Family law

Sources and Schools of Hindu Law

Trying to figure out sources of Hindu law is a little difficult because Hinduism
is one of the oldest religions of the world, the Indian civilisation is one of the
oldest civilizations.

Its origin if from a period when written material was not available and most
communications were oral. Hinduism in the ancient period did not differentiate
between religion, law and morality. They were all the same back then which
was called 'Dharma'.

The 3 sources of 'Dharma' at that time were

- Shruti (basically the Vedas)

- Smriti (which means the memorised word)
- Sadachara which means the standards of morality and justice.

Sources of Hindu Law which are applicable in courts as Hindu Law is based
upon:

1. Shrutis

2. Smritis

3. Commentaries and Digests

4. Judicial Decisions 5. Legislative Enactments

6. Customs

7. Rules of Equity, Justice and Good Conscience

Shrutis (Shru means 'to hear')

Shrutis is what was heard, no written material available at that time so the
primary way to communicate the knowledge was orally by sages to their
families and disciples which supplemented it and carried it forward.

Shrutis are made up of 4 Vedas.

1. Rigveda

2. Yajurveda 3. Samaveda

4. Atharveda
Originally there were only the first three vedas and Atharveda was added
later.

Rigveda is considered a tree of which the offshoots are Yajurveda and

Samaveda.

Vedas described Hindu Society made up of patriarchal families. Each family

was considered a unit of which the head was the oldest living ascendant
called 'Grihapati".

Smritis (which is remembered)

The second source of Hindu Law which is a body of texts which can be
attributed to an author, unlike Shrutis which are authorless because they were
transmitted and supplemented solely through generations.

There are many smritis but the well-known Smritis are

Manu Smriti - oldest Smriti written by 'Manu' but was supplemented further
by generations because writing was not invented and it was transmitted
orally. Manu Smriti gave brahmins an eminent position in society and there
was not any right for women or shudras.

Yajnavalkya Smriti - written between the period of Buddha and

Vikramaditya. It was more systematically arranged and was more concise
than Manu Smriti and it also was more liberal than manu smriti, it recognized
some rights for women in regard to inherit and hold property and also gave a
better status to Shudras than manu smriti.

Narada Smriti - Narada was a nepali sage and in this smriti we can see that
he was very broadminded than. Yajnavalkya and manu because in this Smriti
he recognised widow's remarriage, a woman holding property etc also he
postulated that king made law is higher than what is provided in Smriti's. This
Smriti also laid down rules regarding pleadings, evidence of witnesses which
was not mentioned at all in the previous smritis.

Commentaries and Digests

Vedas are the highest source of 'dharma' but it doesn't contain law, All the
Smritis are also considered of paramount importance and it contains law.

But the problem is the Smritis have conflicting tests, for example, Manu smriti
doesn't give rights to woman and Shudras at all but Yajnavalkya smriti and
Narada Smriti do provide rights of varying degrees to both these
communities.

So, there was confusion in society as to whom to follow because in spite of

contradictions all were considered supreme so one could not be chosen over
another.
Commentaries served that purpose; the purpose was to incorporate the true
meaning of these texts uniformly by removing all contradictions.

The two most important Commentaries are 'Mitakshara' And 'Dayabhaga'.

Mitakshara - The literal meaning of Mitakshara is 'A brief Compendium'.

Mitakshara is a commentary by Vijananeshwara on Yajnavalkya Smriti' which

was written in later half of 11th century.

By 11th Century the country was divided into states. Each state had its own
customs, sometimes those customs were given more importance than the
ancient sources like Smritis and Shrutis, but at the same time the public at
large was not okay with the idea of ignoring the shrutis and smritis altogether.
So different 'Sampradaya' came into being for different regions.

We could majorly divide these into five categories, which are now known as
the five schools of Hinduism.

1. Mithila School

2. Benaras School

3. Dravida School

4. Maharshtra School

5. Bengal School

Mitakshara and various other commentaries inspired by it were prevalent in

the first 4 schools but in the Bengal School 'Dayabhaga' was the prevalent
source of Hindu law.

Dayabhaga - Written by Jimutavahana in the latter half of 12th century.

It is not a commentary on a specific Smriti or Shruti but it is a digest of all the

codes.

Major Differences between Mitakshara and Dayabhaga

Mitakshara Dayabhaga
Basis of inheritance is principle of It rejects the preference of agnates
propinquity i.e., nearness in blood over cognates and the basis of
relationship. The person nearer in succession is based on the principle
blood relationship shall succeed to of religious efficacy or spiritual
property. But Females were excluded benefits. Whoever confers more
and agnates were preferred over spiritual benefits on the deceased is
cognates. preferred.
Son, Grandson and great grandson No such right to son, grandson or
have right over property from birth. great grandson until father is alive, he
is the master of property and can
dispose it at his pleasure.
Son has right to partition during No right to partition during lifetime of
lifetime of father. father.
Doctrine of Survivorship: surviving If coparcener dies issueless (without
coparceners take the share in case of child) his widow has a right to
death of a coparcener. succeed to his share and to enforce a
partition on her account.

Judicial Decisions
Under British regime the courts solved disputes by applying the Smriti law
from the commentaries and digests and also adding their own interpretation
and understanding of the law.

In future if a similar dispute arose the earlier judicial decisions were referred
to solve that dispute.

So judicial precedents also got the same standing as law with time along with
the religious texts like shrutis and smritis.

Legislations
Different parts of India had different diverse practises, and that created
confusion when a conflict arose.

Legislations was the easiest way of making the law uniform.

Legislations are concrete, easily accessible, ascertainable and have authority.

But the earlier legislations were made carefully so that they do not go against
the established rules of Hindu Law. Most legislations in the starting period
were reformative or were made to fill in on things which were not covered
under the prevailing law.

The Caste Disabilities Removal Act, 1850 -To protect rights over property
of a person who has converted his religion or has been expelled from the
caste or community.

The Hindu Widows Remarriage Act, 1856 - To give Hindu Widows a right to
remarry.

The Hindu Wills Act, 1870 - Hindus did not have any law which allowed
them to make a will, this filled the gap.
The Special Marriage Act, 1872 - To allow inter-religious, inter-caste or intra
caste marriages.

Modern Legislations
Modern times require modern solutions and as we learnt from history what is
a better solution than legislations.

In 1944 a Hindu Law Committee was made under the chairmanship of Sir
Benegal Narsing Rau.

The purpose of the committee was to make a uniform code for Hindus and
bring all Hindus under this code.

A draft code was made in 1948.

But Hindus said NOOOO, they said this new code would be an attack to their
'sacred law'.

Jawaharlal Nehru decided to drop this idea, Ambedkar didn't like dropping
this idea so he resigned in 1951 as protest.

The Code was anyway later implemented in 4 parts.

- Hindu Marriage act, 1955

- Hindu Succession Act, 1956
- Hindu Minority and Guardianship Act, 1956
- Hindu Adoptions and Maintenance Act, 1956

These acts modernised the law applicable to Hindus by retaining the

fundamental framework and by reforming the framework to a certain degree
where needed.

Custom
Customs are given force of law in many situations, though the Commentaries
tried to include customs but taking in and compiling all customs in a country
like India with varied practises and customs existing at Regional, Local and
even family level is almost impossible.

Custom to be law must be ancient, reasonable, certain, uniform,

obligatory and observed continuously without interruption and should
not be immoral or opposed to public policy or written rule of law or a
statute unless and until it is expressly saved by the statute and should be
construed strictly.
Rules of Equity, Justice and Good Conscience.
No law can be exhaustive and Equity, Justice and Good conscience are
required for any law to be reasonably interpreted or created.

The concept of 'Dharma' includes 'Nyaya' (Justice) and 'Yukti' (Equity)

Yajnavalkya was of the opinion that 'Nyaya' should prevail in case of

conflicting of rules, Narada also favoured 'Yukti' in the administration of law.

The Supreme court has also opined that in absence of any rule in Hindu Law,
the courts have the authority to decide cases on the principles of equity,
justice and good conscience.

And it is common sense that mechanical application of Law without Equity,

Justice and Good Conscience is bound to fail the whole purpose of law.

Who is a Hindu?
HINDUS UNDER CODIFIED LAW

Under Section 2 (1) of Hindu Marriage act, 1955 any person would be
considered a ' Hindu' for the purpose of law if he is:

• A person who is Hindu by Religion in any of its forms or

developments, which includes a Virashaiva, a Lingayat or a follower of
the Brahma, Parthana or Arya Samaj
• a person professing the Hindu, Buddhist, Jain or Sikh religion.

(Also mentioned in Constitution of India- Article 25, Explanation II)

• a person who is not a Christian, Muslim, Parsi or Jew by religion will

be governed by Hindu law unless it is proved that such person will not
be governed by Hindu Law.
• Any Child legitimate or illegitimate both of whose parents are Hindus,
Buddhists, Jains or Sikhs is Hindu.
• Any person who is a convert to the Hindu, Buddhist, Jain or Sikh
Religion.

Perumal v. Ponnuswami (1971)

▪ Perumal (Hindu man) married Annapazham (Christian lady), they

were married as per Hindu ceremonies and rights and they also
entered into an agreement that they shall be, henceforth, governed by
Mitakshara Law.
 ▪ Later they got separated and Annapazaham started living separately
with their son (ponnuswami)
▪ Ponnuswami later filed a suit for half of the property of his father
Perumal, Perumal contended that the marriage with Annapazaham
was illegal as she was Christian and Ponnuswami which was brought
up by her cant claim Joint Family Rights.
▪ Supreme court said that Annapazaham and ponnuswami both are
hindus because Annapazaham was still living as a hindu after
separation and ponnuswami was also raised as a hindu.
▪ Supreme court held that Intention to become Hindu and further
conduct shall be proof of conversion to hinduism, no formal
ceremonies are necessary for conversion.

In case there is a difference of religion as between the spouses in the Indian

patriarchal set-up, usually the father's religion is appended to the child.

That however is not the requirement of law and it is merely a customary

practice that is not obligatory. If only one of the parents of a child is a Hindu,
then the pointer for determination of his religion is not the time of birth but the
upbringing of the child.

If he is being brought up as a member of only his Hindu mother's tribe or

community, then notwithstanding that his father was a non-Hindu, he will
carry his mother's religion and Hindu law can be applied to him.

For example, Sanjay Gandhi, son of a Parsi father and a Hindu mother was a
Hindu at the time of his death as he was brought up as a member of his
mother's (Indira Gandhi's) community.

Marriage Under Hindu Law

Marriage in Hinduism is one of the 16 sacraments (Sanskaar).

It is an Indissoluble bond which goes on in each birth. No concept of Divorce

before 19th Century.

Primary Legislation for Hindu Marriage-Hindu Marriage Act.

8 types of Hindu Marriages

4 approved

Brahma - When boy has completed his student hood (brahmcharya) he is

married with the girl on basis of his knowledge of vedas.

Daiva - Daughter given in lieu of Dakshina if she gets over the age of
marriage and doesn't get husband
Arsha -The Groom(sage) presents a bull or a cow to girls father because the
Groom doesn't have special qualities. (this is not considered a noble marriage
because noble marriages don't have monetary transactions involved)

Prajapatya - The Father of Bride goes looking for a groom and not the other
way round.

4 unapproved
Gandharva - love marriage, without consent of parents

Asura - Groom is not at all compatible with bride but the father of the bride
likes wealth and the Groom is happy to give him that.

Rakshsa - Groom will battle the bride’s family, take away the bride and
convince her to marry.

Paischacha - Worst kind of marriage, the groom will forcefully marry the bride
and won’t even give money or anything for it.

Sec. 5-Conditions for a Hindu Marriage

Sec. 5-Conditions for a Hindu marriage, A marriage may be solemnized
between any two Hindus, if the following conditions are fulfilled:

1. Neither party has a living spouse at the moment of marriage.

2. At the time of marriage, neither party

a. Is giving consent because of unsoundness of mind

b. Suffering from mental disorder of such a kind or to an extent where he/she

is unfit for marriage and the procreation of children

c. Is subject to recurrent attacks of insanity

3. Bridegroom is 21 years, bride is 18 years

4. Parties are not within degrees of prohibited relationship unless the custom
or usage governing each of them permits for such a marriage.

5. Parties are not sapindas of each other, unless custom or usage permits.
Section 3 (f)- Sapinda

(1) "Sapinda relationship" with reference to any person extends as far as the
third generation (inclusive) in the line of assent through the mother, and the
fifth (inclusive) in the line of assent through. the father, the line being traced
upward in each case from the person concerned, who is to be counted as the
first generation;

(ii) two persons are said to be "sapindas" of each other if one is a lineal
ascendant of the other within the limits of sapinda relationship, or if they have
at common lineal ascendant who is within the limits of sapinda relationship
with reference to each of them;

Rules for sapinda

- Always goes upwards

- Mother-3rd generation
- Father-5th generation
- Full/half/uterine relationship
- Legitimate/illegitimate relationship
- Blood/adoption relationship

Section 3 (g) Degrees of prohibited relationship

two persons are said to be within the degrees of prohibited relationship

(i) if one is a lineal descendant of the other; or

(ii) if one was the wife or husband of a lineal ascendant or descendant of the
other; or

(iii) if one was the wife of the brother or of the fathers or mothers’ brother or of
the grandfathers or grandmothers’ brother of the other; or

(iv) if the two are brother and sister, uncle and niece aunt and nephew, or
children of brother and sister or of two brothers or of two sisters;

Rules for Prohibited relationship

- Full/half/uterine relationship
- Legitimate/illegitimate relationship
- Blood/adoption relationship

Sec. 7 Ceremonies for a Hindu Marriage.

(1) A Hindu marriage may be solemnized in accordance with the customary

rites and ceremonies of either party thereto.
(2) Where such rites and ceremonies include the Saptapadi (that is the taking
of seven steps by the bridegroom and the bride jointly before the fire), the
marriage becomes complete and binding when the seventh step is taken.

Saptapadi as well as Kanyadan is not a mandatory ceremony to make a

Hindu Marriage valid.

If some ceremonies took place which usually take place in a marriage, it is

immaterial whether certain specific ceremonies like saptapadi or kanyadan
took place or not.

Sec. 8- Registration of Hindu Marriages.

(1) For the purpose of facilitating the proof of Hindu Marriages, the State
Government may make rules providing that the parties to any such marriage
may have the particulars relating to their marriage entered in such manner
and subject such to conditions as may be prescribed in a Hindu Marriage
Register kept for the purpose.

(2) Notwithstanding anything contained in sub-section (1) the State

Government may, if it is of opinion that it is necessary or expedient so to do,
provide that the entering of the particulars referred to in sub-section (1) shall
be compulsory in the State or in any part thereof, in all cases or in such cases
as may be specified, and whether any such direction has been issued, any
person contravening any rule made in this behalf shall be punishable with fine
which may extend to twenty-five rupees.

(3) All rules made under this section shall be laid before the State legislature,
as soon as may be, after they are made.
(4) The Hindu Marriage Registrar shall at all reasonable times be open for
inspection, and shall be admissible as evidence of the statements therein
contained and certified extracts therefrom shall, on application, be given by
the Registrar on. payment to him of the prescribed fee.

(5) Notwithstanding anything contained in this section the validity of any

Hindu Marriage shall in no way be affected by the omission to make the entry.

• Registration of a Hindu Marriage is not compulsory.

Gullipilli Sawria Raj v. Bhandaru Pavani (2009)

Christian man and Hindu women.

Marriage is not valid even after registration, under HMA only two Hindus can
get married. Registration under HMA does not make a marriage between a
Hindu and non-Hindu valid.

Special Marriage act is for that purpose.

Void and Voidable Marriage.

- A Void marriage is no marriage at all, court considers a void marriage

as if the marriage never existed in the first, place. Void ab initio i.e.
void from inception.
- A Voidable marriage is binding and valid until the decree from court is
passed for annulling it.

We learned that there are 5 conditions of marriage under Section 5.

If the condition number I, IV or V are not fulfilled then it is a void marriage.

If the condition number II and III are violated then it is a Voidable marriage.

Sec. 5 - Conditions for a Hindu marriage, A marriage may be solemnized

between any two Hindus, if the following conditions are fulfilled:

1. Neither party has a living spouse at the moment of marriage. (Void Sec.11)

2. At the time of marriage, neither party- (Voidable)

a. Is giving consent because of unsoundness of mind

b. Suffering from mental disorder of such a kind or to an extent where he/she

is unfit for marriage and the procreation of children.

c. Is subject to recurrent attacks of insanity

3. Bridegroom is 21 years, bride is 18 years (Voidable)

4. Parties are not within degrees of prohibited relationship unless the custom
or usage governing each of them permits for such a marriage (Void Sec 11)

5. Parties are not sapindas of each other, unless custom or usage permits.
(Void Sec 11)

Also Voidable under Section 12, if the marriage is not been consummated
owing to impotence of the respondent, the respondent is pregnant at the time
of marriage by some other person other than petitioner or if the consent is
obtained by fraud or force.

We can see that in Hindu marriage Act, 1955 in Sec.5 (iii) the minimum age
limit for marriage is given, but we can also see that if the bride or groom are
not of the minimum age the marriage is 'Voidable' and not 'void'. This is not
the case in Special marriage Act, 1954 where it is considered a void
marriage.

This child marriage is still punishable under Section 18 of Hindu marriage act
and also under Prohibition of Child Marriage Act, 2006.

P.Venkataramana v. State (1977)

A woman filled complaint against his husband under section. 494 (bigamy)

Husband defended himself with the fact that his first marriage was void. As he
was 13 years old and his wife was only 9 years old at the time of marriage.

Court said NO, the marriage was only voidable and not void so the 2nd
marriage would constitute an offence under Section 494 IPC.

Divorce under Hindu Law

The word 'Divorce' comes from the Latin word 'divortium' which mean 'to
separate".

When parties can file for divorce - Under Section 14 of Hindu Marriage Act,
parties can not file for divorce unless at the time of petition one year has
elapsed since the date of marriage. (Exceptional cases can be heard)

When can divorced parties remarry - Under section 15 if there lies no

appeal to the decree of divorce or if the time period of filling an appeal has
expired then the parties can remarry.

The remedies available for Divorce Under Hindu law can be divided into three
parts.

Section 13
Section 13 (1)

Grounds Available to both Husband-and-Wife Adultery

Adultery

Cruelty

Desertion

Conversion
Mental Disorder

Venereal Disease

Renunciation

Presumed Dead

Section 13 (1-A)

No resumption of cohabition for one year or more after Judicial Separation

Decree

No Restitution of Conjugal rights for one year or more after passing decree

Section 13 (2)
Grounds Available only to Wife

Husband Married again (Bigamy)

Husband proven guilty of Rape, Bestiality or Sodomy

Maintainence decree passed under 125 Cr.PC OR Sec. 18 HAMA and no

cohabitation for 1 year or more

Marriage solemnized when wife was U-15 and she repudiated teh marriage
before she was 18.

Mutual Consent Divorce

Section 13-8

Grounds Available to both Husband and Wife -

Section 13 (1)

Adultery

Sexual Intercourse (Voluntary) with any person other than his or her spouse.

Recently in 'Joseph Shine Vs. Union of India (2018)' adultery is held to be

not a crime.

But it is still a ground for divorce.

Cruelty

Narayan Ganesh Dastane v. Sucheta Narayan Dastane (1975)

Court laid down tests for determining whether the case qualifies for cruelty or
not.

The tests laid down in determining whether a given conduct amounts to legal
cruelty is as follows:

1. The alleged acts constituting cruelty should be proved according to the law
of evidence.

2. There should be an apprehension in the Petitioner's mind of real injury or

harm from such conduct.

3. The apprehension should be reasonable having regard to the condition of

the parties.

4. The Petitioner should not have taken advantage of his position.

5. The Petitioner should not have condoned the acts of cruelty.

Desertion
In 'Bipinchandra Jaisinghbai Shah Vs. Prabhavati (1957)' it was said that
'desertion could be concluded by inference only. whether desertion has
happened or not depends upon the facts and circumstances of the case.

The following could be used to prove desertion:

1. One party has abandoned the other party

2. By abandoning, married life has ended and that is the intention behind
abandoning

3. No reasonable ground for abandoning

4. No consent of the person deserted

5. The deserted person has not given any cause to the deserter so that
he/she may behave in this way:

6. Desertion has been for more than 2 years before the application for divorce
is made.

Conversion

The spouse has converted to some other religion.

Unsound mind or mental disorder

To an extent that the other party cannot be expected to live with the spouse.

Venereal Disease

Venereal disease means a disease which is communicated via sexual

conduct.

Renunciation of the world by entering into religious order

The renunciation must be complete just wearing sadhu clothes does not
mean renunciation of the world.

Presumed Dead

Not been heard of being alive in the past seven years.

Section 13 (1-A)

No resumption of cohabitation for one year or more after Judicial

Separation Decree

No Restitution of Conjugal rights for one year or more after passing decree

Grounds Available only to Wife - Section 13 (2)

Husband Married again (Bigamy)

Husband proven guilty of Rape, Bestiality Sodomy

Maintainence decree passed under 125 Cr.P.C OR Sec. 18 HAMA and no

cohabitation for 1 year or more

Marriage solemnized when wife was U-15 and she repudiated teh marriage
before she was 18.

Section 13B. Divorce by mutual consent.

If they prove that they have been living separately for a period of one year or
more, that they have not been able to live together I that they have mutually
agreed that the marriage should be dissolved.
***************************************************************

Judicial Separation

Does not put an end to marriage, the real purpose of judicial separation is to
enable the spouses, now relieved of their matrimonial duties towards each
other, to reconsider their position, taste "single" living again and attempt in a
less emotional and urgent atmosphere to piece their lives and their futures
together once again.

After one year of Judicial Separation 'Divorce' may be granted.

Section 10 of Hindu Marriage Act provides for Judicial Separation.

Section 10 - Judicial Separation

(1) Either party to a marriage, whether solemnized before or after the

commencement of this Act, may present a petition praying for a decree of
judicial separation on any of the grounds specified in sub-section (1) of
section 13 and in the case of a wife on any of the grounds on which a petition
for divorce might have been presented.

(2) Where a decree for judicial separation has been passed, it should no
longer be obligatory for the petitioner to cohabit with the respondent, but the
Court may, on the application by petition of either party and on being satisfied
of the truth of the statements made in such petition, rescind the decree, if he
considers it just and reasonable to do so.

Under Section 10 (2) if the parties take steps and if the court is satisfied by
the truth of the statements, the court can rescind the decree of Judicial
separation.

The grounds under Section 13 are actually grounds for divorce but Section
13(A) provides for alternate relief of Judicial Separation even when the
case is filled for Divorce.

Section 13A - Alternate relief in divorce proceedings.

In any proceedings under this Act, on a petition for dissolution of marriage by

a decree of divorce, except in so far as the petition is founded on the grounds
mentioned in clauses (ii), (vi) and (vii) of sub-section (1) of section 13, the
Court may, if it considers it just so to do having regard to the circumstances of
the case, pass instead a decree of judicial separation.

So, except for Sub section (ii)Conversion, (vi) Renunciation, (vii)

Presumed Dead.
Judicial Separation may be granted for the remaining grounds of divorce
which are:

• The other party has had voluntary sexual intercourse with any person other
than his spouse.

• Treating the spouse with cruelty

• Deserted the spouse for a continuous period of 2 years immediately

preceding the petition.

• The spouse has been incurably of unsound mind, or has been suffering
continuously or intermittently from mental disorder of such kind and to such
an extent that the petitioner cannot reasonably be expected to live with the
respondent.

• The spouse is suffering from a venereal disease in communicable form.

Wife has additional grounds for filling of Judicial Separation Under Section 13
(2) which are:

• Husband married again (Bigamy)

•After Marriage husband has been proven guilty of Rape, sodomy or

bestiality.

• A decree against husband for maintenance has been passed under Section
18 of Hindu Adoption and maintenance act, 1956 or under Section 125 of
Cr.P.C and the parties have not resumed cohabitation for one year or
upwards.

The marriage was solemnized before she attained the age of fifteen years
and she repudiated the marriage between the age of 15-18.

Since a decree of separation does not irretrievably snap the legal tie and
chances of rapprochement are still kept alive, the courts, with deep concern
over the increasing number of divorce cases and its impact on the parties, the
children, the family and the society at large, sometimes grant a decree of
judicial separation instead of divorce sought, depending of course, on the
circumstances of the case.

****************************************************************************************
Restitution of Conjugal Rights
Section 9-Hindu Marriage Act, 1955

But we can also find provision for the same in

• Special Marriage Act, 1954 (Section 22)

• Indian Divorce Act (Section 26)
• Parsi Marriage and Divorce act (Section 34)

Section 9 of Hindu Marriage Act says:

When either the husband or the wife has, without reasonable excuse,
withdrawn from the society of the other, the aggrieved party may apply, by
petition to the District Court, for restitution of conjugal rights and the Court, on
being satisfied of the truth of the statements made in such petition and that
there is no legal ground why the application should not be granted, may
decree restitution of conjugal rights accordingly.

Explanation- Where a question arises whether there has been reasonable

excuse for withdrawal from the society, the burden of proving reasonable
excuse shall be on the person who has withdrawn from the society.

The Decree for Restitution of Conjugal Rights will be issued under Order XXI
Rule 32 of C.P.C.

Four Conditions for this Decree have to be fulfilled:

(i) The other spouse has withdrawn from the society of the petitioner.

Withdrawing from society of other means without any reason terminating an

existing relationship with the intention of forsaking the other, and permanently
or indefinitely abandoning such relationship.

Even if husband and wife are living apart but maintain a regular social and
conjugal (relationship relating to marriage) relationship it would not constitute '
withdrawing from society of other.

(ii)There is no reasonable excuse for such withdrawal. Should the

respondent allege reasonable excuse, the burden of proof lies on him/her.

-The wife working and not resigning her job to live with the husband a
reasonable excuse as long as she maintains a regular and frequent social
and conjugal relationship.

(iii) The court's satisfaction as to the truth of the statements made in the
petition.

(iv) No legal grounds exist for refusing the decree.

Constitutional validity of Section 9
3 very important Landmark Cases are there which discuss the
constitutionality of Section 9

T Sareetha v. T Venkatta Subbaiah (1983)

• Andhra Pradesh High Court termed this section as violative of Article

21, 19 and 14, called it 'uncivilised', 'barbarous' and 'an engine
oppression'
• The reasoning was that sexual cohabitation is integral part of the
decree of Restitution of Conjugal right, So the decree basically makes
the choice for the other person not only to live with their 'spouse' but
also have sexual intercourse with him.
• The decree is taking away the autonomy of a person over its own
body and nothing can conceivably be more degrading to human
dignity and monstrous to human spirit than to subject a person by the
long rope of the law to a positive sex act.
• It is violative of Article 14 because though it treats a man and a
woman equally but the husband and wife are not on the same footing
in society so it is not justice to treat them equally.

Harvinder Kaur v. Harmander Singh (1984)

• Delhi High Court took a very different approach on Section 9 and not
only upheld the validity of it but also discussed its advantages.
• Court said introducing Constitutional law in family law is like
'introducing a bull in a china shop'.
• The 'Restitution' is not only of sexual intercourse but it is for
cohabitation and there is nothing barbarous or coercive about it. The
court said that 'A disproportionate emphasis on sex, almost bordering
on obsession, has coloured the views of the learned judge.
• The court cited Section 23(2) and 23(3) which provides measures to
reconcile the couple before giving a decree of divorce. Court called
Section 9 as the 'litmus test' for divorce, if the restitution decree is
disobeyed, it is a ground for divorce.
• So, section 9 provides 2 purposes, first is the attempt of reconciliation
and second as a measure of divorce because the law gives the parties
a ground for divorce under Section 13 (1 A) 'if they don't resume
cohabitation for 1 year after the decree of restitution is passed by
court'

Saroj Rani v. Sudershan Kumar (1984)

• In this case the supreme court agreed with Harvinder Kaur v.

Harmander Singh.
• Court discussed that the financial sanction by way of attachment of
properties which has been provided for disobedience of the decree
(under Order XXI Rule 32 of C.P.C), is only an inducement for the
 parties to live together in order to give them an opportunity to settle
their differences amicably.
• Court said the right of the husband or the wife to the society of the
other spouse is not merely a creature of the statute. Such a right is
inherent in the very institution of marriage itself There are sufficient
safeguards in s. 9 to prevent it from being a tyranny.'

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Maintenance under Hindu Law

Two Acts under Hindu Personal Laws which provide for maintenance:

- Hindu Marriage Act, 1955

- Hindu Adoption and Maintenance Act, 1956

Hindu Marriage Act, 1955 (Maintenance of Wife or Husband)

Section 24- Maintenance pendente lite (maintenance pending
litigation) and expenses of proceedings.

If husband or wife does not have income to support the necessary expenses
of the proceedings in court, court can order the respondent to pay to the
petitioner the expenses of the proceedings, the amount would be reasonable
depending on the income of the petitioner and respondent.

The payment must be within 60 days of service of notice.

The maintenance pendente lite can be also given in a proceeding which is

there to declare the marriage null and void. A valid marriage is not essential
requirement for maintenance under Section 24. ('any' proceedings in the court
in mentioned in section)

Section 25-Permanent Alimony and Maintenance

Ordered by the court at the time of passing of the decree or any time
subsequent that the respondent shall pay to the applicant or her/his
maintenance and support. A gross sum or a sum monthly/periodically not
exceeding the life of the applicant.

The sum would be decided keeping in mind the income and property of
respondent and petitioner.

The order could be modified/rescinded in case of change of circumstance.

If the party in whose favour the order is passed gets remarried, or has sexual
intercourse out of wedlock, then the order may be modified or rescinded.
Hindu Adoption and Maintenance Act, 1956

(Maintenance of Wife, Mother and father, Children, Daughter in

law and dependants)

Section 3(b)- "maintenance" definition includes

(i) in all cases, provision for food, clothing, residence, education and medical
attendance and treatment;

(ii) in the case of an unmarried daughter also the reasonable expenses of an

incident to her marriage.

Section 18-Maintenance of Wife

Wife is entitled to maintenance from her husband.

In some cases, wife is entitled to maintenance even if she doesn't live with
her husband if her separate living is justified because of any of the
circumstances occur because of the husband.

- Desertion
- Cruelty
- Any other living wife of husband
- Concubine in same house, or husband habitually resides with a
concubine elsewhere
- Conversion
- Any other cause

Wife would be ineligible for maintenance in some cases like if she is unchaste
or converts her religion from Hinduism.

Neelam Malhotra v. Rajinder Malhotra (AIR 1994)

Maintenance pendente lite though not provided for in section 18 can be

granted by the court because a suit could take years to settle and until then
not granting pendente lite maintenance would be against the spirit of Section
18.
Section 19-Maintenance of widowed daughter in law

In case of death of husband her maintenance would be taken care by her

Father-in-law.

Animuthu v. Gandhimmal 1977 HLR 628.

Liability of the father-in-law comes to an end where the widow is remarried or

she has obtained a share in the coparcenary properties while partition But her
right to share in the separate property of her husband or in his interest in
coparcenary property cannot be divested.

Section 20-Maintenance of Children and aged parents

A hindu is bound to maintain his/her legitimate/illegitimate children and aged

or infirm parents.

Children of the person can only claim maintenance as long as they are minor.

The obligation of a person to maintain his or her aged or infirm parent or

daughter who is unmarried extends in so far as the parent or the unmarried
daughter, as the case may be, is unable to maintain himself or herself out of
his or her own earnings or other property.

'Parent' also includes a childless stepmother.

Section 21-Dependents Defined.

A deceased person's

i. Father
ii. Mother
iii. widow (unmarried),
iv. son, son of predeceased son, son of a predeceased son of
his predeceased son

a. As long as he is a minor and in case of grandson, cannot obtain

maintenance from his father's or mother's estate and in case of great
grandson, cannot obtain maintenance from his father or mother or father's
father or mother's father.

v. unmarried daughter or the unmarried daughter of his

predeceased son or the unmarried daughter of a predeceased
son of his predeceased son

a. So long as she remains unmarried, provided and to the extent that she is
unable to obtain maintenance, in the case of a granddaughter from her
father's or mother's estate and in the case of a great-grand daughter from the
estate of her father or mother or father's father or father's mother

vi. his widowed daughter;

a. provided and to the extent that she is unable to obtain maintenance.

(a)from the estate of her husband;

or (b) from her son or daughter, if any, or his or her estate; or

(c) from her father-in-law or his father or the estate of either of them;

vii. any widow of his son or of a son of his predeceased son, so

long as she does not remarry:

a. provided and to the extent that she is unable to obtain maintenance from
her husband's estate, or from her son or daughter, if any, or his or her estate;
or in the case of a grandson's widow, also from her father-in-law's estate;

viii. his or her minor illegitimate son, so long as he remains a

minor;

ix. his or her illegitimate daughter, so long as she remains

unmarried.

Section 22 - Maintenance of dependents.

The heirs who take the estate of a deceased Hindu are bound to maintain the
dependents of the deceased out of the estate inherited by them from the
deceased if that particular dependent has not obtained, by testamentary or
intestate succession, any share in the estate of a Hindu dying after the
commencement of this Act.

The liability of each of the persons who take the estate shall be in proportion
to the value of the share or part of the estate taken by him or her.

No person who is himself or herself a dependent shall be liable to contribute

to the maintenance of others, if he or she has obtained a share or part, the
value of which is, or would, if the liability to contribute were enforced, become
less than what would be awarded to him or her by way of maintenance under
this Act.
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Stridhan
In ancient times, women didn't have property rights equal as men. According
to Manu, a son, a wife and a slave do not have property rights and if they
acquire any property by their own, then that property will belong to the male
under whose protection they are living. In earlier times Stridhan was the
property of women over which she had absolute right and only had limited
rights over non stridhan property.

Stridhan comprised of property received by way of gifts and presents given

to a woman by her parents, husband, close relations of parents or
husband, either at the time of marriage or on other occasions, or at the time
of the performance of ceremonies, of 'sulka' or bride price, of property
acquired by her own exertions and ability or by adverse possession, of
bequests from stranger or relations of money or property given to her in lieu
of maintenance or its arrears, and of savings or purchases made with
stridhan.

Stridhan falls under two heads:

Saudayika(gifts of love and affection)

gifts received by a woman from relations on both sides (parents and in-laws).

Non-Saudayika- all other types of Streedhan such as gifts from stranger,

property acquired by self-exertion or the mechanical arts.

Non-stridhan comprised what she inherited from a male or a female

relation or property received at the time of partition (Women was limited
owner of this property. The limitation was with respect to the power over its
disposal and the inability to transmit this estate to her own heirs, but
otherwise, she had full powers to spell it, enjoy it and appropriate the income
coming out of it, this was changed after Hindu Succession Act, 1956. Section
14 of HSA has made this Non Stridhan property of women also as her
absolute property)

Hindu women's right to property act, 1937

The Hindu Women's Rights to Property Act was passed in 1937 and was
amended in 1938, Section 2 of the Act expressly repealed the pre-Act
customs and rules of laws that were contrary to the provisions of this Act. The
Act stated in the preamble, that it was expedient to amend the Hindu law in
order to give better rights to women with respect to property.

This law gave the widow of a Hindu who died intestate, the same share in the
property as a son.

The problem in this law was that this Act governed the devolution of the
property of a male Hindu only and not the property of a female. So what
happened is that the property of a female Hindu devolved according to the
rules of Hindu law, which as we have discussed provided a distinction
between inheritance to stridhan and non-stridhan properties.

This further widened the gap between succession to the property of a female
and a male Hindu.

Although the object of the Hindu Women's Right to Property Act was to
enlarge the property rights of all the Hindu women in general, it only satisfied
with strengthening the rights of widow and not the rights of women as a class.

Hindu Succession Act, 1956

After facing a lot of criticism on the Hindu Women's Right to Property Act, the
Parliament decided to come up with an improved legislation dealing with the
property rights of women and enacted the Hindu Succession Act, 1956.
Section 14 of HAS read along with Section 27 of Hindu Marriage Act
conferred absolute property rights on women.

Earlier, a woman's power to dispose of her property was also limited as if the
nature of the property is a Saudayika but her right to dispose it off is like that
of a non-Saudayika, meaning she cannot dispose it off without the consent of
the husband. But all these limitations that were prescribed by the archaic laws
were removed by the enactment of the Hindu Succession Act, 1956.

Stridhan under Criminal Law

Dowry and Stridhan

Under the domestic law, dowry means any property or valuable security that
is given or agreed to be given by the bride's side to the bridegroom's family
before, after or during the time of marriage. The main difference between
'dowry' and 'Stridhan' is the element of "demand, undue influence or coercion"
that is present in the former but absent in the latter.

Dowry attracts application of the Dowry Prohibition Act 1961. On the other
hand, Stridhan attracts the application of the Hindu Succession Act 1956.

Domestic Violence
The Protection of Women from Domestic Violence Act, 2005 under Section 3,
Definition of Domestic Violence mentions deprivation or disposal of stridhan
as Economic Abuse.

Section 3(iv) "economic abuse" includes-

(a) deprivation of all or any economic or financial resources to which the
aggrieved person is entitled under any law or custom whether payable under
an order of a court or otherwise or which the aggrieved person requires out of
necessity including, but not limited to, household necessities for the aggrieved
person and her children, if any, stridhan, property, jointly or separately owned
by the aggrieved person, payment of rental related to the shared household
and maintenance;

(b) disposal of household effects, any alienation of assets whether movable or

immovable, valuables, shares, securities, bonds and the like or other property
in which the aggrieved person has an interest or is entitled to use by virtue of
the domestic relationship or which may be reasonably required by the
aggrieved person or her children or her stridhan or any other property jointly
or separately held by the aggrieved person; and
Criminal breach of trust and Misappropriation
A wife can file a case of criminal breach of trust and misappropriation of her
stridhana under sections 405 and 406 of the Indian Penal Code.

Pratibha Rani v. Suraj Kumar (1985)

A wife was harassed and turned out of the matrimonial house. In spite of her
repeated demands, her belongings, including her clothes and jewellery, were
not given to her. She thereupon filed a case of criminal breach of trust and
misappropriation of her stridhana under sections 405 and 406 of the Indian
Penal Code. 1860. While the trial court gave her some relief, the High Court
quashed her complaint and held that section 406 of the Indian Penal Code
does not apply to such cases as after marriage, the wife's stridbana becomes
joint property of both the spouses. The wife was accordingly asked to
approach the civil courts for return of her stridhana. The wife went in appeal
against this order. Allowing the appeal, the Supreme Court, by a majority
judgment held that simply because the parties are married and living jointly,
does not mean that any one of the spouses can commit acts of criminal
breach of trust.

The Hon'ble Supreme Court of India held that

“a Hindu married woman is the absolute owner of her Stridhan property and
can deal with it in any manner she likes and even if it is placed in the custody
of her husband or her in-laws, they would be deemed to be trustees and
bound to return the same if and when demanded by her”

For better protection of her Stridhan, the woman should make a list of all the
gifts and properties received before, during and after marriage from her
family, husband's family, friends and other acquaintances. The woman should
also keep papers of all the gifts received.

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Adoption under Hindu Law
Adoption is a practise when an individual belonging to one kinship group
acquires new kinship ties with another group i.e. from one family to another
family.

Another type of adoption is from orphanage to a family.

Adoption could be for humanitarian reasons (giving new opportunities to a

neglected child) or could be for natural desire of a child for reason of
affection, caretaking in old age or for an heir after death.

Adoption Under Hindu Law

Hindu Adoptions and Maintenance Act, 1956

• Prior to this legislation the adoptions were governed by customs and female
adoption didn't even existed.

• The Act is prospective in nature and does not govern pre-Act adoptions.

Important Provisions of HAMA, 1956 More conditions

in section 11

Section 6- Requisites of a valid adoption. No adoption shall be

valid unless

(i) the person adopting has the capacity, and also the right, to take in
adoption;

(ii) the person giving in adoption has the capacity to do so;

(iii) the person adopted is capable of being taken in adoption; and

(iv) the adoption is made in compliance with the other conditions mentioned in
this Chapter.

Section 7-Capacity of Male Hindu to take in Adoption

Any male Hindu who is of sound mind and is not a minor has the copacity to
take a son or a daughter in adoption. Provided that, if he has a wife living, he
shall not adopt except with the consent of his wife unless the wife has
completely and finally renounced the world or has ceased to be a Hindu or
has been declared by a court of competent jurisdiction to be of unsound
mind.If a person has more than one wife living at the time of adoption, the
consent of all the wives is necessary unless the consent of any one of them is
unnecessary for any of the reasons specified in the preceding proviso. (Prior
to Hindu marriage act, 1955 people had multiple wives so this explanation
was there in this section, now in 2020 it’s almost impossible to find a Hindu
with multiple wives and soon this explanation would not be of any practical
use)

Section 8 - Capacity of a female Hindu to take in adoptio

Any female Hindu who is of sound mind and is not a minor has the capacity to
take a son or daughter in adoption: Provided that if she has a husband living,
see shall not adopt a son or daughter except with the consent of her husband
unless the husband has completely and finally renounced the world or has
ceased to be a Hindu or has been declared by a court of competent
jurisdiction to be of unsound mind.
Prior to the Personal Laws (Amendment) Act 2010, a female adult Hindu of
sound mind could adopt a child under the following situations, viz., she is:

(i) unmarried;

(ii) divorced;

(iii) widowed; or

(iv) her husband suffers from certain disabilities viz., he has:

(a) ceased to be a Hindu;

(b) has renounced the world; or

(c) has been declared to be of unsound mind by a court

After the Personal Laws (Amendment) Act 2010, however, a female right to
adopt has been brought at par with the male's right.

Section 9 - Persons capable of giving in adoption

Father or mother could give for adoption (with consent of the other) (consent
not required when other is of unsound mind, has renounced the world or has
ceased to be a hindu)

Where both the parents are dead, or are legally incompetent to give in
adoption, then in that case, the guardian of the child may give the child in
adoption with the previous permission of the court, to any person, including
the guardian himself.

Before granting such permission to a guardian, the court has to satisfy itself
that:

(i) the adoption is for the welfare of the child;

(ii) the child's wishes have been ascertained;

(iii) there is no financial consideration in the transaction.

Section 10 - Persons who may be adopted

Essential conditions to be fulfilled

(i) he or she is a Hindu;

(ii) he or she has not already been adopted;

(iii) he or she has not been married, unless there is a custom or usage
applicable to the parties which permits persons who are married being taken
in adoption;

(iv) he or she has not completed the age of fifteen years, unless there is a
custom or usage applicable to the parties which permits persons who have
completed the age of fifteen years being taken in adoption.

Section 11 - Other conditions for a valid adoption

(i) if any adoption is of a son, the adoptive father or mother by whom the
adoption is made must not have a Hindu son, son's son or son's son's son
(whether by legitimate blood relationship or by adoption) living at the time of
adoption;

(ii) if the adoption is of a daughter the adoptive father or mother by whom the
adoption is made must not have a Hindu daughter or son's daughter (whether
by legitimate blood relationship or by adoption) living at the time of adoption;

(iii) if the adoption is by a male and the person to be adopted is a female, the
adoptive father is at least twenty-one years older than the person to be
adopted;

(iv) if the adoption is by a female and the person to be adopted is a male, the
adoptive mother is at least twenty-one years older than the person to be
adopted;

(v) the same child may not be adopted simultaneously by two or more
persons;

(vi) the child to be adopted must be actually given andtoken in adoption by

the parents or guardian concerned or under their authority with intent to
transfer the child from the family of its birth or in the case of an obandoned
child or a child whose parentage is not known, from the place or family where
it has been brought up to the family of its adoption.

Provided that the performance of datta homam, shall not be essential to the
validity of an adoption.

Section 12 - Effect of Adoption

An adopted child shall be deemed to be the child of his or her adoptive father
or mother for all purposes with effect from the date of the adoption and from
such date all the ties of the child in the family of his or her birth shall be
deemed to be severed and replaced by those created by the adoption in the
adoptive family.

Provided that -
(a) the child cannot marry any person whom he or she could not have married
if he or she had continued in the family of his or her birth;

(b) any property which vested in the adopted child before the adoption shall
continue to vest in such person subject to the obligations, if any, attaching to
the ownership of such property, including the obligation to maintain relatives
in the family of his or her birth;

(c) the adopted child shall not divest any person of any estate which vested in
him or her before the adoption.

Section 13 - Right of adoptive parents to dispose of their properties

Subject to any agreement to the contrary, an adoption does not deprive the
adoptive father or mother of the power to dispose of his or her property by
transfer inter vives (by gift) or by will.

Section 14 - Determination of Adoptive Mother in certain cases

The wife of a Hindu male, who adopts, is deemed to be the adoptive mother,
where an adoption is made with the consent of more than one wife, the senior
most in marriage is deemed to be adoptive mother and others as stepmother.

In the case of adoption by a widower or bachelor, any woman whom he

subsequently marries is the stepmother of the child

Similarly, in case of adoption by a widow or an unmarried woman, any man

whom she marries is deemed to be the step-father of the child.

Sawan Ram v. Kalawati, AIR 1967 SC 1761

Whether, in case of an adoption by a widow, would the adopted child be
deemed to be the child of the deceased husband as well, so as to be his heir?

The case involved succession to the properties of the widow's husband-the

widow, too, had died within two months after adoption.

Referring to s. 12 of the Act, the court pointed out that from the date of the
adoption all ties of the child in the family of birth are severed and new ties
created in the adoptive family: it is well recognised that a married female
belonged to the family of her husband and accordingly, the adopted child
must also belong to the same family.

Section 15 - Valid adoption not to be cancelled

Valid adoption not to be cancelled No adoption which had been validly made
can be cancelled by the adoptive father or mother or any other person, nor
can the adopted child renounce his or her status as such and return to the
family of his or her birth

Section 16 - Presumption as to registered documents relating to adoption

Whenever any document registered under any law for the time being in force
is produced before any court purporting to record an adoption made and is
signed by the person giving and the person taking the child in adoption, the
court shall presume that the adoption has been made in compliance with the
provisions of this Act unless and until it is disproved.

Section 17 - Prohibition of certain payments

(1) No person shall receive or agree to receive any payment or other reward
in consideration of the adoption of any person, and no person shall make or
give or agree to make or give to any other person any payment or reward the
receipt of which is prohibited by this section.

(2) If any person contravenes the provisions of sub section (1), he shall be
punishable with imprisonment which may extend to six months, or with fine, or
with both.

(3) No prosecution under this section shall be instituted without the previous
sanction of the State Government or an officer authorized by the State
Government in this behalf.

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Guardianship under Hindu Law

Two main legislations regarding Guardianship and Custody

1. The Hindu Minority and Guardianship Act, 1956

2. The Guardians and Wards Act, 1890

Number 1 is a Hindu Personal law and Number 2 is a secular law which

applies to all irrespective of their religion or caste BUT both these laws are
still complimentary to each other and court applies the provisions of both
these laws in a harmonious way.

Who is a guardian?

A guardian is defined under Section 4 (b) of The Hindu Minority and

Guardianship Act, 1956.

"guardian" means a person having the care of the person of a "minor" or of

his property or of both his person and property, and includes

(i) a natural guardian,

(ii) a guardian appointed by the will of the minor's father or mother,
(Testamentary Guardian)

(iii) a guardian appointed or declared by a court, and

(iv) a person empowered to act as such by or under any enactment relating to

any court of wards.

Natural Guardian and their powers

Defined under Section 6 of the Hindu Minority and Guardianship Act,
1956

If it is a legitimate minor child then the guardianship is with father and after
him the mother But if the child is less than 5 years old then the custody of the
child is generally with the mother.

In case of adopted minor child also the adoptive father is the natural guardian
and after him the mother. (Section 7)

If the minor child is illegitimate then the guardianship is with mother and after
her the father.

In case of a minor married girl-her husband (if husband is also minor then
Mother/Father of girl)

Disqualification from natural guardianship –

(a) if he has ceased to be a Hindu, or

(b) if he has completely and finally renounced the world by becoming a hermit
(vanaprastha) or an ascetic (yati or sanyasi)

Powers of Natural Guardian (Section 8)

To do all acts which are necessary or reasonable and proper for the benefit of
the minor, or for the benefit of the minor's estate but cannot bind the minor
under at contract.

Guardian can lease the property but not for more than 5 years or for a term
which extends more than a year of the date of the minor attaining majority.

Guardian cannot transfer/ mortgage/ charge/ sale/ gift/ exchange any

immovable property in name of the minor without prior permission of court.
The court will grant such permission only if there is a necessity or there is an
evident advantage to the minor.
Ram Krishan Gupta v. Nootan Agarwal (2007)
The mother as guardian of property of minor sons applied for sale of vacant
plots belonging to minor sons in fact, she wanted to sell these plots and with
the sale proceeds buy built flats in an established residential colony where
most of her relatives also had flats. While the lower court denied permission,
on appeal the court held that the sale of vacant land to buy flats in the names
of the sons in a residential colony where most of their relatives also had flats
would be in their interest and hence permission was granted.

If the guardian makes a contract regarding the guardian or his immovable

property which violates any of these conditions then the contract shall be
voidable at the instance of minor.

Testamentary guardian and their powers (Section 9)

There is a father (F) and Mother (M)

F died and appointed X as guardian but mother(M) is alive then M is the

guardian because she is the natural guardian.

Later M died (without appointing a guardian) then X would be the guardian.

But if M died and appointed Y as the guardian in her will then Y would be the
guardian and not X.

A testamentary guardian has the right to act as the minor's guardian after the
death of the minor's father or mother, as the case may be, and to exercise all
the rights of a natural guardian under this Act.

Court Appointed Guardian and Court of wards appointed

Guardian

If there are no natural guardian or testamentary guardian then court will

appoint the guardian.

Other Provisions of Hindu Guardianship and Minority

Act, 1956
Section 10 - A minor can be a guardian of another minor but cannot be
guardian for another minor’s property.

Example - if mother is 17 years old and the child is 1 year old, they both are
minor but still one minor (mother) will be guardian of another minor (her child)
but she will not be guardian of the minor’s property.

Section 11 - De facto guardian not to deal with minors’ property. After the
commencement of this Act, no person shall be entitled to dispose of, or deal
with, the property of a Hindu minor merely on the ground of his or her being
the de facto guardian of the minor.
A de facto guardian is a person who takes continuous interest in the welfare
of the minor's person or in the management and administration of his property
without any authority of law.

Section 12 - Guardian not to be appointed for minors undivided interest in

joint family property. Where a minor has an undivided interest in joint family
property and the property is under the management of an adult member of
the family, no guardian shall be appointed for the minor in respect of such
undivided interest.

Provided that nothing in this section shall be deemed to affect the jurisdiction
of a High Court to appoint a guardian in respect of such interest.

Section 13 - Welfare of minor to be paramount consideration.

(1) In the appointment of declaration of any person as guardian of a Hindu

minor by a court, the welfare of the minor shall be the paramount
consideration.

(2) No person shall be entitled to the guardianship by virtue of the provisions

of this Act or of any law relating to guardianship in marriage among Hindus, if
the court is of opinion that his or her guardianship will not be for the welfare of
the minor.

Kirtikumar Joshi v. Pradip Kumar Joshi (1992)

Custody of two minor children was sought by father as also by maternal
uncle. Mother of the children died an unnatural death and the father was
facing charge under section 498-A of the IPC Children were staying with the
maternal uncle and they also expressed their desire to stay with him and not
with the father. The court granted custody in favour of maternal uncle.

Ram Nath v. Ravi Raj Dudeja (2006)

A custody dispute between the father and the maternal grandparents. The
mother of the minor had died under suspicious circumstances, and the father
was tried under s 304 of the Indian Penal Code, 1860. and convicted by the
trial court, but acquitted by the appellate court. When the child's father was
taken into custody, the child was only four years old, and ever since then, he
was being looked after very well by the maternal grandparents. The child who
was by now sixteen also preferred to live with maternal grandparents. The
court held that the interest of the child lies with the grandparents and not the
father.

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Joint Hindu Family and Hindu Undivided Family
Family was since ancient history regarded as a unit of society in Hinduism.

According to ancient patriarchal system where the patriarch or the head of the
family was the unquestioned ruler, laying down norms for the members of his
family to follow, obeyed by everyone in his family, and having full control over
their lives and properties.

What constitutes a JOINT FAMILY?

All male members descended lineally from a common male ancestor together
with their mothers, wives or widows and unmarried daughters.

A common male ancestor is necessary to bring the Hindu joint family in

existence but is not necessary for its continuation. After the death of such
common male ancestor the rest of the family continues to be a joint Hindu
family.

It is a unit and is represented by the manager of the joint family who is called
'Karta'

Daughter - The daughter ceases to be a part of her father's joint family on

marriage.

If a daughter becomes a widow or is deserted by her husband and returns to

her father's house permanently, she again becomes a member of her father's
joint family. Her children however don't become members of her father's joint
family and continue being members of their father's joint family.

Illegitimate Son - Even an illegitimate son of a male descendant would be a

member of his father's joint family.

Unborn Child - A child in womb till it is born is a member of the joint family
for taxation purposes, but it may be treated as in existence for certain other
purposes under Hindu Law.

Addition and Removal of members

Fresh members are added only by marriage or by birth. (Also, Adoption)

Members are removed by death, by conversion, by marrying a non hindu or

by giving the member in adoption to someone, and the daughter is removed
by marriage.

One member can not constitute Joint Hindu Family. Thus, even if a member
starts living separately, he continues to hold his joint status for the purposes
of his share as a member of Hindu Joint family. (V.M. Patel v. K.M. Patel,
2000)

Just because the sons of the family are living in different cities doesn't mean
that it isn't a joint family anymore. (don't get confused with the terms joint
family and nuclear family we use in day-to-day life)

JHF is Not a Juristic person. (Chotelal v, Jhandelal AIR 1972)

Difference between Joint Hindu Family' and 'Hindu Undivided

Family'

'Hindu Undivided Family' has been used in revenue statutes which is different
from the term Joint Hindu Family' under Hindu law.

Section 2(9) of the Indian Income-tax Act, 1922 defines a 'person' to include,
inter alia, a 'Hindu undivided family.' A Hindu undivided family is a taxable
unit for the purposes of income tax and super-tax.

The expression 'Hindu undivided family' finds reference in various provisions

of the Act but this expression is not defined in the Act. So what is the
difference between both these terms 'Joint Hindu Family' and 'Hindu
Undivided Family.'

The Mitakshara doctrine of joint family property is founded upon the existence
of an undivided family as a corporate body.

The first requisite is the family unit, and the possession by it of family property
is the secondary requisite.

So, relations is the criteria number 1 of the existence of joint family and joint
ownership in property comes later.

(There can be a Joint Hindu Family even when they don't own any
property collectively)

Therefore, under Mitakshara law there can be a joint family without joint
family property. However, the concept of 'Hindu undivided family' is mainly
found under taxation, revenue laws and is linked only with the property. The
concept of a Hindu undivided family without owning any property is
meaningless as far as its assessment is concerned but as I said there can be
Hindu Undivided family with owning any property.
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Coparcenary under Hindu Law

What is Coparcenary - joint Heirship

The original purpose of Coparcenary was spiritual in nature.

It is a Narrower concept compared to Joint family.

Only those people were considered part of coparcenary who can offer Antim
Sanskaar to their father (i.e., males) and only those coparceners have a right
in ancestral property.

In Hindu law there are 2 types of property:

Self-earned Property

Ancestral Property

Where a person possesses an interest in ancestral or coparcenary property,

he is not the sole owner of it and his son, grandson, great-grandson acquire a
right by birth in this coparcenary property (only in Mitakshara, no such right in
Dayabhaga)

Under the classical law no female could be a member of coparcenary

including the unmarried daughter and also the wives of the male members,
though these females are part of the joint family.

Women have been introduced as coparceners under The Hindu

Succession (Amendment) Act, 2005 but only the daughter has been given
this right, the mother and all females who become part of family through
marriage don't have rights of a coparcener.

The common male ancestor who is basically the administrator of joint family
property (coparcenary property) is called the 'Karta' and at the death the
Karta, the coparcenars could continue the coparcenary or they could have the
partition done.

A single person cannot form a coparcenary. There should be at least two

members in an inter-generational relationship to start a coparcenary.

Example: Ramsingh is the father and his son is ashok, now if ashok asks for
the partition of ancestral property and takes his share and gets married, he
though owns ancestral property he will still not make a coparcenry because
he doesn't have a son.

But as soon as his son is born a coparcenary is formed and his son will have
right in the ancestral property Ashok got from ramsingh.

A person removed by more than four degrees from senior most member is
not a coparcener (4 generations including the senior most members
generation) Those who are member of family after 4th generation are
members of joint family.

Joint Family is till 7th generation.

Illegitimate son
An illegitimate son of a lineal male descendant is member of the joint family
but is not a coparcener.
If a partition takes place between the father and the sons, illegitimate son can
be allotted a share.

(Gur Narain Das v. Gur Tahal Das, 1952)

The father can give an equal share to the illegitimate son. However, after the
death of the father, if a partition takes place, the illegitimate son will get half
the share of a legitimate son.

Insane Person

An insane male member of the family is not a coparcener and his rights are
temporarily suspended till he recovers, but if a partition takes place, he has to
be allotted a share.
(Amirthammal v.Vallimavil Ammal. 1942)

Ouster From Coparcenary

A coparcener who renounces his religion and converts to some other faith
ceases to be a member of the joint family and is therefore also ousted from
the coparcenary. Similar is the case where he gets married to a non-Hindu
under the Special Marriage Act, 1954. However, in both these
abovementioned cases, his rights in the coparcenary property will not be
forfeited and he is entitled to take his share of the property. A Hindu man who
gets married to a non-Hindu cannot form a coparcenary with his son.

Coparcenary within a Coparcenary

There is no limitation on the number of members that a coparcenary may
have. There can be a big coparcenary consisting of father, his sons,
grandsons and great grandsons. There can be a coparcenary within a
coparcenary comprising sons and their descendants also. If the father has
separate property, on his death the sons inherit the property jointly. Now if a
child is born to one of the sons, he will form a coparcenary within a
coparcenary.

Rights of Coparceners

(i) Right by Birth in the Property

The moment a coparcener is born, he acquires an interest in the coparcenary

property which is equal to the interest of his father.

All these Rights also apply to an Adopted Child.

(ii) Right of Joint Ownership and Common Enjoyment Only

All coparceners together have a joint or common title or ownership of this
property and till they work out their shares, the extent of their ownership is not
discernible. Common or joint ownership signifies joint liabilities to pay off the
debts due to the family, and also that without the consent of the owners, the
property cannot be generally alienated.

The right is of common enjoyment which means that till a partition by metes
and bounds takes place, no coparcener can claim an enjoyment exclusively
of a specific portion of the property. He can neither predict his exact share nor
his specific portion in the property.

(iii) Right of Survivorship

Coparceners have a right by birth in the coparcenary property and the
moment a son is born he acquires an interest in the property. The quantum of
this interest is not fixed as it fluctuates with deaths and births in the family.
Where a coparcener dies as a member of an undivided coparcenary, his
interest in the property is immediately taken by the surviving coparceners and
he leaves nothing behind that can be called his own share in the joint
property.

For example, a coparcenary comprises the father and his two sons. Each of
them has a probable 1/3rd share in the property till the undivided status is
maintained. On the death of one of the sons, his probable 1/3rd in the
property is taken by the surviving coparceners ie father and the surviving
brother and the deceased will die without any share in the coparcenary
property. The share of the father and the surviving son will be increased to a
probable half. The right of survivorship is one of the basic rights of a
coparcener.

(iv) Right to Accounts

In a joint family, Karta has the authority to manage its affairs and also the
property in the best interests of the family. However, even though it is a
fiduciary capacity, the Karta is not bound to economise or be very vigilant with
the income of the family. He is not liable be to accountable to the other
members except in three situations:

(a) he is conducting the family business and the nature of business is such as
necessitates maintenance of proper accounting; or

(b) there are charges of fraud or misappropriation of income or conversion;

(c) when a coparcener asks for a partition.

In such cases, the coparcener can ask the Karta to render the account, but
the Karta cannot be asked to give the past accounts and he would be within
his rights to render only the then existing accounts.
(v) Right to make personal acquisitions

A coparcener can hold an interest in the coparcenary property and possess

separate property of his own at the same time. Law does not restrict him from
acquiring property in his individual capacity and for this the consent of the
other coparceners is not an essential requirement. He can earn a salary if he
is engaged in a separate business, can inherit property from his relations,
receive property through gift or Will, win a prize or a lottery, acquire property
or money through his special skills or learning or otherwise.

Unless it can be shown that his acquisitions are with the help of the
coparcenary property or are acquired to its detriment, no other coparcener
including his own son can claim any interest whatsoever in these properties.
He has full powers of disposal over his separate properties as in law he has
an exclusive title to it. No other coparcener can claim a right of survivorship in
it and on the death of the owner, this property will pass to the legal heirs
under the relevant laws of inheritance or testamentary succession if he leaves
behind a valid Will.

He can blend his personal property into joint family property if he wants to, for
that there should be clear expression of intention by that coparcener.

(vi) Right to Ask for Partition

The interest of a coparcener in the coparcenary property is a fluctuating

interest that changes with the deaths and births of other coparceners in the
family. A coparcener is competent to convert this fluctuating and probable
share to a fixed and specific share in the property by demanding a partition.

All that he needs to do is to form and manifest an unequivocal intention to

separate himself from the joint family and communicate it to the other
coparceners.

No coparcener including even the Karta can refuse the demand of a partition
by a coparcener. In fact, there is no scope for a refusal, because the moment
an adult coparcener demands partition, a severance of status takes place.
(Putrangamma v. Rangamma. 1968)

If the Karta refuses for partition the coparcener can go to court to enforce the
partition.

The coparcener does not need to give justification to break away from family.

Will learn more about partition in a video dedicated to partition only.

(vii) Right to Renounce his Interest

A coparcener is empowered to renounce his undivided share in the joint
family property, in favour of all the remaining coparceners. Two things are
important here.
Firstly, renunciation should be of the entire undivided interest of the
coparcener. Either he renounces his total interest or none at all. Secondly,
such renunciation must be in favour of all the remaining coparceners.

Therefore, renunciation has to be of the totality of interest and not of partial or

part of undivided interest and in favour of the collective body of coparceners
and not some of them.

A renunciation of interest in favour of the coparceners after agreeing to

receive maintenance is valid (K China Anjaneyulu v. K. China Ramaya,
1965)

Any coparcener can renounce his own interest in the coparcenary property,
even though it is undivided, but cannot renounce the share of his whole
existing branch.

The coparcener renouncing his interest is no longer entitled to get a share, a

son begotten after such renunciation is also not entitled to claim any share.
But sons living at the time of such renunciation are not affected by the act of
the father.

(viii) Right to Restrain Improper Acts

A coparcener who commits an act that is either improper, illegal or prejudicial

to the interest of the joint family members or the coparcenary property
including common enjoyment and possession, can be restrained by an
injunction from doing such an act.

One coparcener alone in presence of others cannot maintain such a suit, as a

suit restraining such action must be filed on behalf of all the coparceners.

(ix) Right of Alienation

As a general rule a Mitakshara coparcener does not have a right to dispose of
his undivided share in the coparcenary property by alienation unless the other
coparceners consent to it.

Alienation - the transfer of property, as by conveyance or will, into the

ownership of another.

The power of alienation of joint family property is with the Karta. He can
exercise this power only for some permitted purpose viz., he can sell the
property for legal necessity, benefit of estate, or for performance of some
indispensable religious or charitable duties. Where the Karta is the father, he
can also sell the property for payment of his antecedent debts. Where Karta
sells the joint family property for an unauthorised purpose, the Icoparceners
have three remedies in the alternative:
(a) Where the Karta is contemplating an alienation, but it is not actually
affected, a coparcener can seek partition and separate from the family. Once
he separates, Karta cannot sell his share.

(b) Where the act of Karta amounts to a waste or an ouster, he can be

restrained by an injunction obtained from the court from committing such
waste. However, no injunction can otherwise be obtained by coparceners
restraining Karta from alienating the joint family property.

(c) Where an alienation of the property is already affected, it can be

challenged by the coparceners as invalid and not binding on their shares.
However, where property is sold by the father to pay his antecedent debts
and the sons claim that such alienation was not binding on them as the debts
were contracted by the father for an illegal or immoral purpose, not only do
they have to prove the immoral or illegal character of the debt but also that
the creditor had notice of it.
****************************************************************************************

Partition
Partition is division of only the Joint Family Property i.e., the coparcenary
property, the individual property is not subject to the partition.

A process by which coparcener severs his relations with joint family and is no
more a coparcener.

In Mitakshara School, the partition means two things:

i) severance of status or interest of each coparcener.

ii) Actual division of property in accordance with shares so specified, known

as partition by metes and bounds (Metes and bounds are the boundary lines
of land, so this basically means drawing up boundary lines and the physical
act of dividing the property)

In Dayabhaga School, partition means only division of property by metes and

bounds.

Before the actual partition the liabilities on the property should be taken care
of:

• Debts- provisions for outstanding debts of father or the karta taken on

behalf, or for the purpose of the joint family should be made.

• Marriage expenses of daughters- in case of the family which consists of

father and sons as coparceners, provisions should be made for their
unmarried daughter's marriage. In case of a family consisting of brothers as
coparcenary, provisions should be made for the marriage of their unmarried
sisters before partition.
• Performance of certain ceremonies and rites-provisions should be made for
the essential ceremonial expenses.
• Maintenance - there are some members of the Hindu joint family who are
not coparceners but entitled to be maintained out of the joint family property,
they can be

o Disqualified coparceners and their immediate dependents

o Mother, step-mother, grandmother and other females entitled to be
maintained by the joint family property
o Unmarried sisters
o Widowed daughter of a deceased coparcener

Modes of Partition
By expression of intention - one member of the joint family can express his
intention to partition, that expression of intention only results in severance of
joint status even though no actual partition took place.

• by Notice

• by Will

• by agreement- such severance of status takes place from the date of

signing of the agreement.

• by arbitration- if the members of the joint Hindu family come into an

agreement where they appoint arbitrators for themselves to divide the
property, the partition comes into existence from the day the agreement was
signed.

• by father- the karta of the family if expresses his wish to seek partition, such
partition comes into existence.

• by suit- when a coparcener files a suit for partition, it amounts to an

unequivocal intimation of an intention to sever and consequently, severance
of status comes into existence from the date the suit was instituted.

• Conversion to another Religion - this leads to automatic severance of

status, and it exists from the day of such conversion. However, he is entitled
to receive a share from the property.

• Marriage under special marriage act- if a coparcener marries according to

the provisions of special marriage act, 1954 severance of status occurs
automatically from the date of marriage and the coparcener is entitled to
receive his/her share from the property.

Reopening of Partition
• Mistake- a suit can be filed, if any of the joint family properties have been
left out of partition by mistake, they can be subjected to partition later.
• Partition done via Fraud, Coercion, misrepresentation, undue influence

•Disqualified Coparcener - Due to some reasons, the disqualified

coparcener might be underprivileged from his share of the property at the
time of partition. In such a situation, he could get the partition reopened fter
the disqualification is removed.

• Son in Womb - If a son is in the Womb at the time of partition, and no share
was allotted to him, at the time of partition then later it can be reopened.

• Adopted Son- The adopted son is permitted to re-open the partition in case
if the widow of a coparcener adopted a son after the partition. Such adoption
under the Hindu Adoptions and Maintenance Act 1956 related back to the
date of death of deceased husband & such adopted son can reopen partition.

• Absent Coparcener - Coparcener who is not present at the time of partition

has a right to reopen the partition if he is absent at the time of partition and no
share is allotted to him.

•Minor Coparcener - If a minor coparcener can claim for reopening the

partition if he is not allotted his share at the time of partition, after attaining
majority. If at the time of partition his interests are not be properly
safeguarded then he can reopen the partition.
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Intestate Succession - Hindu Law

Succession means succeeding or following in general day to day language,
but here it means succeeding or passing of rights of property from one to
another.

We learnt there are two types of property in Hindu Family

- Joint Family Property

- Separate property

Joint Family Property which is also called Coparcenary property is devolved

according to rules of Coparcenary or through partition.

Separate Property devolves via two ways:

1. Testamentary Succession (i.e., through will but that could be the case only
when the person who died made a will before dying)

2. Intestate Succession (when the person dying didn't leave any will)

Hindu Succession Act, 1956 provides for the rules and procedures for
Intestate Succession so we will go through the important provisions of the
bare act.
Intestate Succession of Hindu male (Sec. 8-13 Hindu Succession
Act.)

Section 8 General rules of succession in the case of males.

The property of a male Hindu dying intestate shall devolve according to the
provisions of this Chapter-

(a) firstly, upon the heirs, being the relatives specified in class I of the
Schedule;

(b) secondly, if there is no heir of class I, then upon the heirs, being the
relatives specified in class II of the Schedule;

(c) thirdly, if there is no heir of any of the two classes, then upon the agnates
of the deceased; and

(d) lastly, if there is no agnate, then upon the cognates of the deceased.

Section 9- Order of succession among heirs in the

Schedule
Among the heirs specified in the Schedule, those in class shall take
simultaneously and to the exclusion of all other heirs; those in the first entry in
class II shall be preferred to those in the second entry; those in the second
entry shall be preferred to those in the third entry; and so on in succession.

Class I Heirs

mother;

Here the term mother also includes an adoptive mother. Moreover, if there is
an adoptive mother, the natural mother has no right to succeed to the
property of the intestate.

A mother is also entitled to inherit the property of her illegitimate son by virtue
of Section 3(1)(j).

Jayalakshmi Ammal And Ors. vs T.V. Ganesa lyer (1971) -

The unchastity of the mother is no bar as to her inheriting from her son. Even
if she is divorced or remarried, she is entitled to inherit from her son.

Son; daughter;
adopted children also included, children born out of void/voidable marriage
also legitimate children acc. To Sec.16 of Hindu Marriage Act, 1955

widow;
If there are more than one widow then they will inherit one share jointly.
(Widow of the dead is entitled to inherit from ex-husband's property even if
she remarries after his death)

widow of the pre deceased son; widow of predeceased son of a

predeceased son;

her share including the share of children of predeceased son shall be not
more than the share of the predeceased son.

Son/daughter of a pre-deceased son/daughter;

son/daughter of a pre- deceased son/daughter of a predeceased

son/daughter;

In branch of predeceased son, widow (or widows together) and the surviving
sons and daughters get equal portions.

among the heirs in the branch of the pre-deceased daughter shall be so made
that the surviving sons and daughters get equal portions.

Section 10-Distribution of property among heirs in Class I of the

Schedule. (All rules covered while explaining Class 1 Heirs above)
The property of an intestate shall be divided among the heirs in class I of the
Schedule in accordance with the following rules:

Rule 1- The intestate's widow, or if there are more widows than one, all the
widows together, shall take one share.

Rule 2- The surviving sons and daughters and the mother of the intestate
shall each take one share.

Rule 3- The heirs in the branch of each pre-deceased son or each pre-
deceased daughter of the intestate shall take between them one share.

Rule 4-The distribution of the share referred to in Rule 3

(i) among the heirs in the branch of the pre-deceased son shall be so made
that his widow (or widows together) and the surviving sons and daughters get
equal portions; and the branch of his predeceased sons gets the same
portion;

(ii) among the heirs in the branch of the pre-deceased daughter shall be so
made that the surviving sons and daughters get equal portions.

Section 11-Distribution of property among heirs in class II of the

Schedule.

The property of an intestate shall be divided between the heirs specified in

any one entry in class II of the Schedule so that they share equally.
Class II Heirs

I. Father (Includes adoptive father, father is not entitled to property from

illegitimate son unlike mother but he is entitled to inherit property from
children born out of void and voidable marriages)

II. (1) Son's daughter's son

(2) son's daughter's daughter

(3) brother

(4) sister.

(Brothers and sisters inherit simultaneously. Here the term 'brother' includes
both a full and a half-brother. However, a full brother is always preferred to a
half-brother (according to Section 18))

Uterine brother is not entitled to the intestate's property. However, when the
intestate and his brother are illegitimate children of their mother, they are
related to each other as brothers under this entry.

III (1) Daughter's son's son

(2) daughter's son's daughter

(3) daughter's daughter's son

(4) daughter's daughter's daughter.

IV (1) Brother's son

(2) sister's son

(3) brother's daughter

(4) sister's daughter.

V Father's father; father's mother.

VI Father's widow; brother's widow.

VII. Father's brother; father's sister.

VIII. Mother's father; mother's mother.

IX. Mother's brother; mother's sister.

Arunachalathammal v. Ramachandran Pillai (1962)
It was contended that the different heirs mentioned in one entry (in this case
Entry I of Class II) are subdivisions of that particular entry and they do not
inherit simultaneously but here again there is a question of preference ie the
first subdivision inherits and then in its absence, the later. The question arose
because there were, in his case, one brother and five sisters of the intestate
and no other heir and the brother contended that in a brather being in
subcategory (3) of entry I was to be preferred over sister who was in
subcategory (4) of entry I and thus he was entitled to the full property.
However, the same was negated and it was held that all heirs in an entry
inherit simultaneously and there is no preference to an heir in a higher
subcategory within an entry to an heir in a lower subcategory in the same
entry.

If there are no class I or Class II heirs then the property will go to Agnates of
the intestate (Section 8)

Section 3 (1) (a) "agnate"- one person is said to be an "agnate" of another if

the two are related by blood or adoption wholly through males;

Agnates of the intestate do not include widows of lineal male descendants

because the definition of agnates does not include relatives by marriage but
only relatives by blood or adoption.

There is no limit to the degree of relationship by which an agnate is

recognized. Hence, an agnate however remotely related to the intestate may
succeed as an heir.

This relationship does not distinguish between male and female heirs.

There is also no distinction between those related by full and half blood.
However, uterine relationship is not recognized.

If there are no class I or Class II heirs and no agnates then the property will
go to Cognates of the intestate (Section 8)

Section 3 (1) (c) "cognate" - one person is said to be a cognate of another if

the two are related by blood or adoption but not wholly through males;

- It does not matter if the intervention in the line of succession is by one or

more females. As long as there is at least one female intervening, it is a
cognate relationship.

- Cognate relationship is also not based on marriage and only on blood or

adoption. Hence widow or widowers of those related by cognate relationship
do not fall under this category and hence they are not entitled to succeed on
this ground.
Section 12-Order of succession among agnates and cognates.

The order of succession among agnates or cognates, as the case may be,
shall be determined in accordance with the rules of preference laid down
hereunder:

Rule 1-Of two heirs, the one who has fewer or no degrees of ascent is
preferred.

Rule 2- Where the number of degrees of ascent is the same or none, that heir
is preferred who has fewer or no degrees of descent.

Rule 3- Where neither heir is entitled to be preferred to the other under Rule
1 or Rule 2, they take simultaneously.

Following are the Categories of agnates and cognates

a) Agnates and Cognates who are descendants, Ex.

Agnates-son's son, son's son's daughter

Cognate daughter's son, son's daughter's daughter

(b) Agnates or Cognates who are ascendants,

Ex. Agnates - Father's father's father

Cognates-Father's mother's father

(c) Agnates or cognates who are collateral i.e., related to the intestate by
degree of both ascent and descent.

Ex. Agnate-father's brothers’ son

Cognate Mother's brother’s son

So, Section 12 says that descendants shall be preferred over ascendants

who in turn shall be preferred over collaterals.

Section 13 - Computation of degrees

(1) For the purposes of determining the order of succession among agnates
or cognates, relationship shall be reckoned from the intestate to the heir in
terms of degrees of ascent or degrees of descent or both, as the case may
be.

(2) Degrees of ascent and degrees of descent shall be computed inclusive of

the intestate.

(3) Every generation constitutes a degree either ascending or descending.

The order of succession among agnates and cognates is not determined
merely by the total number of degrees of ascent and descent. It is subject to
and regulated by Section 12 of the Act.

Intestate Succession of Hindu Female

(Sec. 14-16, Hindu Succession Act)

Women were not given autonomy as a person in the past in Hindu culture, so
women had limited property rights, section 14 changed that.

Section 14- Property of a female Hindu to be her absolute property.

(1) Any property possessed by a Female Hindu, whether acquired before or

after the commencement of this Act, shall be held by her as full owner thereof
and not as a limited owner.

Section 15 General rules of succession in the case of female

Hindus

(1) The property of a female Hindu dying intestate shall devolve according to
the rules set out in section 16.-

(a) firstly, upon the sons and daughters (including the children of any pre-
deceased son or daughter) and the husband;

(b) secondly, upon the heirs of the husband;

(c) thirdly, upon the mother and father;

(d) fourthly, upon the heirs of the father; and

(e) lastly, upon the heirs of the mother.

(2) Notwithstanding anything contained in sub-section (1)

(a) any property inherited by a female Hindu from her father or mother shall
devolve, in the absence of any son or daughter of the deceased (including the
children of any predeceased son or daughter) not upon the other heirs
referred to in sub-section (1) in the order specified therein, but upon the heirs
of the father; and

(b) any property inherited by a female Hindu from her husband or from her
father-in-law shall devolve, in the absence of any son or daughter of the
deceased (including the children of any pre deceased son or daughter) not
upon the other heirs referred to in sub-section (1) in the order specified
therein, but upon the heirs of the husband.

It is important to note that the two exceptions herein referred are confined to
only the property inherited from the father, mother, husband and father-in-law
of the female and does not affect the property acquired by her by gift or other
by another device.

Section 16 - Order of succession and manner of distribution

among heirs of a female Hindu

The order of succession among the heirs referred to in section 15 shall be,
and the distribution of the intestate's property among those heirs shall take
place, according to the following rules, namely:

Rule 1- Among the heirs specified in sub-section (1) of section 15, those in
one entry shall be preferred to those in any succeeding entry and those
including in the same entry shall take simultaneously.

Rule 2- If any son or daughter of the intestate had predeceased the intestate
leaving his or her own children alive at the time of the intestate's death, the
children of such son or daughter shall take between them the share which
such son or daughter would have taken if living at the intestate's death.

Rule 3- The devolution of the property of the intestate on the heirs referred to
in clauses (b), (d) and (e) of sub-section (1) and in sub-section (2) of section
15 shall be in the same order and according to the same rules as would have
applied if the property had been the father's or the mother's or the husband's
as the case may be, and such person had died intestate in respect thereof
immediately after the intestate's death.

GENERAL PROVISIONS RELATING TO SUCCESSION

Section 18 - Full blood preferred to half blood.

Heirs related to an intestate by full blood shall be preferred to heirs related by

half blood, if the nature of the relationship is the same in every other respect.

Section 19- Mode of succession of two or more heirs.

If two or more heirs succeed together to the property of an intestate, they

shall take the property

(a) save as otherwise expressly provided in this Act, per capita and not per
stripes; and

(b) as tenants-in-common and not as joint tenants.

Section 20 - Right of child in womb.

A child who was in the womb at the time of death of an intestate and who is
subsequently born alive has the same right to inherit to the intestate as if he
or she had been born before the death of the intestate, and the inheritance
shall be deemed to vest in such a case with effect from the date of the death
of the intestate.
Section 21 - Presumption in cases of simultaneous deaths.
Where two persons have died in circumstances rendering it uncertain whether
either of them, and if so which, survived the other, then for all purposes
affecting succession to property, it shall be presumed, until the contrary is
proved, that the younger survived the elder.

Section 25- Murderer disqualified.

A person who commits murder or abets the commission of murder shall be

disqualified from inheriting the property of the person murdered, or any other
property in furtherance of the succession to which he or she committed or
abetted the commission of the murder.

Section 26- Convert's descendants disqualified.

Where, before or after the commencement of this Act, a Hindu has ceased or
ceases to be a Hindu by conversion to another religion, children born to him
or her after such conversion and their descendants shall be disqualified from
inheriting the property of any of their Hindu relatives, unless such children or
descendants are Hindus at the time when the succession opens.

Section 27- Succession when heir disqualified.

If any person is disqualified from inheriting any property under this Act, it shall
devolve as if such person had died before the intestate.

Section 28- Disease, defect, etc. not to disqualify.

No person shall be disqualified from succeeding to any property on the

ground of any disease, defect or deformity, or save as provided in this Act, on
any other ground whatsoever.

ESCHEAT
Section 29 - Failure of heirs.

If an intestate has left no heir qualified to succeed to his or her property in

accordance with the provisions of this Act, such property shall devolve on the
government; and the government shall take the property subject to all the
obligations and liabilities to which an heir would have been subjected.

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Testamentary Succession - Hindu Law

Two types of Properties under Hindu Law

- Ancestral property

- Separate property

For ancestral property that is joint family property or coparcenary

property we have rules for coparcenary and the rules of partition.

For Separate property we have laws of succession, if there is a 'will' the

separate property will devolve according to the will, if there is no will then
'rules of inheritance' will apply.

- Intestate Succession (person died without making a will)

- Testamentary Succession (there is a will)

So, when we study testamentary succession we basically cover the topic of

wills, what is a valid will, how does it work, what are the pre requisites, what
are the types of will,enforceability etc.

Will: Section 2(h) of Indian Succession Act, 1925 provides that Will means
the legal declaration of the intention of a person with respect to his property,
which he desires to take effect after his death.

Codicil: Codicil is an instrument made in relation to a Will, explaining, altering

or adding to its dispositions and is deemed to be a part of the Will. The
purpose of codicil is to make some small changes in the Will, which has
already been executed.

Executor: An executor is appointed by the testator, as distinguished from an

administrator who is appointed by the court.

Letter of Administration: Letter of Administration is a certificate granted by

the competent court to an administrator where there exists a Will authorizing
him to administer the estate of the deceased in accordance with the Will.
Administrator is appointed when there is no executor appointed.

Probate: Probate is an evidence of the appointment of the executor and

unless revoked, is conclusive as to the power of the executor. The grant of
probate to the executor however does not confer upon him any title to the
property.
Essentials Features of a will
Will can be made by anyone at any time of life of a person.

Section 59 of Indian Succession Act says any person with sound mind and
who is a major can dispose of property via a will.

Explanation I-a Hindu married woman is capable of disposing by Will only that
property which she can alienate during her lifetime.

Explanation II- the persons who are deaf, dumb or blind can prepare a Will if
they are able to prove that they were aware of what they were doing.

Explanation III- provides for persons who are mentally ill and insane. However
subsequent insanity does not make the Will invalid i.e., if a person makes a
Will while he is of sound mind and then subsequently becomes insane the
Will is valid and is not rendered invalid by subsequent insanity. Further a
person of unsound mind can make a Will during his lucid interval.

Will can be changed any number of times during the lifetime of the
testator.

Will can be withdrawn during the lifetime of the person making the will.

Revocability of Will

• Section 62 of the Indian Succession Act deals with the characteristic

of a Will being revocable or altered anytime during the lifetime of the
testator. Section 70 of ISA provides the manner in which it can be
revoked.
• Revocation must be in writing and signed by testator in presence of
two witnesses and attested by both of them too.
• Revocation clause in new 'Will' will make old will ineffective, if there is
no revocation clause in new will then old 'Will' will be ineffective for the
part which is inconsistent with new will. If there are no inconsistencies
then both 'Wills' will be read together as single will.
• The Will maybe burnt or torn by the testator or by some other person
in his presence and by his direction with the intention of revoking the
same.

- Will as well as the Codicil must be attested by two or more

witnesses, both should see the testator signing the will.
- Legality: The will should be legal and in regard to the testator's
property.
- Disposition of Property: Earlier the person making the will could
only bequeath or leave his separate property but now if we read
Section 30 with Section 4 of Hindu Succession Act, it says the
 testator (will maker) if he has a coparcenary interest then he can
also dispose of his/her coparcenary interest in his will.
- Enforceability: Will is only enforceable after the death of the
testator.

Registration of the Will is not compulsory. (Section 18, Registration Act),

But registration creates a strong evidence of genuineness of the will.

Section 74- Says the Will maybe made in any language and can have any
wordings, no technical wordings are mandatory.

Restrictions on a Will

• Transfer to unborn persons is invalid. (Section 113 ISA)

o for a transfer to an unborn person, a prior interest for life has to be created
in another person and the bequest must comprise of whole of the remaining
interest of the testator.

• Transfer made to create perpetuity (Section 114 ISA)

o Rule against perpetuity is the rule which is against a transfer making them
inalienable for an indefinite period or forever. Where a property is transferred
in such a way that it becomes non-transferable in future for an indefinite
period, the property is tied up forever.

o No bequest is valid whereby the vesting of the thing bequeathed may be

delayed beyond the life time of one or more persons living at the testator's
death and the minority of some person who shall be in existence at the
expiration of that period, and to whom, if he attains full age, the thing
bequeathed is to belong.

Section 115 of ISA provides that if a bequest is made to a class of persons

with regard to some of whom it is inoperative by reasons of the fact that the
person is not in existence at the testator's death(113) or to create
perpetuity(114), such bequest shall be void in regard to those persons only
and not in regard to the whole class.

• Bequest to take effect on failure of prior bequest is void. (Section 116 ISA)

o Where by reason of any of the rules contained in sections 113 and 114, any
bequest in favour of a person or of a class of persons is void in regard to such
person or the whole of such class, any bequest contained in the same Will
and intended to take effect after or upon failure of such prior bequest is also
void.
Void Will

Will obtained by fraud, coercion or importunity- A Will or any part of a

Will, the making of which has been caused by fraud or coercion, or by such
importunity as takes away the free agency of the testator, is void. (Section
61)

Will or bequest void for uncertainty- A Will or bequest not expressive of

any definite intention is void for uncertainty.
(Section 89)

Bequest contingent upon specified uncertain event, no time being

mentioned for its occurrence. (Section 124)

Bequest, which is based upon illegal or immoral condition, is void. The

condition which is contrary, forbidden, or defeats any provision of law or is
opposed to public policy, then the bequest would be invalid. (Section 127)

Types of Will
Concurrent wills- When there are different wills for different properties in
different countries, they are called concurrent wills

Conditional/contingent Will - A will which comes into force on happening of

some condition.

Joint Will - Two or more persons can make a joint Will. If the joint Will is joint
and is intended to take effect after the death of both, it will not be admitted to
probate during the life time of either and are revocable at any time by either
during the joint lives or after the death of the survivor.

Mutual Will - Two or more persons may agree to make mutual Wills i.e. to
confer on each other reciprocal benefits. In mutual Wills the testators confer
benefit on each other but if the legatees and testators are distinct, it is not a
mutual Will. Mutual Wills are also known as reciprocal Wills and its revocation
is possible during the lifetime of either testator. But if a testator has obtained
benefit, then the claim against his property will lie. Where joint Will is a single
document containing the Wills of two persons, mutual Wills are separate Wills
of two persons.

Privileged Will - A soldier on the war front who is about to die can make a
will by oral words in the presence of two witnesses (Section 65, Indian
Succession Act))

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Gift-Hindu Law

Transfer of property Act, 1882-Section 122. "Gift" defined.

"Gift" is the transfer of certain existing moveable or immoveable property

made voluntarily and without consideration, by one person, called the donor,
to another, called the donee, and accepted by or on behalf of the donee.

Acceptance when to be made- Such acceptance must be made during the

lifetime of the donor and while he is still capable of giving. If the donee dies
before acceptance, the gift is void.

Same Definition is applicable in Hindu Law also.

A manager of Joint Hindu Family who throws his self-acquired property into
the common stock of the family without any consideration is also said to make
a gift. (Commissioner of Gift Tax V. Satyanarayana Murthii, 1963)

What property may be gifted

• Separate or self-acquired property (mitakshara), subject in certain

cases to the claims for maintenance of those he is legally bound to
maintain.

▪ All property (separate or joint) under Dayabhagal law.

▪ All Ancestral in the hands of sole surviving coparcener.

• The coparcenary interest of a coparcener in a property, subject to the

claims of those who are entitled to be maintained by him.
• Small portions of a coparcenary property in the hands of a father.
• Stridhana of a woman.
• A widow may in certain cases by gift dispose of a small portion of the
property inherited by her from her husband, but she cannot do so by
'will'.
• All Impartible property, unless there is a special custom prohibiting
alienation or the tenure is of such a nature that it cannot be alienated.
• (Impartible property is joint family property which is by ancient custom
held by only one member and is not liable to be partitioned).

Conditions for a Valid Gift

Section 123-Transfer how effected

For the purpose of making a gift of immovable property, the transfer must be
affected by a registered instrument signed by or on behalf of the donor, and
attested by at least two witnesses.
For the purpose of making a gift of movable property, the transfer may be
affected either by a registered instrument signed as aforesaid or by delivery.
Such delivery may be made in the same. way as goods sold may be
delivered.

Gift must be accepted by the Donee.

Capacity to Make a Gift

Hindu (male or female)

Major

Sound Mind

General rules regarding gift

• A condition on a gift which absolutely restrains the donee from

alienating the gift is a void condition under Section 10 TPA.
• Transfer in respect of immovable property to defraud the creditors is
voidable at the instance of creditors under Section 53 TPA.
• Gifts of movable property made under 'Causa Mortis (contemplation of
death) are valid under Section 191 of Indian Succession Act.
• Gift to unborn person is allowed, but it should not break the rule of
perpetuity under Section 14 TPA. And the disposition should be
preceded by a prior disposition in favour of a living person.
• Actionable Claims can be gifted
• Contingent/conditional gifts are valid but condition must not be illegal,
defeating the purpose of any law or opposed to public policy.
• A gift can be Revoked by the Doner before it accepted by the Donee,
He can also revoke it if the done obtained it by fraud, coercion etc.

***************************************************************

Sources of Muslim Law

Muslim law is divine law as opposed to man-made law which are passed by
legislatures.

Muslims believe in oneness of god unlike Hindus which believe in plurality of

gods.

Muslims believe that Mohammed was the last prophet sent by God (Allah)
and Quran is the only revealed book of Allah.

Muslims acknowledge that there are religious preachers and leaders after
Mohammed but they were not prophets.
Islamic society was not divided on basis of castes like Hindu Society and
everyone was considered as an equal in the eyes of God.

Arabic Society before the revelations of Prophet

Mohammed.
The society was governed by customs and usages which varied from tribe to
tribe. The disputes were referred to the chief of the tribe.

But most practises were affected by corruption, status of women was very
low, gambling, barbarism were substantial problems.

Islam reformed all this substantially, so much that the arabs called the period
prior to Prophet Mohammed, as the Aiyyam-il-jahiliya i.e., the period of
ignorance, wilderness or savagery.

Prophet Mohammed

Born in 571 A.D., father died at Medina before Mohammed's birth.

Raised by his mother till the age of 6, after his mother died his grandfather
Abdul Muttalib took care of him.

Prophet at the age of 35 married Khadija and had six children. (2 sons and 4
daughters), the sons died during infancy. One of Prophets daughter (Fatima)
married Ali (prophets' cousin)

At age 40 when the Prophet Mohammed was meditating in a cave called

'Hira' he received his first revelation (Wahi) or we can call it 'message of god'.
First of his followers who believed him were Kadija, Waraqa (a blind scholar)
and his father-in-law Abu-Bakr followed by Umar (2nd caliph) and Usman (3rd
caliph)

He also faced opposition, Abu lahab (uncle of prophet and son of Abdul
Muttalib) persecuted him and humiliated him. He was abused and dragged by
his hair from the temple of Mecca.

Later the Prophet with his followers fled to Medina in 622AD. This marked the
start of a new era called 'Hijrah' (migration) because at medina the prophet
formed a political group called 'Umma'

Later after a war between the supporters of Mohammed and the opposers,
Mohammed emerged triumphant and finally became the ruler of the state
which grew to be the empire of Arabia in ten years and gradually many tribes
joined his empire.

He died at the age of 63 till then he remained the supreme ruler of the huge
empire of Arabia
After Prophet Mohammed (Shia vs. Sunni)

After the death of Prophet Mohammed, the question as to who would be the
new successor as the ruler of Arabia arose. Prophet did not leave an heir and
the closest to him at that time was Ali, his son in law, friend and cousin.

Two groups were formed which were on political basis rather than religious
basis.

Group one wanted Ali to be the successor - Shias

Group two wanted an election - Sunnis

Sunnis held the election and Abu Bakr (father-in-law of prophet, father of
Kadija) was elected as their leader and became the 1" Caliph.

(Caliph is the chief Muslim religious and civil ruler who is considered as the
successor of Mohammed)

Ali also swore allegiance to Abu Bakr, but Abu Bakr was assassinated in 2
years after his election.

Umar became the 2nd caliph (ruled for 10 years then he was also
assassinated)

Usman became the 3rd caliph (ruled for 12 years and then Assassinated)

Ali finally elected as the 4th caliph (ruled for 5 years and he was also
murdered in a battle in 661 A.D)

This bloodshed over all the years led to more differences between shias and
sunnis.

After Ali, his elder son Hasan became the fifth caliph but later resigned in
favour of Mouvia (leader chosen by Sunnis) but even after resigning he was
assassinated.

After Hasan was murdered Ali's younger son Hussain was regarded by the
Shias as their religious leader (not political) just religious)

But Hussain was also murdered by the forces of Yazid (Son of Mouvia)

By this time the differences between Shias and Sunnis became very wide and
almost irreparable.

Muharram is observed to remember the death of Hussain in the battle of

Karbala in 680 A.D.

After that the power was held in the hands of Sunnis, Mouvia introduced
hereditary succession rule and founded the Umayyad Dynasty and the
religious kingdom became a Dynastic rule.
Later after many caliphs and change of dynasties the caliphate was finally
abolished in 1924 by the National Assembly of Ankara (Angola)

Schools of Muslim law.

Two Major Schools - Shia and Sunni

Main difference-Shias reject all traditions or words of any jurists which were
handed down by anyone other than Ali (Successor of prophet), Therefore
they are called Shia-t-i-Ali or 'Faction of Ali.

Sunnis consider the traditions and also Decisions of the Imams and the
general body of knowledge given by jurists which supplement the rules of the
Quran.

Two Major Schools of Shia

• Ithana

• Ismaili

Four Major schools of Sunnis:

• Hanafi

• Shafei

• Maliki

• Hanbali

Sources

Formal Sources (primary)

1. The Quran (Koran)

Derived from the arabic word 'Quarra' which means 'to read'.

Collected and arranged by Abu Bakar (1 Khalifa) and revised by Usman (3rd
Khalifa).

Communicated to prophet by Gabriel (Angel of revelation) in form of

messages (wahi) over 23 years. Abu Bakr was the caliph for only 2 years
after which he was assassinated, the third caliph Usman ordered a second
collection of the text and after 18 years of the death of Prophet the Quran
took the present form as it is today (because all previous copies were ordered
to be burned and as it is considered divine its character is not supposed to be
altered, amended or modified by any human agency or even by an
institution).

Quran is basis of muslim law, around 6000 verses out of which 200 deal with
legal principles such as marriage, matrimonial remedies, maintenance,
acknowledgement of paternity, transfer of property, gifs, wills, inheritance etc.

Abolished objectionable customs like female infanticide, gambling, usury

(practise of lending money at unreasonably high interest) and unlimited
polygamy. Provisions for safeguarding interest of minors and disabled and for
overall increasing the status of women were also there.

2. The Sunnah (Sunnat) -

- meaning 'the path'

- Second source of Muslim law
- whatever the prophet said, did or allowed tacitly is called 'hadis'
(traditions)
- whatever the prophet said in words - 'Sunnat-ul-qaul'
- whatever he did 'Sunnat-ul-fail'
- whatever he allowed to be done without actually saying it (tacitly)-
'Sunnat-ul-tuqrir'

These Sunnats could be manipulated as they were not certain as the 'quran'
and used as a political weapon which happened during the rule of Umayyad
dynasty so these sunnats were collected and compiled by various people and
these collections were called 'Musnads'

3. Ijmaa

Consensus of the most learned members of the community. This source has
been validated by both the Quran and the prophet (via sunnat)

4. Qiyas (Shias don't recognise it)

Collection of rules and principles deductible by the methods of analogy and
interpretation from the Quran Sunnat and Ijmaa. Shias believe that if the
scope of law has to be widened it should be only done by imam and no one
else.

Informal Sources (Secondary)

5. Customs and usages having force of law.

6. Judicial Decision

7. Legislation

Though most of muslim law is not codified but some of it is codified

like
Shariat Act, 1937

Dissolution of Muslim Marriage Act, 1939 etc

The Muslim Women (Protection of Rights on Divorce) ACT, 1985

8. Justice Equity and good conscience.

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Marriage (Nikah) under Muslim Law

In Muslim law marriage is contract which is done for two purposes:

1. Procreation

2. Legalising children

Because marriage is considered a contract there are no ceremonies as such

for marriage in Muslim law, only the conditions for a valid contract of marriage
have to be fulfilled i.e.

- The parties must have capacity to contract marriage

- There should be a proposal
- There should acceptance of proposal.
- There should be no impediments to the marriage.

Capacity to Contract marriage

Any Muslim with sound mind who has attained the age of puberty has a
capacity to marry. Persons who are not of sound mind or who have not
attained puberty can be married by their guardians.

Regarding marrying a person of different religion.

A woman cannot marry any man who is not a Muslim under Muslim law.

A Sunni Mohammedan can marry a non-Muslim woman if she is Kitabia (If

the religion is revealed through a divine book, then it is called Kitabia,
Hinduism is not kitabia)

A Shia Mohammedan cannot marry a non-Muslim woman even if she is a

Kitabia.

If the other person converts to Islam before marriage, then there is no bar.
Proposal and Acceptance

The proposal (ijab) and Acceptance (qubul) should be there for a valid muslim
nikah.

There should be two male witnesses/ one male and two female witnesses.

Proposal and acceptance should be without ambiguities and should be made

by the parties themselves or by other on their behalf.

Proposal and acceptance should be expressed in one meeting.

A assurance to marry in future does not constitute a proposal meeting.

Void, Voidable and Irregular marriage

In muslim law:

A valid marriage is 'sahih'.

A Void marriage is 'batil'.

An Irregular marriage is 'Fasid'

Batil Marriage - A void marriage.

Following are the impediments to marriage which will render the marriage as
void. (Batil), They create what we call Absolute Incapacity or Prohibition.

(1) Already Married: A married woman cannot contract another marriage

while her husband is alive and the marriage is subsisting. Such marriage is
void.

(ii) The bar of consanguinity renders a marriage void. The following are the
prohibited relationships of consanguinity, viz., a man cannot marry his:

(a) ascendants, e.g., mother or grandmother, how highsoever;

(b) descendants, e.g., daughter or grand-daughter, how lowsoever;

(c) his sister, whether full, consanguine or uterine;

(d) his niece or great niece, how lowsoever;

(e) his aunt or great aunt, how highsoever, whether paternal or maternal.

(iii) Marriage is also prohibited on ground of affinity.

Thus, a man cannot marry:

(a) his wife's mother, or grandmother, how highsoever;

(b) his wife's daughter or grand-daughter, how lowsoever, if his marriage with
his wife is consummated;

(c) his father's wife or any other ascendant's wife; and.

(d) his sons, or any other lineal descendant's wife.

(iv) Fosterage is another impediment to a valid Muslim marriage.

Fosterage means when a woman other than its own mother has suckled a
child under the age of two years, the woman becomes the foster-mother of
the child. A man may not, for instance, marry his foster-mother or her
daughter, or his foster Sister.

Fasid Marriage
In Muslim law irregular marriage is because of lack of some formality, or the
existence of some impediment which can be made good.

Meaning that the irregularity can be removed and the marriage can be made
sahih.

A fasid marriage is a marriage i.e., with the process of removing irregularity,

all of these conditions create Relative incapacity to marry which render the
marriage invalid only so long as the cause which creates the bar exist.

- Without witnesses (by acknowledgement before witnesses)

- With fifth wife (by divorcing one of the 4 wives)

-With a woman undergoing iddat (by expiration of iddat period)

- Prohibited by reason of difference of religion (conversion of religion,

women can adopt Islam, Christianity or Jewish religion but man has to
adopt Islam)

-Unlawful Conjunction: With a woman so related to the previous wife, that if

one of them had been a male, they could not have lawfully intermarried. (By
divorcing the wife who is the obstacle)

An irregular marriage may be terminated by either party, if the termination is

before consummation, it has no legal effect.

But if the termination is after consummation, then:

i. Wife is entitled to dower, prompt or specified, whichever is lower.

ii. She is bound to observe iddat for three courses.

iii. Children born out of such marriage are legitimate.

In both the cases of irregular marriage (consummated or not consummated)

no legal rights of inheritance are created between the parties.

Effects of a Legal Muslim Marriage

(i) Sexual intercourse becomes lawful and the children born of the union are
legitimate,

(ii) The wife becomes entitled to her dower (mahr).

(iii) The wife becomes entitled to maintenance.

(iv) Mutual rights of inheritance are established.

(v) The prohibitions regarding marriage due to the rules of affinity come into
operation.

(vi) The wife is not entitled to remarry after the death of her husband, or after
the dissolution of marriage, without observing iddat.

(viii) A woman does not change her status on marriage. She remains subject
to her own pre-marital school of law. Neither the husband nor the wife
acquires any interest in the property of the other by reason of marriage.

Muta Marriage

The word 'muta' means 'enjoyment'

So muta marriage is a 'marriage for pleasure' for a fixed period of time. A

temporary Marriage.

This type of marriage is almost obsolete in India and only certain schools
acknowledge it is a valid marriage like Ithna Ashari Shia.

Essentials of a muta marriage

(I) Form; There should be a contract containing declaration and acceptance.

(II) subject, i.e., a man may contract a muta with a woman professing the
Mohammedan, Christian or Jewish religion or even with a fire-worshipper (ex.
zorastrians). but not with a woman following any other religion. A Shia
woman, however, cannot contract a muta with a non-Muslim. Relations
prohibited by affinity are also unlawful in such marriage;
(iii) term, which means that the period of cohabitation should be fixed, which
may be a day, a month, a year or a term of years; and

(iv) dower.

• A man may contract Muta marriage with any number of women.

• When the term and the dower are fixed, the contract is valid. If, however, the
term is fixed but the dower is not specified, the contract is void. Further, if the
dower is specified and the term is not fixed, the contract, though void as muta
may operate as a 'permanent' marriage.

•Right of Inheritance, does not create any rights of inheritance between man
and woman but children barn out of this marriage are legitimate and can
inherit from both parents.

• A muta marriage is dissolved ipso facto by the expiry of the term.

• Before the end of term, the husband may, at his will, put an end to the
contract by ' making a gift of the term to the wife which is called 'hiba-i-
muddat' The wife's consent is not required for such termination.

• If the Muta marriage is consummated, the wife is entitled for full dower
amount, but if the marriage is not consummated the wife is entitled to half of
the dower amount. If the women leave before the end of the 'term' husband
can deduct a proportionate part of the dower.

• A wife cannot claim maintenance for Muta marriage under Shia law but she
can claim under Section 125 of Cr.P.C

***************************************************************

Divorce under Muslim Law

A contract of marriage under the Muslim law may be dissolved:

(i) by the husband at his will, i.e., talaq; talaq-ul-sunnat, talaq-ul-biddat, ila,
Zihar.

(ii) by the wife under a power delegated to her, i.e., talaq-e-tafwid;

(iii) by mutual consent of the husband and wife, i.e., khula and mubara'at; and

(iv) by judicial decree under the Dissolution of Muslim Marriages Act, 1939.
Talaq
In Muslim law 'talaq' is the term used to denote different types of divorces,
The first one is 'talaq' which is used to denote repudiation by or on behalf of
the husband.

Talaq-i-rajaee - Revocable Divorce;

Talaq-e-Bain - Irrevocable Divorce

Any Mohammedan who Is of sound mind and has attained puberty may
divorce his wife without any cause, In Sunni Law a talaq under compulsion
or intoxication or fraud is also valid but it is void in Shia Law.

Talaq could be oral (spoken words) or in writing (talaqnama)

Oral Talaq - Express words with the name of the wife. Only the word talaq in
front of family council without the name of wife does not constitute talaq,
saying talaq with the name of the wife is considered valid talaq even in
absence of wife.

Talaqnama- it is just record of the fact of an oral talaq, no specific form is

necessary.

Sunni law
A talaq, whether oral or in writing, may be made without witnesses. Such
talaq is valid under Sunni Law. If the husband. properly executes a deed
mentioning the lady whom he has divorced and the name of the writer, it
constitutes a valid divorce, without any regard to intention. If the deed is not
properly super scribed and addressed and the contents are not clear,
intention to divorce must be proved.

Where a husband sends a letter to the wife declaring talaq without making a
proclamation of talaq thrice, the talaq was held to be not valid.1

But, where a husband went to the Qazi and pronounced the divorce in the
absence of the wife and the talaqnama was prepared and duly executed, it
was held that it was a valid divorce and took effect from the date of the
document even though not communicated to her.2

Shia Law
Under the Shia law, a talaq must be pronounced orally in the presence of two
competent witnesses. A talaq communicated in writing is not valid, unless the
husband is physically incapable of pronouncing it orally.

1
M.Shahul Hameed v. A. Salima, AIR 2003 Mad 162
2
Saleha Sheikh AIR 1573 MP 201
Forms of Talaq

Talaq-ul-sunnat

-Talaq which is sanctioned by the sunnat (traditions laid down by prophet

Mohammed, was dealt in sources of Muslim law)

-In both types of talaq-ul-sunnat (ahsan and hasan), 3 months of waiting time
is present before the talaq is irrevocable.

Talag-ahsan (ahsan means best, so this is the very proper form of talaq)

It has 3 conditions

1. Husband makes a single pronouncement of divorce

2. The pronouncement is made during a tuhr (period when women is not
menstruating)
3. Husband abstains from sexual intercourse for the period of iddat (90
days) (After iddat the divorce becomes irrevocable)

If marriage is not consummated, pronouncement of divorce can be made

anytime.

If wife is beyond the age of menstruation, then condition of making

pronouncement during tuhr is not applicable. Also, this condition of
pronouncing during Tuhr period is for oral divorce, this does not apply on
written divorce.

The pronouncement can be revoked during iddat period, cohabitation is an

implied revocation.

Talaq Hasan (Hasan means-good, so this is the proper form of talaq)

- There are three pronouncements of talaq made during successive

tuhrs.
- There must be abstinence from sexual. intercourse until the third
pronouncement.

Talaq-ul-biddat (Triple talaq)

Biddat came from biddah (innovation), which means that this form of talaq
was devised later.

This form of talaq is for instant divorce'. It is an irrevocable form of divorce.

If the husband utters the word 'talaq' three times (orally, in written or in
electronic form) then he would have legally divorced her wife.

It is banned in most of the Islamic nations of the world.

In India also it was only recognised by the Sunni School.

It was held unconstitutional by Supreme Court in Shayara Bano vs Uol
(2017).

The Muslim Women (Protection of rights on marriage) Act, 2019

criminalises 'triple talaq' with up to 3 years of punishment for husband.

Shortcomings of the Muslim Women (Protection of rights on Marriage) Act,

2019

1. Criminalisation of the practice- Bill ends up criminalising a law since the

concept of marriage is of civil nature.

2. Discriminatory in nature- Muslim men can be prosecuted even without

agreement of the wife, due to declaration of illegality. Three-year jail term for
the husband particularly when in no other religion is there such inclement
punishment for uttering three words.

3. Removal of judicial oversight- Making the offence cognisable, the police

have the authority of arresting the husband without leave of the court.

4. Custody and allowance- Section 3 declares talaq to be void implying that

it cannot result in divorce, yet the Bill goes on to discuss post-divorce matters.
Since talaq has been declared illegally void, the husband-wife relationship still
persists.

5. Virtual shutting of the doors on any possibility of reconciliation.

lla

It is a type of constructive divorce, in this the husband vows of abstinence and

if he keeps the vow for 4 months wife gets right to seek a judicial divorce. This
type of divorce is almost obsolete nowadays.

Zihar

Zihar is a form of inchoate divorce. If the husband compares his wife to any of
his female relations within such prohibited degrees as renders marriage with
such person as unlawful, the wife has a right to withdraw from him until he
has performed penance. If the husband does not expiate, the wife has a right
to apply for a judicial divorce.

Talaq-e-tafwid

Husband can delegate his power of giving talaq to some third person or to his
wife.

This power could be delegated absolutely or conditionally, for a particular

period of time or permanently.
Temporary delegation is irrevocable, but a permanent delegation may be
revoked.

An agreement made either before or after the marriage, that under certain
conditions, the wife can pronounce divorce upon herself is valid, provided the
conditions are reasonable and not opposed to the policy of Mahomedan law.

An agreement between husband and wife, by which the husband authorises

the wife to divorce herself from him in the event of his marrying a second wife
without her consent is also valid in this regard.

The power is delegated from husband, so in talaq-e-tafwid, though it is in

form, the divorce of the husband by the wife, it operates in law as a talaq of
the wife by the husband.

Khula and Mubara'at (Mutual Consent Divorce)

When both the husband and wife want their marriage dissolved.

Khula

Khula or khoola is a divorce with the consent and at the instance of the wife.
Khula or redemption literally means, 'to lay down'. In law it means laying down
by a husband of his right and authority over his wife.

The essential features of khula are:

(i) there is an offer from the wife;

(ii) the offer accompanied by some consideration or compensation by the wife

to the husband in lieu of her release from the marital bond;

(iii) the offer must be accepted by the husband.

Once the offer is accepted, it operates as a single irrevocable divorce (talaq-

e-bain).

Mubara'at/Mubaarah

Like khula, mubara'at is also a form of divorce where marriage is dissolved by

agreement between the parties. The difference between the two is that in
khula, the aversion is on the side of the wife and she desires a separation,
whereas in mubara'at the aversions is mutual and both the parties desire a
separation.

Unlike as in khula, in mubara'at, the wife is not required to pay any

compensation.

The offer in a mubara'at divorce may proceed from the wife or it may proceed
from the husband, but once accepted, the dissolution is complete and it
operates as a talaq-e-bain as in the case of khula.
Judicial Divorce

Under Section 2 of The Dissolution of Muslim Marriages Act, 1939 the

following are grounds through which a woman married under Muslim law can
obtain a decree of dissolution of her marriage.

(i) The whereabouts of the husband have not been known for a period of four
years. A decree passed on this ground, however, will not take effect for a
period of six months from the date of such decree, and if the husband
appears either in person or through an authorised agent within that period
and satisfies the court that he is prepared to perform his conjugal duties, the
court will then set aside the decree. In a suit for dissolution on this ground,
the names and addresses of the persons who would have been the heirs of
the husband under the Muslim law if he had died on the date of the filing of
the plaint, shall be stated in the plaint; notice of the suit shall be served on
such persons; and such persons shall have the right to be heard in the suit.

(ii) Failure of the husband to provide for the maintenance of the wife for a
period of two years.

(iii) Sentence of imprisonment on the husband for a period of seven years.

(iv) Failure without reasonable cause to perform marital obligations for a

period of three years.

(v) Impotence of the husband at the time of the marriage and continuing.
However, on an application by the husband, the court shall make an order
requiring the husband to satisfy the court within one year from the date of
such order, that he has ceased to be impotent; if the husband so satisfies the
court within such period, a decree on this ground cannot be passed (for
details, see chapter on 'Impotency').

(vi) Insanity of the husband for two years, or that, he is suffering from leprosy
or a virulent venereal disease.

(vii) Repudiation of marriage by the wife.

(viii)The husband treating the wife with cruelty; that is to say:

(a) habitually assaults her or makes her life miserable by cruelty of conduct
even if such conduct does not amount to physical ill-treatment, or

(b) associates with women of evil repute or infamous life, or

(c) attempts to force her to lead an immoral life, or

(d) disposes of her property or prevents her exercising her legal rights over it,
or

(e) obstructs her in the observance of her religious profession or practice, or

(f) if he has more wives than one, does not treat her equitably in accordance
with the injunctions of the Quran.

(ix) Any other ground which is recognised as valid for the dissolution of
marriage under Muslim law. (Very wide, gives court liberty to decide on basis
of every ground available in muslim law example, conversion of husband,
Irretrievable breakdown of marriage etc.)

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Iddat
This is a period of prohibition applied on women. The prohibition is for
marriage. Reason for this prohibition is to ascertain whether the woman is
pregnant for avoiding future confusion of paternity.

It is observed when marriage of a woman is dissolved which can be via Death

of Husband or by Divorce.

Death:

(i) If the woman is pregnant, the period of iddat is until delivery or 4 months
and 10 days whichever is longer.

Divorce:

(i) If a woman is subject to menstruation, the period of iddat upon divorce is

three courses.

(ii) If the woman is not subject to menstruation, it is three lunar months.

(iii) If the woman is pregnant at the time of divorce, the iddat lasts until
delivery whether it is less or more than three months. (The Muslim Women
(protection of Rights on Divorce) Act, 1986, also adds termination of
pregnancy as end of Iddat Period)

When does Iddat Period Start?

If the marriage is dissolved by death, the period commences from the date of
death; in case of divorce, it commences from the date of divorce.

If the information of husband's death or divorce does not reach the wife until
after the expiration of the period of iddat, then she is not bound to observe
iddat.

If the marriage is dissolved by death, observance of iddat by the wife is

compulsory whether there has been consummation or not. However, in case
of divorce, iddat is compulsory only when the marriage is consummated.
A marriage with a woman undergoing iddat is irregular.

Rights and Duties during Iddat

(i) The husband is bound to maintain the wife during the period of iddat.

(ii) The wife cannot marry another person until completion of her iddat, and if
the husband has four wives including the divorced one, he cannot marry a
fifth wife until the completion of the divorced wife's iddat.

(iii) The wife is entitled to deferred dower, and if the prompt dower has not
been paid, it becomes immediately payable.

(iv) In the event of death of either party before the expiration of the iddat
period, the other is entitled to inherit from him or her in the capacity of wife or
husband, as the case may be, if the divorce has not become irrevocable
before the death of the deceased.

(v) If the divorce is pronounced in death-illness, and the husband dies before
the completion of wife's iddat, the wife is entitled to inherit from him, even if
the divorce has become irrevocable prior to his death, unless the divorce has
been affected without her consent.

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Maintenance and Section 125 Cr.P.C Muslim Law

Muslim Law does not properly define maintenance, its meaning has been
inferred from Hindu Law which provides that: "in all cases, provisions for food,
clothing, residence, education and medical attendance and treatment; in the
cases of an unmarried daughter, also the reasonable expenses of an incident
to her marriage."

The Muslim Law of maintenance may be discussed from the point of view of
the persons entitled to maintenance. Such persons are:

Wife

Children

Parents and Grandparents

other relations.

According to Muslim Culture it is the liability of the husband to provide

maintenance to her wife in all conditions even if she is capable of maintaining
herself but in case of Maintenance to Children, Parents and other relations, it
is given only when they are not able to maintain themselves.
Maintenance of Wife
Maintenance to wife can be Divided under 4 parts

As obligation of marriage.

The husband's obligation to maintain his wife exists so long as the wife
remains faithful to him and obeys all his reasonable orders. However, a wife
can claim maintenance even if she disobeys her husband, if:

1. The husband keeps a concubine,

2. The husband is guilty of committing cruelty

3. The marriage cannot be consummated owing to his towards his wife

illness, malformation, his absence from her without her prior permission or the
husband has still not attained the age of puberty.

On basis of a pre-nuptial agreement.

If wife has made conditions before the contract of marriage, that in so and so
conditions she would be entitled to live separately and can claim maintenance
against husband.

The conditions could be that the husband will not ill-treat her, or take a
second wife or keep a concubine The wife is also entitled to a special
allowance called Kharcha -i- pandan if it is stipulated in pre-nuptial
agreement. (Ali Akbar Vs. Mst. Fatima (1929)-25rs monthly as Kharcha-i-
pandan)

A Husbands liability to provide maintenance to wife who is divorced is only

limited to iddat period.

Under Section 125 Cr.P.C

A JMFC can order a person to make monthly allowance for the maintenance
of the following people if court gets proof of neglect of the person with
sufficient means who is refusing to maintain:

• Wife, unable to maintain herself

• Legitimate or illegitimate minor child (married and unmarried both), unable

to maintain itself.

• Legitimate or illegitimate major child with physical or mental injury due to

which he/she is unable tom maintain itself (married daughter not included)

• Father or mother, unable to maintain himself or herself.

Monthly allowance can be any amount as the magistrate thinks fit.

Until the proceedings under section 125 ends court can also order interim
maintenance during the proceeding and also the expenses for the
proceedings. (Should be given under 60 days of from the date of service of
notice)

Section 125 is a secular provision governing maintenance laws across all

personal laws.

A wife cannot claim maintenance in case she is living in adultery or she

without any sufficient reason refuses to live with her husband. If she
remarries, after the date of her divorce, she cannot claim any such
maintenance. On any of these grounds, a husband may apply for cancellation
of any such order of maintenance.

If husband and wife are living separately by mutual consent, even in that
situation wife is not entitled to claim any such maintenance.

Section 125 also extends the rights of Muslim women to receive maintenance
from her husband. Under the Muslim laws, a Muslim wife must be provided
maintenance only for the period of Iddat and not beyond it. Section 125,
however, extends its provision to Muslim women extending their right to
maintenance up to remarriage.

Mohd. Ahmed Khan v. Shah Banu Begum (1985)

In this case the Supreme court delivered a judgement saying that A woman
has a right to claim maintenance under Section 125 of Cr PC as the Code is a
criminal law and not a civil law."

According to Supreme court there was no conflict between Section 125 CrPC
and Muslim personal laws because 125 applies to all regardless of caste
creed or religion and it is criminal in nature unlike Muslim personal law which
is civil.

Aftermath
The Shah Bano judgment elicited a protest from many sections of Muslims
who also took to the streets against what they saw, and what they were led to
believe, was an attack on their religion and their right to their own religious
personal laws.

Under Muslim Women (Protection of Rights on Divorce) Act 1986.

Parliament for its vote bank politics gave up to the protest and enacted this
law diluting the shah bano Judgement of Supreme Court.
This act limited the liability of husband to pay the maintenance till the iddat
period only (which is what is mentioned in Muslim personal law)

After the iddat period if the woman is unable to support herself her relatives
which would have inherited her property would maintain her and if she has no
such relatives the waqf board will pay for the maintenance.

The Muslim Women (Protection of Rights on Divorce) Act, 1986 created a lot
of confusion and was a very vague law which was enacted just for securing
the votes of Muslim men in next election. The confusion and problems
created by this pathetic legislation was solved a little by Supreme Court in:

Daniel Latifi v. union of India (2001)

Court said that Muslim husband's liability under this act is not limited to iddat
period He has to make arrangement within the period of iddat for her wife's
maintenance.

So, the maintenance would also account for after the iddat period but the
husband must arrange it before the end of iddat.

But the court also held the Muslim women (protection of Rights on Divorce)
Act, 1986 as constitutional.

Maintenance of Children
Father is bound to maintain his son till he attains majority and daughter till she
gets married. (Father is also liable to maintain major son if he is a lunatic or
mentally or physically disabled and not in condition to maintain himself)

Father not bound to maintain children if they refuse to live with him without
any reasonable cause.

Father has no obligation to maintain his illegitimate child under Muslim law.
(But he is liable under 125 Cr.P.C)

Mother has very little obligations to maintain a child, only in Hanafi law if her
husband is poor and she is rich she has liability to maintain the child but she
can still recover the money from her husband when he is in condition to pay
later.
*********************************************************************************

Dower (Mahr) - Muslim Law

Given to the Wife by the husband as a token of respect also acts as a check
on the capricious exercise by the husband of his almost unlimited power of
divorce. A husband thinks twice before divorcing a wife when he knows that
upon divorce the whole of the dower would be payable immediately.
So basically, dower is an obligation imposed upon the husband as a mark of
respect to the wife.

Specified Dower

The amount is decided usually at the time of marriage, in case of minor

husband, his father has the power to make the contract of dower on behalf of
him. It is of two types:

Prompt Dower - Prompt dower is payable immediately after the marriage if

demanded by the wife. She may demand the same at any time before or after
consummation.

So long as the prompt dower remains unpaid, the wife may refuse to live with
the husband as a wife. Non-payment of prompt dower is also a complete
defence in a suit for restitution of conjugal rights filed before consummation.
If, however, the suit is filed after consummation, the court, while decreeing
restitution would make it conditional on the payment of prompt dower.

Deferred Dower - Mahr which is payable on the dissolution of marriage by

death or divorce or on the happenings of a specified event is known as
deferred dower. (If marriage is dissolved by death of husband, dower is given
from property of husband)

Where it is not fixed at the time of marriage whether the dower is to be prompt
or deferred, then, according to the Shia law, the rule is to regard the whole as
prompt. According to the Sunni law, part is regarded as prompt and part as
deferred.

On the dissolution of the marriage, the wife is entitled to the immediate

payment of the whole unpaid dower if the marriage was consummated; if the
marriage was not consummated; then she is entitled to only half the specified
dower.

If dower is not paid to the wife and she dies then her heirs could file a suit for
the payment of the dower within 3 years.

Unspecified Dower (Proper Dower)

When the amount of the dower has not been settled or even when there is an
express stipulation at the time of the marriage that the wife will not claim any
dower, the wife is still entitled to proper or customary dower. The amount is
fixed at the discretion of the court. The court is, however, guided by the
following considerations:

(i) the social position of the bride's father's family;

(ii) her own personal qualifications. The Hedaya lays down the important rule
that her 'age, beauty, fortune, understanding and virtue' must be taken into
consideration;
(iii) the amount fixed upon her female paternal relations, e.g., sisters or
paternal aunts, who are considered to be her equals;

(iv) the social position of the husband and his means, however, of little
account according to Fyzee

Amount of Dower

If it is fixed, it cannot be less than the minimum laid down by the law, which is
10 dirhams in case of Hanafi law and three dirhams in case of Maliki law.

Under the Shia law, no minimum amount is prescribed.

Under the Shia law, the proper dower can never exceed 500 dirhams (the
dower fixed for prophet's daughter Fatima)

Dower Amount can be increased but cannot be decreased by the husband

after marriage.

Remission of Dower
The Wife may remit the dower wholly or partially, for remitting the dower the
following conditions should be fulfilled-

There should be free consent of wife (no distress, force or pressure)

The wife should have attained puberty. (She may or may not be Over 18
years old)

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Adoption under Muslim Law

In Islam adoption doesn't exist as it does in Hinduism. Kafala which literally
means 'sponsorship' is the closest concept in relation to adoption present in
muslim law. It is more of a foster parent relationship unlike Hinduism where
the adoptive parents become the actual parents of the adoptee for all intents
and purposes of law. The Muslim Personal Law (Shariat) Application act,
1937 was promulgated to make provision for application of muslim personal
law i.e., shariat, to muslims.

Section 2. Application of Personal Law to Muslims. Notwithstanding any

custom or usage to the contrary, in all questions (save questions
relating to agricultural land) regarding intestate succession, special
property of females, including personal properly inherited or obtained
under contract or gift or any other provision of Personal Law. marriage,
dissolution of marriage, including talaq, ila, zihar, lian, khula and
mubaraat, maintenance, dower, guardianship, gifts, trusts and trust
properties, and wakfs (other than charities and charitable institutions
and charitable and religious endowments) the of decision in cases
where the parties are Muslims shall be the Muslim Personal Law
(Shariat).

There is no mention of adoption. But that doesn't mean that adoption is non-
existent in Muslim law, as mentioned above the practise of sponsorship is still
there and if any custom or usage permits then also adoption can be done. So
though there is no provision but it is still not prohibited.

*********************************************************************************

Guardianship - Muslim Law

In Muslim law, most times there are no judicial proceedings when a marriage
is dissolved, except for the case brought by women to the court under
Dissolution of Muslim Marriages Act, 1919.

So normally there is no dispute in court about the guardianship or custody of

the child and even if matters are dealt with DMMA, the court grants custody to
the person who is best capable of looking after the interests of the child.

Guardianship in Muslim law is for three things,

Guardian of minor person,

Guardian for minor's property and

Guardian for minor's marriage (called wali)

Guardianship in all three aspects is with father and after him the
grandfather.

Under the Muslim Personal law, a father enjoys a more dominant position in
regard to custody and guardianship of children. The mother could be given
custody of the child but she is not considered the natural guardian of the
child.

Custody v. Guardianship
(a) Custody is granted specifically as a matrimonial relief to a parent who
seeks such custody, whereas guardianship exists at law.

(b) A guardian need not be a custodian; or a custodian, a guardian of the

child.

(c) Guardianship is a more comprehensive term and connotes wider rights

than mere custody.

(d) custody could be for a short duration or for a specific purpose but
guardianship is more permanent in nature.
Custody might not be with father but guardianship is always with the father in
Muslim law.

Under the Shia law, a mother's right to the custody of her minor children, i.e.,
hizanat extends until a son is two years old, and the daughter attains the age
of seven.

Under the Hanafi (Sunni) law, a mother is entitled to the custody of her son till
he reaches the age of seven, and in case of daughter, till she attains puberty.

The mother's right continues, even if she is divorced from the father of the
child, unless she remarries, in which case the custody belongs to the father.

This, however, is not a rigid and the ourt can deviate, if the welfare of the
child so demands.

In Irfan Ahmad Shaikh v. Mumtaz (AIR 1999 Bom 25) custody of a

female child was given to the mother. The mother's marriage with the child's
father was dissolved, and she remarried a person, who was not within the
prohibited degree of relationship to the child. The court, nonetheless, gave
custody to the mother the child had also expressed a desire to remain with
the mother.

According to the court, the Muslim law has not only laid down a general rule,
but has also, in different matters, provided for exceptional circumstances to
be met with. In the matter of custody, it has never ignored the wishes of a
minor child who is of the age of discretion.

Even though as a natural guardian, the father may have prima facie right to
the minor's custody, this may be negatived, if the infant's welfare lies in
keeping him with the mother. Abdul Kalam v. Akhtari Bibi (AIR 1988 Ori
279)

Testamentary Guardian
Father has full right to appoint testamentary guardian, after father the
Executor has the right and after him the grandfather.

Mother has no right to appoint the Testamentary Guardian except

- When she is appointed as the executrix by the Child's except father in his
will.
- It is about her own property which will devolve after her death to her
children.
Illegitimate Children
The father has no right over the illegitimate children and he is not the
guardian of illegitimate children, even the mother is also just a custodian of
the illegitimate children and not the guardian.

Concept of Muhrim:
The custody of a muslim child cannot be given to a person who is not a
muhrim.

Muhrim means a person who is in relation to the child and is within the
prohibited degree of relations with the child. i.e., any person who is unfit to
marry the child.

Powers of the Guardian

• Can sell the movable property for minor's essential necessities like
food, clothing or nursing.
• Can alienate immovable property only in exceptional circumstances
and fraudulent transactions are voidable at the instance of the minor.
• Can lease the property for benefit or needs of minor, but the duration
of the lease can’t be more than the duration of minority.
• Can carry on the business of the minor but like a prudent man would
have carried the business.
• In emergency can also procure debt on behalf of minor, if there was
no necessity and debt was taken then it would not be binding on the
minor.

Where, there is a conflict in the application of the provision of personal law,

and the Guardians and Wards Act, 1890, the latter will prevail - Poolakkal
Ayisakutty v. P.A. Samad (AIR 2005 Ker 68)

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Acknowledgement - Muslim Law

The acknowledgement of paternity under Muslim laws in the nature of
declaration by the father that a child is his legitimate offspring. Once an
acknowledgement of a paternity is made, it cannot be revoked.

The conditions for a valid acknowledgement:

• The paternity of the child should be doubtful, i.e., it should neither be proved
nor disproved that the child is illegitimate. If the child is known to be
illegitimate, it cannot be acknowledged to be legitimate.
• A casual acknowledgement of paternity not intended to confer the status of
legitimacy will not be enough. The intention to confer the status of legitimacy
must be clear.

• The age of the acknowledger and the acknowledged person should be such
that they appear to be the father and the child

• The person acknowledged must not be the offspring of adultery, fornication

or incest

• The paternity of the person acknowledged must not be established in

anyone else.

When a valid acknowledgement of paternity is made, the following

consequences flow from it:

(a) It raises a presumption of valid marriage between the acknowledger and

the mother of the person acknowledged.

(b) The acknowledger and the acknowledged person have mutual rights of
inheritance.

(c). The mutual rights of inheritance also arise between the acknowledger and
the mother of the acknowledged person.

Presumption of Parentage under Muslim Law

While determining maternity has no scope of dispute as the mother is the one
who gives birth to the child.

The paternity, on the other hand, is the legal relationship between the man
and the child which comes into existence when the child is born within the
lawful wedlock, i.e., to the woman who is his wife. The marriage of the man
with the mother of the child may be sahih (valid) or fasid (irregular). But if the
marriage is (batil) void, no father-child relationship comes into existence.
Similarly, if the man commits unlawful sexual intercourse (zina) with the
mother of the child, then the child has no legal relationship with him.

So, for proving parentage the marriage has to be proved there could be direct
proof of marriage, or indirect proof.

Indirect proof could be:

(a) by the presumption of prolonged and continuous cohabitation, or

(b) by acknowledgement of the child as one's legitimate child.

The indirect proof of marriage, whether on the basis of prolonged and

continuous cohabitation or acknowledgement may be rebutted. So, if it is
established, that there was no marriage at all during the entire period when
the child could have been begotten, the offspring will not be legitimate, even if
proof of prolonged cohabitation, or of acknowledgement, is there.

If direct proof is there the Muslim law-givers laid down the following three
rules of presumption of paternity when direct proof of marriage between the
man and the mother of the child is available;

(a) A child born after six months (i.e., six lunar months plus one day or more)
of the marriage is legitimate, unless the father disclaims it.

(b) A child born within six months of the marriage is illegitimate unless the
father acknowledges it.

(c) A child born after the termination of marriage is legitimate if born;

(i) within ten lunar months under the Shia law

(ii) within two lunar years under the Hanafi law, and

(iii) within four lunar years under the Maliki and the Shafii law.

The reason as to why the Muslim law-givers considered the period of

gestation to be as short as six months, and as long as four years, seems to
be the outcome of the imperfect knowledge of gestation and pregnancy
during those times, or it may be that they learned so heavily in favour of
legitimacy that they gave fullest allowance to any freak of nature.

Presumption under Evidence Act

Section 112 of the Evidence Act, 1872 also lays down the rule of
presumption. Which is:

(i) a child born within the lawful wedlock (at any time, even soon after the
marriage), or

(ii) a child born within 280 days of the dissolution of marriage by death or
divorce, will be conclusively presumed to be the child of his father, provided
the mother remained unmarried.

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Intestate Succession - Muslim Law

When a Muslim die there are four duties which need to be performed.

1. Pay funeral and burial expenses.

2. Paying debts of the deceased.

3. Determine the value / will of the deceased (which can only be a maximum
of one third of the property).

4. Distribute the remainder of estate and property to the relatives of the

deceased according to Muslim Law of Inheritance.

In Muslim Intestate Succession:

The first preference is given to Sharers (mentioned in Quran).

There are total 12 sharers, 8 female 4 males In Sunni Law.

There are 9 sharers in Shia law, 6 female, 3 males.

The second preference is given to residuary (they are called residuary

because they take the residue property after the sharers)

The third preference is given to distant kindred. (No such category in Shias)

ESCHEAT: On failure of all the heirs, the property of a Shia Muslim escheats
to the government.

There are five primary heirs, who if present would not be excluded and would
invariably inherit the property. They are: surviving spouse (husband/wife),
son, daughter, mother and father. The son is a residuary but the rules of
inheritance are so designed that he would always inherit the property.

Shares of Primary Heirs

Husband

o Husband will get 1/4th

o If no lineal descendants, then husband will get 1/2

Wife

o If wife and children inherit together, then wife will get 1/8th.

o If there are no children, then wife will get 1/4th.

o if multiple wives are there then the share will be divided in the wives.
Son and Daughter
o Single daughter will get 1/2, More than 1 daughter then 2/3 in total among
all daughters.

o Son will always get double the share of each daughter.

Mother
o If mother inherits with children, then mother will get 1/6th

o If there are no children mother will get 1/3rd

Father
o Father has fixed 1/6th

Doctrine of aul (Increase) - total requirement of share is more than the

required share, number of shares increased by reducing the size of individual
share.

Example

M F

________________

W -- H

D1 D2 D3

A Muslim woman W dies leaving behind her parents M and F, her husband H
and three daughters D1, D 2 and D 3.

Here the share of H is one-fourth (1/4th), of M and F is one-sixth (1/6th) each

and three daughters collectively will take two-thirds (2/3rd).

Heirs Shares Reduced Shares

H 1/4=3/12 3/15
F 1/6=2/12 2/15
M 1/6=2/12 2/15
D1+D2+D3 2/3=8/12 8/15
15/15 = 1= Total share
of all.

The sum total would be 1/4+1/6+ 1/6+2/3= 15/12

Doctrine of radd (Return) - If nobody is alive to take balance share after the
fixed share is given, and there is balance left then it is called as excess share
and is returned to the people with fixed share. This is called Radd or Return.
(Only applies when there are no residuary) (widow and widower will not
participate if there is any other sharer or distant kindred)

Rules of Exclusion - Muslim law in general does not recognise the principle
of representation and provides for the rule of nearer in degree excluding the
remoter.

This rule is applicable to sharers, residuaries and also distant kindred.

Thus, the father would exclude the paternal grandfather, and a son would
exclude a son's son.

Secondly, an heir who is related to the deceased through another person,

would be excluded in presence of the one through whom he or she is related
to the deceased. For example, a sister or a brother is related to the deceased
through the father, and if the father is present, they would be excluded in his
presence.

Disqualifications to Inherit
If you are different religion you can't inherit.

This rule has been removed for converts by Caste Disabilities Removal
Act, 1850.

Illustration: If you are born a Muslim and you convert to Hinduism then you
can still inherit your Muslim father's property.

But if your father was a Hindu and he converted to a Muslim and you are still
a Hindu then you can’t inherit your Muslim fathers’ property.

Illegitimate Child

Under Sunni law an illegitimate child is deemed to be related to its mother,

and inherits from her and her relations but does not inherit from the father or
any of his relations.

Under Shia law, an illegitimate child does not inherit from any of the parents
nor from any of their relatives.

If you kill the person whose property is up for inheritance.

if the person who is supposed to inherit has killed the person from whom he is
inheriting is disqualified.
In Shias - if he had intention of killing then only, he is disqualified, if he kills
accidentally then he is not disqualified.

In Sunnis - it doesn't matter what the intention was or if it was an accident, if

he killed, he disqualified.

Daughter is excluded in some areas because of customary

practises or special statutes.

Rule of primogeniture - elder son will get preference in some things (applies
to certain Muslims as custom or under special statute)

Watan Act, 1886 (Bombay), The Oudh Estates Act, 1869 follows the rules of
primogeniture for devolution of taluqdari properties and exclude daughter.

Gujas and bakarwal communities- daughter always excluded.

In Jammu and Kashmir, in some communities a daughter can succeed only in

absence of all Male agnates of the deceased, while in others he can inherit
only if she is a ‘khananashin.’

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Testamentary Succession (Will) - Muslim Law

No formality, No writing. Even no words are necessary as long as the
intention of the testator is sufficiently ascertained though the burden of proof
is heavy when the will is not written.

If the Will is in writing, it is called 'Wasiyatnama'

Instructions of the testator written on a plain paper, or in the form of a letter,

that in clear cut terms provide for distribution of his property after his death
would constitute a valid Will.

The prophet has declared that the power of making a will should not be
exercised to the injury of the lawful heirs. If you make the will in favour of an
heir then it would be an injury to the heir who was supposed to get the favour
through laws of inheritance. So, there are rules in regards to the will.

One Third Rule

The general rule under Muslim personal laws in India (Shariat) is that a
Muslim may, by his will, dispose only up to one-third of his property which is
left after payment of funeral expenses and debts without the consent of his
heirs.
The testator must be competent to make the Will.

• Major (18+ or 21+ if he is under supervision of court of wards)

• Will made by minor is void, though if he ratifies the will after he becomes a
major then it is valid.

• Sound Mind at the time of making the will, should have a 'disposing mind'
i.e., he should understand properly the consequences of what he is doing.

• Will made under apprehension of death is a valid will.

• Shia Law - A will made after attempt to suicide is a void will

• Will made under undue influence, coercion or fraud is not valid.

The legatee must be competent to take the legacy or bequest.

• Any person capable of holding property (Muslim, non-Muslim, insane, minor,

a child in its mother's womb, etc.) may be the legatee under a Will. Thus, sex,
age, creed or religion is no bar to the taking of a bequest.

• A bequest to a person unborn person is valid. (If child born within 6 months
(Sunni) 10 months (Shia))

• A bequest may be validly made for the benefit of 'juristic person' or an

institution (but it should not be an institution that promotes a religion other
than the Muslim religion viz. Hindu temple, Christian church etc.).

• A bequest for the benefit of a religious or charitable object is valid. It is

unlawful to make a bequest to benefit an object opposed to Islam.

• A person who has caused the death of the legator cannot be a competent
legatee.

• Joint Legatees - If no specific share of any of them has been mentioned, the
property is divided equally amongst all the legatees.

• The legatee has the right to disclaim the bequest.

The subject (property) of bequest must be a valid one (Qualitative

requisite).

• The testator must be the owner of the property to be disposed by will.

• It can be movable or immovable, corporeal or incorporeal property.

• the property must be capable of being transferred.

• the property must he in existence at the time of testator's death it is not
necessary that it should be in existence at the time of making of Will.

• The bequest should be unconditional, if there is a condition the bequest will

exist and the condition only will be void.

• Alternative bequest is valid (given to son, if son not alive then give to wife, if
wife not alive give to charity, this is valid)

The bequest must be within the limits imposed on the

testamentary power of a Muslim (Quantitative requisite).

• One Third Rule applies; two third estate will devolve via intestate succession
(unless there is consent of other heirs)

• The '1/3rd limit' rule will not apply if a Muslim marries under the Special
Marriage Act, 1954, because then he has all the powers of a testator under
the Indian Succession Act, 1925.

• Bequest of entire property to one heir to the exclusion of other heirs is void.

Rule of Chronological Priority (Shia Law)

According to Shia law, if several bequests are made through a Will, priority
would be determined by the order in which they are mentioned or by the point
of time. Thus, legacies take effect in order of preference.

The legatee mentioned first in the will gets his share as mentioned under the
will. After giving his share, the remaining goes to the second legatee. If there
still remains something, it goes to the third and as soon as the one-third
property is exhausted, the distribution is stopped and the next legatee does
not get anything.

Thus, here a legatee either gets his share or gets some share or gets nothing
at all.

Rule of Rateable Abatement (Sunni Law)

Where a bequest of more than one-third of property is made to two or more
persons and the heirs do not give their consent, the shares are reduced
proportionately to bring it down to one-third, or in other words, the bequest
abates rateably. The above rule applies in Sunni law only.

Revocation of Will
• A Muslim testator may revoke, during his life-time, any Will made by him
expressly or impliedly.
 o Implied Revocation: if the testator sells, makes gift of the subject of
bequest or deals with the same in any other manner.

• A Will can be revoked by a simple and clear declaration to that effect or by a

formal deed of cancellation or revocation of Will. Not Necessary that a new
will must be made to revoke the earlier one

• Death of Legatee Under Sunni law where before the Will can operate, the
legatee dies, the bequest will lapse and the property bequeathed would
remain with the testator and on his death will go to his heirs in absence of any
other disposition by him.

Under Shia law, the legacy will lapse only if the legatee dies without leaving
an heir or if the testator, after the death of the legatee, revokes the Will.

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Gift-Muslim Law
Gift is called "Hiba in Muslim law.

A Muslim can gift any property Self Acquired, Ancestral, Movable Immovable,
corporeal, incorporeal.

Gift may be conditional or unconditional.

Muslim law though has a distinction for the gift. It differentiates between the
Corpus (Ayan) and Usufruct (Maufi) of the gift.

Corpus is the main body of gift, usufruct is 'the right to enjoy the use and
advantages of another's property. There can be condition over usufruct but
not on the corpus.

Nawab Umjab Ally Khan v. Mohumdee Begum (Privy Council,

1867)

Nawab of Awadh endorsed in the name of his son government promissory

notes warth Rs 7,35.000 and the same was handed over to his son.

But there was a condition that whatever income af interest comes out of those
notes the Nawab would have right over that income for religious and
charitable endowments during his lifetime.

Here this gift and condition is held to be valid because there is no condition
over the corpus (promissory notes) but the condition is only the interest of the
corpus.
Conditions of Valid Gift
1. Donor's Declaration (with real and Bonafide intention)

2. Donee's Acceptance (express or implied, by done himself or on his behalf)

3. Delivery of subject matter of gift (actual or constructive)

So, in Short DAD (Declaration - Acceptance - Delivery).

Though it is not mandatory in Muslim law to make the transaction of gift in

writing, but it is not prohibited also, Gifts can be made orally or in writing
under Muslim Law.

Capacity to Make Gift

-Muslim (Male or female)

-Major (18+, 21+ (if under a certified guardian), rule of puberty doesn't apply
here)

-Sound Mind

General Rules Regarding Gift

-If gift is not made with bona fide intention and is made with fraudulent
intention to defraud creditors then the gazi can declare it void.
-A gift in contemplation of death (Causa Mortis) or death bed gift (marz-ul-
maut) is partly a gift and partly a bequest and has to adhere to the conditions
of bequest i.e. not more than 1/3rd property can be given without consent of
heirs.

-Gift to unborn person is void, unless the person is in womb of the mother and
is born within 6 months, though a trust can be created in favour of an unborn
person.

-Actionable Claims can be gifted

-Conditional gifts are valid, the gift is considered valid and the conditions
attached are ignored.

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Waqf-Muslim Law
When a property is declared 'wakf the original user is divested of it and the
property rests in Almighty God.

Section 2(1) in The Mussalman Wakf Validating Act, 1913

(1) "Wakf" means the permanent dedication by a person professing the

Mussalman faith of any property for any purpose recognized by the
Mussalman law as religious, pious or charitable.

Any major person with sound can be a Waqif (founder of waqf)

A waqf can be created through a deed in writing or orally. A written deed of

endowment is called a Wakfnama.

Creation of wakf
Muslim law does not prescribe any specific way of creating a Wakf. If the
essential elements as described above are fulfilled, a Wakf is created.
Though it can be said that a Wakf is usually created in the following ways -

By an act of a living person (inter vivos) - when a person declares the

dedication of his property for Wakf. This can also be done while the person is
on death bed (marj-ul-maut), in which case, he cannot dedicate more than 1/3
of his property for Wakf.

By will- when a person leaves a will in which he dedicates his property after
his death. Earlier it was thought that Shia cannot create Wakf by will but now
it has been approved.

By Usage- when a property has been in use for the charitable or religious
purpose for time immemorial, it is deemed to belong to Wakf. No declaration
is necessary and Wakf is inferred.

Features of Waqf
- Allah is its complete owner and this is unchangeable (if the
intention of waqf is secular then it is not a waqf, it is a trust)

- Ownership of its establisher is wiped out

- Used for the welfare of mankind

- It is irrevocable, inalienable and perpetual in nature

Mutawalli
Mutawalli is a person who manages the waqf, he has no rights to transfer
waqf property to anyone, he is just the administrator.

Any person who is a major, of sound mind can appointed as Muatawalli.

Types of Waqfs

1. Public-wells, bridges, roads etc

2. Private Waqfs for benefit of private person also called wakf-ul-aulad (ex.
Imambara)

3. Semi-public-Waqfs for benefit of a class of person.

Subject Matter of Waqf

Subjects of wakfs could be land properties like gardens, fields etc. Religious
institutions can also be subject to waqf like Dargah, Graveyard, Imambara
(private place for certain ceremonies), Khangah (a place for religious
instructions and devotional exercise), mosque, Takia (a resting place).

Later other movable properties were also made subject matter of waqfs like
load-bearing animals, agricultural instruments, koran for reading in a masjid,
movable properties, horses, swords.

Basically, anything non-perishable by use can be a Subject of wakf

Difference between waqf and trust

Both, in waqf as well as in trusts, the property is detained and its usufruct is
utilized for religious or charitable purposes, But, a waqf under Muslim
personal law may be distinguished from a trust at least on the following
matters:

(1) A waqf may be constituted only for those purposes which are recognized
as religious, pious or charitable in Islam whereas, a trust may be constituted
for any lawful object.

(2) Except under Hanafi law, the founder of a waqf cannot reserve any benefit
for himself, but the founder of a trust may himself be a beneficiary.

(3) The powers of a mutawalli (manager of the waqf property) are very limited
as compared to the powers of a trustee.
(4) A waqf is generally perpetual and irrevocable, whereas, a trust need not
be perpetual and may also be revoked under certain conditions.

Because of the above-mentioned differences between waqf and trust, the

Indian Trust, Act, 1882, is not applicable to Muslim waqf in so far as the
nature and operation of waqfs are concerned. But, for purposes of instituting
any suit in the cases of irregularities and mismanagement of waqf property, a
waqf has been regarded as a 'trust' within the meaning of Section 92 of the
Civil Procedure Code, 1908.

However, it must be noted that the Indian Trusts Act is applicable also to
Muslims. Therefore, if a Muslim wants to settle his properties in a trust, he
may do so under this Act instead of creating waqf under Muslim personal law.

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Theories of Divorce
Fault Theory- Fault of one party entitles the other party to get divorce.

This theory is problematic because it tries to paint divorce as a black and

white situation, where one person is the bad guy and one person is the victim,
which is not the case in most situations.

Consent Theory - Marriage doesn't always fail because of Fault's; this theory
suggests that marriage can fail for a variety of reasons.

Some reasons could be

• Parties had different ideas of marriages

• They can't bear each other's society.

• They have different ways of entertainment, living styles, culture etc.

Following are provision which allow parties to take divorce by Mutual Consent

Hindu Marriage Act (Section 13-B) - after 1 year of separate living

Special Marriage Act (Section 28) - after 1 year of separate living

Parsi Marriage and Divorce Act (Section 32-B) - after 1 year of separate
living

Indian Divorce Act (Section 10-A) - after 2 Years of separate living

Theory of Irretrievable Breakdown of Marriage - This is the third theory of
Divorce, this theory as the name suggests says that divorce must be given
where the situation is such that there is no reasonable probability of the
husband and wife living together again.

Samar Ghosh v. Jaya Ghosh (2007)

Wife did not cohabit with husband and refused to have children she did not
make food for him, insulted and humiliated him in front of her father so much
that he left the house.
Court considered this as a case of mental cruelty of wife over husband and
accepted the petition of husband for divorce on grounds of irretrievable
breakdown of marriage.

Naveen Kohli v. Neelu Kohli (2006)

Discussed Irretrievable breakdown of marriage in detail and concluded that

when no result comes out even after a serious attempt by court to bring the
parties together, the court must presume that the marriage has broken down
and if then also divorce is not granted it will bring more misery to the parties.

When marriages are broken down, it becomes fiction and all just remains is a
legal tie, by refusing to severe that tie, the law would not serve the sanctity of
marriage.

Live in Relationships
Marriage has been since long considered a sacred bond in Hinduism and it is
considered a contract in Muslim law, in both cases there are well-defined
rights and duties of both parties. It legitimizes the relationship, the sex
and the children. Living together in a relationship and having sex without
getting married is somewhat normalized nowadays but there needs to be
rules established for live in relationships too, can live in partners adopt
kids? what about the status of kids born out of such relationship? in
case of dispute and breaking up should there be maintenance given by
either of the parties? these are important questions which are not
answered by proper legal provisions in case of live-in relationship.

Three main areas of Dispute regarding Live in Relationships

• Legal Validity of the relationship.

• What are rights of Parties

• What are rights of Children born out of such relationships

Legislation is scarce on live in relationships so most positions of law are
derived from case laws.

Legal Validity of the Relationship

Court has not denied the validity to a live-in relationship but the presumption
to validity is rebuttable.

Badri Prasad v. Deputy Director of Consolidation (1978)

It upheld the legal validity of the 50-year-old live-in relationship of a couple.

In the same case supreme court held "The presumption was rebuttable, but a
heavy burden lies on the person who seeks to deprive the relationship of legal
origin to prove that no marriage took place Law leans in favour of legitimacy
and frowns upon a bastard."

It is not illegal; you can totally do it legally.

Payal Sharma v. Superintendent Nari Niketan Kalindri Vihar, Agra

(2001)

The court said that a man and woman can live together, without getting
married Besides it was also noted that it may be immoral for society but is not
illegal.

S. Khushboo v. Kanniammal & Anr. (2010)

The court held that living together is a right to life under Article 21. The
actress Khushbon, allegedly endorsed pre-mantal sex and live-in
relationships and her detractors accused her of perpetuating nuisance. The
court gave a judgement in the favour of the actress thus upholding the
distinction between law and morality.

Rights of the Parties

Maintenance to wife

Due to gender inequality India is still to a large extent a country where the
man earns the bread and women are housewives so in a domestic
relationship such as marriage, both parties have legal rights to maintenance
from the other party, these maintenance provisions may be gender neutral but
they are of great importance to the women in a traditional marriage where the
woman is not earning anything or earning very less.
Section 125 CrPC was incorporated in order to avoid vagrancy and destitution
for a wife/minor child/old age parents, and the same has now been extended
by judicial interpretation to partners of a live-in relationship.

Ajay Bhardwaj v. Jyotsna (2016)

Court awarded maintenance to wife relying on 2003 report of the Malimath

Committee on Reforms of Criminal Justice System.

Recommended that the word wife' in Section 125 CrPC should be amended
to include a woman who was living with the man like his wife for a reasonably
long period.

Malimath Committee i.e., Committee on Reforms of Criminal Justice System

also in its report in 2003 recommended to amend Section 125 CrPC so as to
alter the meaning of "wife", so as to include women who are not the wife and
are living under a live-in relationship. But there has been debate upon this
specific issue.

Protection from domestic Violence

Women will have protection of domestic violence act, 2005 while in under
live-in relationship.

The act covers not only marriage but all domestic relationships under Section
2(f) of the act which can be a marriage but also a relationship in nature of
marriage.

But the relationship must be a domestic/household relationship for the

application of the act.

D. Velusamy v.D. Patchalammal, (2010)

A relationship like marriage under the 2005 Act must consent to some basic
criteria. It provides that the couple must be of legal age to marry or should be
qualified to enter into a legal marriage. It was also stated that the couple must
have voluntarily cohabited and held themselves out to the world as being akin
to spouses for a significant period of time. Every kind of live-in relationships
should not be covered under the Act of 2005. Simply spending a week
together or a one-night stand would not make it a household relationship. It
additionally held that if a man has a "keep" whom he maintains financially and
uses principally for sexual reasons or potentially as a slave then it would not
be considered as a relationship in the nature of marriage.
Adoption

Central Adoption Resource Authority (CARA) has barred couples in a live-in

relationship from adopting a child, after its Steering Committee held that
cohabitation without marriage is not considered a stable family in India

Rights of Children born out of such relationships

Children of valid marriages generally or of void/annulled voidable marriages

are treated as legitimate for inheriting the property of their father. Progeny of
a defective marriage; casual or occasional relationship or even a prolonged
consistent live-in relationship is treated as illegitimate and ineligible to inherit
the property of the father.

Madan Mohan Singh v. Rajni Kant (2010)

A widower having children from the first wife started living with another
woman without getting married to her and fathered children from this
relationship. On his death the claim of the children from the second union was
resisted by his legitimate children on the ground that inheritance rights can be
claimed only by the legitimate children and not by the illegitimate children.
The court that this kind of sustained relationship cannot be termed as a
"walk in walk out" relationship and it was for the party opposing the
presumption of marriage to prove the contrary in such cases. The court
upheld the right of the children born out of the second relationship to inherit
the property and observed that if a man and a woman cohabit for a number of
years it will be presumed under Sec. 114 of the Indian Evidence Act that they
live as husband and wife and the children born to them will not be illegitimate"

Similar to this case was another case S.P.S Balasubramanyam v.

Suruttayan (1994) in which similar presumption under Sec. 114 (Court may
presume certain facts) is made and the court interpreted the status and
legislation to an extent that it shows conformity from Article 39(f) of the
Constitution of India which sets out the obligation of the State to give the
children adequate opportunity so that they develop in proper manner and
further safeguard their interest.

These judgments do not appear to be laying down a correct proposition of

law. Legitimacy is conferred by a valid marriage and nothing short of a valid
marriage. This is precisely the reason why sec. section 16 of the Hindu
Marriage Act, 1955, as a special case confers legitimacy for the purposes of
inheritance on the children born out of void or voidable marriages. The very
fact that they restrict the rights of inheritance in such cases to only the
parents and not any other relations of the parents shows that the slight liberal
legislative approach is adopted where the marriage has already been validly
solemnized but fails the legal validity test. It is either void or voidable but a
live in relationship is not a marriage at all and the partners to this intimate
union cannot get the status of husband and wife. Where the statute clearly
provides a double validity criterion for the validity of a Hindu marriage i.e., it
should be solemnized validly and should be in conformity with Sec. 5 that lays
down conditions relating to the validity of a marriage, this judicial precedent
appears to be in direct conflict with a specific and clear legislation.
Unwarranted legislative and judicial contradictions should be avoided as
much as possible as they only pave way for undesirable and unnecessary
confusions and uncertainties.3

Conclusion
We can see that as long as the relationship is long enough and is in the
nature of marriage it will be considered a marriage in regards to the rights of
parties and the children a BUT as there is no proper law on this subject
matter there is still a need for a proper legislation clarifying about the
boundary after which such rights such as maintenance rights of the partner
are created in such a relationship. Right now the position of the parties will
vary from case to case on basis of the past case laws which a judge might or
might not over rule.

Foreign Decrees: Marriage & Divorce

Foreign Marriage Decree

This Area is governed by 'Foreign Marriage Act, 1969.'

Section 4 of the act deals with the conditions relating to solemnization of

foreign marriages. The act says that it solemnizes the marriage between
parties one of whom which should be an Indian citizen under article 8 of
Indian Constitution or if the following conditions got satisfied:

(i) Spouse of both parties should not be living

(ii) Both parties should be of sound mind

(iii) At the time of marriage, the bridegroom should be of 21 years and bride
should be of 18 years Neither of the party is within the degree of prohibited
relationship

(iv) It lays down certain rules in respect of capacity of parties and conditions
of validity of marriage, and also provides for registration of marriage on lines
similar to those in the Special Marriage Act, 1954.The provisions of the
Special Marriage Act, 1954, in regard to matrimonial reliefs are applicable,
with suitable modifications, not only to marriages solemnised or registered
under the Act, but also to other marriages solemnised abroad to which a
citizen of India is a party.

3
Poonam Pradhan
Foreign Divorce Decrees
The Problem:

In India we just don't have marriage, we have Hindu marriage, Muslim

marriage, Christian marriage, marriage under special marriage act etc.

All marriages have different laws governing them which means different rules
for Divorce too.

But what if someone marries according to some personal law in India and
then they get divorced abroad using foreign laws and not their personal laws
and then try to enforce that decree in India. What to do then?

Is the divorce valid?

Or is it not?

Concept of "Comity of Courts"

This is a view taken by the courts, which is known as the concept of "comity
of courts". This means that courts in various countries grant probity to
decrees of foreign courts. The understanding being, the courts all over the
world adjudicate the rights of the parties and therefore, show mutual respect.
This principle was first laid by the Court of England and subsequently
approved by the Supreme Court of India in Elizabeth Dinshaw v. Arvand M.
Dinshaw (1987). The Court recorded the observation that it is the duty of all
courts in all countries to do all they can to ensure that the wrongdoer does not
gain an advantage by his wrongdoing'.

The courts in all countries ought, as I see it, to be careful not to do anything to
encourage this tendency and a Judge should pay regard to the orders of the
proper foreign court unless he is satisfied beyond reasonable doubt that to do
so would be a serious injustice to the party. For judging the validity of the
decree of the foreign court, Section 13 (When foreign judgment not
conclusive.) of CPC can be referred:

Code of Civil Procedure 1908, section 13 states:

When foreign judgment not conclusive. - A foreign judgment shall be

conclusive as to any matter thereby directly adjudicated upon between the
same parties or between parties under whom they or any of them claim
litigating under the same title except -

(a) where it has not been pronounced by a Court of competent jurisdiction;

(b) where it has not been given on the merits of the case;
(c) where it appears on the face of the proceedings to be founded on an
incorrect view of international law or a refusal to recognise the law of "[India]
in cases in which such law is applicable;

(d) where the proceedings in which the judgment was obtained are opposed
to natural justice;

(e) where it has been obtained by fraud;

(f) where it sustains a claim founded on a breach of any law in force in

"[India].”

Naramasimha Rao v Y Venkatalakhsmi (1991)

The court surveyed the development of rules of private international law

which are not codified. The need for guidelines and certainty on the issue of
recognition of foreign divorce was emphasised Referring to section 13 of the
Code of Civil Procedure. 1908, the court held that relevant provisions of this
section are capable of being interpreted in a manner which could secure
certainty in conformity with public policy, justice, equity and good conscience
Each clause of the Section 13 was analysed.

Clause (a) which refers to a court of competent jurisdiction should be

interpreted to mean, only the court which the law under which the parties
were married so recognises unless both parties voluntarily and
unconditionally concede to the jurisdiction of any other court.

Clause (b) merits of the case should mean that the decision should be based
on a ground available under the law in which the parties were married also
the decision should be the result of proper contest.

On Clause (c) the court said that judgment founded on a ground not
recognised by the law applicable to the parties (the Hindu Marriage Act. 1955
in this case) is a judgment in defiance of the law and will therefore not be
enforceable under clause (f).

As regards clause (d) i.e., compliance of principles of natural justice, the court
held that this principle has to be extended beyond mere compliance with
technical rules of procedure. The court must ensure an effective contest by
requiring the petitioner to make all necessary provisions for the
respondent to defend, including costs of travel, residence, and
litigation.

Satya v. Teja Singh (1975).

When the respondent had instituted a foreign court proceeding in a court in

whose jurisdiction the applicant has never lived, respondent had made a false
representation that respondent was a bona fide resident of that State. It was
held that the respondent had practised fraud on the foreign court by
concealing this fact Therefore that foreign court had no territorial jurisdiction.
That foreign court decree was declared invalid by the Supreme Court of India.

Neeraja Saraph v Jayant v Saraph(1994)

Case of an NRI marrying in India and later deserting the wife, and obtaining
an annulment (of marriage) decree from an American court. The wife filed a
suit for damages. The Supreme Court gave an interim relief it however.
emphasised the need for enacting a law to deal with situations where NRIs
marry in India, and then desert their wives. The court suggested legislation
incorporating the following provisions-

i) No marriage between an NRI and an Indian woman solemnised in India

may be annulled by a foreign court.

(ii) Provision for adequate alimony to the wife in the property of the husband,
both in India and abroad.

(iii) Decree of Indian court should be executable in foreign courts, both on

principle of comity and by entering into reciprocal agreement like section 44A
of the Code of Civil Procedure. 1908 which makes foreign decrees
executable.

There has been no legislation till now but there has been a bill introduced in
Rajya Sabha.

The Registration of Marriage of NRI Bill, 2019

Under the provisions of this Bill, non-resident Indians are mandatorily required
to register their marriage within 30 days of the wedding, whether the marriage
has been performed in India or abroad. The passport authority has been
empowered to impound or revoke the passport of an NRI if he doesn't register
his marriage within 30 days of marriage. In case of exploitation, harassment
of the wife, the courts have been empowered to issue summons/warrants
through specially designated website of the Ministry of External Affairs. The
Bill also makes provision for attachment of properties belonging to the NRI if
he does not appear before the court and is declared as proclaimed offender.
In a nut shell, the Bill proposes to offer greater protection to Indian women
married to NRIs and serve as a deterrent to them against harassment of their
spouses.

But when the bill will be enacted, we can't say.

For now, it would be better to get a proper Decree of Divorce from Indian
courts also, otherwise the partner can file for maintenance, issue for custody
of children, claim in your property and if you have remarried can also
criminally prosecute you for bigamy.
So, until a proper legislation is made for this it is better to take Divorce
according to the law by which you were married.

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Adoption under Secular Law

Guardianship under the Guardians and Wards Act, 1890

Personal laws of Muslims, Christians, Parsis and Jews do not recognise

complete adoption. As non-Hindus did not have an enabling law to adopt a
child legally, the people belonging to these religions who want to adopt a child
can only take the child in 'guardianship' under the provisions of The
Guardians and Wards Act, 1890.

The statute does not deal with adoption as such but mainly with guardianship.
The process makes the child a ward, not an adopted child. Under this law,
when children turn 21 years of age, they no longer remain wards and assume
individual identities. They do not have an automatic right of inheritance.
Adoptive parents have to leave whatever they wish to bequeath to their
children through a will, which can be contested by any 'blood' relative.

The aforesaid enactments remain silent about the orphan, abandoned and
surrendered children. There was no codified legislation dealing with the
adoption of the children of these categories.

Adoption under The Juvenile Justice (care and protection of

children) Amendment act, 2006

Section 2 (aa) defines 'adoption' as the process through which the adopted
child is permanently separated from his biological parents and become the
legitimate child of his adoptive parents with all the rights, privileges and
responsibilities that are attached to the relationship.

Chapter IV of this act is titled 'Rehabilitation and Social Reintegration'

This is a very good approach of the parliament to secularise adoption and a

positive step towards the welfare of abandoned, orphan and surrendered
children.

Section 40 talks about the rehabilitation of the child and social integration by

(i) adoption

(ii) foster care

(iii) sponsorship
(iv) sending the child to an after-care organization.

Section 41 gives guidelines regarding adoption

Inter Country Adoption

No provisions in law so the framework and guidelines. regarding inter country

adoption are given by the courts through case laws.

In Re, Rasiklal Chaganlal Mehta (AIR 1982 Guj 193)

A German couple wished to adapt a girl from an orphanage at Rajkot, and

take her to Germany with them. In the absence of any statutory provision
under which a foreigner could adopt an Indian child the applicants tried to
explore the provision under the S. 9(4) of the Hindu Adaptions and
Maintenance Act 1956.

In order to overcome the hurdle which requires that the adopter under the Act
has to be a Hindu, they even adopted Hinduism. They had to shuttle between
the passport office and the courts and ultimately had to file another
application under the Guardians and Wards Act 1890.

After detailed considerations of all aspects of such adoption, the Division

bench of the High Court came out with various guidelines in any case
involving inter-country adoption.

• a notice should be compulsorily issued to the concerned welfare agency.

• there should be a provision in the adoption order providing for periodical
report pertaining to the maintenance and well-being of the child in the
hands of the adoptive parents.
• the court must ensure that the adoption is legally valid under the laws of
both the countries and that the child should be able to immigrate to that
country and also obtain the nationality of the parents

Lakshmi Kant v. Union of India (AIR 1984 SC 469)

In this case the Supreme Court laid down the normative and procedural
safeguards in regard to foreign/inter-country adoptions. This case arose out of
a letter written by a lawyer to the Supreme Court which was treated as a
petition The letter was based on a report published by The Mail (from
London), which revealed that hundreds of unwanted babies were being
transported from the slums of Calcutta to the USA.

Since we do not have a uniform adoption law. Supreme Court of India gave
directives and guidelines in processing adoptions to foreign parents under the
Guardian and Wards Act. 1890.
Supreme Court formulated the normative and procedural safeguards to be
followed in giving an Indian child in adoption to foreign parents Court held that
any adoption in violation of or non-compliance with the directives set forth in
this judgment may lead the adoption to be declared invalid and expose the
person concerned to strict action including prosecution.

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CARA Guidelines on Adoption

• A married couple, a single male/female (unmarried, widowed or legally

divorced) can adopt a child up to 18 years of age

• A single male can only adopt a male child.

• A single female can adopt a child of any gender.

• Minimum age difference between the child and the parent should be 25 yrs

• Parents with maximum composite age of

• 90 yrs (single parent - 45 yrs) can adopt a child up to 4 yrs of age

• 100 yrs (single parent -50 yrs) can adopt a child between 4-8 yrs of
age

• 110 yrs (single parent- 55 yrs) can adopt a child between 8-18 yrs of
age

• The parent needs to register online with CARA Adoption System -

CARINGS and upload required documents as per their status.

• The parent can indicate following preferences while registering.

• Age of Child -0-2, 2-4, 4-6, 6-8, 8-10, 10-12, 12-14, 14-18 yrs

• Gender of Child - Boy/Girl/any Gender

• State to adopt from - Give top 3 preferences or anywhere in India

• Kind of Child - Normal/Sibling/Special Needs

• The Specialized Adoption Agency (SAA) nearest to the parent's address will
conduct their Home Study. The parent will become eligible for receiving a
profile of the child only after the Home Study report (HSR) is uploaded in
CARINGS.

• The parent will be offered profiles of 3 children in one or more referrals, as

per availability of the children according to their preferences.
• The parent can see the entire profile and medical history of the child in the
referral.

• The Parent can then choose to Reserve or Not Reserve a child within 48
hours of the referral (online only)

• Upon reserving, the child has to be accepted within 20 days. Parents who
do not accept the child in the above period will be relegated to the bottom of
the wait list.

• Parents who do not Accept any of the 3 profiles will be relegated to the
bottom of the wait list. However, their registration shall continue to be valid,
with revalidation of the Home Study Report in every three years. A fee of Rs.
46,000 is payable to the SAA. The fee includes expenses for home study,
legal services etc and no other sum is payable by the parent.

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Uniform Civil Code

Idea is making a single code, a code which is same for all. Basically, same
laws for Marriage, Divorce, Partition, Adoption, Succession, Inheritance etc.
As of now only the Criminal Law is uniform for all communities and civil law
especially family law is different for different communities.

The constitution has a provision for Uniform Civil Code in Article 44 as a

Directive Principle of State Policy which states that The State shall endeavour
to secure for the citizens a uniform civil code throughout the territory of India.

A Bill was been introduced in parliament as private member bill but it never
transformed into a law.

In the 2nd Law commission report (1835) there was a request to make
uniform laws for laws related to crime, evidences and contracts but there was
recommendation to not extend this uniform codification to personal laws.

There was some discussion initiated on UCC in 1985 during the Shah
Bano case. The Supreme Court had held that Bano, a Muslim woman,
should get alimony from her ex-spouse.

The Hindu Personal Laws are mostly reformed and codified after the passing
of Hindu Code shortly after independence, The Islamic laws mostly have
been kept away from reforms in the shadow of vote bank politics. So, in
present day if UCC is implemented the most reforms would be seen by
Muslim Communities. So, it's a very sensitive and complicated issue.

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