife watching pornography and engaging in self-pleasure does not, by itself, constitute cruelty towards the husband, emphasizing a woman’s individual autonomy even after marriage.¹⁴
  • The Supreme Court continued to exercise its powers under Article 142 of the Constitution to grant divorce on the ground of irretrievable breakdown of marriage in cases like Jatinder Kumar Sapra Vs. Anupama Sapra (2024), where long periods of separation and the impossibility of reconciliation were evident.²⁰ This follows the precedent set in Shilpa Shailesh v. Varun Shrinivasan (2023).⁹
  • However, the Supreme Court also cautioned against the misuse of the irretrievable breakdown doctrine, ruling in Prabhavathi @ Prabhamani v. Lakshmeesha M.C. (2024) that it should not be deployed to benefit a party solely responsible for the marital breakdown.⁹
• Validity of Marriage:
  • The Allahabad High Court affirmed that marriages solemnized at Arya Samaj temples in accordance with Vedic rites or other Hindu rites are valid under the Hindu Marriage Act.¹⁴
  • In a significant ruling, the Supreme Court (Justice B.V. Nagarathna) emphasized the necessity of performing essential ceremonies like Saptapadi for a Hindu marriage to be valid under the HMA. Mere registration of the marriage, often done for practical purposes like visa applications, does not validate a marriage if the solemnization rites were not performed.⁹ This underscores the continued legal importance of religious rituals in Hindu personal law.
• Children’s Rights:
  • The Orissa High Court held that children born out of a void or voidable marriage are entitled to inherit both the ancestral and self-acquired property of their Hindu father, reinforcing the protective ambit of Section 16 of the HMA.¹⁴
• Child Marriage:
  • In Society for Enlightenment and Voluntary Action v. Union of India (2024), the Supreme Court issued comprehensive guidelines for the stronger enforcement of the Prohibition of Child Marriage Act, 2006 (PCMA). The Court also suggested that Parliament might consider outlawing child betrothals to bring them explicitly within the PCMA’s prohibitory scope, recognizing that such betrothals curtail individual agency.⁹ This highlights the persistent challenge of child marriage and the judiciary’s proactive stance in addressing it.

Passage : Maintenance and Financial Dependency – A Clash of Statutes

Neha and Arvind were married for 7 years under Hindu rites. They separated due to constant disputes and Neha filed for divorce on grounds of cruelty. Arvind contested the petition and claimed that Neha was financially independent, working as a software engineer earning Rs. 80,000 per month, while he was unemployed due to chronic illness. During the proceedings, Neha sought maintenance pendente lite under Section 24 of the Hindu Marriage Act, 1955.

The Family Court dismissed her application citing her sufficient income. Post-divorce decree, Neha again filed for permanent alimony under Section 25 of the HMA, demanding Rs. 50 lakhs, arguing that Arvind had inherited ancestral property worth crores. Arvind objected, claiming that her financial independence made her ineligible and that the court had already denied interim maintenance.

The matter reached the High Court, where judges were divided. One judge held that her claim was barred due to her high earnings and prior rejection of interim relief. The other emphasized that Section 25 allows permanent alimony based on circumstances including property ownership and lifestyle.

🔎 Questions:

Q1. Which of the following is MOST accurate regarding Neha’s eligibility under Section 25 HMA?

A) She cannot claim any alimony due to her income

B) She is barred due to previous rejection under Section 24

C) She may claim alimony based on Arvind’s wealth and lifestyle during marriage

D) She can only claim alimony if she is unemployed

✅ Answer: C

Q2. The rejection of maintenance pendente lite under Section 24: A) Automatically bars any permanent alimony B) Does not impact eligibility under Section 25 C) Acts as a precedent barring all further claims D) Proves marital cruelty did not exist

✅ Answer: B

Q3. Under which factor would the court MOST LIKELY grant permanent alimony to Neha?

A) Arvind’s refusal to grant mutual divorce

B) Arvind’s inherited wealth and Neha’s lifestyle during marriage

C) Whether Neha has remarried

D) Neha’s refusal to pay interim maintenance

✅ Answer: B

Q4. If Arvind proves Neha cohabits with another partner, which legal implication arises under Section 25(3)?

A) She becomes entitled to more maintenance

B) The maintenance order may be revoked

C) Arvind is liable for contempt

D) The court must grant joint custody

✅ Answer: B

Legislative Amendments and Proposed Bills:

• Hindu Succession (Amendment) Bill, 2023 (introduced by Dr. Gautam Sigamani Pon): This private member’s bill seeks to amend Section 2 of the Hindu Succession Act, 1956, to make its provisions applicable to members of Scheduled Tribes (as defined under Article 366(25) of the Constitution). Currently, Section 2(2) of the Act excludes Scheduled Tribes from its purview unless specifically notified by the Central Government. The bill aims to rectify this by ensuring equal inheritance rights for Scheduled Tribe members, irrespective of gender, in their ancestral and HUF properties.³⁰
• Hindu Succession (Amendment) Bill, 2023 (introduced by Shri V.K. Sreekandan): This private member’s bill proposes amendments to Section 15 of the Hindu Succession Act, 1956, which deals with the general rules of succession in the case of female Hindus dying intestate. The bill aims to include non-remarried daughters-in-law as heirs and reorder the succession priority to provide them with rights comparable to sons and daughters in the property of their mothers-in-law. It also seeks to address the neglect faced by mothers and non-remarried daughters-in-law who are often left without financial support.³¹
• Prohibition of Child Marriage (Himachal Pradesh Amendment) Bill, 2024: While a state-level amendment, this bill is indicative of legislative trends. It raises the minimum legal age of marriage for women from 18 to 21 years in Himachal Pradesh, aligning it with the age for men.³³ This reflects ongoing discussions at the national level regarding raising the marriage age for women.
• Discussions on Legal Age of Marriage: The Indian government has been actively considering reforms to raise the legal age of marriage for girls from 18 to 21 years nationally, aiming to promote gender equality, and provide women with better educational and career opportunities before marriage.³⁴ However, as of early 2025, the legal age for marriage in India under central laws like the HMA, Special Marriage Act, and PCMA remains 18 years for females and 21 years for males.³⁵

These recent judicial and legislative activities demonstrate a continuous effort to refine Hindu family law. The judiciary often steps in to interpret existing laws in a manner that upholds constitutional values of equality and justice, particularly for women and children. Legislative proposals, though often incremental and sometimes originating as private member bills, indicate areas where existing laws are perceived to have gaps or lead to inequities, such as in succession rights for specific groups or the persistent issue of child marriage. The gap between law on the books and law in practice, especially concerning child marriage, remains a significant challenge, prompting judicial intervention and calls for stronger enforcement mechanisms and legislative strengthening.

Part III: Muslim Law

3.1. Muslim Marriage (Nikah)

3.1.1. Concept and Nature of Nikah

In Islamic jurisprudence, Nikah, or Muslim marriage, is fundamentally regarded as a civil contract (aqd), although it is imbued with significant religious and social dimensions.³⁶ It is not considered a sacrament in the way Hindu marriage traditionally is. The primary purpose of Nikah is to legalize sexual intercourse and the procreation of children, thereby forming the foundation of a family unit, which is a cornerstone of Islamic society.³⁷ Being contractual in nature, Nikah requires offer and acceptance and other elements typical of a contract, such as the capacity of parties and their free consent.

This contractual nature has important implications. For instance, it allows for the stipulation of terms and conditions within the marriage contract (often recorded in a Kabinnama or Nikahnama). These stipulations can include the amount of Mahr (dower), conditions regarding residence, or even a delegation of the right to divorce to the wife (Talaq-i-Tafweez).²⁴ This flexibility, inherent in its contractual character, distinguishes it from legal systems where marriage is viewed solely as a religious sacrament.

3.1.2. Essentials of a Valid Nikah (Offer & Acceptance, Capacity, Free Consent, Witnesses)

For a Muslim marriage to be valid (sahih), certain essential conditions must be fulfilled:

1. Proposal (Ijab) and Acceptance (Qubul): There must be a clear and unambiguous proposal made by one party (or their agent/guardian) and an unqualified acceptance by the other party (or their agent/guardian).³⁸ Crucially, both the proposal and acceptance must occur at the same meeting or session, in the presence and hearing of the requisite witnesses.³⁸ If the offer and acceptance happen at different times or places, the marriage is generally not considered valid.
2. Capacity of the Parties (Competency): Both the bride and the groom must be competent to enter into the marriage contract. This involves:
   • Age of Puberty (Bulugh): Under Muslim law, individuals who have attained puberty are competent to marry. Puberty is presumed to have been attained at the age of 15 years if there is no evidence to the contrary, though it can occur earlier.³⁸ A minor who has not attained puberty can be given in marriage by their legal guardian (Wali).³⁸
   • Soundness of Mind: Both parties must be of sound mind at the time of the marriage.³⁸ A marriage contracted by a person of unsound mind (e.g., an insane person who cannot understand the nature of the contract) is void. However, if a person who experiences lucid intervals contracts a marriage during such an interval, it may be valid.
   • Religion: Generally, for a Nikah to be valid, both parties must be Muslim.³⁸ While a Muslim man is permitted to marry a Kitabia woman (a woman belonging to a scriptural religion like Christianity or Judaism), a Muslim woman is not permitted to marry a non-Muslim man unless he converts to Islam. Inter-sect marriages between Muslims (e.g., Sunni and Shia) are valid.³⁸
3. Free Consent: The free and voluntary consent of both parties is an indispensable condition for a valid Nikah.³⁷ If consent is obtained through coercion, fraud, duress, or undue influence, the marriage is considered invalid (either void or voidable depending on the school of law and specific circumstances).³⁸ For minors who have not attained puberty, the consent of their legal guardian is essential.³⁸ The emphasis on free consent protects the individual’s right to choose their life partner without compulsion.³⁷
4. Witnesses: The presence of competent witnesses is generally required for the solemnization of a Nikah. Under Hanafi (Sunni) law, the marriage must be witnessed by at least two adult male Muslims of sound mind, or one adult male Muslim and two adult female Muslims of sound mind. Under Shia law, witnesses are not strictly necessary for the validity of the marriage itself, though their presence is recommended. The presence of witnesses serves to provide public recognition and evidentiary proof of the marriage.³⁷
5. Wali (Guardian): The presence and consent of a Wali (guardian, typically the father or closest male agnate relative) for the bride is considered essential for the validity of her first marriage by some schools of Islamic law, particularly the Maliki, Shafi’i, and Hanbali schools.³⁷ The Hanafi school allows an adult virgin woman to contract her own marriage without a Wali, although it is considered preferable for the Wali to be involved. The role of the Wali is to protect the interests of the bride and ensure she enters into a suitable and beneficial marriage.³⁷

The fulfillment of these essentials is crucial, as their absence can render a marriage either void (Batil) or irregular (Fasid), each having different legal consequences regarding legitimacy of children, inheritance, and other marital rights and obligations. The collective emphasis on voluntariness (free consent), capacity, and the involvement of guardians/witnesses underscores the Islamic legal system’s aim to ensure that marriages are contracted responsibly and with due protection for the parties involved, especially the bride.

3.1.3. Concept of Mahr (Dower)

Mahr (also transliterated as mahar, mehr, or mehrieh) is a fundamental component of a Muslim marriage contract. It is an obligatory payment or a promise of payment of a sum of money or other property by the husband to the wife, which becomes her exclusive property.³⁹ It is not a “bride price” paid to the parents, nor is it consideration in the strict contractual sense, but rather a mark of respect for the bride and a recognition of her independence and dignity.³⁹ The Quran explicitly mandates the giving of Mahr to women upon marriage [⁴⁰ (citing Quran 4:4)].

Key Aspects of Mahr:

• Obligatory Nature: Mahr is an essential incident of a Muslim marriage. Even if the amount is not specified at the time of Nikah, the wife is entitled to “proper dower” (Mahr-i-Misl), which is determined based on the dower settled on other female members of her father’s family.
• Types of Mahr:
  • Specified Dower (Mahr-i-Musamma): This is the amount of dower agreed upon by the parties either before or at the time of marriage, or even after marriage. It can be further divided into:
    • Prompt Dower (Mahr-i-Mu’ajjal): Payable on demand by the wife, at any time after the marriage. The wife can refuse to begin cohabitation until the prompt dower is paid if the marriage has not been consummated.³⁹
    • Deferred Dower (Mahr-i-Muwajjal): Payable on the dissolution of marriage, either by divorce or by the death of the husband.³⁹
  • Proper Dower (Mahr-i-Misl): If the amount of dower is not fixed at the time of marriage or if the marriage was contracted on the condition that the wife would not claim any dower, the wife is still entitled to proper dower.
• Purpose and Significance:
  • Financial Security: Mahr provides a measure of financial security for the wife, especially in the event of divorce or the husband’s death.⁴⁰ A substantial deferred Mahr can also act as a practical deterrent against the husband’s arbitrary exercise of the power of Talaq, as it becomes immediately due upon such dissolution.³⁶
  • Symbol of Respect and Commitment: It signifies the husband’s commitment to his marital responsibilities and respect for his wife.⁴⁰
  • Wife’s Absolute Right: Mahr is the wife’s absolute property. She can deal with it as she pleases. She can also remit it, wholly or partially, but such remission must be made with her free consent.
• Enforceability: Mahr is a legally enforceable debt. A wife can sue for its recovery. Unpaid dower is an unsecured debt, but the wife has a right to retain possession of her deceased husband’s property (if she is in lawful possession) until her dower debt is satisfied (this is known as the “widow’s right of retention”).

The amount of Mahr can vary based on cultural, social, and financial considerations of the parties involved, but it must be reasonable and freely agreed upon.⁴⁰ Its significance lies not only in its financial aspect but also in its symbolic value affirming the wife’s status and rights within the marital contract.

3.2. Dissolution of Muslim Marriage

Muslim law recognizes various modes by which a marriage can be dissolved. These can be initiated by the husband, by the wife, or by mutual consent. The main categories include Talaq (repudiation by the husband), Khul’ (divorce at the instance of the wife for consideration), Mubarat (mutual divorce), and Faskh (judicial dissolution by a court).⁴¹

3.2.1. Talaq: Meaning and Modes

Talaq literally means “release” or “the undoing of a knot”.³⁶ In Islamic legal terminology, it signifies the dissolution of marriage by the husband through the pronouncement of certain words.⁴³ Traditionally, it has been primarily a unilateral right of the husband to repudiate the marriage, and under classical Hanafi law, it did not require the wife’s consent or the assignment of any reason.³⁶

There are different forms of Talaq, categorized based on their approval in Islamic tradition and their revocability:

• Talaq-i-Sunnat (Approved Forms): These are considered to be in accordance with the traditions of the Prophet and are generally revocable before becoming final. They have in-built mechanisms for reconciliation, reflecting the Quranic emphasis on avoiding hasty divorces.³⁶
  • Talaq Ahsan (Most Laudable/Best Form): This consists of a single pronouncement of divorce made by the husband during a tuhr (period of purity of the wife, i.e., when she is not menstruating), followed by abstinence from sexual intercourse with her for the entire period of Iddat (waiting period, typically three menstrual cycles or three lunar months if she does not menstruate).⁵ The divorce becomes irrevocable only after the expiry of the Iddat During Iddat, the husband can revoke the Talaq expressly or impliedly (e.g., by resuming conjugal relations). This form is considered the best because it provides the longest opportunity for reconciliation.
  • Talaq Hasan (Laudable/Proper Form): This involves three successive pronouncements of divorce made during three consecutive tuhrs.⁵ No sexual intercourse should take place during any of these three periods of purity. The first and second pronouncements are revocable, but the third pronouncement makes the Talaq final and irrevocable.⁴³ If intercourse takes place during any tuhr in which a pronouncement has been made, that pronouncement becomes ineffective.
• Talaq-ul-Biddat or Talaq-i-Bidi (Irregular/Disapproved Form – Instantaneous Triple Talaq):
  This form of Talaq involves:
  • Three pronouncements of divorce made in a single sitting or in a single sentence (e.g., “I divorce thee, I divorce thee, I divorce thee” or “I divorce thee thrice”) during a single tuhr, or
  • A single pronouncement made during a tuhr that clearly indicates an intention to dissolve the marriage irrevocably (e.g., “I divorce thee irrevocably”).⁵ This form of Talaq was considered sinful (bid’a means innovation or heresy) yet legally effective and irrevocable immediately upon pronouncement under traditional Hanafi jurisprudence, leaving no room for reconciliation.⁴³ It was widely criticized for its arbitrary nature and detrimental impact on Muslim women. This practice has now been declared unconstitutional in India by the Supreme Court in the Shayara Bano case and subsequently criminalized by legislation.

Other forms of Talaq by the husband include Ila (husband takes an oath not to have sexual intercourse with his wife for four months, and if he adheres to it, marriage dissolves) and Zihar (husband compares his wife to a woman within prohibited degrees, followed by penance or dissolution).⁵ These are less common.

The underlying principle of the approved forms of Talaq (Ahsan and Hasan) is to allow a period for reflection and reconciliation, discouraging impulsive decisions to end a marriage. Talaq-ul-Biddat, by its instantaneous and irrevocable nature, starkly contrasted with this principle.

3.2.2. The Shayara Bano Judgment and the Unconstitutionality of Triple Talaq

The practice of Talaq-e-Bid’ah (instantaneous and irrevocable Triple Talaq) faced a significant legal challenge that culminated in the landmark Supreme Court judgment in ***Shayara Bano v. Union of India & Ors. (2017)***.¹

Background:

Shayara Bano, along with other Muslim women and women’s rights organizations, challenged the constitutional validity of Triple Talaq, arguing that it violated their fundamental rights under the Constitution of India, including Article 14 (right to equality), Article 15 (prohibition of discrimination on grounds of religion, race, caste, sex), and Article 21 (right to life and personal liberty).45 They contended that the practice was arbitrary, discriminatory against women, and left them economically and socially vulnerable without any due process or chance for reconciliation.4

The Supreme Court’s Verdict:

On August 22, 2017, a five-judge Constitution Bench of the Supreme Court, by a 3:2 majority, declared the practice of Talaq-e-Bid’ah to be unconstitutional and set it aside.4

• Majority View:
  • Justices Rohinton F. Nariman and Uday U. Lalit held that Talaq-e-Bid’ah is “manifestly arbitrary” and therefore violative of Article 14 of the Constitution. They reasoned that the practice allowed a Muslim man to whimsically and capriciously break the marital tie without any attempt at reconciliation.⁴⁴ They found that the Muslim Personal Law (Shariat) Application Act, 1937, in so far as it recognized Triple Talaq as a rule of law, was subject to fundamental rights and thus could be struck down.⁴⁶
  • Justice Kurian Joseph, in his concurring opinion, held that Triple Talaq is against the basic tenets of the Holy Quran and therefore, what is considered bad in theology cannot be good in law.⁴⁶ He concluded that Triple Talaq is not an essential religious practice in Islam and thus not protected under Article 25 (right to freedom of religion).
• Minority View (Dissent):
  • Chief Justice Jagdish Singh Khehar and Justice S. Abdul Nazeer dissented, opining that Triple Talaq, being a part of Muslim Personal Law, is protected by Article 25. They held that while the practice might be undesirable, it was not for the courts to interfere in matters of personal law, and any reform should come through legislative action by Parliament.⁴

Significance and Implications:

The Shayara Bano judgment was a watershed moment in Indian legal history for several reasons:

1. Assertion of Constitutional Supremacy: It strongly affirmed that personal law practices, even those considered part of religious law, are not immune from scrutiny under the fundamental rights guaranteed by the Constitution, particularly when they are found to be arbitrary or discriminatory.⁴⁵ This reinforced the principle that constitutional morality can override practices claimed under personal law if they violate fundamental rights.
2. Gender Justice: The judgment was widely hailed as a victory for Muslim women’s rights and a significant step towards gender equality within the framework of Muslim personal law in India.¹ It addressed a long-standing grievance of Muslim women who were subjected to this arbitrary form of divorce.
3. Judicial Interpretation of “Essential Religious Practice”: The approach of examining whether a practice is an “essential” or “integral” part of a religion (as adopted by Justice Kurian Joseph) allows courts to distinguish core religious tenets from peripheral customs or interpretations that may not warrant constitutional protection under religious freedom. This enables judicial intervention against practices that are not fundamental to the religion but cause harm or discrimination.

The judgment effectively rendered the pronouncement of Triple Talaq legally void and incapable of dissolving a Muslim marriage in India.

3.2.3. The Muslim Women (Protection of Rights on Marriage) Act, 2019

Following the Supreme Court’s decision in Shayara Bano, and citing instances of the practice of Triple Talaq continuing despite the judgment, the Indian Parliament enacted The Muslim Women (Protection of Rights on Marriage) Act, 2019.⁴ This Act came into force with retrospective effect from September 19, 2018, giving continued effect to earlier ordinances.⁴⁴

Key Provisions of the Act:

• Declaration of Triple Talaq as Void and Illegal (Section 3): The Act declares that any pronouncement of talaq by a Muslim husband upon his wife, by words, whether spoken or written or in electronic form or in any other manner whatsoever, having the effect of instantaneous and irrevocable divorce (Talaq-e-Bid’ah), shall be void and illegal.⁴⁴ This codifies the Supreme Court’s ruling.
• Punishment for Pronouncing Triple Talaq (Section 4): Any Muslim husband who pronounces talaq as referred to in Section 3 upon his wife shall be punished with imprisonment for a term which may extend to three years, and shall also be liable to fine.⁴⁴ This provision criminalizes the act of pronouncing Triple Talaq.
• Subsistence Allowance (Section 5): A married Muslim woman upon whom talaq is pronounced shall be entitled to receive from her husband such amount of subsistence allowance, for herself and dependent children, as may be determined by the Magistrate.⁴⁴
• Custody of Minor Children (Section 6): A married Muslim woman shall be entitled to custody of her minor children in the event of pronouncement of talaq by her husband, in such manner as may be determined by the Magistrate.⁴⁴
• Offense to be Cognizable, Compoundable, etc. (Section 7):
  • The offense punishable under this Act shall be cognizable if information relating to the commission of the offense is given by the married Muslim woman upon whom talaq is pronounced or any person related to her by blood or marriage.
  • It shall be compoundable, at the instance of the married Muslim woman upon whom talaq is pronounced, with the permission of the Magistrate on such terms and conditions as he may determine.
  • No person accused of an offence punishable under this Act shall be released on bail unless the Magistrate, on an application filed by the accused and after hearing the married Muslim woman upon whom talaq is pronounced, is satisfied that there are reasonable grounds for granting bail to such person.⁴⁸

Legal Debates and Implications:

The 2019 Act has generated significant legal debate:

1. Criminalizing a “Void” Act: A primary criticism is the logical paradox of criminalizing an act (pronouncing Triple Talaq) that the Supreme Court has already declared void and legally ineffective.⁴⁷ If the pronouncement does not result in a legal divorce, the argument is that the Act criminalizes a mere utterance that has no legal consequence of dissolving the marriage. Some scholars argue that the Act fundamentally errs in its understanding, as it prohibits something rendered impossible by the Supreme Court judgment.⁴⁷
2. Shift from Civil to Criminal Sanction: The Act marks a notable shift by introducing criminal penalties for what has traditionally been a matter of civil/family law concerning marital dissolution or abandonment within a specific community.⁴⁷ Critics point out that desertion or abandonment by a spouse in other religious communities typically only leads to civil remedies (like divorce or restitution of conjugal rights), not criminal incarceration.⁴⁷ This raises concerns about potential discrimination under Article 14 of the Constitution, as it singles out Muslim men for criminal punishment for a specific form of marital breakdown.
3. Impact on Reconciliation: Concerns have also been raised that criminalization might make reconciliation between spouses more difficult.
4. Protection for Women: Supporters of the Act argue that it provides a necessary deterrent against the practice of Triple Talaq, which continued despite the Supreme Court’s ruling, and offers further protection and remedies (like subsistence allowance and custody) to affected Muslim women.⁴⁴ The government stated that the Act aims to give gender justice, dignity, and equality to Muslim women.⁴⁴

The constitutional validity of the Muslim Women (Protection of Rights on Marriage) Act, 2019, has been challenged before the Supreme Court, and the legal discourse around its provisions continues.

Passage: The Paradox of Triple Talaq Criminalization and Constitutional Scrutiny

Following the landmark ruling in Shayara Bano v. Union of India, the Indian Supreme Court declared the practice of Talaq-e-Biddat (instant triple talaq) as unconstitutional. Despite the declaration rendering such pronouncements void ab initio, Parliament passed The Muslim Women (Protection of Rights on Marriage) Act, 2019, criminalizing the mere pronouncement of triple talaq, punishable by imprisonment up to three years.

Faisal, a Muslim man from Uttar Pradesh, in a moment of anger, sent a WhatsApp message to his wife saying “Talaq” three times. His wife, Sara, filed an FIR, leading to his arrest under the 2019 Act. Faisal’s counsel argued that since the Supreme Court already held triple talaq to be legally ineffective, criminalizing such a pronouncement violates the principle of legality in criminal law — that an act must cause harm or legal consequence to warrant criminal sanction.

Meanwhile, Sara contended that despite its legal voidness, the pronouncement itself is a coercive act with social ramifications that deeply impact the dignity and mental health of Muslim women. She further relied on Section 6 of the Act to seek custody of their minor child.

In court, the debate intensified around Articles 14 and 21, with one side alleging unequal criminal treatment for Muslim men, and the other asserting gender justice through deterrent enforcement.

🔎 Questions:

Q1. Which legal principle is MOST challenged by the criminalization of triple talaq despite its invalidity post-Shayara Bano?
A) The doctrine of restitution
B) The principle of procedural due process
C) The maxim “nulla poena sine lege” (no punishment without law)
D) The concept of double jeopardy

✅ Answer: C
Explanation: Criminalizing a void act raises issues under “nulla poena sine lege”, as there is no actionable offense after the act was declared legally ineffective

Q2. Which of the following best supports Sara’s right to seek remedies under the 2019 Act?
A) Pronouncement of talaq is a constitutional right
B) The Act applies retrospectively to all divorces post-2010
C) The Act criminalizes the pronouncement, not the legal effect of divorce
D) Muslim women cannot be granted custody under secular laws

✅ Answer: C
Explanation: The 2019 Act punishes the act of pronouncement itself as a coercive tool, regardless of its ineffectiveness as divorce

Q3. A constitutional challenge to this Act under Article 14 would MOST LIKELY succeed if:
A) It can be shown that women also pronounce talaq
B) It selectively criminalizes only one religious group without valid classification
C) The wife remarries
D) The accused was not present during the pronouncement

✅ Answer: B
Explanation: Article 14 requires reasonable classification. Singling out Muslim men for a criminal act not punishable in other religions may trigger constitutional scrutiny

Q4. If the Magistrate is to release Faisal on bail under Section 7 of the 2019 Act, which of the following conditions must be met?
A) Husband should apologize unconditionally
B) Consent of the State Women Commission
C) Magistrate must hear the wife and be satisfied of reasonable grounds
D) Approval by District Collector

✅ Answer: C
Explanation: Section 7 requires that the wife be heard and the Magistrate be satisfied before bail is granted

3.2.4. Khula and Mubarat (Divorce by Wife’s Initiative/Mutual Consent)

Apart from Talaq by the husband, Muslim law also provides avenues for the dissolution of marriage at the instance of the wife or by mutual agreement of both spouses.

• Khula (or Khul’):
  • Khula literally means “to take off” or “to lay down.” In Islamic law, it is a form of divorce initiated by the wife, whereby she seeks a release from the marriage tie in return for a consideration, which usually involves returning the Mahr (dower) she received from her husband, or giving some other property or compensation.³⁶
  • The essential element of Khula is the wife’s offer to give consideration for her release and the husband’s acceptance of that offer. Traditionally, the husband’s consent is considered necessary for a Khula to be effective.³⁶ If the husband agrees, the marriage is dissolved irrevocably.
  • While Khula provides a mechanism for a wife to seek divorce, its reliance on the husband’s consent and often the requirement for the wife to forfeit her Mahr or provide other compensation can make it a less empowering option compared to the husband’s traditional unilateral right of Talaq. The Dissolution of Muslim Marriages Act, 1939, was enacted partly to provide Muslim women with statutory grounds to obtain a divorce through court without necessarily needing the husband’s consent or forfeiting financial rights, thereby addressing some limitations of Khula.
• Mubarat:
  • Mubarat literally means “mutual freeing” or “mutual release.” It is a form of divorce by mutual consent of both the husband and the wife.⁴¹
  • In Mubarat, both parties desire to end the marriage and agree to dissolve it. The offer for dissolution can come from either side, and once accepted by the other, the divorce becomes complete and irrevocable.
  • Unlike Khula, there is no necessary requirement for the wife to offer any compensation to the husband, although terms of separation, including financial settlements, can be negotiated as part of the mutual agreement.⁴⁹ It is considered a more straightforward and amicable way to end the marriage when both spouses agree that they can no longer live together harmoniously.

These modes of dissolution highlight that Muslim law does provide for termination of marriage through mutual agreement or at the wife’s initiative, offering alternatives to the unilateral repudiation by the husband.

Table 4: Key Differences – Talaq, Khula, and Mubarat

Note: The status of Talaq-e-Bid’ah (Triple Talaq) has been significantly altered in India by the Shayara Bano judgment (2017) and The Muslim Women (Protection of Rights on Marriage) Act, 2019, rendering it void and illegal, and its pronouncement a punishable offense.

Passage : Khula and the Question of Consent

Amina married Sohail in 2018 under Muslim personal law. The marriage had been strained for years due to emotional abuse and the refusal of Sohail to pay the agreed Mahr, even though it was prompt dower. Amina filed a petition for divorce under the Dissolution of Muslim Marriages Act, 1939, citing cruelty and desertion. Meanwhile, she also made a formal offer of Khula, offering to forgo her Mahr and provide compensation in exchange for her release.

Sohail rejected the Khula proposal and filed a petition claiming that since he did not consent, the Khula was invalid. Amina argued that requiring the husband’s consent violates her right to equality and dignity. She cited a 2024 ruling of the Bombay High Court which held that Khula need not require the husband’s approval where divorce is sought due to cruelty or non-payment of Mahr. The case also involved debate over whether Khula should be treated as a contractual form of divorce or a right of the wife in certain situations.

The Family Court, relying on both statutory grounds under the 1939 Act and the evolving judicial view, granted the divorce without Sohail’s consent. Sohail appealed to the High Court, arguing that such an interpretation bypasses Shariat principles and blurs the distinction between Khula and Talaq.

🔎 Questions:

Q1. Under traditional Islamic law, which of the following is essential for the validity of a Khula?
A) Consent of both parties and return of Mahr
B) Mutual consent with no compensation
C) Judicial intervention after Iddat
D) Unilateral declaration by wife

✅ Answer: A
Explanation: Khula traditionally requires the wife’s offer and the husband’s acceptance with return of Mahr

Q2. Which statutory provision allows a Muslim woman to seek divorce without husband’s consent, even if Khula fails?
A) Section 2 of MWPRDA, 1986
B) Section 3 of the Indian Divorce Act
C) Section 2 of the Dissolution of Muslim Marriages Act, 1939
D) Section 125 CrPC

✅ Answer: C
Explanation: Under the 1939 Act, cruelty, desertion, or non-payment of Mahr entitles the wife to judicial divorce

Q3. What was the constitutional issue raised by Amina regarding consent in Khula?
A) Right to maintenance post-Khula
B) Violation of Article 25 (freedom of religion)
C) Conflict between religious autonomy and gender justice under Article 14
D) Invalidity of Shariat courts

✅ Answer: C
Explanation: Amina claimed that requiring husband’s consent in Khula violates Article 14 and gender equality

Q4. If the court accepts Khula without husband’s consent in this case, it would be MOST consistent with:
A) Strict textual interpretation of the Quran
B) Modern harmonization of personal law with constitutional values
C) Retrospective criminalization of private acts
D) Traditional view that Khula is revocable

✅ Answer: B
Explanation: Modern courts are interpreting personal laws through the lens of equality and evolving rights-based jurisprudence

3.3. Maintenance for Muslim Women

3.3.1. Maintenance During Marriage

Under Muslim personal law, the husband has an absolute legal obligation to provide maintenance, known as nafaqah, to his wife.⁵¹ This obligation exists even if the wife has her own independent means or sources of income.⁵¹ Nafaqah typically includes provisions for food, clothing, and lodging, consistent with the husband’s financial capacity and the wife’s social status.²⁸

The husband’s duty to maintain his wife generally commences when the wife attains puberty and is capable of rendering marital duties, provided she places herself in his domicile and is accessible to him.²⁴ Traditionally, a wife could forfeit her right to maintenance if she was “disobedient” (nashiza) without a lawful excuse, such as refusing to live with her husband or denying him conjugal access without just cause.²⁴ This traditional condition of “obedience” for entitlement to maintenance can be viewed as problematic from a modern gender equality perspective, as the interpretation of “disobedience” can be subjective and potentially disadvantageous to the wife. However, if the wife lives separately due to the husband’s cruelty or non-payment of prompt dower, she may still be entitled to maintenance.²⁹

The obligation to maintain also extends to children, parents, grandparents, and other close relatives under certain conditions as per Muslim law.⁵²

3.3.2. Maintenance After Divorce: The Shah Bano Begum Case

The issue of maintenance for divorced Muslim women became a subject of intense national debate following the landmark Supreme Court judgment in ***Mohd. Ahmed Khan v. Shah Bano Begum & Ors. (1985)***.²⁹

Facts of the Case:

Shah Bano, a 62-year-old Muslim woman, was divorced by her husband, Mohammed Ahmed Khan, in 1978 after 43 years of marriage by an irrevocable talaq. He refused to provide her with maintenance beyond the Iddat period (a waiting period of about three months after divorce, during which a woman cannot remarry). Shah Bano filed a petition under Section 125 of the Code of Criminal Procedure, 1973 (CrPC), seeking maintenance from her ex-husband.53 Section 125 CrPC is a secular provision applicable to all citizens, irrespective of their religion, empowering magistrates to order maintenance for wives, children, and parents who are unable to maintain themselves.

Supreme Court’s Judgment:

On April 23, 1985, the Supreme Court delivered a unanimous decision upholding Shah Bano’s right to claim maintenance from her ex-husband under Section 125 CrPC, even beyond the Iddat period, as long as she was unable to maintain herself and had not remarried.53 The Court held that:

1. Section 125 CrPC is a secular law designed to prevent vagrancy and destitution and applies to all Indian citizens, including Muslims.⁵³
2. There is no conflict between the provisions of Section 125 CrPC and Muslim Personal Law on the question of a Muslim husband’s obligation to provide maintenance for a divorced wife who is unable to maintain herself.⁵³ The Court interpreted Quranic verses to suggest that the husband’s duty to provide for his divorced wife was not limited to the Iddat
3. The payment of Mahr by the husband on divorce does not absolve him from the obligation to pay maintenance under Section 125 CrPC, unless the Mahr amount paid is considered adequate to provide for her future needs.

Aftermath and Significance:

The Shah Bano judgment was a pivotal moment for several reasons:

• Assertion of Secular Law in Welfare Matters: It prioritized a secular welfare provision (Section 125 CrPC) aimed at social justice and preventing destitution over a restrictive interpretation of personal law that sought to limit a husband’s maintenance liability to the Iddat⁵⁵ This highlighted the tension between religious personal laws and the State’s power to enact secular laws for the welfare of its citizens.
• Catalyst for Socio-Political Mobilization: The judgment triggered widespread protests from conservative sections of the Muslim community, who viewed it as an interference in their religious personal laws.⁵³ Conversely, it was strongly supported by women’s rights groups, progressive Muslims, and secularists who saw it as a step towards gender justice.⁵⁴ This intense mobilization demonstrated the profound societal and political ramifications of judicial decisions concerning family law.
• Legislative Response: The political pressure led the then-government to enact The Muslim Women (Protection of Rights on Divorce) Act, 1986.

3.3.3. The Muslim Women (Protection of Rights on Divorce) Act, 1986 (MWPRDA)

Enacted in the politically charged atmosphere following the Shah Bano judgment, The Muslim Women (Protection of Rights on Divorce) Act, 1986 (MWPRDA), was presented as a law to protect the rights of Muslim women who have been divorced by, or have obtained divorce from, their husbands.⁵³

Key Provisions:

• Section 3(1): Mahr and other properties of Muslim woman to be given to her at the time of divorce: This section entitles a divorced Muslim woman to:
  • (a) A “reasonable and fair provision and maintenance” to be made and paid to her within the Iddat period by her former husband.⁵⁷
  • (b) Where she herself maintains the children born to her (before or after her divorce), a reasonable and fair provision and maintenance to be made and paid by her former husband for a period of two years from the respective dates of birth of such children.⁵⁷
  • (c) An amount equal to the sum of Mahr or dower agreed to be paid to her at the time of her marriage or at any time thereafter according to Muslim law.⁵⁷
  • (d) All the properties given to her before or at the time of marriage or after her marriage by her relatives or friends or the husband or any relatives of the husband or his friends.⁵⁷
• Section 4: Order for payment of maintenance:
  • If a divorced woman has not remarried and is unable to maintain herself after the Iddat period, the Magistrate is empowered to make an order directing such of her relatives as would be entitled to inherit her property on her death according to Muslim law to pay such reasonable and fair maintenance to her as he may determine fit and proper, having regard to the needs of the divorced woman, the standard of life enjoyed by her during her marriage and the means of such relatives.⁵⁷
  • If such relatives are not able to pay or she has no such relatives, the Magistrate may direct the State Waqf Board established under the Waqf Act, 1995 (or any other law) to pay such maintenance.⁵⁷
• Section 5: Option to be governed by Sections 125 to 128 of CrPC:
  If, on the date of the first hearing of the application under Section 3(2), a divorced woman and her former husband declare, by affidavit or other declaration in writing, that such application accordingly.58

Judicial Interpretation and Impact:

The MWPRDA was initially perceived by many as a legislative overturning of the Shah Bano judgment, primarily because Section 3(1)(a) appeared to restrict the husband’s liability for the wife’s maintenance to the Iddat period only.53 This interpretation would have significantly diluted the right to ongoing maintenance for destitute divorced Muslim women.

However, the Supreme Court, in the landmark case of ***Danial Latifi & Anr v. Union Of India (2001)***, undertook a creative and purposive interpretation of the MWPRDA. The Court upheld the constitutional validity of the Act but interpreted the phrase “reasonable and fair provision and maintenance to be made and paid to her within the Iddat period” in Section 3(1)(a) to mean that the husband must make a provision for the wife’s entire future (i.e., beyond the Iddat period) and this provision should be made and paid during the Iddat period.⁶⁰ This interpretation effectively harmonized the Act with the spirit of the Shah Bano judgment, ensuring that a divorced Muslim woman is entitled to a sum that would be sufficient for her lifetime needs or until she remarries. This judicial intervention was crucial in ensuring that the Act did not become entirely regressive.

Furthermore, despite the enactment of MWPRDA, courts have subsequently held that a divorced Muslim woman who is unable to maintain herself can still approach the court under Section 125 CrPC for maintenance, especially if she has not received adequate relief under the MWPRDA or until such relief is granted. Cases like Shabana Bano v. Imran Khan (Supreme Court) and the Thasleena Case (Kerala High Court) have affirmed that Section 125 CrPC remains an available remedy, ensuring that divorced Muslim women are not left without recourse to prevent destitution.⁵⁹ The option provided under Section 5 of the MWPRDA also keeps Section 125 CrPC relevant if both parties mutually opt for it.

Thus, the legal position regarding maintenance for divorced Muslim women is a result of a complex interplay between personal law, secular statutes like the CrPC, specific legislation like the MWPRDA, and evolving judicial interpretations aimed at securing gender justice and preventing destitution.

Table 1: Conditions for Valid Marriage – Hindu Law (Sec 5 HMA) vs. Muslim Law (Nikah Essentials)

Table 2: Grounds for Divorce – Hindu Law (Sec 13 HMA) vs. Muslim Law (Dissolution of Muslim Marriages Act, 1939 & Traditional Grounds)

Table 3: Maintenance for Wife – Comparative Overview (Hindu Law vs. Muslim Law)

Conclusion

Family Law in India presents a complex yet fascinating interplay of religious personal laws, secular statutes, and evolving judicial interpretations. For CLAT 2026 aspirants, a thorough understanding of the distinct principles governing Hindu and Muslim family laws, particularly concerning marriage, divorce, and maintenance, is paramount.

Under Hindu Law, the traditional sacramental nature of marriage coexists with a codified framework that defines conditions for validity, grounds for dissolution, and provisions for financial support. Recent judicial trends emphasize the importance of actual solemnization of marriage through customary rites over mere registration, expand the understanding of cruelty as a ground for divorce, and cautiously use the doctrine of irretrievable breakdown of marriage under constitutional powers. Legislative proposals indicate a continuous effort to address specific gaps, particularly in succession rights and the eradication of child marriage.

Muslim Law, with its contractual view of Nikah, has distinct essentials for a valid marriage, including the significant concept of Mahr. The modes of dissolution of marriage have seen a monumental shift with the Supreme Court’s declaration of Triple Talaq as unconstitutional in the Shayara Bano case, followed by its criminalization under The Muslim Women (Protection of Rights on Marriage) Act, 2019. This development has sparked considerable legal debate regarding the criminalization of a void act and the interface of personal law with fundamental rights. The law of maintenance for Muslim women, significantly shaped by the Shah Bano Begum case and the subsequent enactment and judicial interpretation of The Muslim Women (Protection of Rights on Divorce) Act, 1986, underscores the judiciary’s role in ensuring financial security for divorced women, often by harmonizing personal law with secular welfare provisions like Section 125 CrPC.

A comparative approach, as facilitated by the tables in this module, will enable aspirants to discern the nuanced differences and occasional similarities between these two major personal law systems in India. Success in the CLAT will depend not just on knowing the provisions but also on appreciating their socio-legal context, the rationale behind judicial pronouncements, and the ongoing evolution of family law in response to societal changes and the pursuit of justice and equality.

Khula, Consent, and Judicial Oversight

Ayesha, married under Muslim personal law to Imran, sought a divorce through Khula, offering to return her Mahr of Rs. 5 lakhs and gold ornaments. Imran refused to accept the offer and denied consent for Khula. Ayesha approached a Family Court, citing cruelty and incompatibility. The judge, observing that reconciliation was not possible, granted Khula and passed a decree of dissolution of marriage.

Imran appealed, arguing that Khula requires mutual agreement and that the court had no authority to grant divorce without his consent. Ayesha responded that judicial Khula (Faskh) can be granted without the husband’s approval if the wife shows compelling grounds such as cruelty or breakdown.

The case reopened debates about the difference between consensual Khula, unilateral Faskh, and the woman’s right to exit a marriage under Islamic jurisprudence.

🔎 Questions:

Q1. Can a court dissolve a marriage through Khula without the husband’s consent?

A) No, Khula is purely contractual

B) Yes, if mutual agreement fails but grounds like cruelty exist

C) Only if the husband violates a court order

D) Only through talaq initiated by the husband

✅ Answer: B

Q2. What principle allows Ayesha to seek a judicial dissolution of marriage?

A) Talaq-e-Biddat

B) Nikah Mut’ah

C) Faskh (judicial divorce)

D) Muta Marriage Decree

✅ Answer: C

Q3. What is the legal status of returned Mahr in Khula?

A) Mandatory payment to the husband

B) Optional if demanded by the court

C) A condition offered by the wife for release

D) Divided equally between spouses

✅ Answer: C

Q4. Which constitutional right MOST supports Ayesha’s ability to challenge forced continuation of marriage?

A) Article 14 (Equality)

B) Article 17 (Abolition of Untouchability)

C) Article 29 (Cultural Rights)

D) Article 19(1)(g) (Freedom of profession)

✅ Answer: A