This article is written by Mohit Bhardwaj. A 2nd year Law student, currently pursuing BBA-LL.B from Unitedworld School of Law, Karnavati University. The main objective of this article is to describe Quasi Contract, a contract can become a contract without fulfilling its essential elements.

INTRODUCTION

For understanding the meaning of Quasi Contract firstly we have to understand the meaning of contract and what are the required elements for a valid contract.

In general terms, the word contract is derived from a Latin term ‘contractum’ which means ‘meet together’ or ‘to bring together’. And in legal sense according to Section 2(h) of The Indian Contract Act 1872, ‘An agreement enforceable by law is a contract’.

There are some terms which we need to understand for understanding contract-:

(i) An Agreement- When one person makes a proposal or offers to do something and another person accepts that offer[Offer – Section 2(a)] or proposal with some valid consideration then it becomes an agreement. For example, there are two parties A and B. A makes a proposal to B to purchase his property for ₹10 lakhs so a made an offer and B accepts this offer [Acceptance – Section 2(b)] and it becomes an agreement [Section 2(e)]. Here we also need to understand the term consideration [Section- 2(d)] and for A the consideration is ₹10 lakhs and for B the consideration is Property.

(ii) And its Enforceability by law – An agreement may be regarded as a contract if it is enforceable by law, i.e. it gives rise to such obligation as may be enforced by the court. Moral, social and religious obligations do not form any agreement because they do not create any legal duty.

For example- A said to M that come to my house and we will go to the cinema together. M went to A’s house but A could not spare time for the movie due to some urgent work. Here M cannot sue A for damages, if any, due to her not fulfilling the promise, the reason is that A was is a social obligation only. A and M have no intension to create any legal obligation.

CASE LAW- Balfour vs. Balfour

Mr. Balfour was an engineer and he worked for the government as the director in the irrigation sector in Sri Lanka(then Ceylon). Mrs. Balfour was also living with him in Sri Lanka. In 1915, they both came back to Britain during Mr. Balfour’s leave. But Mrs. Balfour had developed arthritis. Her doctor in England advised her to stay in England because Sri Lanka’s climate would be detrimental to her health. Mr. Balfour’s boat was about to set sail, and he orally promised her $30 a month until she came back to Ceylon. They lost contact over time, and Mr. Balfour wrote saying it was better that they remain apart. In March 1918, Mrs. Balfour sued him to keep up with the monthly $30 payments. In July she got a decree nisi and in December she obtained an order for alimony.

Here, in this case, there was no intension to create legal obligations and no contractual relationship was established so the decision was in Mr. Balfour’s favour.

Now we need to understand the essentials of a valid contract given under Section 10 of The Indian Contract Act, 1872.

Section 10 states that all the agreements are contract if they are made by-

i) Free consent of parties,

ii) Competent to contract,

iii) For a lawful consideration with a lawful object and

iv) Are not hereby expressly declared to be void.

So here is the list of essential elements for establishing a valid contractual relationship-:

1. More than one parties

2. Agreement

3. Creating a legal relation

4. Lawful consideration

5. The capacity of the parties to enter into a contract

6. Free consent

7. Lawful object

8. Certainty of meaning

9. Agreement not expressly declared void

10. Possibility of performance

QUASI-CONTRACT

A quasi-contract is based on a principle of, ‘ unjust enrichment of one person at the cost of another’. In the Indian contract act, 1872, quasi-contract is covered form section 68 to 72.

Section 68 describes – Basic necessaries supplied to a person incompetent to enter into a contract. For example: If a major person had supplied basic necessaries (Basic things required to survive) to a minor person who does not have any parent or guardian, this supply of necessaries will result in the formation of a Quasi Contract. The expenses done by the major person can be claimed from the estate of the minor in the future. Because if the person who is supplying the things could not claim the expenses then it would be unjust for that person and that minor person would be benefitted by that action. So there would be unjust enrichment of one party at the cost of another.
Section 69 describes – Payments made by an interested person or party.

For example, I have taken a property on lease and I run a factory on that property and the source of my income is that factory. The owner of that property didn’t pay the taxes that are imposed on the property so the government declared that the factory will be auctioned so that taxes can be recovered. In all this situation the loss is mine because the factory is the only source of my income. So here, I will be the Interested party or interested person. After this, on behalf of the factory owner, paid all the due taxes. Then I approached to the court of law saying that I am not the owner of the land/ property but I paid all the taxes so the court said that in this case, the unjust enrichment is of the property owner so the court imposed a Quasi Contract between me the owner of the property.

Section 70 describes – Payment for Non-gratuitous act

Gratuitous act means for free i.e. without any consideration for example- if somebody saves any person from drowning he/she cannot claim anything in return.

And Non-gratuitous means the one in which consideration is involved.

For example one of my friends supplied raw material to my factory by mistake, fortunately, I used that raw material in my factory because that material was useful for my factory. Later on, my friend came to me for claiming the cost of the material used.

I told him that there was no contract between us, there was no offer and there was no acceptance.

The court in this matter said that if you used the material sent by mistake then there is unjust enrichment and the party is liable to pay for the material used and this is a Quasi-contract.

Section 71 describes – Finder of lost goods.

For example, I found a diamond ring in a playground which is worth ₹10 crores. I tried to search for its owner but could not find anyone. After 1 year the owner of the ring came to me and asked for the ring but at that, I’ve already sold that ring

In this matter, the court said that there is Quasi-contract between the owner of the lost goods and the finder of the lost goods so the finder has to return the goods of the amount equivalent to the goods and the finder can recover the expenses which are incurred in finding the real owner of the goods.

Section 72 describes – Payment made under mistake or coercion.

Here coercion means a payment made under pressure or illegally. For example, Your friend is repaying the loan of ₹5 lakh which you have given to him/her. By mistake he paid extra ₹1 lakh, then that extra money can be claimed back and here Quasi-contract comes into action.

Conclusion

So we can conclude that a contract can be made without fulfilling the essential elements which are required to form a contract. These were the five situations in which a Quasi-contract can be made. In these five conditions, we can see that there is no agreement, no offer, no acceptance, no legal consideration, and no legal obligations but the Quasi-contract is there so that there must not be, ‘unjust enrichment of one person at the cost of another’.

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This article is written by PRANIT BHAGAT pursuing B.A LLB from ILS Law College, Pune. In this article, he has discussed the various types of maintenances under Hindu law and Muslim law and also compared both of them.

INTRODUCTION

The main reason behind the concept of Maintenance is to see that if one of the spouses is not independent financially so the other spouse helps him/her to make the living of another person possible. In case of divorce or in the case where both the partners are not living together, the spouse who is financially dependent on the other spouse can seek the remedy of maintenance. Maintenance can be defined as the amount paid by the husband to his wife after divorce or the amount which the family member of the husband pays to the widow of their son. Maintenance includes necessities like:

Food, Shelter, Clothing, etc.
The necessary thinks and comfort which a rational man expected to get.

Meaning and Concept of Maintenance

The maintenance is given by the person on whom the other person depends on. The amount of maintenance is dependent on the earning of the person and the necessities which other people required and the necessities which a rational man needs to live a normal life. The people who are entitled to get maintenance under the Hindu Adoption and Maintenance Act are wives, widow daughter in law, child, aged parents, etc. and the people who are entitled to get maintenance are wife, young children, parents, another person within the prohibited degrees under the Muslim Law.

Types of Maintenance

Interim Maintenance
Permanent Maintenance

1. Interim Maintenance

This maintenance is paid from the date of filing of the petition to the date of the dismissal of the suit. Its main purpose is to meet the immediate needs of the petitioner. It is the amount that is paid by the financially independent person and upon whom the other person is financially dependent. This amount includes the expenses of the proceeding as well as other expenses during the proceeding.

2. Permanent maintenance

It is the amount which is been paid by one party to another after the judicial proceeding i.e. result is the dissolution of marriage or judicial separation.

Maintenance under Hindu Law

In case of divorce or in the case where both the partners are not living together, the spouse who is financially dependent on the other spouse can seek the remedy of maintenance. So that she/he can maintain their life as when they lived together. The maintenance is given by the person on whom the other person depends on. The amount to the maintenance is dependent on the earning of the person and the necessities which other people required and the necessities which a rational man needs to live a normal life. Section 24 of the Hindu Marriage Act talks about the maintenance and how a wife or a husband can claim Interim maintenance. Both husband and wife can claim for the interim maintenance under the Hindu and Parsi Marriage Act. The wife can file the petition for Interim maintenance under Section 36 of the Divorce Act. The concept of Permanent Maintenance is introduced as an amount which a person pays to another person as maintenance in gross sum or periodically or monthly as per the orders of the court.

Maintenance of Wife under Section 18 of Hindu Adoption and Maintenance Act, 1956

According to Section 18(1) of Hindu Adoption and Maintenance Act, 1956 the wife has been entitled to get the maintenance amount from her husband until she or he dies. A Hindu wife is also entitled to take get maintenance even if she is living separately from her husband on the following grounds:

1. When the husband is liable for desertion.

2. When the husband is liable for cruelty.

3. When the husband is suffering from leprosy.

4. The husband is liable for bigamy.

5. The husband converts his religion without the consent of the wife.

Maintenance of a Hindu wife under Section 125 of the Code of Criminal Procedure

As per Section 125 of the Code of Criminal Procedure, only a woman either take divorce or given divorce by her husband and who hasn’t remarried any other man is entitled to get maintenance. A married woman who denies living with her husband as he is liable for desertion or liable for cruelty or is suffering from leprosy or liable for bigamy or converts his religion without the consent of the wife can claim a special allowance under this Act.

Caselaw: D.Velusamy vs. D.Patchaiammal,

According to Section 125 of the Code of Criminal Procedure, The wife had filed a suit against her husband with a demand for maintenance where the court had granted it.

Under Section 125 of the Code of Criminal Procedure the person has to maintain:

1. His Wife, who unable to maintain herself.

2. His Legitimate or illegitimate minor child whether married or not married, who unable to maintain itself.

3. His father and mother, who unable to maintain themselves.

Caselaw: Gomaji vs Smt. Yashoda,

The petitioner is the Husband who filed a case under Section 13 of the Hindu Marriage Act seeking a divorce from his wife who is the respondent. Later, she filed an application under Section 125 of Code of Criminal Procedure claiming Maintenance. The court accepted the divorce and thus, passed the order against the petitioner to give monthly Maintenance to his wife.

Maintenance as an Award to Wife under Section 23(2) of the Hindu Adoption and Maintenance Act.

Section 23 of the Hindu Adoption and Maintenance Act talks about the people who can claim the maintenance and how it can be calculated. The analyzing factors of the amount are:

Status and Position of the parties.
The basic necessity of the claimant.
The basic comfort which a reasonable man needs.
The value of the property whether movable and immovable, of the Respondent.
The income of the respondent.
The number of members who depended financially on the respondent.
The degree of relationship between the two.

Maintenance under Muslim Law.

According to the various theories of Muslim Law, A man is considered superior to the woman. They believed that a woman is not capable to maintain themselves as there is a direct dependency on their husbands. In Muslim law, married women have the right to get maintenance from her husband even if she refuses to access her husband and cannot be consummated, but if she is too young and lives with her mother and father she is not entitled to get maintenance. Muslim law has given the right of maintenance to the wife if she has to live separately from her husband because of the cruel nature and non-payment of dower. But she cannot claim maintenance during the widowhood of iddat. Prior the divorced women do not have the right to claim maintenance after the period of iddat and get the amount of Mehr only. But after the judgment given in the case of Shah Bano, divorced women can get maintenance from her husband on reasonable ground and from the family of the husband after his death

.

Maintenance of Muslim Women under Section 125 of the code of criminal procedure, 1973.

The provision of under the code of criminal procedure secular in nature. It talks about a Muslim woman demanding the maintenance under Section 125 of the code of criminal procedure where she can be entitled to get the maintenance only if she is not remarried.

Caselaw: Mohd. Ahmed Khan v. Shah Bano Begum Case

This case talks about the situation where the husband gives divorce to his wife when she was 68 years old and has five children. Under Muslim law, divorced women do not have the right to claim maintenance after the period of iddat and get the amount of Mehr only. The Shah Bano Begum files a case and claims the maintenance under Section 125 of the Code of Criminal Procedure where she gets successful and gets the maintenance from her husband on reasonable ground and the family of the husband after his death. After this historical judgment of Shah Bano Begum, the Muslim Community started criticizing the court of law as according to them the judgment directly affect the provision of their law. According to their law, divorced women do not have the right to claim maintenance after the period of iddat and get the amount of Mehr only. But the government at that time under the pressure of the Muslim community brings a law which directly overrules the judgment. The government had approved The Muslim Women (Protection of Rights on Divorce) Act, 1986. In this Act, divorced women do not have the right to claim maintenance after the period of iddat and get the amount of Mehr only. Finally, all the case pending in the court of law related to Muslim women and their right to Maintenance under Section 125 of Code of Criminal Procedure were disposed of.

Caselaw: Danial Latifi & Anr vs Union Of India

In this case. The husband had filed a petition against the order of the Madhya Pradesh High Court where he was asked to pay maintenance to his wife as per Section 125 of the Code of Criminal Procedure. He submits the fact that he paid the Mehr amount as well as the maintenance to his wife until her iddat period. Now as per Muslim law, he shall not be liable to pay any amount as maintenance to his wife. The Supreme Court gives the judgment in husbands favour as their case comes under The Muslim Women (Protection of Rights on Divorce) Act, 1986 and the order of the High Court of Madhya Pradesh were as per the Section 125 of the Code of Criminal Procedure so the order of the High Court is not valid.

Comparison of Maintenance of Wife under Hindu and Muslim Law

A Hindu woman is said to enjoy more rights than Muslim women. According to Section 18(1) of Hindu Adoption and Maintenance Act, 1956. A Hindu wife is entitled to get the maintenance amount from her husband until she dies. As per Section 125 of the Code of Criminal Procedure, only a Hindu Married woman either take divorce or given divorce by her husband and who hasn’t remarried any other man is entitled to get maintenance. A married woman who has refused to live with her husband as he is liable for desertion or cruelty or is suffering from leprosy or liable for bigamy or convert his religion without the consent of the wife can claim a special allowance under this Act. But, under Muslim Law, the divorced women does not the right to claim maintenance after the period of iddat and gets the amount of Mehr only and after The Muslim Women (Protection of Rights on Divorce) Act, 1986 came in the picture the Muslim Woman cannot claim maintenance under Section 125 of Code of Criminal Procedure.

Conclusion

As per Hindu Adoption and Maintenance Act, a person is entitled to get maintenance are wives, widow daughter in law, child, aged parents, etc. and As per Muslim Law, the people who are entitled to get maintenance are wives, young children, parents, another person within the prohibited degrees. Under Muslim law, Prior the divorced women do not have the right to claim maintenance after the period of iddat and get the amount of Mehr only. But the judgment was given in the Shah Bano from the family of the husband after his death case enables divorced women to get maintenance from her husband on reasonable ground and But after the judgment of the case, The government enacted The Muslim Women (Protection of Rights on Divorce) Act, 1986. In this Act, divorced women do not have the right to claim maintenance after the period of iddat and get the amount of Mehr only. Finally, all the case which are pending in court related to Muslim women and their right to Maintenance under Section 125 of Code of Criminal Procedure were disposed of.

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This article is written by Ishika Gupta pursuing BBA L.LB from Gitarattan International Business School. This article aims to highlight the rights and duties under parental and quasi parental authority.

INTRODUCTION

Whenever there is a violation of any legal right or duty and legal damages have incurred the sufferer may bring action against the other under law of torts.

For this, the essentials must be present. However, there are various exceptions to this that include parental and quasi parental authority.

Parental Authority

As per the Hindu law, father and mother are the natural guardians of children. A guardian is a person who takes care of minor and his property. From the birth of a child, parents acquire the rights and duties of a guardian by a natural relationship. It’s the duty of the natural guardians to maintain the child. There is equality of rights for both the parents in respect of children’s custody, education, control, correction and chastisement and upbringing.

A child’s future is in the hands of the parents. There are various restraints that need to be followed as per the necessities of society and for this, parents are given authority to control and correct them by either kind of force and such people are protected under the law of torts only if they act in a reasonable manner and for a good cause. However, what is deemed to be reasonable by the judges or jury changes as per time i.e. there is not an exact manner defined.

Rights under Parental Authority

There are various rights and duties under parental authority:

1) Right to custody: Custody is of two types. First is legal in which there is a right to make decisions for the child and another is physical which means the right and duty to provide housing and care to the child.

2) Right to determine the religion: Parents have the right to determine which religion the child will profess.

3) Right to education: It is the duty and right of the natural guardians to provide the necessary education to their child and help him in making his future bright.

4) Right to control: The parents can also restrict the movement of their minor child if they find it unfit for him and can also take actions against him in a moderate manner.

5) Right of supervision: The parents have the right to supervise and advise their children in life so they can do the right thing.

6) Right to protection and health care: The parents have the right and duty to protect their child from anything harmful and to provide basic healthcare.

6) Right to reasonable chastisement: Chastisement literally means a severe criticism or punishment. The parents have the right to punish the child in a reasonable and moderate manner.

Quasi Parental Authority

The Latin term “loco parentis” means ‘in the place of parents’. The people in loco parentis are called quasi-parents. However quasi parental authority comes with less rights and duties than parental authority. Parents when not in charge tend to delegate their authority to someone else who can take care of their child. For instance in schools, the parents delegate their authority to teachers and principal and they can take decisions for the child.

However, the law is that the parents and quasi parents both can administer punishment on a child for his good or to prevent him from hurting himself or any other person. They have lawful control over the children and can correct him at every point. Parents may also delegate their authority to a babysitter who for a particular time period takes care of the child, she acts as a quasi parent. Similarly, when the child is in the school the parents are deemed to delegate their responsibility to teachers.

Such kind of authority only allows the use of reasonable and moderate punishment but if it exceeds a limit the accused may, therefore, be liable for civil or criminal contempt.

Position under England and India

In England, a parent or quasi parent who has the lawful control or charge of a minor can correct the child and has the right to administer the punishment on the child as per the Child and Young Person’s Act,1933.

In Cleary v Booth ((1893) 1 Q.B. 465) the defendant was a school headmaster. Two boys fought on the way to school and the defendant administered punishment on them. The headmaster was held liable for assault and battery. However, it was held that he was not liable as the authority of teachers is not only limited to school premises but also outside the school. As per the jury, “there is not much opportunity for a boy to exhibit his moral conduct while in school under the eye of the master, the opportunity is while he is at play or outside the school”.

It is obvious that at home the parents have the control of children and at the school the teachers and principal but the main question is who is in charge between the school and house. It can be rightly said that here the authority is delegated to the teachers. They can not only correct them for their wrongs but can also administer punishment upon them. Hence in the above case, the boys fought out of the school and the headmaster had the authority to punish them.

In another case Eisel v Board of Education (1991), a student threatened school counsellors to commit suicide but they failed to inform the parents. This negligence by not providing knowledge to the parents was a loophole and since the school was in authority to control the child it should have informed the parents about the threat as said by Maryland High Court.

Hence as per the law in England the authority of school master is same as that of parents and he represents the parents in the matter of correction as held in Regina v. Hopley (1860) 2 F & 7 202) and Fitzgerald v. Northcote ((1865) 4 F & F 665).

In India, it has been held several times that a teacher plays a very important role in a student’s life. It has been well recognised over the years that quasi parental authority of a teacher comes with the inherent right to take disciplinary actions against the pupil and has been ingrained in the country’s philosophy as said in R.C. Thampan and Ors. v The Principal Medical College (AIR 1979 Ker 171).

In Laxmikant Shri-pat Bhandara v. C. R. Gerrard (AIR 1947 Bom 193), it was held that the schoolmaster has the power of chastisement over a pupil committed to his charge, arising from delegation by the parent or guardian.

The position and rights of a teacher have been deeply explained in the case of Sankunni v. Swaminatha Pattar. Venkatsubba Rao, J. said that the teacher cannot get away with the punishment with the excuse that the punishment has left no marks on the body, in one or another way if the punishment could have caused harm to life and limb of the child the teacher will be accused under the law of torts. However, in the above case, the 2 smacks given by the defendant were not held to be violent and were considered reasonable.

CONCLUSION

Hence it is clear that parental and quasi parental authorities come with certain rights and duties that need to be performed in the welfare of the child and to ensure there is a good upbringing of the child. With these rights comes the responsibility to show the child the right path and to correct him either by words or chastisement in a moderate manner. But this can’t be the excuse to skip the criminal or civil liability like assault, battery etc. The test of reasonability depends upon the courts. The punishment administered should be of such nature that a prudent man would have considered right.

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This article is written by Preeti Bafna doing BBA L.L.B from Unitedworld School of Law, Karnavati University.

While understanding the rights and duties it is important to know the concept of bailment. A ‘bailment’ is the delivery of goods by one person to another for some purpose, upon a contract that they shall, when the purpose is accomplished, be returned or otherwise disposed of according to the directions of the person delivering them. (Section 148 of the Indian Contract Act, 1872)

INTRODUCTION

BAILOR: A bailor is an individual who temporarily give up the possession but not ownership of a good or other property under a bailment. The bailor gives the possession of the good or property to another individual, known as the bailee.

BAILEE: A bailee is an individual who gains possession, but not ownership, of a good or other property. The bailee is also known as a custodian, is given with the possession of the good or property by another individual known as the bailor.

This relationship, in legal terms as a bailment, is based on a contractual agreement between the bailor and the bailee. The bailment specifies the terms and purpose of the change in custody and is outlined in writing such as a receipt or chit.

RIGHTS AND DUTIES OF BAILOR

Right to enforce bailee’s performance: The bailor delivers goods to the bailee for some specific purpose, and in case of non-gratuitous bailment, the bailor has an elemental right to achieve that purpose or obtain the benefit through the latter.
Right to claim damages: In the case of bailment, the bailor has the right to claim for damages against the loss, if any, caused to the goods bailed due to the bailee’s negligence or misconduct.
Right to claim compensation against unauthorized use of goods: If any third person does some injury to the goods bailed or deprives the rights of bailee of the use of the goods, the bailor may file a suit against the wrong-doer, and recover compensation from him.
Right to demand return of goods along with accretion to, if any: The bailor enjoys the right to have the goods bailed delivered back to him in a safe condition and after the time of bailment has expired or the purpose behind the bailment has been achieved. And, in the absence of any contrary term in the contract, the bailor is also entitled to any accretion to the goods bailed if it occurred while the goods were in the study of bailee.

DUTIES OF BAILOR

Duty to disclose faults: In the case of gratuitous bailment, the bailor is expected to disclose all the defects to the bailee known to him and which would get in the way with the use of goods bailed. A non-gratuitous bailment carries a greater responsibility on the part of the bailor. He will be liable even if he was not in the know of the defects.
Duty to repay bailee’s expenses: A bailor is bound to repay to the bailee expenses incurred by him for work done on the goods received under conditions of bailment, and in which he is not receiving any remuneration or deriving any benefit.
Duty to indemnify the bailee: The bailor is bound to make good the loss suffered by the bailee that is in excess of the benefit derived, where he had delivered the goods without a reason and compelled the bailee to return them before the expiry of the period of bailment.
Duty to compensate bailee for breach of warranty: In every contract of bailment warrants the bailee about the bailor’s title being defect-free. And, if bailee subsequently suffers any loss by the reason of the bailor’s title being defective, it is the duty of the bailor to compensate the bailee for breach of warranty.
Duty to claim back the goods: The bailor is bound to accept the goods returned by the bailee in accordance with the terms of bailment. If he refuses or fails to accept back the goods, if offered at a proper time and at a proper place, without any reasonable ground, he will be responsible for any damage to the goods and not the bailee.

RIGHTS AND DUTIES OF BAILEE

Right to compensation: The bailor is responsible to the bailee for any loss which the bailee may sustain and the bailor was not entitled to make the bailment, or to give directions respecting them. If the bailor has no right to bail the goods or to give directions respecting them and consequently the bailee is exposed to some loss, the bailor is responsible for the same.
Right to expenses or remuneration: The conditions of the bailment, the goods are to be kept, or to have work done upon them by the bailee for the bailor, thus the bailee is to receive no remuneration, the bailor will have to repay to the bailee the necessary expenses incurred by him for the purpose of the bailment.
Right of Lien: If the bailee lawful charges are not paid he may retain the goods. So the right to retain any property until the charges due in respect of the property are paid is called the right of lien. The Supreme Court cited the following passage from HALSBURY’S LAWS OF ENGLAND as to the nature of this right.

DUTIES OF BAILEE

Duty of Reasonable Care: In the cases of bailment the bailee is bound to take as much care of the goods bailed to him as an ordinary and prudent man of sound mind.
Duty of unauthorized use of goods: The bailee should use the goods bailed to him strictly in accordance with the conditions of the contract of bailment. If he illegally uses the goods bailed to him, the contract of bailment becomes voidable at the option of the bailor.
Duty of not to Mix the goods bailed with his own goods: The bailee must keep the goods bailed separate from his own goods. He should not mix his goods with another without any prior permission of the bailor.
Duty of not to set up an adverse title: The bailee holds the goods on behalf of the bailor. So he has to return them to him. He cannot have the right of the bailor as to the ownership of the goods.
Duty of Return the goods: The bailee should return the goods bailed to the bailor on the expiry of the period on the fulfilment of the object for which the goods were bailed. The goods must be returned according to the directions of the bailor. If he fails to do so, he is responsible to the bailor for the loss, even if it arises without his negligence.

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Lawschole is a forum where law students can share thoughts, seek opinions and advice, and learn something new from other members of the forum. From the beginning, Lawschole has been driven by the interests and involvement of our incredible and engaged law students. We are a growing law-student forum focused on improving our collection of law school opportunities, and enhancing the forum experience. We are a great resource, offering opportunities for students to be active in a variety of topics and to engage with each other in an interesting and safe online environment.

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This article is written by Aaditya Kapoor, a law-aspiring student of Vivekananda Institute of Professional Studies. Through his research, Aaditya strived to shed light upon currently existing laws regarding surrogacy in India, along with its impact on surrogate mothers as well as the institution of marriage.

INTRODUCTION

The reproduction process is considered to be a fundamental element in the sustenance of life, and for good reason. Not only does it perpetually maintain life on Earth, but the birthing of a child is also considered to further one’s heritage and familial legacy. In India, a country where the institution of marriage is considered holy matrimony and bond within the family are particularly emphasized, the birth of a child is not simply a matter of necessity, but one of celebration.
However, not every couple bound by marriage is biologically or medically eligible to birth a child. In such a case, they are free to opt for other methods of expanding their lineage: one such method being Surrogacy.

What is Surrogacy?

Surrogacy is a legal arrangement in which a woman agrees to bear the child for another person. Such a woman is called a surrogate mother and the person with whom she enters such arrangement is deemed to be the child’s parent after its birth. Medical disqualification is not necessary for opting surrogacy, as it can also be pursued by a single parent, or in case there is high risk in undergoing pregnancy for the intended mother. Compensation of monetary value may or not be involved, and the legality of such practice of commercial surrogacy is dependent upon grant of sanction by State.

There are two forms of this practice:

Traditional Surrogacy: In this process, sperm of either the intended father or a donor fertilizes the surrogate’s egg. This can be done either naturally or artificially, and in cases where the intended father’s sperm is used for inseminating the surrogate, the child thus born is genetically related to both the intended father, as well as the surrogate mother.
Gestational Surrogacy: The fetus is not physically linked to the pregnant mother in gestational surrogacy, which is often referred to as a gestational carrier. Instead, the embryo is created through in vitro fertilization (IVF), using the intended parent or donor eggs and sperm, and then transferred to the surrogate.

Surrogacy (of the latter type, especially) has become a prevalent practice in India, with a large number of parents willfully choosing this method of furthering their family. However, there has been a slight gray area in its implementation in the legal framework of the nation. This article shall strive to elucidate the practice’s position in law, as well as its impact on the institution of marriage in India.

How does Surrogacy Affect the Institution of Marriage?

While the practice of surrogacy is mostly favourable for the intended parents, the same may not be easily said about the woman voluntarily deciding to take up the role of being a surrogate. Especially in the current legal scenario, where being married is a prerequisite for qualifying as a surrogate, there can be a significant effect on the married life of the surrogate mother.

In order to ensure the highest possibility of a successful surrogacy, the surrogate may be prescribed fertility medication. As a result of that, the intimacy between the surrogate and her partner shall suffer temporary reduction to prevent a surprise pregnancy between them.
Even though the child is not her own, the surrogate, along with her partner, shall be required to remain extra cautious about the health of both child and surrogate mother. Such application of care on the partner’s part can be just as difficult to attain as it shall be necessary.
Owing to human nature and everything it entails, it isn’t a far-fetched assumption to think that the partner may not entirely support the practice, to begin with. The idea of their spouse carrying another person’s child may not comfort them, which may also, in turn, hamper the surrogacy process.
In India, the institution of marriage is not always an independent establishment, such that marriage in the country is often considered to be a union between families. Therefore, volunteering to become a surrogate mother for another person may not be accepted especially by orthodox & conservative families.
Apart from the aforementioned, even if the rest of the surrogate’s family offers support, there shall be need of reserving herself from usual family activities to ensure the successful birth of a healthy child.
Surrogacy may also delicately impact any children the surrogate may have.

As such, it’s a fair assumption to make, that the life of a surrogate mother isn’t always favourable and she may encounter problems outside her family as well. To that effect, however, the landscape of surrogacy laws in India stands to be evolving seemingly for the better.

Surrogacy in India

In cases of surrogacy where monetary compensation is involved, the practice, as mentioned above, is termed as commercial surrogacy. The catch about this particular construct is that not every jurisdiction permits it freely, and because of such restriction, couples pursuing the practice determine having the procedure conducted in a country that permits commercial surrogacy. It is due to this reason that, prior to 2008, India was considered to be the “surrogacy capital of the world.” Commercial surrogacy was being carried out briskly in India without any government attempts to create a legislative regulatory framework. In 2005, the Indian Medical Research Council (ICMR) formulated some guidelines. However, there was no statutory basis for these guidelines, and surrogacy remained an unhinged practice in the Indian legal landscape. However, there was a brisk change in the implementation of surrogacy laws in the year 2008 when the Supreme Court was called upon to deal with a case involving surrogacy: the case of Baby Manji Yamda v. Union of India, which applied solely to securing travel documentation for a baby conceived and delivered in India through commercial surrogacy with Japanese parents. Although the question of the legality of commercial surrogacy was not raised under Indian law, the Supreme Court made an observation that commercial surrogacy is legal in India. The timing of the aforementioned decision coincided with the 2008 Assisted Reproductive Technology (Regulation) Bill’s introduction, but no steps were made to bring the 2008 Legislation to Parliament. This prompted the Law Commission to suo moto address the issue of research surrogacy, culminating in its 228th Report submitted in August 2009 where the Law Commission mooted the proposal for a revised law to regulate the surrogacy process in India. In furtherance of such proposal, a revised bill was constructed which also availed no legal attention. A similar occurrence prevented surrogacy laws to viably fabricate in the nation in 2016, when the Surrogacy (Regulation) Bill was conceived but failed to pass in the Rajya Sabha. In the meantime, however, a ban on foreign intended parents was issued by law and it came as the axiom to viable surrogacy legislature in India. Finally, in 2019, the Bill of 2016 was re-introduced and passed in 2019 with the following impositions:

Commercial Surrogacy was rendered free of its legal identity and became an illegal practice.
The nation only allowed the practice for infertile couples that were in need of the child.
Validation of marriage of at least five years along with a doctor’s certificate legitimizing claim of infertility was deemed as necessary objectives required to pursue surrogacy.
Surrogate mothers were restricted from undergoing surrogacy more than once, with the woman being eligible to act as a surrogate only if she happens to be married with at least one biological child, while such woman is also a close relative of the intended parents.
Homosexuals, single parents and live-in couples were banned from opting for the procedure of surrogacy.

Are strict Surrogacy Laws necessary?

Like all international surrogacy in less developed countries, there is less protection available for intended parents and surrogates — and it has led to harmful results. When Indian surrogacy first became a booming industry, no regulations were in place, and reaction to unsafe and unethical practices developed.

During this time, the women who opted to become surrogates in India were subjected to unethical treatment, poor living conditions and exploitation. Indian surrogacy agencies effectively ran “baby factories” where Indian women were forced to live until they gave birth to the intended parents’ babies, in order to keep up with the demand from internationally intended parents. Moreover, Indian surrogates received only a fraction of the expenses intended for parents to pay to the surrogacy agency; as a result, the surrogates were commonly exploited in commercial surrogacy. For this financial gain, their poverty and lack of education constantly drew them back into the surrogacy process, and their health declined as they effectively became “baby machines” year after year. Also, during this emotional journey, they didn’t receive the kind of support services they needed for themselves and their family.

Constitutional Validity of current Surrogacy Laws

Restricting surrogacy to a married couple seriously impairs the rights of single persons, LGBT persons, and persons in living relationships; but in retrospect, such classes of persons adopting a child are not prohibited. Such a limitation, however, also militates against the equality principle enshrined in Article 14 of India’s Constitution. While legislation can make room for reasonable classification, such classification must bear a nexus with the object which the legislation seeks to achieve.

The primary purpose of the 2019 Bill is to prevent unethical practices arising from India’s surrogacy services. Allowing a married couple to have surrogacy rights to the exclusion of all others carries no connection whatsoever with this piece and therefore, the aforementioned provision begs question of befitting constitutional validity. Moreover, there is no definition in the Bill of 2019 of the term ‘close relative,’ which the surrogate mother is mandatorily required to be.

There is an imminent need for there to be a more suitable, well-formed legislation for surrogacy in India; one that viably and without exception furthers public interest without breaching the limit of constitutional validity.

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The case analysis is written by Deepika, pursuing BALLB from IIMT & SCHOOL OF LAW, GGSIPU, Delhi.

Shreya Singhal vs. Union of India AIR 2015 SC 1523

INTRODUCTION

Freedom of speech is one of the most cherished fundamental right guaranteed by our Constitution. The honourable Supreme court in various cases reiterated the importance of this fundamental right. In the matter of Shreya Singhal v. UOI (2015), the Apex Court reaffirmed the importance of the fundamental right of freedom of speech and expression, by declaring Section 66A of the Information Technology Act, 2010 unconstitutional.

Bench

J. Chelameswar, Rohinton Fali Nariman

Date of Judgement

24^th March, 2015

Relevant Article

Articles 19, 14, 21

Relevant Act

Information Technology Act, 2000

Relevant Sections

Section 66-A, section 69-A, section 79

Relevant Rule

Rule of severability

Facts of the case

There was bandh declared by the Shiv Sena People in Maharashtra, in the year 2012, after the death of Shiv Sena leader Bal Thackeray. This bandh decision was not liked by the two girls, Shaheen Dhada and Rinu Srinivasan, who lived in Than. One of them posted something on Facebook and the other one liked it. They both expressed their displeasure at a bandh called in the wake of Shiv Sena chief Bal Thackery’s death. They were arrested by the Mumbai police in 2012 under Section 66A of Information Technology Act, 2000. This Section punishes any person who sends through a computer resource or communication device any information that is grossly offensive, or with the knowledge of its falsity, the information is transmitted for the purpose of causing annoyance, inconvenience, danger, insult, injury, hatred, or ill will. Later on, the arrested women were released and it was decided to close the criminal cases against them yet the arrest attracted widespread public protest.

The writ petition was filed in Public Interest under Article 32 of Constitution of India by Petitioner seeking to declare Section 66A, Section 69 and Section 79 of the IT Act, 2000 unconstitutional.

Issues Raised

Whether the Sections 66-A, 69-A and 79 are constitutional or not?
Whether Section 66A is curtailing Freedom of speech and expression or not?
Whether Section 66A is saved under Section 19(2) or not?

Judgement

The petitioners in their argument argued that 66A of IT Act 2000 infringes the right of Freedom of Speech and Expression as enshrined under Article 19(1)(a) of the Indian Constitution. They further argued that sec 66A is vague in nature and infirmity has been created by this section, as it does not properly define the terminology used under the section. The court said: “Every expression used is nebulous in meaning. What may be offensive to one may not be offensive to another”. Therefore, the interpretation was held to be subjective in nature. Hence the court-ordered 66A as violative of right to freedom of speech and expression and is not covered under the grounds of reasonable restrictions given under Article 19(2). The court also observed that the challenge was to identify where to draw the line. Traditionally, it has been drawn at incitement while terms like obstruction and insult remain subjective.

In addition, the court had noted that Section 66A did not have procedural safeguards like other sections of the law with similar aims, such as :

The need to obtain the concurrence of the Centre before action can be taken.
Local authorities could proceed autonomously, literally on the whim of their political masters.

The judgment had found that Section 66A was contrary to both Articles 19 (free speech) and 21 (right to life) of the Constitution. The entire provision was struck down by the court.

So this section was declared void by the honourable court. In this case, the court applied the rule of severability, the court didn’t declare the whole IT Act void but only section 66A was held unconstitutional. The court also held that blocking of information for public access given under Section 69A of IT Act is constitutionally valid in nature.

Final Decision

Section 66A was struck down in its entirety being violative of Article 19(1)(a) and is not saved under Article 19(2).
Section 69A is valid.
Section 79 is valid subject to the reading down of Section 79(3)(b).

In the judgement, the honourable Supreme court focussed on the significance of Fundamental Right of freedom of speech and expression and reasonable restrictions to it. The court by its judgement has shown that this right is one of the basic pillars of democracy, so the state can’t unreasonably and arbitrarily interference with the right.

Conclusion

This is a landmark case which plays a very significant role in the Indian legal system. In this case, the honourable Supreme court has reaffirmed the importance and vital status of the fundamental right of freedom of speech and expression. Freedom of speech and expression is very important for overall growth and development of a country. It is a means by which every person can indirectly participate in the governance of the country. This right is which gives essence to a democratic country. The Supreme court has increased the scope of right available to us under freedom of speech and expression. At the same time court has limited the scope of any arbitrary interference of the state in the enjoyment of our this right, which is an indispensable gem of a democratic country. This decision of the court also affirms that the honourable Supreme court is the custodian of our fundamental rights. It acted as a watchdog to protect our fundamental right.

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This article is written by Samridhi Sachdeva pursuing BBA LLB from Gitarattan International Business School, GGSIPU. This article focusses on the laws on rape and unnatural offences. Also, tries to describe the ingredients necessary to commit these offences in depth.

INTRODUCTION

The most heinous crime related to women is Rape. Rape, not only physically but also emotionally and mentally destroys a woman. And, even society pushes the girl towards a severe mental trauma. It completely kills a woman from inside and all her dreams and feelings come to an end.

Some laws have been made describing Rape and its punishment under the Indian Law. But, any punishment for Rape won’t ever do justice with the pain of rape victim. Like, even death punishment for rape will not be enough, some strict punishment should be made for the rapists to give complete justice for the rape victim. But, if compared to the early times, the laws have been amended and made slightly strict.

And, on the other hand, unnatural offences covers unnatural sexual intercourse that is against the normality of nature. Unnatural, here means sexual intercourse, which does not form a part of reproductive sexual intercourse. The guilty or the accused commits this offence either with a man, woman or animal.

Laws on Rape

The word ‘rape’ arises from the Latin word ‘rapio’ , which means ‘to seize’. So, rape basically means a forcible seizure. Rape is the sexual violation without the consent of woman, with fraud or force.

The Indian Penal Code describes sections related to the laws on rape and its punishment. Section 375 defines rape and Section 376 defines its punishment. Section 376A makes husband liable to punishment for intercourse with his wife during separation and Sections 376B to 376D gives punishment for ‘custodial rape’.

Section 375

According to section 375, a man is said to commit rape if he-

Penetrates his penis, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or with any other person, or
Inserts any object or part of his body(not penis) into the vagina, urethra or anus of a woman, or
Manipulates any part of the woman’s body, so as to cause penetration into the vagina, urethra, anus or any other part of woman’s body, or
Applies his mouth to the vagina, urethra or anus of a woman

And explanations given under this section are that the term ‘vagina’ should also include the ‘labia majora’. And also, that if a woman physically, does not resist the act of penetration then, this can not be regarded as consenting to the sexual activity.

Necessary ingredients of Section 375

The section lists some ingredients that prove that the act was against the will and consent of the woman. So, a woman is not liable for rape. The essential ingredients are:

Against her will: It requires that there should be an explicit opposition on the part of the victim towards the act and still the accused committed the act.
Without her consent: Absence of consent is the essence of rape. A man is the best judge of his/her own interest and will never put herself/himself in any act that can cause injury. The definition of consent is given under Section 90 of the IPC.
By obtaining her consent by putting her or any other person, she is interested in, with fear of death or of hurt is no consent in law. Obtaining consent by such practices is not a valid consent.
When her consent is obtained by making her believe that she is lawfully married to that man: In this case, the consent of the woman is obtained by making her believe the misconception, so that she allows for sexual intercourse but in fact, the person is not the lawful husband of the woman but just pretends her to be one. So, this is no consent in law.
Consent obtained through unsoundness of mind: When the consent of woman is obtained by reason of unsoundness or when she can not understand the nature of the act is no consent in law. This clause is the new addition in this section after the Criminal Law (Amendment) Act 43 of 1983. It is to protect and safeguard the interest of the woman, who gives consent to the man for sexual intercourse without knowing the nature of the act by reason of unsoundness of mind or under the influence of stupefying or unwholesome substance.
Act done when she is under 18 years of age: Consent obtained, when the girl is under 18 years of age is not a valid one. Since, she is unknown to the nature and consequences of the act. So, she is incapable of giving her consent to any such sexual act.
When she is unable to communicate consent: Any condition or circumstances that resist her to give consent to such acts can not be a reason to commit the offence.

Exceptions under Section 375

There are two exceptions under section 375, that does not form part of rape:

Any act which is done during the medical procedure or intervention.
Any sexual act done by a man with his own wife, wife not being under fifteen years of age.

Amendments after 2013

Certain amendments have been made after the Act 13 of 2013. They are as following:

Meaning of penetration has been given a different form. Penetration now amounts to any kind of sexual penetration done by a man into the body of a woman. And in case of a girl child, of tender age, then trying to do the act of penetration will also amount to rape.
The punishment of rape: Section 376 of IPC describes the minimum punishment of rape, i.e. seven years of imprisonment under clause (1) which may extend to life imprisonments.
The meaning of consent has also been expanded by adding the clause (5) under section 375.

Section 376

In 2013, certain changes in the punishment of rape were made to deter people from committing this crime. It has been divided in two sub-sections to fix punishment relating to the seriousness of the crime

Sub-section (1) describes the punishment of rape with a minimum of seven years of imprisonment that may extend to the imprisonment of life and fine.

Sub-section (2) describes the punishment of rape which is not less than 10 years of imprisonment but may extend to the imprisonment of life till death and fine. This sub-section gives punishment of rape, if committed by a public servant, police officer, member of armed forces, person being on management or staff of a jail, or other place of custody of women’s or children’s institution or by a near relative of the person raped.

In a recent judgement of State of Karnataka v. Puttaraja (2004), the Supreme Court through Justice Arijit Pasayat, said that the rapist not only causes physical injuries but also leaves scars on the dignity, honour and reputation of a woman. So, leniency in punishment of the sexual offences is against the public interest and such animals should be punished to commit such heinous crime.

Section 376A

It covers those cases of rape which cause such injuries to the woman, that may lead to her death or persistent vegetative stage (PVS). The punishment for this is imprisonment of not less than 20 years and which may extend to imprisonment for life.

Section 376B

When a husband, after separation with his wife, commits rape on her, shall be punished with imprisonment of either description of term of not less than two years and which may extend to seven years with liability to pay fine.

Section 376C

This section creates a new category of sexual offences that does not amount to rape because the consent of victim is given, by compelling. These offences are committed by persons who hold a supervisory power and position in the institution under their control. They take advantage of their power and authority and forcefully have sexual intercourse. These offences have been known as ‘custodial rape’. Punishment for such offence is imprisonment of not less than five years but may extend to ten years with fine.

Section 376D

This is a new section that talks about gang rape and describe its punishment. By applying the joint liability principle, when one or more person commits rape on women together, then they are liable under this section. Punishment is not less than imprisonment of 20 years but may extend to imprisonment for life and fine for the medical expenses of the woman.

Section 376E

When a person who was already accused earlier under section 376, 376A or 376D if convicted again for the offence of rape under the said sections, will be punished with imprisonment for life or death.

Laws on Unnatural Offence

Section 377 of the IPC describes the act of unnatural offence. Any person who commits unnatural carnal intercourse with a man, woman or animal must be punished under this section. The penetration in this section must be done into the anus. Consent in this section is immaterial. The punishment for this offence is imprisonment of life or imprisonment that may extend to 10 years with fine. The ingredients of this section are:

The act should be against the order of the nature.
The accused must have carnal intercourse with man, woman or animal.
The act was done voluntarily by the accused.
Proof of penetration.

Two types of unnatural offences are discussed under this section:

Sodomy: It describes the intercourse per anus by a man with a man or with a woman or with an animal. It may either be homo or heterosexual.
Bestiality: It means that the sexual intercourse is done either by a man or by a woman in any way, with an animal or bird.

Conclusion

Despite being such laws and punishments, rapists don’t shy to commit such crimes with women. They don’t care whether the girl is 5 years old, 25 years old or 70 years old, they just commit the offence and completely destroy the life of women. More severe punishments should be made for such offences and the rape cases should be taken very seriously. Also, women need to be strong as well to fight such animals. And the laws should focus more on the roots of this crime rather than just punishing the rapists.

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This article has been written by Shashvat Pant, pursuing BBA-LLB at Centre for legal studies, Gitarattan International Business School, GGSIPU. In this article, he has discussed the concept of talaq under Muslim Marriage and Dissolution Act,1939.

Introduction

In order to understand the concept of divorce under the Muslim Laws, we must first familiarize ourselves with How is a Marriage instituted under Muslim Laws. The term ‘Nikkah’ is used for marriage under Muslim Laws. A Nikkah is a Contract and not a Sacrament. The essentials of a Valid Marriage are same as the essentials of a Valid Contract which are:

Consideration
Free-Consent
Age of Majority

The terms of nikkah are within legal limits and can be altered as to suit individual cases.

Nikkah is a contract for the legalisation of intercourse and procreation of children. The ceremony of nikkah is simple; no ceremony, rites, formality has been specified. Essential Requirements of nikkah are Ijab(offer) and Qubul (acceptance). These both have to be done in the same meeting. These essentials can be performed by agents i.e. parents or grandparents. Secondly, Dower(Mahr) is to be paid by the Groom’s family to Bride and in case of non-payment, is entitled to take legal actions.

The Nikkah confirming all the aspects is termed as Sahih. Nikkah in which there is some prohibition such marriage becomes Batil. If there’s a prohibition, temporary in nature, the marriage becomes Fasid.

Divorce is Permanent severe of married status. The provision for divorce has been for a long time. In India, the Dissolution of Muslim Marriage Act was passed due to the efforts of Kazi Muhammed Ahmed Kazmi.

Talaq under Muslim Laws

Divorce is termed as talaq under Muslim Laws. Talaq is permanent severe of married status. Talaq is either Revocable or Irrevocable in nature. Prophet said, “With Allah, the most detestable of all things permitted is divorce.” Prophet’s son-in-law, Ali was given the choice of 5^th marriage, by divorcing any of the 4 wives. But Ali being a believer of Prophet, denied to do so. Ali even announced publicly that no one shall marry his son Imam Hasan as Hasan was habitual of divorcing frequently.

Under Sunni law, no special form is necessary and witnesses are required,
Under Shia law, a Strict formula needs to be applied and 2 witnesses are mandatory.

Which male may give divorce?

Husband of sound mind may give divorce to his wife without telling her the reason.
Presence of the wife is not a compulsion.
There is no need for him to give notice to his wife.

Different ways in which Talaq can be affected

Talaq can be affected in the following ways:

Talaq by Husband (Talaq, Ila, Zihar)
Talaq by Wife (Talaq-e-tafwid or Talaq-e-tafwiz)
Talaq by Mutual Agreement (Khula, Muba’rat)
Talaq by Judicial means (Lian, Faskh)

1.Talaq by Husband

A. Talaq

Talaq is either revocable(approved) or irrevocable(unapproved).
Revocable form of talaq is Talaq-al-Sunna which further consists of Ahsan and Hasan
Irrevocable form of talaq is Talaq-ul-Biddat, also known as Triple talaq

A.1 Talaq-al-Sunna

It consists of Ahsan and Hasan.
Both the forms are revocable in nature which means the marriage can be restored at any point of time before the end of the Iddat period.

A.1.(a)Ahsan

Under this form, the husband makes a single pronouncement of talaq during the Tuhr of the wife. Tuhr is the period of wife’s parity i.e. a period between two menstruations. After this single pronouncement, the wife is to observe an Iddat of three months. If she is pregnant at the time of pronouncement the Iddat is, till the delivery of the child.
Before the end of Iddat, a husband may revoke at any point of time
Revocation may be express or implied
This is a more accepted form of divorce

A.1.(b)Hasan

Under this form, the husband makes three pronouncements of talaq during three consecutive Tuhrs.’
This is a less acceptable form of talaq

A.2 Talaq-ul-Biddat

It is disapproved form of divorce.
Under this form, a triple declaration of talaq is made in a single Tuhr.
This form is also called Talaq-ul-Bam.

ILA & ZIHAR

Ila and Zihar type of talaq is mentioned in the Shariat Act, 1937.
These types of talaq are very rare in India

B. Ila

Under this type of divorce, the husband swears not to cohabit with his wife for 4 months or more.
This can be revoked by conduct.

After the expiration of 4 months:

Sunni Law: Marriage is dissolved without legal proceeding
Shia Law: Proper legal proceedings are conducted

C. Zihar

Husband states that his wife’s back is alike to his mother’s back, by which he says his wife like her mother.
In case, the husband later decides to revoke, he has to give expiation(reparation for wrongdoing, guilt) by fasting, giving money.

2. Talaq by Wife

Talaq-e-tafwid

This the power which is given to the wife to get herself divorced by her husband, which means, the husband delegates his right of pronouncing divorce to his wife under specified condition.
In order to avail this divorce, a wife must get this power mentioned within the kabinama.

Traditional Classification of talaq-e-tafwid:

Ikhtiyar (upon choice)
Amr-bi-Yad (at your hand)
Mashiyat (At your pleasure)

3. Talaq by Mutual Agreement

There are two ways in which a talaq can be made by mutual consent/ agreement: Khula and Mubar’at.

Two essential conditions to avail this talaq are:

Consent of Husband and Wife
Awiz (in exchange for)

A. Khula

If the desire for parting comes from wife, then such talaq shall be termed as Khula.
In exchange for such freedom, the husband asks his wife to transfer the Mahr
Khula literally means removing ‘parda‘
A mandatory Iddat period has to be served.

B. Mubar’at

If the desire of parting comes out of mutual agreement, then such talaq shall be termed as Mubar’at.
Mubar’at means freeing from one another mutually.
A mandatory iddat period has to be served.

4. Talaq by Judicial means

There are two ways to gain a talaq by judicial means: Lian and Faskh.

A. Lian

The concept of Lian has come from the time when Prophet was the Ruler of Arab.
If a husband falsely accuses his wife of committing Zina or unable to prove such allegation, the wife in such case is entitled to file a dissolution suit.
A Kazi must intervene at the place where laws are not formal.

In India, a regular suit has to be filed at hearing, where the husband has 2 options:

Either to formally retract, (before evidence close)
If Husband does not retract, he’s called upon to make an oath in front of 4 eyewitnesses.

Bombay High Court has laid down three conditions for valid retraction, which clearly states that Judiciary respects the personal laws and provides relief as provided by Prophet

Husband must admit that he has made a charge of adultery
The charge of adultery is false.
Retraction should be before the end of the trail

B. Faskh

It is the power given to a Kazi (3rd person) to end marriage upon the wife’s application. Faskh in terms of Muslim Marriage Act refers to the annulment of marriage on certain permissible grounds.
Before passing of Muslim Marriage and Dissolution Act, a Muslim lady could apply for dissolution under the doctrine of Faskh.
The grounds available to women for annulment of marriage are as follows:

Husband has been missing for 4 years or more.
Husband’s failure to maintain his wife for 2 years or more. In Noor Bibi vs. Pir Bux, the husband failed to maintain wife for more than 2 years.
Husband is sentenced for 7 years or more.
Husband fails to perform marital obligation for 3 years or more.
Husband being impotent before the marriage and continues to be so.
Husband suffers an incurable Insanity or venereal disease.
Option of Puberty (Khayal-ul-Bulug)
Cruelty against wife