UNIT - I

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Condense or Expand the answers as required
Question: State and Explain the sources of Hindu Law.
Answer:
Source:
Source is derived from Latin word sourdre, it means to rise, spring out. So,
source is a thing that you get something from.

Sources of Hindu Dharma/Law:

Hindu law is about 6,000 years old and the study of the sources of Hindu law is
the study of its various phases of development to meet the changing needs.

The sources of Hindu law may be classified as under:

1) Ancient Sources and
2) Modern Sources

1. Ancient Sources:
The various ancient sources of Hindu law are as follows -
a) Sruti/religious texts (indications later developed into law)
b) Dharmasastras
i) Dharma Sutras
ii) Smritis
c) Commentaries and digests/Nibhandas
d) Custom [ or Sadachara ]

a) Sruti
Sruti means, literally, that which was heard. It is derived from the root 'Sru'(to
hear). That is, Sruti means that which was heard and handed down from generation to
generation verbally.
The source of Srutis was believed to be divine. It is believed to contain the
very words of the God revealed to inspired sages. In theory, Srutis are considered to
be the primary and paramount sources of Hindu law. It was an article of belief with
the ancient Hindu that His law was revelation, immutable and eternal. It was the
fountainhead of His law and supreme to the early Hindu. Practically however the
Sruti has little or no legal value. It contains no statements of law as such.
The Sruti consist of four Vedas and the Upanishads dealing chiefly with religious
rites and the means of attaining true knowledge and Moksha/salvation.

The four Vedas are Rig Veda, Yajur Veda, Sama Veda and Atharva Veda. The
Vedangas or appendices/auxiliary works to the Vedas came into existence in the
post-Vedic period and they are six in number: Siksha, Chandas, Vyakarana, Nyrukta,
Jyotishya, Kalpa.
The Upanishads are denominated as the Vedanta or the concluding portion of the
Vedas and embody the highest principles of Hindu religion and philosophy. The 18
Upanishads are considered as part of-and supplement to-the respective Vedas.
The Vedas and Upanishads and other texts which together constitute the Sruti are
mainly religious books. There are no special chapters pertaining to law or provisions
dealing with law directly. But, they are considered as a source of Dharma because
of the indications available therein such as positive or negative injunctions i.e., Vidhis
or Nishedhas examples of Vidhis being Tell the truth, Never tell untruth, Never hurt
anyone, Follow Dharma, Treat your mother and father as God, Perform only such
acts which are not forbidden.
For instance, there are provisions in the Smritis for punishing plaintiff, defendant
and witnesses for giving false evidence which have their source in the first two Vidhis
mentioned above.

b) Dharmasastra
To meet the requirement of a changing society, laws and treatises regulating the
rights and liabilities of individuals inter se as also between the king and his subjects
were written which came to be known as Dharma Sutras and Smritis. Some of them
were in the form of Sutras (aphorisms - a short phrase that contains a wise idea) or
strings of rules/aphorisms chiefly in prose which formed rather a memoria technica
by which the substance of the oral lessons might be recalled than a regular treatise on
the subject and therefore came to be called Dharma Sutras and others were in the
form of slokas (verses). All this literature is collectively called Dharmasastra.

i) Dharma Sutras
The works earlier to Dharmasastras which laid down the law in the form of Sutras
are divided into three classes:
a) Srauta Sutras, which regulated the rituals
b) Grihya Sutras, which regulated matters relating to family life
c) Dharma Sutras dealing with civil and criminal law.

The Sutras of the aforesaid first two categories regulated religious rituals and
personal code of conduct at different states of life. The third category of Sutras
which deal with forensic law constitutes the foundation of Hindu legal system and
they are only relevant to the subject of Indian legal history.
The important Dharma Sutras which were considered as of high autority were of
Gautama, Baudhayana, Apastamba, Harita, Vasista and Vishnu.
These Dharma Sutras therefore can be regarded as the earliest works of Hindu
legal system.

ii) Smritis
The next and the most important authoritative source of Hindu legal literature is
found in the Smritis. Smriti is a Sanskrit word, from the root Smara which means
remembrance, reminiscence, thinking of or upon calling to mind or simply memory.
The Sruti was accepted as the original utterings of the great power. The Smritis is
the recollection handed down by the Rishis or sages of antiquity and proclaimed their
recollections and hence is of human origin.
The Smriti are found on examination to fall under two heads, viz., works written
in prose or in prose and verse mixed, and works written wholly in verse. The latter
class of writings being fuller and clearer are generally meant when the term Smriti is
used, but it properly includes both classes.
The compilation of the Smritis resembles the modern method of codification.
All the legal principles here and there scattered in the Vedas and also those included
in the Dharma Sutras as well as the custom or usage which came to be practised and
accepted by the society were collected together and arranged subject-wise in a
systematic manner. The Smritis also dwelt with the constitution and gradation of
courts, appointment of judges, their qualification as also the procedural law for the
enforcement of substantive law. They disclose a well developed legal and judicial
system.
The important Smritis are: Manu, Yajnavalkya, Narada, Parashara, Brihaspati,
Katyayana.

Theoretically, if a text of the Smriti conflicted with any Vedic text, it had to be
disregarded: According to Vyasa - Where there is conflict between Sruti (Vedas),
Smritis and Puranas then what is stated in the Sruti should be taken as authority.
According to Yajnavalkya, where two Smritis conflict, principles of equity as
determined by popular usages shall prevail.

Mimamsa/Interpretation:
As the Vedas, Dharma Sutras and Smritis were considered as the law in
ecclesiastical matters as well as in the field of forensic law, the adoption of the art of
Mimamsa became inevitable to understand the real meaning of the provisions of those
authoritative texts. First, it was used for interpretation of short and cryptic sentences
of religious injunctions and later came to be adopted by commentators of
Dharmasutras and Smritis for interpretation of provisions of civil and criminal law.
Purva Mimamsa by Jaimini and its celebrated commentary by Sabaraswami and
Tantra Vartika by Kumarila Bhatta constitute valuable source of rules of
interpretation of laws.

c) Commentaries and Digests/Nibhandas

The codification of Smritis in the form of verses were difficult to understand and
apparently contained a few conflicting provisions. The development of Mimamsa
gave scope to eminent jurists to contribute to the further development of law to suit
the changing needs of the society which made the Smritis law practical,
understandable and workable by reconciling the conflicting principles and even
modified and supplemented the rules of the Smritis by their own forceful reasoning or
by referring to the usages that had developed and acted upon by the society.
The practice of writing commentary on a particular Smriti gave way to a different
trend of writing Commentary on different Smritis together and this type of work came
to be known as Digests/Nibhandas.
While there are numerous Commentaries and Digests/Nibhandas, a few
important ones that have been accepted and followed by the society and enforced by
the courts are Mitakshara, Dayabhaga, Smritichandrika, Vivada Ratnakara, etc.
And, while the Dharmasastras and Smritis remained the basic law, the
commentaries on the ancient texts became the contemporary law because they
embodied the accepted usages and customs in force at the time when the respective
commentaries were written and the Privy Council ruled that the Court should
recognise the law as interpreted by commentators even if such an interpretation was
contrary to the wordings of the provisions in the Smritis .

The authority of the several commentators varied in different districts and thus
arose the schools of law which are operative in different parts of India.
The Yagnavalka Smriti is commented upon by Vigneswara which has later
become the Mitakshara School of Hindu law. The same Smriti was also commented
upon by Jimutavahana which later became the Dayabhaga School of Hindu law.
Mitakshara School is followed all over India except in Bengal and Assam while
Dayabhaga School is followed primarily in Bengal and Assam.
d) Custom and usage

What is a Custom?
In Harprasad vs. Sheo Dayal, the Privy Council has held that a custom is a rule
which in a particular family or a particular caste or community or in a particular
religion has from long usage obtained the force of law. It must be ancient, certain
and reasonable and being in the derogation of general rules of law must be construed
strictly.

By virtue of the specific provisions of the Smritis indicating that sadachara

(usage or custom) approved by the society as one of the sources of law, immemorial
customs acquired the force of law. Consequently, customs and usages formed one of
the dominating factors in the evolution of the Hindu legal system. This position was
recognised by the Privy Council as early as in the year 1868 [ in Collector of Madura
vs. Moottoo Ramalinga ]. The Judicial Committee of the Privy Council declared
that under the Hindu system of law clear proof of usage would outweigh the written
text of the law.

Essentials of a valid custom:

But, before giving any particular custom an overriding effect above the written
law, the custom must
(i) Be ancient
(ii) Be reasonable and not opposed to public policy
Ex: A temple dancing girl is allowed to adopt a girl with the intention of
training her up is invalid in an immoral profession.
Ex: Prostitutes cannot adopt a girl child for the same purpose.
(iii) Be certain in its nature
(iv) Have been continued without interruption
(v) Have been practised or followed by persons in any particular locality or by a
group of persons and
(vi) Be uniform and obligatory
If these conditions are proved by clear and unambiguous evidence in
respect of any custom pleaded by a party, the courts can give effect to it.
[ Raja Rup Singh vs. Rani Baisni, (1884) 11 IA 149, 152 ]

After the law making process was started by the Indian legislatures, a further
restriction on the validity of customary law has been that custom should not be
opposed to any statute.

In Laxmibai vs. Bhagwant Buva, (AIR 2013 SC 1204), the Hon’ble Supreme
Court has held that custom has the effect of modifying general personal law but it
does not override statutory law unless the custom is expressly saved by it.

Kinds / Types of Customs:

There are 3 divisions of customs generally recognized by Hindu law. They are -
a) Local custom
b) Class custom
c) Family custom

a) Local custom:
 Such customs belong to some particular locality or district and they are
binding on the inhabitants of such place.

b) Class custom:
Such customs are of a caste or of a sect or of the followers of a particular
profession or occupation such as agriculture, trade, mechanical art and the
like.

c) Family custom:
Such customs relate to a particular family particularly concerning succession
to an impartible Raj or succession to Maths or religious foundations.

2. Modern Sources:
The various modern sources are as follows -
a) Justice, Equity and Good Conscience
b) Precedent (and Judicial decisions)
c) Legislation

a) Justice, Equity and Good Conscience

It was maintained even under Smritis that one’s own satisfaction to the source of
Dharma. It was also ordained that any decision should be arrived based upon Yukti
(reason) or Nyaya (justice). These aspects amply cover under Ancient law the
modern concept of justice, equity and good conscience.
The Common Law tradition of applying the principle of justice, equity and good
conscience when th law is silent on a given point/inadequacy of law was conveniently
applied by the Britishers in their administration of justice in India.
Afterwards, the Supreme Court of India recognised that in the absence of any rule
of Hindu Law, the Courts have authority to decide cases on the principle of justice,
equity and good conscience. (Gurunatha vs. Kamala Bai, 1951 (1) SCR 1135)
Equity as a branch of legal system may be said to mean the principles or rules
emerging in the course of administration of justice particularly in those cases where
on account of inadequacy of law the judges evolve certain general principles on the
basis of justness, fairness and propriety.
In India the origin of equity is traced back to the Hindu period when jurists
explained the old laws and gave new rules of interpretation.

In Saraswathi vs. Jagadambal, (AIR 1953 SC 201), the Hon’ble Supreme Court
has held that - where there is no rule of Hindu law and no proof of existence of any
custom, rules of justice, equity and good conscience will apply.

b) Precedent as a source of Hindu law: - is a long line of decisions, ratio of judgment

Binding nature of previous judicial decisions on a subsequent similar case is of

modern origin and came into vogue during British period. The Privy Council
expounded and evolved the principles and rules on varied complex and complicated
subjects of Hindu law through their decisions. This had facilitated easy
understanding and ascertainment of principles of Hindu law without referring to
complicated scriptural source and has given scope for adapting new suitable
principles of Hindu law from relevant British concepts and doctrines. The principle
of Stare Decisis is applied by the Indian Courts. Stare Decisis is the doctrine of
precedent under which it is necessary for a court to follow earlier judicial decisions
when some points arise again in litigation. The decisions of the SC are binding upon
all courts except upon itself and of the HC on all of the subordinate Courts.

c) Judicial decisions - can be followed the very next day

A large number of decisions have now piled up on almost every point of law
which have superseded the law laid down in commentaries on several front. The
decisions of Privy Council in several areas of Hindu law where the Supreme Court
has not given its pronouncements are taken to be still binding.
The Hon’ble Supreme Court has observed that judicial decisions on Hindu law
are sometimes spoken of as a source of law. (Saraswathi vs. Jagadambal reported
in AIR 1953 SC 201).
The decisions of the Privy Council and the Supreme Court are binding on all the
courts of India including the High Courts, but the decisions of any one High Court are
not binding on any other High Court though they are binding on the courts
subordinate thereto. (Check - Amritlal vs. Jayantilal, AIR 1960 SC 964)

d) Legislation
Legislation is a vital source of modern Hindu law and has been an important
factor in the development of Hindu law. Most of them are in the direction of
reforming Hindu law and some of them supersedes Hindu law. These legislations
have not only brought in profound changes in the ancient Hindu law but also have
made the law certain and definite.
An example is of The Caste Disabilities Removal Act, 1850 under which a
person renouncing his religion or losing his caste is not deprived of his rights of
inheritance under the Act.
Yet Another example is The Transfer of Property Act, 1882 which has
superseded the Hindu law relating to transfer of property.
Question: Who are Hindus? For who Hindu law will be applicable or who are
governed/covered by Hindu law?

Answer:
The term Hindu is derived from the Greek word “Indoi”. The Greeks used to
call the inhabitants of the “Indus Valley” as “Indoi”.
The term Hindu is a general term embracing all those who are commonly so
known. A person is a Hindu who is born of Hindu parents or is brought up
according to the tenets of a Hindu religion in any of its forms and developments.

In Perumal Nadar vs. Ponnuswami, the Hon’ble Supreme Court has pointed out
that a person may be a Hindu by birth or by conversion.

The Hindu law applies/governs/covers the following:-

1. not only to Hindus by birth, but also to Hindus by religion, i.e., converts to
Hinduism(, a case in point being Abraham vs Abraham).

In Maneka Gandhi vs. Indira Gandhi, the Court held that Sanjay Gandhi who
was born to a parsi father and a Hindu mother was brought in the mother’s
family i.e., Indira Gandhi’s family who was a Hindu. Hence, he is a Hindu
by birth and Hindu law will be applicable to him.

2. to illegitimate children where both parents are Hindus, a case in point being
Re Ram Kumari.

3. to illegitimate children where the father is a Christian and the mother is a

Hindu, and the children are brought up as Hindus, a case in point being Moyna
Boyee vs. Octaram.

4. to Jains (Sheo Singh vs. Dakho), Buddhists in India, Sikhs (Rani Bhagwan
Koer vs. Bose) and Nambudiri Brahmins (Vishnu vs. Akkamma) except so far
as such law is varied by customs and to Lingayats, who are considered Sudras
(Tirkangauda vs. Shivappa)

5. to a Hindu by birth who, having renounced Hinduism, has

reverted/reconverted to it after performing the religious rites of expiation
and repentance (Kusum vs. Satya) or even without a formal ritual of
re-conversion when he was recognised as a Hindu by his community (Durga
Prasada Rao vs. Sundarsanaswami).
[ In Perumal vs. Ponnuswami, the Privy Council has held that rituals,
ceremonies are not important, but intention and faith important ]

[ If a Hindu becomes non-Hindu i.e., converts to a Muslim for example,

then if he reconverts, it is reconversion. So, if Jain to Muslim, can convert to
Jainism, Buddhism, etc, no restriction is there. ]

6. To sons of Hindu dancing girls of the Naik (Naikins) caste converted to

Mohammedanism where the sons are taken into the family of the Hindu
grandparents and are brought up as Hindus (Ram Pergash vs. Mussammat
Dahan Bibi).
 7. to Brahmos (In the goods of Jnanendra Nath Roy), to Arya Samajists (Mst
Suraj vs. Attar), and to Santhals of Chota Nagpur (Chunka vs. Bhabani) and
also to Santhals of Manbhum (Budhu vs. Dukhan), except so far as it is not
varied by custom and

8. to Hindus who made a declaration that they were not Hindus for the purpose
of the Special Marriage Act, 1872.

The four enactments of 1955 and 1956 i.e.,

1) The Hindu Marriage Act, 1955
2) The Hindu Succession Act, 1956
3) The Hindu Minority and Guardianship Act, 1956
4) The Hindu Adoptions and Maintenance Act, 1956
expressly mention the persons to whom they are applicable.

Persons to whom Hindu Law does not apply:-

The Hindu law does not apply-
i) To the illegitimate children of a Hindu father by a Christian mother who are
brought up as Christians or to illegitimate children of a Hindu father by a
Mohammedan mother because these are not Hindus either by birth or by religion

ii) To the Hindu coverts to Christianity. A person ceases to be a Hindu in religion

cannot since the passing of the Act of 1865 elect to continue to be bound by the
Hindu law in the matters of succession.

iii) To a convert from Hindu to Mohammedan faith, but the conversion must be
bona fide i.e., if a Hindu converts to become a Muslim only to legalise his second
marriage without divorcing the first Hindu wife the conversion is not bona fide
and Hindu law of monogamy shall continue to apply on such converted Muslim
(as observed by the SC in Sarla Mudgal vs UoI)

iv) To property of any person professing the Hindu, Sikh or Jain religion who
married under the Special Marriage Act, 3 of 1872 or the property of the issue of
such marriage. These are governed by Ss. 32 to 48 of the Indian Succession Act.
Also, see S. 21 of the Special Marriage Act, 1954 and S. 5(1) of the Hindu
Succession Act.
Question: Explain the Schools of Hindu Law & Differentiate between them.

Answer:
The codification of Smritis in the form of verses were difficult to understand and
apparently contained a few conflicting provisions. The development of Mimamsa
gave scope to eminent jurists to contribute to the further development of law to suit
the changing needs of the society which made the Smritis law practical,
understandable and workable by reconciling the conflicting principles and even
modified and supplemented the rules of the Smritis by their own forceful reasoning or
by referring to the usages that had developed and acted upon by the society.
The Yagnavalka Smriti is commented upon by Vigneswara which has later
become the Mitakshara School of Hindu law. The same Smriti was also commented
upon by Jimutavahana which later became the Dayabhaga School of Hindu law.
Mitakshara School is followed all over India except in Bengal and Assam while
Dayabhaga School is followed primarily in Bengal and Assam.

i) Mitakshara School of Hindu Law:

The Yagnavalka Smriti is commented upon by Vijnaneswara which has later
become the Mitakshara School of Hindu law. Mitakshara School is followed all over
India except in Bengal and Assam.
The title Mitakshara which etymologically means limited letter is given to
indicate that it is a brief and precise commentary. The author of Mitakshara hailed
from South India and flourished about the 11th Century.
Mitakshara is considered as the most merited commentary on the law of the
Smritis. The commentary deals with almost all the important topics of law and
synthesizes the several Smriti texts. The great virtue and intrinsic merit of the
commentary was soon established by the fact that the commentary written in South
India was accepted as of paramount authority throughout the length and breadth of the
country except only in Bengal where Dayabhaga system propounded by Jimutavaha
was accepted. But, even Dayabhaga may also be referred to in a Mitakshara case on
points on which the Mitakshara treatise is silent [Rai Bishen Chand vs. Asmaida Koer,
(1884) ILR 6 All 560, 572)]
The commentary has stood the test of time. Even at present, in respect of
matters not altered by legislation, it continues to be the personal law applicable to the
majority of Hindus and enforceable is being enforced in the courts of law as it
constitutes the “existing law” saved by Article 372 of the Constitution.
It is said that the Mitakshara School is the orthodox school. Mitakshara School
is followed all over India except in Bengal and Assam.

Sub-Schools / Branches of Mitakshara School/system:

In different parts of the country having due regard to the varying conditions of the
society and consequential differences in usage and customs, Mitakshara system was
adopted with certain local variations as considered necessary to suit the requirements
of the area.

The Mitakshara school is sub-divided into four minor schools who differ between
themselves in some matters of detail relating particularly to adoption and inheritance
as follows:
i) The Banares School, covering a substantial portion of Northern India
ii) The Mithila School, covering the northern part of Bihar
 iii) Maharastra or Bombay School, for Western India including Konkan
iv) Dravid or Madras School, for Southern India

Each sub-division of the system acquired its name after the locality or territories
in which the particular variation found acceptance by the people. All these
sub-divisions Acknowledge the Mitakshara as the supreme authority. They differ
only in some matters of details on the law of inheritance and adoption. But, these
differences have now been swept away by the Hindu Succession Act, 1956 and the
Hindu Adoptions and Maintenance Act, 1956.

i) The Banares School, covering a substantial portion of Northern India

The principles of law laid down in the Mitakshara are supplemented in Benares
School by Viramitrodaya. Viramitrodaya being later in time it supplements many
gaps and omission left out in the earlier commentaries and it illustrates and elucidates
with logical preciseness the meaning and scope of doubtful prescriptions. The
Viramitrodaya prescription is declaratory in nature and acts as an exposition of what
has been left doubtful by the Mitakshara. The Viramitrodaya cannot be referred to
where the Mitakshara is clear. The other authority used to supplement is of
Nirnayasindhu.

ii) The Mithila School, covering the northern part of Bihar

The principles of law laid down in the Mitakshara are supplement in Mithila
School by Vivada Chintamani, Vivada Ratnakara and Madana Parijata.
The Privy Council has held that the law of the Mithila School is the law of the
Mitakshara except in a few matters in respect of which the law of Mithila School has
departed from the law of the Mitakshara (Surendra vs. Hari Pd., 21 IA 418)

iii) Maharastra or Bombay School, for Western India including Konkan

The principal commentaries which have supplemented the Mitakshara in
Maharastra are Vyavahara Mayukha, Viramitrodaya and Nirnayasindhu.

iv) Dravida or Madras School, for Southern India

The principal commentaries which have supplemented the Mitakshara in Dravida
or Madras School are Smriti Chandrika, Parashara Madhaviya, Saraswati Vilasa and
Vyavahara Nirmaya.

ii) Dayabhaga School of Hindu Law:

The same Yagnavalkya Smriti was also commented upon by Jimuthavahana
which later became the Dayabhaga School of Hindu law. Dayabhaga School is
followed primarily in Bengal and Assam.
Dayabhaga is a dissertation on the law of inheritance and partition. This work is
not in the nature of a commentary but it is a digest of all the Smritis. Jimuthavahana
appears to have flourished in the first part of 12th Century. It is held by the scholars
that he was a Judge and a Minister to a king in Bengal and an eminent jurist.
Even in Bengal, Mitakshara is still regarded as of very high authority on all
questions in respect of which there is no express conflict between Mitakshara and
Dayabhaga and the other works/treatises peculiar to that school.

On the provisions of the Smritis governing the law of inheritance, Jimuthavahana

took a view diametrically opposite to that of Vijnaneswara i.e., while Vijaneswara
took the view that sons acquire right to the ancestral property by birth Jimuthavahana
took the view that sons acquire right to the property of their father whether ancestral
or self-acquired after the father’s death.

Distinguish between Mitakshara School and Dayabhaga School:

Smritis were difficult to understand and also apparently contained a few
conflicting provisions. Due to development of Mimamsa/interpretation, various
commentaries on Smritis came about and two main schools of Mitakshara and
Dayabhaga School of Hindu Law came to flourish.

(i) These are two schools of law. Dayabhaga school prevails in Bengal while
the Mitakshara School prevails in other parts of India.

(ii) Mitakshara is a running commentary on the Code of Yajnalvalkya which was

written by Vijnaneshwara in the later part of 11th Century while Dayabhaga is not
a commentary on any particular Code but purports to be a digest of all codes and
was written by Jimutavahana in the first part of 12th Century.

(iii) Mitakshara is applicable throughout India except in Bengal where

Dayabhaga is of supreme authority. However, even in Bengal, Mitakshara is
still regarded as of very high authority on all questions in respect of which there
is no express conflict between Mitakshara and Dayabhaga and the other works
prevalent there. Dayabhaga may also be referred to in a Mitakshara case on
points on which the latter treatise is silent.

(iv) It is said that the Mitakshara school is the orthodox school and the
Dayabhaga school is the reformed school of Hindu law. Dayabhaga school is
also called the Bengal school of Hindu law.

(v) The Bengal school differs from the Mitakshara school in two main particulars
namely the law of inheritance and the joint family system.

The essential differences between Mitakshara and Dayabhaga relate to the following:-
Sl. No. Provision Mitakshara School Dayabhaga School
Son, grandson and The ownership of a son can
great-grandson acquire by arise only after the death of the
birth a right in the ancestral father, father has uncontrolled
01 Joint Family
property, father’s power of power of alienation over the
alienation is qualified by the family property
son’s equal right by birth
Brothers who have inherited Brothers hold in
property from their father quasi-sevaralty with full power
02 Survivorship
have a right of survivorship of alienation, does not
recognise right of survivorship
When one of the brothers Widow’s rights are excluded
dies, his widow can succeed by the right of survivorship of
03 Widow’s right
to his share the brothers, she has only a
right of maintenance
04 Sapida: The relationship of Sapinda The relationship arises by
 Heirship arises by propinquity or means of Pinda offerings to
community of blood, deceased ancestors, spiritual
consanguinity (blood benefit is the criterion for
relationship) is the guiding heirship
principle
The share of coparcener in The legal heirs (sons) have
the joint family property is definite shares after the death
not definite or ascertainable of the father.
Coparcenary
as their shares are fluctuating
with births and deaths of the
coparceners
Question: Explain the Concept of Dharma/Law (Dharmaswarupa Nirupanam).

Answer:
Introduction:
Dharma is a Sanskrit expression of the widest import. It is derived from the root
“dhru” signifying that which sustains and upholds life. There is no corresponding
word in any other language. It can only be explained. It has wide varieties of
meanings. It gives the precise meaning depending upon the context in which it is
used. For instance, when the word Dharma is used to indicate the giving of one’s
wealth for a public purpose, it means charity; when it is referred to the giving of
Dharma to a beggar, it means giving of alms.
The Hindu jurisprudence or legal system (Vyavahara Dharmasastra) is embedded
in Dharma as propounded in the Vedas, Puranas, Smritis and other works on the topic.
One of the most distinguishing aspect of the Concept of Dharma/Law as defined in
the western jurisprudence and as defined in Hindu jurisprudence is, whereas the
imperative command of the king constituted the law according to the former under the
Hindu jurisprudential concept the law was a command even to the king and was held
as superior to the king. This meaning is brought out by the expression - Law is the
king of kings as stated in Brihadaranyakopanishat.

Meaning of Dharma:
Madhavacharya, the Minister to Hakka and Bukka, founder kings of Vijayanagar
Empire in his commentary on Parashara Smriti has briefly and precisely explained
the meaning of Dharma as:-
Dharma is that which sustains and ensures progress and welfare of all in this
world and eternal bliss in the other world. The Dharma is promulgated in the form
of commands.

Origin of Dharma:
Dharma was founded as the solution to eternal problems confronting the human
race originating from natural human instincts i.e., desire to have sexual and emotional
enjoyment/kama, material pleasure/artha connoting material wealth such as gold,
cattle, corn, including education or knowledge necessary to earn wealth and kama
influenced by the other impulses inherent in human being such as anger, passion,
greed, infatuation and enmity collectively considered as six enemies of man,
arishadvarga.

Dharma therefore laid down a code of conduct covering every aspect of human
behaviour such as spiritual, moral and personal as also civil, criminal and
constitutional law the observance of which was considered a must for peace and
happiness of individuals and the society.

Basic aspect of Dharma:

While Dharma touches on wide varieties of topics, the essence of Dharma is also
declared by the various works as Ahimsa (non-violence), Satya (truthfulness), Asteya
(not coveting the property of others), Shoucham (purity) and Indriyanigraha (control
of senses) are in brief common for all the varnas
It is for this reason all the works on Dharma declare with one voice that Dharma
is that which sustains the world because Dharma regulated the mutual obligations of
individual and the society. Therefore, protection of Dharma was in the interest of
both the individual and the society. Manu warns, ‘Do not destroy Dharma, so that
you may not be destroyed.’ A ‘State of Dharma’ was required to be always
maintained for peaceful co-existence and prosperity.
Every act or conduct which was in disobedience to rules of Dharma was called
Adharma and was declared to be injurious to society and the individual.

Vyavahar Dharma and Rajadharma

Consequent on the creation of kingship and the system of legal proceedings, the
positive civil and criminal law, as also the law regulating the constitution and
organisation of State (Rajya), the duties and powers of kings were laid down as part
of Dharma and came to be called Vyavaharadharma and Rajadharma respectively.
Therefore, though the word Dharma has such wide meaning as to cover rules
covering all matters, it gives precise meaning depending upon the context in which it
is used. For instance, when the word Dharma is used in the context of civil rights
(civil law), it means that is is enforceable by the State; when it is used in the context
of a criminal offence (in criminal law), it means breach of a duty which is punishable
by the State; and, when Dharma is used in the context of duties and powers of the king,
it means constitutional law (Rajadharma)

Varna dharma and Ashrama dharma:

Between 1000 B.C. and 800 B.C. the followers of Varna Dharma and Ashrama
Dharma interpreted Vedas and developed various sakahas.

1) Varna Dharma:
i) Varna is a fundamental concept underlying the Hindu society.
ii) It is not a social arrangement or segregation, it is a statement of how any
society is arranged.
iii) It does not say society should be classified into classes, it says what classes or
kinds of people exist in any society.

There are 4 varnas based on the functions people perform in any society. They
are:
i) Brahma Varna
ii) Kshatriya Varna
iii) Vaisya Varna and
iv) Sudra Varna
Based on the temperaments and functions, the Smritis outline Dharma for
each of the above varnas, their duty towards their profession and their role in the
society.

Brahma Varna:
One belonging to this varna is called a Brahmana. His function is to learn, share
and preserve the eternal knowledge of the race.

Kshatriya Varna:
This is the martial class and forms the military, defense and administration of the
society. They also learn all forms of knowledge because of which they are
satwik-rajasic i.e., they are soft-rough in nature.

Vaisya Varna:
 They are the productive class of the society and their primary functions are
trading and business making the society prosperous as well. As artha is the
predominant purushartha of a Vaisya, he is usually of rajasic-tamasic nature.

Sudra Varna:
This class of people is the service/artisan class and cover most of the occupations
like engineering, agriculture, mining, metal work etc.

2) Ashrama Dharma:
Ashrama dharma is fundamental the the Hindu society. It divides a man’s life
into 4 stages and specified what one should do in each of the stages. The 4 stages
are:
i) Brahmacharya Dharma
ii) Grhastha Dharma
iii) Vanaprastha Dharma
iv) Sanyasa Dharma

i) Brahmacharya Dharma:
Upanayana/initiation should happen at 5-16 years. This is a stage of learning
and celibacy. In this stage, one does academic learning. After some basic
education, he would move to some specialized field of interest. Upon completion of
study, one should take up grhastha ashrama i.e., family life.

ii) Grhastha Ashrama:

This stage is the center stage wherein a person contributes most to the society.
This is a stage of fulfillment. One should perform 5 sacrifices every day to please
gods, rishis, departed fathers, fellow men and other living creatures. In this stage,
one is prescribed 8 eight activities a day which can be classified into worshiping and
pursuing profession/occupation.

iii) Vanaprastha Dharma:

In this stage, one gives his property to his heirs/donates it, goes into seclusin and
odes penance and becomes inward looking while still contributing his experience
through advising and teaching.

iv) Sanyasa Dharma:

In this stage, one renounces the world and detaches from his social and family
relations. One in this stage should not earn or have any material possession of his
own and also gives up social and relation attachments.
 UNIT - II

Question: Explain the rights of a coparcener / characteristic features of a

coparcenary.

Answer:
Within the joint family there exists a system called the coparcenary. The
coparcenars are the owners of joint family property. A Hindu coparcenary is a much
narrower body than the joint family. It includes only those persons who acquire by
birth an interest in the joint or coparcenary property. These are the sons, grandsons
and great-grandsons of the holder of the joint property. After the amendment of The
Hindu Succession Act in 2005, a daughter of a coparcener has been included as a
coparcener along with the sons of the coparcener.
A coparcenary is purely a creature of law, it cannot be created by act of parties
except in the case of an adoption where a stranger is introduced as a member of
coparcenary.

Genesis of Coparcenary:
A coparcenary is created in the following manner: A Hindu male, A who has
inherited no property at all from his father, grandfather, or great-grandfather
acquires property by his own exertions. A has a son, B. B does not take any vested
interest in the self-acquired property of A during A’s lifetime. But, on A’s death, he
inherits the self-acquired property of A. If B has a son, C, C takes a vested interest
in the property by reason of his birth and the property inherited by B from his father,
A becomes ancestral property in his hands i.e., B’s hands and B and C are
coparceners as regards the property.
If B and C continue joint and a son, D is born to C, he enters the coparcenary by
the mere fact of his birth. Moreover, if a son, E is subsequently born to D, he too
becomes a coparcener.

Rights of a coparcener / Features of a coparcenary:-

-Management & Enjoyment of Coparcenary property

Following are the rights of a coparcener / features of a coparcenary:

1. Community of interest and unity of possession
2. Share of income
a) Joint possession and enjoyment
i. Unauthorised acts
ii. Formation of company
3. Exclusion from joint family property
4. Maintenance
5. Right to enforce partition
6. Alienation of undivided interest
7. Right of survivorship
8. Manager

1. Community of interest and unity of possession:

No coparcener is entitled to any special interest in the coparcenary property nor is
he entitled to exclusive possession of any part of the party as there is a community of
interest and unity of possession between all the members of the family.
 A coparcener’s interest is a fluctuating interest capable of being enlarged by
deaths in the family and liable to be diminished by births in the family. It is only on
a partition that he becomes entitled to a definite share.

2. Share of income:
The whole income of the joint family property must be brought according to the
theory of an undivided family to the common chest or purse and there dealt with
according to the modes of enjoyment of the members of an undivided family.

a) Joint possession and enjoyment:

If any coparcener is excluded from joint possession or enjoyment, he is
entitled to enforce his right by a suit.

If any unauthorised act is done by any coparcener without the consent of the
other coparceners like erection of a building on land belonging to the joint family
or any portion thereof which materially alters the condition of the property, he
may be restrained by an injunction.

If a company is formed to hold the property of the family with the consent of
all the adult coparceners to preserve the family property and for the benefit of the
family, the transaction is binding on all coparceners.

3. Exclusion from joint family property:

If any coparcener is excluded by an act of other coparceners from the use and
enjoyment of joint family property or any portion thereof and if the act amounts
to an ouster then such a coparcener by an injunction restrain the other coparceners
from such an act.

4. Maintenance:
A coparcener, his wife and children of an undivided family is entitled to be
maintained out of the coparcenary funds and a member of a joint Hindu family is
under a corresponding legal obligation to maintain all the male members of the
family, their wives and unmarried daughters.

5. Right to enforce partition:

Every adult coparcener is entitled to enforce a partition of the coparcenary
property. The rule is that partition can be demanded by any member of a joint
family who is not removed more than 4 degrees from the last holder however remote
he may be from the common ancestor or original holder of the property.

6. Alienation of undivided interest:

No coparcener can dispose of his undivided interest in coparcenary property by
gift. Nor can he alienate such interest even for value except in Bombay, Madras and
Madhya Pradesh.

7. Right of survivorship:
On the death of a coparcener his interest does not pass by succession to his heirs.
It passes by survivorship to the other coparceners unless the deceased coparcener
leaves behind a heir.
8. Manager:
A coparcener who is a manager/karta has certain special powers of disposition
over the coparcenary property which no other coparcener has.
Question: Who is a Karta/Manager? Explain the power/duties of a Karta or
Under what circumstances can a Karta alienate the property of joint
family without the consent of coparceners?

Answer:
Karta:
The manager of a joint family is called karta. The Hon’ble SC has held that
only a coparcener can be the karta/manager of a joint family.
Property belonging to a joint family is ordinarily managed by the father or other
senior member for the time being of the family. However, where the senior member
gives up his right of management either expressly or impliedly, a junior member may
be appointed as karta.
The only respect in which a karta has a superior right is that a karta has a power
of disposition for causes recognised as just and proper under Hindu law of the whole
family property including the interest of the junior members.

Position of Karta:
The karta being the head of the joint family acts on behalf of the members of the
joint family. The position of the Karta is “sui generis”. Sui generis in the sense
that his position is not that of the Manager of a Commercial Firm and his relationship
with the other members is not that of the principal and agent or firm and partners.
In Chandrakant vs. C.T.R, the Hon’ble SC observed that there can be a
partnership between Karta and other members. The karta may contribute capital
while the members may contribute labour and skill.
However, the powers of karta are not absolute or unlimited. Within the ambit of
his sphere, he possesses such vast powers which no once can possess.

Power / duties of a Karta:

Following are the powers/duties of a Karta:-
1. Power over income & expenditure
2. Liability to account on partition or otherwise
3. Power to Contract Debts for family purpose and family business
4. General powers over joint family business
5. Alienation for legal necessity
6. Power to refer to arbitration
7. Power to compromise
8. Power to give valid discharge for debts
9. Family arrangement or family settlement
10. Power to acknowledge and part payment of debt
11. Relinquishment of debt
12. Parties to suits

1. Power over income & expenditure:

A Karta has control over income and expenditure and is a custodian of surplus if
any. So long as the karta spends the income for the purposes of maintenance,
education, marriage, shraddha and other religious ceremonies of the coparceners and
of the members of their respective families he is not under obligation to economise or
save. But, if the karta spends more than the income, the remedy is to demand a
partition.
 In case of misappropriation of income or expenditure for purposes other than
those the joint family was interested in, the karta is liable to make good for the same
to the joint family.

2. Liability to account on partition or otherwise:

In the absence of proof of misappropriation or fraudulent and improper
conversion by the karta, he is liable to render accounts on partition only for assets
which he has received and not for what he ought/might have received if the family
money had been profitably dealt with.
But, it has been held in Bengal that any coparcener may without bringing a suit
for partition require the karta to render accounts for his dealings with coparcenary
property and the income thereof.

3. Power to Contract Debts:

A karta has implied authority to borrow money for family business and where a
joint Hindu family has no business at all the karta may contract debts for a joint
family purpose.
If a karta borrows money on a promissory note for a joint family business or to
meet a joint family necessity, the other members of the joint family may be sued on
the note though they are not parties to the note but in such a case their liability is
limited to their share in the joint family property unless it is shown that they are
contracting parties.

In Balaiah vs. Budagaiah, the father incurred debts for curing his venereal disease.
The sons contended that the debts would not bind them since they were avyaharika
debts
The Court observed that curing venereal disease is only for health purpose which
would not constitute avyavaharika and held that the sons were liable.

4. General powers over joint family business:

Besides the power to contract debts for the family business, the manager has the
power of making contracts, giving receipts and compromising or discharging claims
ordinarily incidental to the business.

5. Alienation for legal necessity:

Alienation means conveyance or transfer of property to another. Legal
necessities have been held to be:
(i) Payment of government revenue and of debts which are payable out of
the family property
(ii) Maintenance of coparceners and of the members of their families
(iii) Marriage expenses of coparceners
(iv) Performance of the necessary funeral or family ceremonies
In Gangi vs. Tammi, the Privy Council has said that a dedication of
a small portion of family property for the purpose of religious charity
may be valid if made by a karta.
(v) Costs of necessary litigation in recovering or preserving the estate
(vi) Costs of defending the head of the joint family or any other member
against a serious criminal charge
(vii) Payment of debts incurred for family business or other necessary
purpose
 (viii) Property sold in order to fulfill tax obligations incurred by a family
business
(ix) Selling of joint property for the purpose of migrating to a new place for
a better living

The karta has wide discretion in arriving at a conclusion as to legal

necessity and as to in what way such legal necessity can be fulfilled best,
by mortgage or sale. An aggrieved coparcener who thinks it is not for
legal necessity can pray for partition and for recovery of possession of
his share.

6. Power to refer to arbitration:

A Karta or a father has power to refer to arbitration disputes relating to joint
family provided such reference is for the benefit of the family. The other members
of the family including minors are bound by the reference and by the award made
upon it. [ Check - Jagan Nath vs. Mannu Lal, (1894) 16 All 231 ]
The reference may be in respect of disputes between the family and an outsider or
disputes between the members of the family themselves an example being as to shares
on partition.

7. Power to compromise:
A karta has power to compromise for the benefit of the family. It binds the
other members of the family including minors.

8. Power to give valid discharge for debts:

A karta has powers to give a valid discharge for a debt due to the joint family.
Hence, if one of the members is a minor, he cannot claim the benefit of S. 7 of the
Limitation Act.

9. Family arrangement or family settlement:

A family arrangement or settlement occupies a position different from a
commercial one. Members of a joint Hindu family may to maintain peace or to
bring about harmony in the family may enter into such a family arrangement. A
family arrangement must be entered into by all parties thereto. If such document is
not signed by all parties, it will not be construed as a family arrangement.

10. Power to acknowledge and part payment of debt:

A Karta is competent to acknowledge a debt or to pay interest on a debt or to
make part payment of a debt so as to extend the period limitation but has no power to
revive a time barred debt by passing a promissory note.

11. Relinquishment of debt:

A Karta has no power to give up a debt due to the joint family.

12. Parties to suits:

A Karta who mortgages the entire interest of the family it must be deemed that he
has acted in the transaction on behalf of the family. In such a case, other
coparceners are not necessary parties to the suit and are bound by the decree in the
suit.
Question: What is partition? What are the modes of effecting partition? Who
can claim for partition? Under what circumstances partition can
be reopened?

Answer:
Partition:
Partition is the severance of joint status. In other words, partition means
division of the joint family. It refers to both the property and status. Partition
under Mitakshara may be defined as - the crystallization of the fluctuating interest of a
coparcenary into a specific share in the joint family estate.
The subject matter of partition is coparcenary property. The separate property
is not liable to partition as it belongs absolutely to the owner thereof. Certain
properties are indivisible in nature like animals or funture, etc. Their value is
determined and distributed among the coparceners and some of those property may
be enjoyed jointly by them or by turns.
All that is necessary to constitute a partition is a definite and unequivocal
indication of the intention by a member of a joint family to separate himself from the
family and enjoy his share in severalty.
In the case of a partition, provision should be made for discharge of joint family
debts, personal debts not incurred for illegal or immoral purposes, maintenance of
dependent female members and disqualified heirs, marriage expenses of unmarried
daughters of the last male holder but not of the collaterals.

Modes of effecting partition:

Partition may be effected by:-
1. Institution of suit
i. Suit by adults
ii. Minors suit for partition
2. Agreement
3. Arbitration
4. Conversion and partition
5. Father
6. By notice to other coparceners

1. Institution of suit
i) Suit by adults
The institution of a suit for partition by a member of a joint family is an
unequivocal intimation of his intention to separate and there consequently is a
severance of his joint status from the date when it is instituted. A decree may be
necessary for working out the results of the severance and for allotting definite
share.

ii) Minors suit for partition

If on a suit filed by the father and his minor son in which it is contended
minor’s mother is the guardian, if it is not in the interest of the minor the suit does
not effect a separation of the minor from the rest of the family though it may
operate as a separation of the father from the rest of the family.

2. Agreement:
 A partition may also be effected by an agreement between the parties. An
agreement to separate is not required by law to be in writing However, where the
agreement is not in writing or where it is in writing but does not declare on the fact of
it what the intention of the parties was, evidence of subsequent conduct of the parties
becomes material in order to determine whether there was a partition or not.

3. Arbitration:
An agreement between the members of a joint family whereby they appoint
arbitrators for dividing the joint family properties among them amounts to a severance
of the joint status of the family from the date thereof.

4. Conversion and partition:

Conversion of a member of a joint family to Mohammedanism or to Christianity
or to any other religion operates as a severance of the joint status as between him and
the other members of the family. He is entitled to receive his share in the joint
family property as it stood at the date of his conversion.

5. Father:
The father of a joint family has the power to divide the family property at any
moment during his life provided he gives his sons equal shares with himself and if he
does so the effect in law is not only a separation of the father from the sons but a
separation of the sons inter se, the consent of the sons is not necessary for the exercise
of that power.

6. By notice to other coparceners:

The intention of a coparcener of partition may be expressed by serving notice on
the other coparceners and the severance of status takes place from the date when the
communication was sent and not when it was received.

Who can claim for partition / right to ask partition:

Every coparcener in a joint family has a right to ask for partition. They are:
1) Father
2) Son, grandson, great grandson
3) Adopted son
4) Illegitimate son
5) Minor coparcener
6) Widowed mother, widowed grandmother, wife, daughter

Under what circumstances can partition be reopened:

Under Hindu law, partition is made only once but there are some exceptions to
this rule. A partition may be reopened on the following grounds:
a) Fraud
It may be reopened if any coparcener has obtained an unfair advantage in the
division of the property by fraud upon the other coparceners.

b) Mistake
If after partition it is discovered that the property allotted to one of the
coparceners belonged to a stranger or that it was subject to a mortgage, such a
coparcener is entitled compensation out of the shares of the other coparceners
and the partition may if necessary be reopened.
 c) Where a portion of joint property was excluded from partition
If a joint family property was excluded during partition, it must be divided
amongst the person who took under the partition. It is not necessary in such a
case to reopen the original partition.

d) At the instance of a minor

If a partition is proved to be unjust and unfair and is detrimental to the interst
of the minors, the partition can be reopened at any time.

Is reunion possible?
When partition takes place in a Hindu joint family, coparcenary gets dissolved
and the coparceners have to live separately and individually. After partition, if any
two or more members of such joint family/coparcenary reunite together and combine
their estates, it is called reunion.
According to Mitakshara, Dayabhaga and Smriti Chandrika, a member of a joint
family once separated can reunite only with his father, brother or paternal uncle but
not with any other relation as for instance paternal grandfather or paternal uncle’s son
though such relation was a party to the original partition.
The reunion has the effect of remitting the reunited members to their former
status as members of a joint Hindu family.
Since a minor is not competent to contract, an agreement to reunite cannot be
made by or on behalf a minor.
Question: Pious Obligation

Answer:
The Doctrine of Pious Obligation has its origin in the Smriti which regard
non-payment of debt as a positive sin. It is for the purpose of rescuing the father
from his torments in the next world that an obligation is imposed upon the sons to pay
their father’s debts.

Brihaspati says that if the father is no longer alive, the debt must be paid by his
sons. The father’s debt must be paid first of all and after that a man’s own debt; but
a debt contracted by the paternal grandfather must always be paid before these two
events. The grandfather’s debt must be paid by his son’s son without interest, but
the son of a grandson need not pay it at all.

The doctrine has been modified in some respects by judicial decisions. Under
the law as it now stands the obligation of the son is not a personal obligation existing
irrespective of the receipt of any assets. It is a liability confined to the assets
received by him in his share of the joint family property or to his interest in the same.
The obligation exists whether the sons are major or minor or whether the father is
alive or dead. If the debs have been contracted by the father and they are not
immoral or irreligious, the interest of the sons in the coparcenary property can always
be made liable for such debts. The creditor could legally attach and put up to sale
the right, title and interest of the sons in the joint family property. But, the liability
of the son is restricted to debts contracted by the father before partition.

The fundamental rule is that a Hindu son is not liable for debt contracted by his
father which is Avyavaharika i.e., illegal, dishonest or immoral but is liable only for
debt contracted which is Vyavaharika i.e., lawful. The facts, circumstances and
conduct of the father are to be looked into to ascertain the nature and character of the
debt.

By the Amendment Act of 2005 which commencement from 9-9-2005, this

archaic Doctrine of Pious Obligation has been abrogated u/s. 6(4). However, this
provision is not applicable if the debt is contracted before the commencement of the
Act. As a general rule, this amendment is not applicable in case the partition is
effected before 20-12-2004.
Question: Mahant

Answer:
Math/Akhara means an abode or residence of ascetics. In its legal connotation it
is a monastic institution presided over by its head known as mahant, the spiritual head
of the math.
Ordinarily, a mahant should be a Sanyasi and must observe celibacy but there are
certain maths where marriage is also allowed. A female can also be a mahant but
she can perform only secular duties and not spiritual or religious duties.
The general rule of the devolution of property or the office of Mahant is that it
will devolve in accordance with the rules of devolution laid down by the founder of
the endowment if they are not violate of any provisions of any law. If no such rules
is laid down by the founder, then the factor which determines succession is the Math’s
custom, usage/practice.
The termination of Mahantship is on the death of the holder of the office. Apart
from this, termination may be as a result of relinquishment of the office during his
lifetime or his removal due to his mental infirmity, bodily disease or on account of
mismanagement/waste or if he leading an immoral life/acting contrary to the tenets or
usage of the Math.

Legal position/duties
The mahant is neither a trustee nor a corporation sole. He is just the manager of
the math with wider powers than those possessed by a manager, trustee or dharmkarta
of a temple and acts as a custodian of idol and institution.
Mahant acts in two distinct capacities: religious and administrative. He is the
spiritual head of the endowment, He sits upon the Gaddi, he initiates candidates into
the mysteries of the cult, he superintends the worship of the idol and the accustomed
spiritual rites. He is also the manager of the properties and temporal affairs and the
whole assets are vested in him as the owner thereof in the trust for the institution itself.
De facto mahant is entitled to sue for the recovery of math property
All the expenses of the Math are to be met out of the income of the endowed
property. In the case of a charge of lack of maladministration of the properties, he is
liable to render accounts and failure to keep proper accounts may be a ground for his
removal.

Rights :
1. The Mahanth has the right to maintain himself in accordance with the dignity
of his office and in accordance with the usages of the math.
2. The Mahant has the right to institute a suit on its behalf as also the duty to
defend one brought against it as he is the person who represents the Math in
all its dealing with the outside world.
But, if the Mahant himself is guilty of mismanagement or
misappropriation, a suit can be filed by any person interested in the
endowment.
3. The Mahant has power to borrow money for purposes connected with the
Math for which he can even bind the properties of the Math.
If necessity to borrow money is not established, then the creditor can
obtain a person decree against the Mahant. In such a case, Math properties
are not liable.
4. The Mahant has power to alienate the properties of the Math for legal
necessity or for benefit of the Math properties.
Question: Religious & Charitable Endowments

Answer:
A religious endowment is a mass of property set apart either for the worship of
certain deity or for the establishment or maintenance of a religious or charitable
institution or for the benefit of the public or some section of the public in
advancement of religion, knowledge, commerce, heath, safety or any other object
beneficial to mankind.

The essentials of a Hindu religious endowment are the following:

(i) The donor must dedicate the property absolutely
(ii) The object of the endowment must be definite. It means that the donor must
state clearly that the property will be used in perpetuity for the worship of
definite idol or for a particular charitable object
(iii) The property must also be definite i.e., the specific property must be set
apart.

An endowment shall be created by a Hindu of sound mind and who is not a minor.
No writing is necessary unless the endowment is created by a will. In such a case,
the will is required to be attested by at least two witnesses.

The following grants or endowments have been hold to be religious or charitable:

(a) Dharmasalas
(b) Building and renovation of temples
(c) Goshala
(d) Feeding Brahmins and the poor
(e) Establishment of University or of hospital
(f) Construction and maintenance of tanks, wells and reservoirs of water

Dedication:
Dedication of property is essential for the creation of an endowment. A
dedication may either be complete or partial. The Hon’ble SC has held that the
ceremonies relating to dedication are sankalpa, utsarga and prathista. Sankalpa
means determination and is really a formal declaration by the settler of his intention to
dedicate the property. Utsarg is formal renunciation by the founder of his ownership
in the property. Utsarga has to performed only for charitable endowments and not
for religious foundations. Prathista takes the place of utsarga in dedication to
temples. Where prathista i.e., formal installation of the deity is proved, the
dedication is completed and valid notwithstanding that utsarag has not been
performed.
The distinction between dedication to deity and temple and to other objects is this,
in the former case the deity is the recipient of the gift while in the latter there may not
be any specific person who is the recipient of the gift.
 UNIT - III

Question: Define marriage. Explain the essential conditions for a valid

marriage.

Answer:
Marriage:
Marriage under the Act is the voluntary union of one man with one woman to the
exclusion of all others satisfied by the solemnisation of the marriage. A marriage
may be solemnised in the sense that the parties to it have gone through the customary
rites and ceremonies of either party thereto.

S. 5, HMA, 1955 must be r/w S. 7, HMA, 1955 and they both together constitute
the essentials for a valid marriage under the Act. Section 5 deals with the conditions
for a Hindu marriage and Section 7 of HMA, 1955 deals with Ceremonies for a Hindu
marriage.

Conditions for a Hindu marriage (S. 5):

The essentials of a valid marriage between any two Hindus is:-
i) Neither party has a spouse living at the time of marriage
ii) Mental Capacity
iii) Age of parties (Age Limit)
iv) Degrees of prohibited relationship
v) Sapinda Relationship

i) Neither party has a spouse living at the time of marriage:

5(i) enacts that neither party has a spouse living at the time of marriage.
Spouse means a lawfully wedded wife or husband. Before a valid marriage can
be solemnised, both parties to such marriage must be either single or divorced or
widow/widower and only then they are competent to enter into a valid marriage.

Any contravention of this clause makes the marriage void ab initio per S. 11
of the Act. Any contravention can be punished under S. 17 of the Act which
deals with punishment of bigamy and provisions of Ss. 494 and 495 of IPC apply
accordingly.
In Yamunabai vs. Anant Rao Thiraram Adhar, the Supreme Court has held
that the marriage becomes null and void where it is in violation of S. 5(i) and
further observed that the wife in a void marriage cannot claim maintenance under
S. 125 of Cr.P.C.

ii) Mental Capacity:

S. 5(ii) lays down that at the time of marriage neither party must be suffering
from unsoundness of mind, mental disorder or insanity and S. 12(1)(b) renders at
the instance of a party such a marriage voidable.
The words “at the time of marriage” in the clause are important. It follows
from this that where a person subsequent to the date of marriage becomes an idiot
or lunatic, the provisions of this clause are not attracted.
In S. Laxminarayan vs. Shanti, the Hon’ble SC observed that to brand the
wife as unfit for marriage and procreation of children it needs to be established
 that the ailment suffered by her is of such a kind or such an extent that it is
impossible for her to lead a married life.

iii) Age of parties; consent:

The Act does not in terms state that consent of the parties is necessary for a
valid marriage but lays down the condition that at the time of marriage the
bridegroom must have completed the age of 21 and the bride the age of 18 years
u/S. 5(iii). Prior to enhancement of age in 1978, it was 18 years for bridegroom
and 15 yrs for bride.

A marriage solemnised in violation of the requirement as to age laid down in

this clause is not void or even voidable, but the contravention of the condition is
punishable as an offence u/S. 18 of the Act (Gindan & Ors vs. Barelal, DB of MP
HC, 05.12.1975) which specifies that it is punishable with rigorous imprisonment
which may extend to 2 years or with fine which may extend to 1 Lakh rupees or
with both.
The Hon’ble SC has held that a minor spouse can seek relief of nullity of the
marriage. (Bhagwati vs. Anil Chaubey, AIR 2017 SC 1957)
In Appala Suramma vs. Ganapatulu, AIR 1975 AP 193, a Division Bench of
the Andhra Pradesh HC has observed that the marriage between the two minor
children is in contravention of S. 5(iii) of the Act and is void ab initio.

(iv) Degrees of prohibited relationship:

S. 5(iv) enacts that no marriage is valid if it is made between persons related
to each other within the prohibited degrees unless such a marriage is sanctioned
by the custom or usage governing both the parties [ u/S. 3(a).] The rules relating
to degrees of prohibited relationship are prescribed in the definition clause, S. 3(g)
and have been discussed under that clause. They are based on the principle of
exogamy. (exogamy - marrying outside blood relationship).
Contravention of this clause is punishable as an offence u/S. 18 of the Act
which specifies that it is punishable with simple imprisonment which may extend
to 1 month or with fine which may extend to 1 Thousand rupees or with both.

(v) Sapinda relationship:

S. 5(v) enacts that no marriage is valid if it is made between parties who are
related to each other as sapindas, unless such marriage is sanctioned by usage or
custom governing both the parties [ u/S. 3(a).]. When sapindaship is a specific
ground for voidability of marriage, the absence of a custom permitting such a
marriage will make the marriage void. The rules relating to sapinda relationship
are prescribed in the definition clause, S. 3(f) and have been discussed in some
detail under that clause.
Contravention of this clause is punishable as an offence u/S. 18 of the Act
which specifies that it is punishable with simple imprisonment which may extend
to 1 month or with fine which may extend to 1 Thousand rupees or with both.

Sapindas - 2 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 a
common linearl ascendant who is within the limits of sapinda relationship with
reference to each of them.
 Sapinda relationship with reference to any person extends as far as the 3rd
generation (inclusive) in the line of ascent through the mother and 5th generation
in the line of ascent through the father the line being traced upwards in each case
from the person concerned who is to be counted as the 1st generation.

Ceremonies for a Hindu marriage (S. 7):

A Hindu marriage under the Act must be solemnised in accordance with the
customary rites and ceremonies of atleast one of the two parties thereto and must
fulfill the conditions prescribed for the same by S. 5 of the Act. The word solemnise
means - to celebrate the marriage with proper ceremonies and in due form.
This rule relating to to the essential ceremonies of a Hindu marriage proceeds on
the principle that marriage being one of the sanskaras for a Hindu male/female
whether belonging to the twice-born castes or a shudra must be performed with the
necessary religious rites and at the same time recognises the position that the
customary rites and ceremonies vary in different parts of the country and also among
different castes and communities.
The customary rites which may be said to be the requirement common in all
ceremonial marriages are:
i) invocation before the sacred fire and
ii) Saptapadi (taking of 7 steps by the bridegroom and the bride jointly
before the sacred fire (homam, the marriage becomes complete when the
7th step is taken).
iii) Kanyadaan is another essential ceremony but its absence may not
invalidate the marriage
It is just and reasonable that the question of the requisite ceremonies
must be adjusted in accordance with the custom and usage followed by
them or either of them.

In Deivain Achi vs. Chidambara Chettiar, (AIR 1954 Mad 657), the question of
validity of a marriage performed without observing any ceremonies was considered at
length. In this case, the marriage between a widow and a widower was solemnised
under the auspicious of Anti-Purohit Association of Self Respectors by exchange of
garlands and reading out a declaration and no customary rites and ceremonies were
performed.
After sometime of marriage, the wife filed a petition against her husband for the
offence of bigamy. The husband challenged the validity of marriage on the ground
that no religious ceremonies had taken place.
The Madras HC observed that the customary ceremonies cannot be altered by a
society or an association of recent date but has to be done by legislation such as the
Special Marriage Act and held that the marriage solemnised without religious rites
and ceremonies was void.
Question: What is divorce/judicial separation? Explain the grounds on which a
Hindu marriage can be dissolved.

Answer:
Divorce:
S. 13 of HMA, 1955 deals with divorce. A divorce decree has the effect of
dissolving the marriage by putting an end to the marriage ties and the separation is
absolute and final.

Judicial separation:
S. 10 of HMA, 1955 deals with Judicial Separation. Parties may separate from
each other under a decree of the court known as judicial separation . Separation of
parties means separation from bed and board. During the continuation of separation,
parties are entitled to live separate from each other and all basic marital obligations
remain suspended. Nonetheless, the marriage subsists and parties remain husband
and wife. It affords an opportunity for reconciliation and adjustment as the wronged
spouse may not seek relief by way of dissolution of marriage. Where there is no
reconciliation and cohabitation is not resumed it serves after one year of the passing
of the decree as the basis for the dissolution of the marriage by a decree of divorce u/S.
13(1A).

Procedure:
Either party to a marriage can present a petition in a District Court for divorce or
judicial separation as the case may be on any of the grounds mentioned in S. 13(1)
and furthermore in case of a wife also on any of the grounds specified in S. 13(2) of
the Act.

Grounds on which a Hindu marriage can be dissolved:

1) Grounds available to either party:
i) Adultery, S. 13(1)(i)
ii) Cruelty, S. 13(1)(ia)
iii) Desertion, S. 13(1)(ib)
iv) Ceased to be a Hindu by conversion, S. 13(1)(ii)
v) Unsoundness of mind, mental disorder, S. 13(1)(iii)
vi) Leprosy, S. 13(1)(iv)
vii) Venereal disease, S. 13(1)(v)
viii) Adoption of religious order, S. 13(1)(vi)
ix) Not heard of for 7 years or more, S. 13(1)(vii)

2) Grounds additionally available to wife:

i) Bigamy, S. 13(2)(i)
ii) Guilty of rape, sodomy or bestiality, S. 13(2)(ii)
iii) Decree or order of awarding maintenance, S. 13(2)(iii)
iv) Repudiation of marriage, S. 13(2)(iv)

(i) Adultery:
Adultery is defined as consensual sexual intercourse between a married person
and another person of the opposite sex during the subsistence of the marriage.
 In Subbaram Reddiar vs. Saraswati, the husband returned home late night and
found his wife with other person in his bedroom. The Madras HC held that adultery
maybe inferred unless the act can be explained by explanation.

S. 23(1)(b) lays down that condonation of adultery is an absolute bar to granting

of any relief by way of judicial separation u/s. 10 or by way of a divorce u/s. 13(1)(i).
In Srivastava vs. Srivastava, the Hon’ble SC held that the fact that the husband
cohabited with the wife even after knowledge that she had been guilty of cohabiting
with another person would be sufficient to constitute condonation.

(ii) Cruelty:
The legal conception of cruelty and the kind of degree of cruelty necessary to
amount to a matrimonial offence has not been defined by any statute of the Indian
legislature relating to marriage and divorce.
In A. Jaya Chandra vs. Aneel Kaur, the Hon’ble SC has held that the word
cruelty used u/S. 13 of HMA, 1955 refers to human conduct/behaviour and such
conduct should be grave and weighty where the other party cannot be reasonably
expected to cohabit with the respondent.

Cruelty includes cases of physical as well as mental cruelty and cases where
both the elements are present.
In Savithri Pandy vs. Premchandra Pandey, (physical cruelty), the
Hon’ble SC has observed that cruelty consists of acts which are dangerous to
life, limb or health. Cruelty for the purpose of the Act means where one
spouse has treated the other and manifested such feelings towards him/her as
to have inflicted bodily injury or caused reasonable apprehension of bodily
injury, suffering or to have injured health.

In Dastane vs. Dastane, (mental cruelty), the husband filed a petition for
judicial separation on the ground of cruelty. The allegation was that the
wife was continuously threatening the husband that she will put an end to her
life or set the house on fire. She was also abusing her husband and his
parents.
The Hon’ble SC held that it amounts to cruelty by observing that with
the conduct of such type the petitioner cannot be expected to live with her.

The following instances have been held by the courts to be cruelty:

a) Imputing unchastity to the wife
b) Frequent demands for dowry
c) Exposing wife to insulting behaviour of husband’s relations is mental
cruelty.
d) Impotency of husband
e) Wife leaving for her father’s place w/o informing the husband and his
family members.
f) Wife threatening husband to burn herself and bring husband into
trouble with police is legal cruelty.
g) Wife failing to see husband in hospital undergoing treatment for
several months after an accident is cruelty.
h) Act of violence resulting in injury to body, limb or health or causing
reasonable apprehension
 i) Causing injury to private parts

What is not cruelty?:-

Cruelty has to be distinguished from normal wear and tear of marriage
like for instance:-
a) That the wife smokes;
b) That the wife is illiterate
c) Taking of a job elsewhere by wife per se due to husband not taking
care of her
d) refusal to give up a job
e) Calling husband dhobi/son of dhobi
f) Reluctance of working wife to do household chores.

(iii) Desertion:
The expression desertion in the context of matrimonial law represents a legal
conception and is very difficult to define. The essence of desertion is the
forsaking and abandonment of one spouse by the other without reasonable cause
and without the consent or against the wish of the other. It is withdrawal not
from a place but from a state of things.
The essential ingredients of offence which may furnish a ground for relief
are:
(i) Factum of separation and
(ii) The intention to bring cohabitation permanently to an end - animus
deserendi
(iii) The element of permanence which is a prime condition requires that
both these essential ingredients should continue during the entire
statutory period of not less than 2 years immediately preceding the
presentation of the petition.

Similarly, 2 elements are essential so far as the deserted spouse is concerned:

(i) The absence of consent and
(ii) Absence of conduct giving reasonable cause to the spouse leaving
the matrimonial home to form the necessary intention aforesaid.

(i) Factum of separation:

In Wanbon vs. Wanbon, both parties lived as one household but wife refused
to perform her wifely duties and never addressed a word to her husband except to
find some fault with him.
It was held that the wife was guilty of desertion though both wife and
husband lived as one household.

The Explanation to the section adds wilful neglect of the petitioner and its
grammatical variations and cognate expressions.
In Geeta Jagdish Mangtani vs. Jagdish Mangtani, the Hon’ble SC has held that
even though the wife knew about husband’s earning prior to marriage, she after
having left her matrimonial home after 7 months of marriage and giving birth to a
child and continuing with her teaching job clearly established animus deserendi and
proved desertion by her wilful neglect and granted a divorce decree to the husband.

(iv) Ceased to be a Hindu by conversion:

 A person does not cease to be Hindu merely because he declares that he has
no faith in his religion or does not practice his religion or renounces his religion
or has an unorthodox life so much so even if he eats beef and insults all Hindu
gods and goddesses or expresses his faith in another religion and even starts
practising another religion. Such a person will continue to be a Hindu. Thus,
ceasing to be Hindu is hardly material except in the context of conversion as
observed by the Apex Court.
Similarly, a Hindu does not cease to be a Hindu if he converts to either
Buddhism, Jainism or Sikhism because u/S.2 of the Act all the aforesaid religions
are considered to be Hindus only.

When a person ceases to be a Hindu by conversion is, if he abdicates his

religion by a clear act of renunciation and adopts the other religion i.e., the
non-Hindu faith such as Christianity/Islam/Zoroastrianism by undergoing
formalities prescribed the faith to which he seeks conversion.

(v) Has been incurable of unsound mind or suffering from mental disorder:
The question of mental capacity of the spouses affecting formation of
marriage is dealt u/s.5(ii). this section deals with supervening unsoundness of
mind and also mental disorder of the nature mentioned in the Explanation. The
unsoundness of mind must be incurable . The mental disorder must be of such a
kind and to such an extent that the petitioner cannot be reasonably expected to
live with the respondent.
The term “mental disorder” has been very widely interpreted so as to include
mental illness, arrested or incomplete development of mind, psychopathic
disorder or any other disorder or disability of mind and includes schizophrenia.

(vi) Incurable and virulent leprosy:

Leprosy is no more a ground for decree of dissolution of marriage under the
HMA, 1955 as it is omitted by the Personal Laws (Amendment) Act, 2019.

(vii) Has been suffering from venereal disease of a communicable form:

Venereal diseases are only such diseases which are communicated by sexual
intercourse.. Syphilis and gonorrhoea are considered as venereal diseases. The
section requires that the disease must be in a communicable form.
The petitioner may not be forced to subject himself/herself for medical
examination to determine if the disease has been contracted from the petitioner,
but on his/her refusal the court may draw an inference against him/her and may
refuse to grant the relief u/S. 23 of the Act.
VDs as evidence of adultery/cruelty and as a ground for leaving the other
spouse is considered under those headings.

(viii) Has renounced the world be entering any religious order:

Under Hindu law, when a person enters into a religious order renouncing all
worldly affairs, his action is tantamount to civil death. The religious orders
contemplated include those of Hindus, Buddhist, Jainas and Sikhs.
The religious orders well-known in India require on the part of a person who
wants to enter the same the performance of certain ceremonies or certain
formalities. The religious order should be one that requires renunciation of the
 world. This postulates relinquishment of all property and worldly concerns.
Renunciation must be unequivocal and absolute.
For instance, a person who wants to renounce the world by becoming a
sanyasi can be held to have entered that order only if he has performed the
necessary rites and ceremonies prescribed by the shastras.

(ix) Has not been heard of as being alive for a period of seven years or more:
It is a rule of presumption that in the absence of evidence to the contrary a
person shall be taken to be dead if he has not been heard of for a period of seven
years or more by those persons who would naturally have heard of him had he
been alive.
This is a presumption of universal acceptance as it aids proof of death in
cases where it would be extremely difficult if not impossible to prove that fact.
It is a presumption of great convenience and S. 108 of The Indian Evidence Act,
1982 lays it down as a distinct rule.
The standard of proof is laid down in S. 23 of HMA, 1955 and the court will
grant a decree only if it is satisfied that reasonable grounds exist for acting on the
presumption of death of the respondent. A decree of divorce granted on this
ground is valid and effective even if it subsequently transpires that the respondent
was in fact alive when the decree was passed.

Grounds available to wife only, S. 13(2), HMA, 1955:-

(i) Husband having more than one wife alive; marriage solemnised before
commencement of the Act.
This ground had great significance when the Act came into force and
sometime thereafter but now after 63 years this ground has only historical
significance.

In Mandal Naganna vs. Lakshmi Bai, the Court observed that where the wife
presents a petition u/s. 13(2) of the Act for divorce on the ground that her
husband had married again and the fact was that he has divorced the second wife
subsequent to the filing of the petition there was no ground for dismissing the
petition.

(ii) Guilty of rape or sodomy or bestiality:

Rape:
A man is said to commit rape when except in certain cases he has sexual
intercourse with a woman under any of the following situations:
a) Against her will
b) Without her consent
c) With her consent but it was obtained by putting her or any person in
whom she is interested in fear of death or of hurt
d) With her consent where the man knew that he was not her husband
e) With or without her consent where she was under 16 years (S.375, IPC)

A sexual intercourse by a man with his own wife the wife not being 15 years of
age is not rape. But, where a wife obtains a decree of judicial separation or an order
for separate maintenance, her consent to martial intercourse is thereby revived and as
such any act of sexual intercourse thereafter by the husband with the wife by force
amounts to rape.
Sodomy:
It generally means unnatural sexual offence against man, woman or animal. A
person who voluntarily has carnal intercourse against the order of nature with any
man, woman or animal is punishable u/S. 377, IPC.

Bestiality:
It ordinarily means an act relating to a beast. Dictionary meaning of the
word is a sexual relation between a human being and lower animal.

(iii) Award of Maintenance:

Where in a suit u/s.18 of Hindu Adoptions and Maintenance Act or in a
proceeding u/s.125 of CrPC, a decree or an order is passed against the husband
awarding maintenance to the wife and since then the parties have not cohabited for a
period of one year or more, the wife is entitled to present a petition for divorce.

(iv) Marriage with a girl below 15 years of age:

Where a marriage is solemnised with a girl before she attained the age of 15 years
and she has repudiated the marriage after attaining that age but before attaining the
age of 18 years the wife will have the right to present a petition for divorce.

In Bathula Ilahi vs. Bathula Devamma, the wife had repudiated the marriage
before attaining the age of 15 years because after living with her husband for
sometime she realized that it would be difficult and dangerous to live with him
anymore and she filed a petition before the court.
The court held that even though the petition has been presented after passing the
age of 18 years, it would be allowed in the wake of reasonable explanation for the
delay.
Question: Explain the grounds available to a Hindu wife alone for divorce.

Answer:
Grounds available to wife only, S. 13(2), HMA, 1955:-
1) Husband having more than one wife alive; marriage solemnised before
commencement of the Act.
This ground had great significance when the Act came into force and
sometime thereafter but now after 63 years this ground has only historical
significance.

In Mandal Naganna vs. Lakshmi Bai, the Court observed that where the wife
presents a petition u/s. 13(2) of the Act for divorce on the ground that her
husband had married again and the fact was that he has divorced the second wife
subsequent to the filing of the petition there was no ground for dismissing the
petition.

2) Guilty of rape or sodomy or bestiality:

Rape:
A man is said to commit rape when except in certain cases he has sexual intercourse
with a woman under any of the following situations:
(1) Against her will
(2) Without her consent
(3) With her consent but it was obtained by putting her or any person in whom she is
interested in fear of death or of hurt
(4) With her consent where the man knew that he was not her husband
(5) With or without her consent where she was under 16 years (S.375, IPC)

A sexual intercourse by a man with his own wife the wife not being 15 years of
age is not rape. But, where a wife obtains a decree of judicial separation or an order
for separate maintenance, her consent to martial intercourse is thereby revived and as
such any act of sexual intercourse thereafter by the husband with the wife by force
amounts to rape.

Sodomy:
It generally means unnatural sexual offence against man, woman or animal. A
person who voluntarily has carnal intercourse against the order of nature with any
man, woman or animal is punishable u/S. 377, IPC.

Bestiality:
It ordinarily means an act relating to a beast. Dictionary meaning of the word is
a sexual relation between a human being and lower animal.

3) Award of Maintenance:
Where in a suit u/s.18 of Hindu Adoptions and Maintenance Act or in a
proceeding u/s.125 of CrPC, a decree or an order is passed against the husband
awarding maintenance to thw wife and since then the parties have not cohabited for a
period of one year or more, the wife is entitled to present a petition for divorce.

4) Marriage with a girl below 15 years of age:

 Where a marriage is solemnised with a girl before she attained the age of 15 years
and she has repudiated the marriage after attaining that age but before attaining the
age of 18 years the wife will have the right to present a petition for divorce.

In Bathula Ilahi vs. Bathula Devamma, the wife had repudiated the marriage
before attaining the age of 15 years because after living with her husband for
sometime she realized that it would be difficult and dangerous to live with him
anymore and she filed a petition before the court.
The court held that even though the petition has been presented after passing the
age of 18 years, it would be allowed in the wake of reasonable explanation for the
delay.
Question: What is Restitution of Conjugal Rights? Explain the Constitutional
validity of Restitution of Conjugal Rights.

Answer:
Restitution of conjugal rights is a relief available to spouses under the Hindu Marriage
Act, 1955.

After marriage, the husband is entitled to the society of his wife and the wife to
the society of her husband. The foundation of the right is the fundamental rule of
matrimonial law that one spouse is entitled to society and comfort-consortium-of the
other spouse.

Section 9 of the Hindu Marriage Act, 1955, deals with the subject of the
restitution of conjugal rights. Restitution of conjugal rights is defined as the
compelling of a husband or wife, who has withdrawn and lives separate without cause,
to live with the other. The aggrieved party can file a petition for restitution of
conjugal rights in the District Court. The idea of providing for restitution by a court
decree is to preserve the marriage tie as far as possible, by enabling the court to
intervene and enjoin upon the withdrawing party to join the other.

The conditions to be satisfied for obtaining such a decree are:

1) The other spouse has withdrawn from the society of the petitioner.
2) There is no reasonable excuse for such withdrawal. Should the respondent
allege reasonable excuse, the burden of proof lies on him/her.
3) The court's satisfaction as to the truth of the statements made in the petition.
4) No legal grounds exist for refusing the decree.

In Gaya Prasad vs. Bhagwati (Employment case), the Madhya Pradesh High
Court has held that if a wife accepts any employment without husband's consent at a
place different from husband's home and refuses to live with him it can be said she
has withdrawn from husband's society without reasonable cause.

In Saroj Rani vs. Sudarshan Kumar, AIR 1984 SC 1562, the Hon'ble Supreme
Court has held that this section is not violative of Articles 14 (Right to Equality) and
21 (Right to Liberty) of the Constitution dissenting with the decision of Andhra
Pradesh High Court and overruling it in the case of T. Sareeta vs. T. Venkata
Subbaiah and favoured the decision of Delhi High Court in the case of Harvinder
Kour vs. Harmandar Singh.

In Jagadish Lal vs. Shyama (Impotency case), the husband filed a suit of
restitution of conjugal rights. The wife took the defence of impotency of the
husband at the time of marriage. Though it was not proved that he continued to be
impotent till the presentation of the petition, the court took it as reasonable excuse for
withdrawing from the society.

In Ranjana Kejriwal vs. Vinod Kumar Kejriwal, the wife in her own petition for
restitution herself alleged that the husband had suppressed his earlier marriage which
was subsisting. In these circumstances, the Court held that the petitioner’s marriage
being illegal, her application for restitution of conjugal rights was not maintainable.
Constitutional Validity of Section 9 of Hindu Marriage Act:-
In T. Sareeta vs. T. Venkata Subbaiah, the question arises whether S. 9 of Hindu
Marriage Act, 1955 is violative of Articles 14 and 21 of the Constitution.

The discussion of the case came before Andhra Pradesh High Court where the
husband filed a petition for restitution of conjugal rights against wife who was a
famous film actress, Sareeta. Here, she argued that the right to liberty which
includes right to privacy confers on women a right to freedom of choice. This
freedom of choice being a part of the right to privacy is guaranteed under Article 21
of the Constitution.

The learned Judge accepted the argument and held that according to Article 14 of
the Constitution both men and women have to be treated equally even after marriage
and stuck down S. 9 of Hindu Marriage Act by opining that it violates wife's right to
privacy and accordingly dismissed the petition filed by the husband.

However, the decision of Andhra Pradesh High Court was dissented and S. 9 of
the Hindu Marriage Act was upheld by Delhi High Court in the case of Harvinder
Kour vs. Harmandar Singh. In the Delhi case, the husband filed a petition against
wife for restitution of conjugal rights. The wife opposed the petition by taking
support of the decision of Andhra Pradesh High Court in Sareeta's case. But, the
Delhi High Court upheld the Constitutionality of S. 9 and granted a decree of
restitution of conjugal rights.

Finally, the Constitutionality of S. 9 of HMA, 1955was put to rest in the case of

Saroj Rani vs. Sudarshan Kumar, by the Apex Court. In this case, the Hon'ble
Supreme Court upheld the constitutional validity of S. 9 of the Hindu Marriage Act by
favouring the decision of the Delhi High Court and overruling the decision of Andhra
Pradesh High Court by opining that the term “conjugal rights”may be viewed in its
proper perspective by keeping in mind the dictionary meaning of the expression
“conjugal”.

Thus, as can be seen from the above discussion, every effort is made by the Court
to preserve the institution of marriage. If the decree in a suit for restitution of
conjugal rights is disobeyed by not resuming cohabitation, then parties have reached
a stage of no return and in such a case the parties get a ground for divorce after a
lapse of one year under Section 13(1A)(ii) of the Act.
Question: What is a void and voidable marriage & differentiate between them.

Answer:
Marriage:
Marriage under the Act is the voluntary union of one man with one woman to the
exclusion of all others satisfied by the solemnisation of the marriage. A marriage
may be solemnised in the sense that the parties to it have gone through the customary
rites and ceremonies of either party thereto.

Void Marriage (S.11, HMA, 1955):

Marriage is void ipso jure i.e., by the operation of the law itself. The present
section i.e., S. 11 in terms lays down that non-fulfillment of any one of the conditions
specified in S. 5 r/w S. 7 of the Act renders a marriage solemnised after the
commencement of the Act null and void from its inception and either party to such a
marriage can obtain a decree of nullity from the court.
For instance, the Hon’ble SC has held that if a second marriage has been
contracted before the commencement of the Act such a marriage though it may be
void cannot be a void marriage under this Act.
However, if in a marriage solemnised after the commencement of the Act where a
husband has not obtained a decree of divorce before entering into a second union such
second marriage would be null and void.

In Subhash Babu vs. State of AP, the Hon’ble SC has held that non-filing of a
complaint by the first wife does not wipe out the offence u/S. 494, IPC and unless a
declaration of nullity is made by a competent court the second wife continues to be
wife within the meaning of the above section.

A marriage which is void ab initio does not alter or affect the status of the parties
nor does it create between them any rights and obligations which must normally arise
from a valid marriage except such rights as are expressly recognised by the Act like
for instance Ss. 24 & 25 relating to maintenance pendente lite and costs & permanent
alimony and maintenance. If any children are begotten or conceived by the parties
to such a void marriage they are deemed to be their legitimate children for purposes of
heirship but not on properties of ancestral in nature.

Voidable Marriage (S.12, HMA, 1955):

The present section i.e., S. 12 deals with voidable marriage. A voidable
marriage remains valid and binding and continues to subsist for all purposes unless a
decree is passed by the court annulling the same on any of the grounds mentioned in
this section. The grounds involve the elements of impotence, unsoundness of
mind/mental disorder, consent obtained by force/fraud and pregnancy at the time of
marriage.

a) Non-consummation of marriage due to impotence:

Impotence is dealt u/S. 12(1)(a) of the Act. Impotence in matrimonial cases
mean incapacity to consummate the marriage i.e., incapacity to have conjugal
intercourse which is one of the objects of marriage. It does not signify sterility or
incapacity of conception.
The consummation has to be understood as in common parlance and means
ordinary and complete intercourse.
 In Digvijay Singh vs. Pratap Kumari, the Hon’ble SC has pointed out that a party
is impotent if his/her mental/physical condition makes consummation of the marriage
a practical impossibility.
Therefore, where the wife had no vaginal canal it was held that the husband was
entitled to a decree of nullity.

b) Unsoundness of mind/mental disorder:

Unsoundness of mind/mental disorder is dealt u/S. 12(1)(b) of the Act. One of
the conditions of a marriage under the Act u/S. 5(ii) is that both the bridegroom and
bride must have the requisite mental capacity to enter into matrimony. If a marriage
has taken place in contravention of S. 5(ii), it is not void per se but only voidable.

c) Consent obtained by force/fraud:

Consent obtained by force/fraud is dealt u/S. 12(1)(c) of the Act. This has to be
r/w S. 12(2)(a). Absence of consent does not render the marriage void ipso jure but
voidable at the instance of the party whose consent was obtained by force/fraud.

Force:
Where consent of a party to solemnisation of marriage is obtained by force or as
it is sometimes said by coercion or duress it is obvious that there is absence of a
consenting will to marry. Force when it is used excludes any real or intelligent
consent altogether.
In Shitij Khurana vs. Shreha Khurana, the Hon’ble High Court of Delhi has held
that when a marriage is solemnised without the free consent of the wife who is under
the influence of drugs administered to her, such marriage is voidable.

Fraud:
In matrimonial cases, fraud means fraud as to the nature of ceremony or as to any
material fact/circumstance concerning the respondent.
Fraud as to nature of ceremony is where a party is kept under the impression that
what is being performed is only a betrothal or a conversion to Hindu religion.
Fraud as to any material fact/circumstance is, he/she would not have married the
respondent if he/she had known the vital, touching or affecting material
fact/circumstance of the respondent because it induced or influenced his/her consent.
It has been held that a solitary act of intercourse after knowledge of fraud may not
amount to condonation of fraud.

d) Pregnancy at the time of marriage:

Pregnancy at the time of marriage is dealt u/S. 12(1)(d) of the Act. Any
marriage is voidable at the instance of the husband on the ground that the respondent
wife was at the time of the marriage pregnant by some person other than the petitioner
provided the conditions laid down in S. 12(2)(b) are strictly fulfilled.
In Sushil Kumar vs. Minto Kumari, the Hon’ble High Court of Rajasthan has held
that since the wife gave birth to a child within 5 months of marriage and the DNA test
proved that the husband was not the biological father of the child the decree of nullity
was rightly granted.
Distinction between void and voidable marriage:
A void marriage is one that will be regarded by every court in any case in which
the existence of the marriage is an issue as never having taken place and can be
treated as void by both parties to it without the necessity of any decree annulling it.
It is open to a party to a void marriage to have recourse to the court for a declaration
that it is null and void but that would be for the purpose of precaution or record.
A voidable marriage is one that will be regarded by every court as a valid
subsisting marriage until a decree annulling it has been pronounced by a court of
competent jurisdiction.

Sl. No.: Void Marriage Voidable Marriage

Marriage does not exist in the eye Marriage exists and continues to be
1 of law u/S. 11, HMA, 1955 as it valid unless it is challenged u/S. 12
is void ab initio
The court passes a decree of The court passes decree after taking
2 nullity since marriage has no into account necessary conditions
existence at all
Parties can remarry w/o decree of Parties cannot remarry w/o decree of
3
nullity from Court court
Wife cannot claim maintenance Wife can claim maintenance
4
u/s. 125 of Cr.P.C.
Parties to a void marriage are Parties to voidable marriage are not
5
criminally liable laid down with penalty
Question: Explain the legislative provisions relating to dowry prohibition.

Answer:
The dowry system as originally devised provided post-marital security to an
otherwise hapless (abala) bride. It started as customary presents given to the
daughter on her marriage with love and affection. It was considered as a sort of help
to the newlyweds to establish their own home. Mostly, the dowry in those days was
in kind like say a variety of things useful for new homes. Those gifts were given
voluntarily and without any demand.
There was yet another reason for such customary gifts. The daughter then was
not entitled to share in joint-family properties when she had a brother. Hence, the
father out of affection or other consideration used to give some cash or kind to the
daughter at the time of her marriage.
But, unfortunately, giving of those customary presents became a right of bride’s
in-laws and turned out to be a demand by bridegroom’s family. It replaced bride
price as the common practice among middle and lower strata throughout the country.

Conjoint Reading of Legislative Provisions relating to Dowry Prohibition:

The Dowry Prohibition Act, 1961 prohibits giving or taking off dowry and
making it non-cognizable offence. By Criminal Law (2nd Amendment) Act, 1983, a
new section, S. 498-A was inserted in Indian Penal Code and another section, S.
113-A was inserted in the Indian Evidence Act. To deal effectively with those
responsible for dowry deaths, it also inserted S. 304-B in IPC and S. 113-B in the
Indian Evidence Act.

S. 498, IPC provides that whoever being the husband or the relative of the
husband of a woman subjects such woman to cruelty shall be punished with
imprisonment for a term which may extent to 3 years and will be liable to fine the
cognizance for which is taken u/s. 198-A, IPC on a police report or with the leave of
the Court.
S. 304-B(1), IPC adopts the meaning of dowry as defined in S. (2) of the Dowry
Prohibition Act and S. 304-B(2) prescribes minimum punishment of 7 years and
maximum of life imprisonment for the offence of dowry death.

S. 113-A of the Indian Evidence Act provides that when the question is whether
the commission of suicide by a woman had been abetted by her husband or any
relative of her husband and it is shown that she committed suicide within a period of 7
years from the date of her marriage and that her husband or such relative of her
husband had subjected her to cruelty, the court may presume having regard to the
circumstances of case that such suicide had been abetted by her husband or such
relative of her husband. This section adopts the meaning of cruelty as that of S.
498-A, IPC.

S. 113-B of the Indian Evidence Act provides that when the question is whether a
person has committed the dowry death of a woman and it is shown that soon before
her death such woman had been subjected by such person to cruelty or harassment
for or in connection with any demand for dowry, the court shall presume that such
person had caused the dowry death.
This section adopts the meaning of dowry death as in S. 304-B, IPC
 From the above, it is clear that where death of a woman is caused by any
burns/bodily injury/occurs otherwise than under normal circumstances within 7 years
of her marriage and it is also shown that before he death she was subjected to cruelty
or harassment by her husband or any relative of the husband for securing any property
or valuable security from her or her relative, it would come within the meaning of
dowry death provided it is in connection with any demand for dowry as defined under
the Dowry Prohibition Act.
The prosecution case does not rely upon the independentness of offence. The
demand for dowry and harassment do not constitute the basis for conviction because
the main part of the charge under S. 304-B was not established. Hence, it is not
possible to convict the accused under Ss. 3 & 4 of Dowry Prohibition Act.
 UNIT - IV

Question: State the rules of succession of a male dying intestate.

Answer:
S. 8 of The Hindu Succession Act, 1956 deals with the general rules of
succession in the case of Hindu males dying intestate.

Definition of intestate:
S. 2(g) of Hindu Succession Act defines intestate as:- a person is deemed to die
intestate in respect of property of which he or she has not made a testamentary
disposition capable of taking effect.

According to S. 8 of the Act, the property shall devolve according to the following
provisions:
1) Firstly, upon the heirs being the relatives specified in Class I of the Schedule
2) Secondly, if there is no heir of Class I, then upon the heirs being the relatives
specified in Class II of the Schedule
3) Thirdly, if there is no heir of any of the two classes, then upon the agnates of
the deceased and
4) Lastly, if there is no agnate, then upon the cognates of the deceased.

Class I heirs:– Ss.9 and 10

According to S. 9, heirs in Class I of the Schedule are to succeed
simultaneously. Class I heirs are also described as simultaneous heirs or preferential
heirs. In other words, heirs mentioned in Class II are excluded so long as there is
even a single heir in Class I. The expression son used in Class I of the Schedule
includes both a natural son and a son adopted.

The distribution of property among Class I heirs is to be in accordance with the

four rules laid down in S. 10 which regulates how the shares which the heirs in Class I
of the Schedule shall get even though they take simultaneously. It is pertinent to
note that male and female heirs are treated as equal and without distinction.

Rules for distribution:

S. 10 lays down four rules regarding the distribution of property which is as
follows:
1) According to Rule 1, the intestate's widow is entitled to one share and where
there are more than one widow then all widows together are entitled to one
share.

2) According to Rule 2, each of the surviving sons, each of the surviving

daughters and the mother is entitled to take one share. Thus, the division is
to be per capita. Per capita means divided equally among beneficiaries
usually in the same class.

3) Rule 3 expressly provides for the exception that heirs of the deceased in the
branches of predeceased sons and predeceased daughters take not per capita
but per stirpes. Per stirpes means proportionately divided between
beneficiaries according to their deceased ancestor's share.
 4) To apply Rule 4, the predeceased son or the predeceased daughter is to be
treated as the propositus. Propositus means a person from whom descent is
to be traced. In Rule 4, treating the predeceased son as the propositus, his
heirs become his widow, his sons and daughters. The heirs of predeceased
son together shall get only one share as a branch. In Rule 4, treating the
predeceased daughter as the propositus, her heirs become her sons and
daughters who will get equal portions.

[ The Doctrine of Representation has been carried to the third degree in the case of a
son and daughter. ]

Class II heirs:– Ss. 9, 11 and 18

Class II heirs succeed in case there is not even a single heir in Class I. Close
relations of the deceased Hindu male selected on the principle of natural love and
justice are also included in this class of heirs. S. 9 lays down that heir in the first
entry in this class is preferred to those in the second entry, the heirs in the second
entry are preferred to those in the third entry and so on in case of succeeding entries in
the order of the Entries I to IX.

The distribution of property among Class II heirs are to be done in accordance

with the rule laid down in S. 11. According to S. 11, when there is only one heir in
the entry preferred, he/she alone shall take the whole of the estate but when there are
more heirs than one in the entry preferred then all such heirs shall take equally. And,
according to S. 18 of the Act, heirs related to the intestate by full blood shall be
preferred to heirs related by half blood if the nature of relationship is the same in
every other respect.

In K. Raj and Others vs. Muthamma, a real brother dies intestate leaving behind
his uterine sister. A uterine sister is one who is born to the same mother but from a
different husband.
In this case, the Court held that under Hindu Succession Act, 1956, the uterine
sister would not inherit the property of her brother because in Class II heir of the
Schedule a note is appended to the provision that sister does not include uterine sister.
Hence, she will not be an heir of such brother's property.

Agnates:– Ss.3(a), 8(c), 12, 13 and 18

In the absence of Class I and Class II heirs, the property devolves upon his
agnates. S. 3(a) of the Act defines an agnate as – One person is said to be an agnate
of another if the two are related by blood or adoption wholly through males.

S. 8(c) does not give a list of agnates or state the order in which they are entitled
to succeed under it. But, S. 12 lays down certain rules of preference which are
determinative of order of succession among agnates and S. 13 lays down certain rules
for the purpose of determining that order by computation of degrees both of ascent
and descent.

And, 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 as per
S 18 of the Act.
Rules for Distribution:
S. 12 lays down three rules regarding the distribution of property which is as
follows:-
i) According to Rule 1, if there are two heirs, one who has fewer or no degrees of
ascent is preferred.

ii) According to Rule 2, if the number of degrees of ascent is same or none, one is
preferred with fewer or no degrees of descent.

iii) According to Rule 3, when one can't be preferred to the other under Rule 1 or
Rule 2, they take simultaneously.

Degree of ascent and descent shall be computed inclusive of the intestate.

Therefore, the intestate himself counts as the first degree, his father second degree and
so on upwards in the degree of ascent. Similarly, the intestate shall be computed the
first degree, his son shall be computed the second degree and so on downwards in the
case of descent. Every generation in the ascending line or descending line
constitutes a degree.

Cognates:– Ss. 3(c), 8(d), 12, 13 and 18

In the absence of Class I, Class II and agnates, the property will devolve on his
cognates. S. 3(c) defines a cognate as – One person is said to be a cognate of
another if the two are related by blood or adoption but not wholly through males

S. 8(d) does not give a list of cognates or state the order in which they are entitled
to succeed under it. But, S. 12 lays down certain rules of preference which are
determinative of order of succession among agnates and S. 13 lays down certain rules
for the purpose of determining that order by computation of degrees both of ascent
and descent.

And, 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 as per
S 18 of the Act.

Rules for Distribution:

The Rules for Distribution of property is the same as in agnates.

Absence of heirs:- S.29

S. 29 deals with the aspect of escheat. It cannot be called as a provision or rule
under S. 8 of the Hindu Succession Act, 1956. But, in the absence of all heirs of the
intestate under S. 8 of the Act, the intestate’s property shall devolve on the
Government according to this section. The onus is on the Government to prove that
the intestate has died without any heirs qualified to succeed in accordance with the
provisions of this Act. It is pertinent to note that the Government takes the property
by escheat and it is not forfeited to the Government. It is subject to all obligations
and liabilities of the intestate.
THE SCHEDULE

Heirs in Class I and Class II:

Class I:
a) son
daughter
widow
mother
b) son of a predeceased son
daughter of a predeceased son
c) son of a predeceased daughter
daughter of a predeceased daughter
d) widow of a predeceased son
e) son of a predeceased son of a predeceased son
daughter of a predeceased son of a predeceased son
f) widow of a predeceased son of a predeceased son
g) son of a predeceased daughter of a predeceased daughter
daughter of a predeceased daughter of a predeceased daughter
h) daughter of a predeceased son of a predeceased daughter
i) daughter of a predeceased daughter of a predeceased son.

Class II:

I. Father
II. (1) Son's daughter's son
(2) Son's daughter's daughter
(3) Brother
(4) Sister
III. (1) Daughter'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

In this Schedule references to a brother or sister do not include references to a

brother or sister by uterine blood.
Question: Explain the rules of succession of a female dying intestate.

Answer:
S. 15 of the Hindu Succession Act, 1956 deals with the general rules of
succession in the case of Hindu female dying intestate and S. 16 lays down the Order
of Succession and manner of distribution among heirs of a female Hindu.

Definition of intestate:
S. 2(g) of Hindu Succession Act defines intestate as:- a person is deemed to die
intestate in respect of property of which he or she has not made a testamentary
disposition capable of taking effect.

According to S. 15(1) of the Act, the property shall devolve according to the rules
set out in S. 16 as follows:
(a) Firstly, upon the sons and daughters (including the children of any
pre-deceased son or daughter) and the husband;
(b) Secondly, in the absence of any one of the above-stated, upon the heirs of
the husband;
(c) Thirdly, in the absence of firstly and secondly, upon the mother and father;
(d) Fourthly, in the absence of above class of heirs, upon the heirs of the father;
and
(e) Lastly, in the absence of all the above, upon the heirs of the mother.

S. 15(2) deals with certain exceptions to the above rules. First, if a female
Hindu inherits property from her father or mother, on her death without issue the
property will revert to the heirs of her father. Similarly, if she inherits property from
her husband or father-in-law, it will devolve in absence of children or grand children
of the deceased upon the heir of the husband.

The expression son used in the entry has not been defined in the Act. It includes
both a natural son and a son adopted in accordance with the law relating to adoption
among Hindus in force at the time of the adoption. But, it does not include step-sons
i.e., sons of the husband of a female dying intestate by another wife and they fall in
the category of heirs of the husband.
It is pertinent to note that heirs of a female Hindu include her illegitimate children
and children born by remarriage.

In Keshri Lodhi vs. Harprasad, the Court laid observed that as per S. 15(1) and S.
15(2) it is clear that the intention of the legislature was to allow the succession of
property of a Hindu female to her sons and daughters only. In the absence of such
heirs, the property would go to the husband’s heirs.

Order of Succession:
S. 16 lays down the Order of Succession and manner of distribution among heirs
of a female Hindu as follows:
(i) Rule 1: This Rule provides that the first Entry of S. 15(1) shall be preferred to
those in the second entry. In the absence of heirs in the first entry, heirs in
the second entry shall be preferred to those in the third entry and so on.
Where there are more heirs than one in the entry preferred such heirs shall
take simultaneously i.e., they take per capita.
 (ii) Rule 2: This rule provides that the children of a predeceased son or daughter
shall take between them the share which son or daughter would have taken if
living at the intestate’s death i.e., they take per stirpes.

(iii) Rule 3: This rule provides that the devolution of the property on the heirs of
the father, on the heirs of mother or on the heirs of husband shall be in the
same order and according to the same rule as if the father, the mother or the
husband had died intestate in respect of that property immediately after the
intestate’s death.

Absence of all heirs:- S.29

S. 29 deals with the aspect of escheat. It cannot be called as a provision or rule
under the Hindu Succession Act, 1956. But, in the absence of all heirs of the
intestate under S. 15 of the Act, the intestate’s property shall devolve on the
Government according to this section. The onus is on the Government to prove that
the intestate has died without any heirs qualified to succeed in accordance with the
provisions of this Act. It is pertinent to note that the Government takes the property
by escheat and it is not forfeited to the Government. It is subject to all obligations
and liabilities of the intestate.
Question: Explain the salient features of Hindu Succession Act, 1956

Answer:
a) The Hindu Succession Act, 1956 has brought about profound changes in the
pre-existing system of Hindu law. A few of the important changes are:
1) Under the pre-existing law, a coparcener could not make a will in respect of his
interest in the joint family property. S. 30 of the Act enables him to execute a
Will in respect of such property.
2) Under the old law, simultaneous succession of different types of heirs was not
recognised. Now, Class I heirs take simultaneously.
3) Female heirs except in Bombay took only a life estate. Now, all female heirs
take an absolute estate.
4) Under the pre-existing law, succession to Stridhana depended upon the nature of
the Stridhana and the nature of the marriage (whether approved or unapproved)
and the particular school of law to which the parties belonged. Now, a
simplified system has been devised.
5) Under the pre-existing law, the rights of illegitimate issue depended upon the caste
to which the parents belonged. They also varied from school to school. Now,
illegitimate kinship is recognised only with reference to the mother for purposes
of inheritance. This simplifies the legal position.
6) The pre-existing law had rules of disinheritance based upon disqualifications
example being lunacy and idiocy. Unchastity of widow disqualified her for
inheritance. These have now been removed.

b) The Hindu Succession (Amendment) Act, 2005 has brought in further changes.
A few of the important changes are:
1) S. 6 of the principal Act which deals with devolution of interest of a coparcener
and rule of survivorship is re-casted and modified.
2) The archaic Doctrine of Pious Obligation has been abrogated u/s. 6(4).
However, this provision is not applicable if the debt is contracted before the
commencement of the Act which is 9-9-2005. As a general rule, this
amendment is not applicable in case the partition is effected before 20-12-2004.
3) S. 23 has been omitted under the Amendment Act. This section disentitled a
female heir to seek partition of a dwelling house until the male heirs choose to
divide.
Question: Gift

Answer:
Nature and limitation:
A gift is the relinquishment of one’s own right over a particular property without
consideration and the creation of proprietory right of another person over the same
and the creation of another man’s right is completed on that other’s acceptance of the
gift but not otherwise.

S. 122 of the Transfer of Property Act, 1882 defines gift as - 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.
.
A Hindu can dispose of his separate and self-acquired property by way of gift.
A coparcener under the Mitakshara law cannot dispose of his coparcenary interest by
gift. But, a coparcener under the Dayabhaga law can dispose of his coparcenary
interest by gift.

Gifts of immoveable property made by a father-in-law to a daughter-in-law are

admitted in Hindu law and such gifts form part of stridhan. But, a father-in-law
cannot dispose of any ancestral property by gift to a daughter-in-law.
A female can dispose of her stridhan by gift.

Types of gifts:
There are 2 types of gifts and they are:
1) Gift Intervivos
2) Gift testamentary

1) Gift Inter vivos:

Inter vivos is derived from the Latin term meaning “between the living”.
Gift inter vivos refers to a gift made during a person’s lifetime. It takes effect
immediately and confers present interest in respect of existing properties. The
gift when completed is irrevocable. (as it is not in donor’s possession and
control)

2) Gift Testamentary: a gift which is made by will

A gift which is made by will. It is also known as a will. It is the legal
declaration of the intention of a testator, one who is writing the will, with respect
to his property which he desires to be carried into effect after his death.

Essentials of a Valid Gift:

The essentials of valid gift are:
(i) Capacity of donor
(ii) Acceptance by donee
(iii) Existence of subject matter of gift

(i) Donor:
 A person of sound and disposing state of mind who has attained the aged of
majority may make a gift under Hindu law. A person attains the age of majority
when he has attained the age of 18 years u/s. 3 of the Indian Majority Act, 1875.

(ii) Acceptance by donee:

S. 122 of Transfer of Property Act, 1882 deals with acceptance. A gift may
be made orally or in writing, but its acceptance is essential in all cases. Such
acceptance must be made during the lifetime of the donor, but if the donee dies
before acceptance the gift is void.

(iii) Subject matter:

A Hindu may make the whole or part of his property by way of gift, but the
subject matter of a gift must be in existence and under absolute control having
right of disposition by the donor.

Registration of gift:
S. 123 of Transfer of Property Act, 1882 provides that for the purpose of making
a gift of immoveable property, the transfer must be effected by a registered instrument
signed by or on behalf of the donor and attested by at least 2 witnesses.
It also provides that for the purpose of making a gift of moveable property, the
transfer may be effected either by a registered instrument signed as aforesaid or by
delivery.

Essentials of a valid gift:

1) A person of sound mind and a minor has the capacity to dispose of absolute
property by way of gift.
2) A gift of immoveable property can only be effected by a registered instrument
signed by donor or on behalf of donor and attested by atleast 2 witnesses.
3) A gift of moveable property can be effected by a registered instrument or by
delivery of possession.
4) Even though the registration is done, delivery of possession is a must. The
reason for delivery of possession is made necessary to prevent the gift from being
subsequently revoked.
5) No coparcener under Mitakshara can dispose of his undivided interest in joint
family property by way of gift except with the consent of other coparceners.
But, in case of gift of self-acquired property by father to his son the
presumption is that the son takes it as his absolute property.
6) A Hindu father or other member has power to make a gift of ancestral moveable or
immoveable property within reasonable limits for pious purpose.
7) A gift of a family property by a Hindu father in favour of his concubine would be
void (concubine means husband staying with other woman, such a woman is
called concubine)
The gift of self-acquired property is by a father in favour of his wife is valid
and a son has no right to claim over that property.

In Ratna Sabapathy vs. Saraswati Ammal, it was held that a gift by a father
either to a member of a family or even to a stranger will be valid if all the
members of the family being adults give consent to the gift.
To whom property could be gifted:
1) A gift can be made to any person though he is a minor or an idiot or incapable of
inheredity be reason of some disability.

2) Under Hindu law, the donee must be in existence either in fact or in contemplation
of law be in existence at the time the gift takes effect.
If the estate granted is limited to 2 or more persons jointly some of whom are
capable of taking and the others are not, those who are capable shall take the whole.
When they take, they take it as tenants in common and not as joint tenants.

3) A gift cannot be made in favour of a person who is not in existence on the date of
the gift.
For a gift to an unborn person, there should be a gift to someone living until the
child comes into existence. The gift will be valid only if the child comes into
existence by the time the interest given to the living person ceases.

4) Doatio mortis causa i.e., a gift made in contemplation of death is recognised by the
Hindu law. It is recoverable if the donor recovers from the illness.
Question: Will

Answer:
Will in Latin is called volunlas which is used in the texts of Roman Law to
express the intention of a testator.

S.2(h) of the Indian Succession Act, 1925 defines the expression Will as - the
legal declaration of the intention of the testator with respect to his property which he
desires to be carried into effect after this death.
The 2 essential characteristics of a Will are that it is intended to come into effect
only after the death of the testator and is revocable at any time during the lifetime of
the testator. If the document is irrevocable, then it cannot be a Will.
When a Will takes effect, what takes place is not a conveyance but only a
succession.

Will means a continuous act of gift up to moment of the donor’s death and though
revocable in his lifetime is until revocation a continuous act of gift up to the moment
of death and does then operate to give the property disposed of to the persons
designated as beneficiaries.

For a proper distribution of property mentioned in the Will to the legatee, the
testator may appoint an Executor. In the absence of an Executor, the Court may
appoint an Administrator.

Essentials of a Will:
There are 3 essentials to a Will and they are:
(i) It must be a legal declaration of the intention of testator i.e., the person who
makes the Will. The document must be signed and it must be attested as
required by law.
(ii) The declaration of intention must be with respect to the testator’s property.
(iii) There must be disposition of property under the Will.

Codicil as defined by S.2(b) means an instrument made in relation to a Will

and explaining, altering or adding to the disposition and shall be deemed to form
part of the Will.

A person who is a major and of sound mind can make a Will but a minor or a
person of unsound mind cannot make a Will. A person can write any number of
Wills, but the last Will at the time of death will prevail and other Wills be
inactive.

In Tagore vs. Tagore, a Hindu male wrote a Will bequeathing his properties
to his sons, then to his grandsons and after that their male descendants in
perpetuity.
The Privy Council held that a gift to an unborn child by a Hindu is absolutely
void.

Types of Wills:
Wills are of 2 kinds, either written or unwritten, but in Indian Succession Act,
1925 Wills are divided into two classes:
 (i) Privileged and
(ii) Unprivileged

(i) Privileged Will:

Any soldier being employed in an expedition or engaged in actual warfare, or an
airman so employed or engaged, or any mariner being at sea, may, if he has
completed the age of 18 years dispose of his property by a Will made in the manner
provided in S. 66 of Indian Succession Act. Such Wills are called Privileged Wills.
They may be in writing or may be made by word of mouth A will made by
word of mouth shall be null at the expiration of one month after the testator, being
still alive, has ceased to be entitled to make a privileged will.

(ii) Unprivileged Will:

This is an ordinary Will. It must be in writing, the testator has to sign or affix
his mark on it or it shall be signed by some other person in his presence and on his
direction.
The will shall be attested by two or more witnesses each of whom has seen the
testator sign or affix his mark to the Will or has seen some other person sign the Will
in the presence and by the direction of the testator or has received from the testator a
personal acknowledgment of his signature or mark or of the signature of such other
person and each of the witnesses shall sign the Will in the presence of the testator, but
it shall not be necessary that more than one witness be present at the same time and
no particular form of attestation shall be necessary.

Who can take under a Will:

The following persons can take under a Will:
(i) The legatee must be in existence at the time of the death of the testator
(ii) An child when is able to stir in the mother’s womb is capable of taking a
device.
(iii) Husband or wife
(iv) Beneficiary
(v) Disqualified persons such as minor, idiot, lunatic, etc.

Difference between Will and Gift:

The essential characteristic of a Will is that it is a mere declaration of an intention
so long as the testator is alive, a declaration that may be revoked or varied according
to the variations in his intention.
A gift on the other hand is a transfer of property that is voluntary, gratuitous and
absolute conferring immediate rights.
 UNIT V

Question: What is adoption? What are the essentials of a valid adoption?

Answer:
Adoption:
Adoption is the institutionalised practice through which an individual belonging
by birth to one kinship acquires new kinship ties that are socially and legally defined
as equivalent to the congenital ties. These new ties supersede the old ones either
wholly or in part.

Hindu law is the only law which recognises adoption in the true sense of taking of
a son as a substitute for a natural born one.

The objects of adoption are twofold: the first is religious, to secure spiritual
benefit to the adopter and his ancestors by having a son for the purpose of offering
funeral cakes and libations of water to the soul of the adopter and his ancestors. The
second is secular, to secure an heir and perpetuate the adopter’s name.

Essentials/requisites of a valid adoption:

The essentials/requisites of a valid adoption under the Hindu Adoptions and
Maintenance Act, 1956 are dealt with in Sections 6 to 11 of the Act.

Section 6:
This section lays down that no adoption shall be valid unless -
(i) the person adopting has the capacity and also the right to take in adoption and this
is dealt under Sections 7 and 8.
(ii) the person giving in adoption has the right to do so and this is dealt under S. 9.
(iii) the person adopted is capable of being taken in adoption and this is dealt under S.
10 and
(iv) the adoption is made in compliance with the other conditions mentioned in the
Chapter and this is dealt under S. 11.

According to S. 6 of the Act, one of the conditions to make the adoption valid is
that not only should a person have the capacity to adopt but he must have the right to
adopt also as capacity and right are two different things.

Section 7:
This section deals with the capacity of a male Hindu to take in adoption. For a
male Hindu to lawfully take a son/daughter in adoption, the following conditions have
to be satisfied -
i) He is a Hindu
ii) He is of sound mind
iii) He has attained the age of discretion even though he may be a minor
iv) He has no son, grandson or great-grandson either natural or adopted living at
the time of adoption
v) If he has a wife living, he has the consent of the wife unless the wife has
a) completely and finally renounced the world or
b) has ceased to be a Hindu or
 c) has been declared by a court of competent jurisdiction to be of unsound
mind.
And, if he 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 due to the reasons mentioned above.

In Prafulla Kumar Biswal vs. Sasi Bewa, the Orissa High Court has held that
the capacity of a male Hindu to adopt a son/daughter is circumscribed as he
has no right to adopt except with the consent of the wife.

Section 8:
This section deals with the capacity of a female Hindu to take in adoption. For a
female Hindu to lawfully take a son/daughter in adoption, the following conditions
have to be satisfied -
vi) She is a Hindu
vii) She is of sound mind
viii) She is not a minor
ix) If she has a husband living, she has the consent of the husband unless the
husband has
(i) completely and finally renounced the world or
(ii) has ceased to be a Hindu or
(iii) has been declared by a court of competent jurisdiction to be of unsound
mind.

The female Hindu has absolute right to take in adoption during her maidenhood
or widowhood or being a divorcee. She can adopt a son to herself in her own right
provided she has no Hindu daughter or son’s daughter living at the time of adoption.

A widow can adopt a child provided -

i) her husband died without leaving behind any son, grandson or great grandson
ii) the husband died leaving behind a son and the son also died leaving his
mother as the only heir to him.

Section 9:
This section deals with persons capable of giving in adoption i.e., except father,
mother or guardian of a child no other person has the capacity to give in adoption.

Under this section,

1) The natural father/mother if alive shall have equal right to give a son/daughter in
adoption with the consent of the other spouse unless the other spouse has
(i) completely and finally renounced the world or
(ii) has ceased to be a Hindu or
(iii) has been declared by a court of competent jurisdiction to be of unsound
mind.

2) The guardian of the child can give the child in adoption to even the guardian
himself with previous consent of the court when
(i) both parents are dead or
(ii) both parents have completely and finally renounced the world or
(iii) Both the father and mother have abandoned the child or
 (iv) Both parents have been declared to be of unsound mind by a court of
competent jurisdiction or
(v) The parentage of the child is not known
provided that the court is satisfied that the adoption is for the welfare of
the child.

Section 10:
This section deals with the persons who may be lawfully taken in adoption.
According to this section, the child is capable of being taken in adoption if -
(i) he/she is a Hindu
(ii) he/she has not already been adopted
(iii) he/she has not been married unless there is a custom/usage which permits
a married person to be adopted
(iv) he/she has not completed 15 years of age unless there is a custom or usage
which permits a person who has completed the age of 15 years to be taken in
adoption.

In Devgonda Patil vs. Shamgonda Patil, the Bombay High Court has held that a
lunatic can also be adopted under the present law by observing that there is no such
capacity with such a child which prevents him from being adopted.

Section 11:
This section deals with other conditions for a valid adoption. For a valid
adoption, this section lays down that a person -
(i) who has a Hindu son, son’s son or son’s son’s son either by blood or by
adoption living at the time of adoption cannot adopt a son
(ii) who has a Hindu daughter, son’s daughter either by blood or by adoption
living at the time of adoption cannot adopt a daughter
(iii) who wants to adopt a person belonging to the opposite gender, the age
difference between them must be at least 21 years
(iv) who adopts a child simultaneously with two or more persons will
invalidate the adoption
(v) who wants to adopt a child must do the essence of adoption i.e., actually
perform the symbolic physical act of taking the child given by the
parents/guardian with the intention of transplanting the adopted child from
the family of birth to the adoptive family
(vi) who wants to adopt a child need not perform datta homam or register the
adoption deed.
Question: Who is a guardian? Explain the types and powers of guardian /
Explain kinds of guardians with powers.

Answer:
Guardian:
S. 4(b) of The Hindu Minority and Guardianship Act, 1956 defines guardian as -
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
(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

Types of Guardians:
The types of guardians are:
(i) Natural Guardians
(ii) Testamentary Guardians
(iii) Guardians appointed by the Court
(iv) Guardian De Facto
(v) Guardian Ad Hoc
(vi) A Guardian ad litem

(i) Natural Guardians:

A natural guardian is one who becomes so by reason of the natural relationship
with the minor. Every relation of the minor cannot be a natural guardian. S. 6 of
the Act deals with natural guardian and S. 8 lays down the powers of the natural
guardian.

According to S.6 of the Act, the following criteria is adopted for determining the
guardianship:
a) In the case of a minor boy or an unmarried girl, father is the natural guardian.
If the child is below the age of 5 years, mother is the natural guardian.
b) In case of an illegitimate boy/girl, mother is the natural guardian and after her
the father is the natural guardian
c) In the case of a minor married girl, husband is the natural guardian.

Also, a person cannot act as a natural guardian if-

a) He/she has ceased to be a Hindu or
b) He/she has completely and finally renounced the world by becoming a hermit
or an ascetic.
c) Disability is due to minority per S. 10 of the Act
d) Disability is arising out of the reason that such guardianship will not be for the
welfare of the minor per S. 13(2) of the Act.

In this section, the expression father and mother do not include a step-father and a
step-mother.

Powers of Natural Guardians are:

1) Alienation power:
 The natural guardian has power in the management of his estate, to mortgage or
sell any part thereof in a case of necessity or for the benefit of the estate.

2) Power to Contract:
A natural or even a de facto guardian has always the power to charge, mortgage
or sell the properties of the infant on the grounds of necessity or of benefits to the
minor, but it is not within the competence of a guardian of a minor to bind the
minor’s estate by a contract for the purchase of immoveable property for the
minor.

3) Power to Compromise:
It is competent to a guardian to enter into a compromise on behalf of his ward.

4) Power to acknowledge debt:

The guardian has the power to acknowledge a debt or to pay interest on a debt so
as to extend the period of limitation provided the act was for the protection or
benefit of the minor’s property, but has no power to revive a debt barred by
limitation.

(ii) Testamentary Guardians:

S.9 of the Act deals with Testamentary guardians and their powers. A
testamentary guardian is a guardian appointed by the Will of minor’s father or
mother. A Hindu father entitled to act as the natural guardian of his minor child
may appoint a guardian by Will in respect of minor’s person or property or both.
No testamentary guardian can be appointed in respect of undivided interest in
joint family property. The testamentary appointment of guardian made by the
father will not have any effect if the father predeceases the mother, but such
appointment will revive if the mother dies without appointing any person by Will
as guardian.
A Hindu widow entitled to act as the natural guardian of her minor legitimate
child may by Will appoint a guardian in respect of minor’s person or property or
both except the undivided interest of the minor in joint family property.
A Hindu mother as the natural guardian of her illegitimate child may appoint
a testamentary guardian in respect of such minor’s person or property or both.
A testamentary guardian will have right to act as the minor’s guardian only
after the death of testator and to exercise all the rights of a natural guardian.
The right of the testamentary guardian in respect of minor girl shall cease to
have effect on her marriage.

Powers of Testamentary Guardian:

The power to deal with property belonging to his ward is subject to the
restrictions imposed by the Will. If the father has appointed a guardian for both
the person as well as the property of his minor daughter, on her marriage the
husband becomes her guardian but the testamentary guardian continues to be the
guardian of her property.

(iii) Guardians appointed by the Court:

The guardian appointed by the court is known as a certificated guardian.
The question of appointment by the court of a guardian can be considered on
the application of:
 (i) The person desirous of being or claiming to be the guardian of the minor or
(ii) Any relative or friend of the minor or
(iii) The collector of the district or other local area in which the minor ordinarily
resides/the minor holds property or
(iv) If the minor belongs to a class, the Collector who has authority with respect
to that class.

Where the court is satisfied that it is for the welfare of minor that an order should
be made appointing a guardian of his person or property or both, the court may make
an order under the Guardians and Wards Act, 1890 appointing a guardian.
Where the father has appointed a testamentary guardian, the court has no power
to appoint a guardian u/s.7 of the Guardians and Wards Act.

In appointing the guardian of a minor, the Court shall be guided by what appears
in the circumstances to be for the welfare of the minor. Also, the court shall have
regard to the age and sex of the minor, the character and capacity of the proposed
guardian and his nearness of kinship to the minor, the wishes if any of a deceased
parent and any existing/previous relations of the proposed guardian with the minor or
his property.

Powers of Guardians appointed by court:

Powers of the guardian appointed by the court are specified in the Guardians and
Wards Act, 1890.
S. 27 of the Guardians and Wards Act, 1890 lays down in general the powers and
obligations of the guardian of property: the guardian should deal with the property of
the minor in the same manner as a man of ordinary prudence deals with his own
property. The guardian has the authority to do all things necessary for the realization,
protection and benefit of the minor’s property.
S. 29 of the Act lays down a major limitation - the guardian has no power to
charge or transfer by a sale, gift, mortgage, exchange or otherwise or to lease any part
of the property for a term exceeding 5 years or for any term exceeding more than 1
year beyond the date on which the minor will cease to be a minor without the prior
permission of the court.
Under S. 33, the guardian may himself request the court to fix and define the
scope of his powers.
The guardian is liable for breach of trust.

Removal of Guardians appointed by court:

The Hindu Minority & Guardianship Act, 1956 does not abrogate the provision of
S. 39 of the Guardians and Wards Act, 1890. Under S. 39 of the Guardians and
Wards Act, 1890, a guardian appointed u/s.7 of the Guardians and Wards Act can be
removed by the court.

Some of the grounds of removal of a testamentary guardian as mentioned in S. 39

of the Guardians and Wards Act are:
(1) Abuse of his trust
(2) Continuous failure to perform the duties
(3) Incapacity to perform the duty
(4) Ill-treatment or neglect to take proper care of his ward
(5) Continuous disregard to any of the provisions of the Act
 (6) Conviction in case of an offence of defect of character
(7) Having an adverse interest
(8) Ceasing to reside within the local limits of the jurisdiction of the court and
(9) Insolvency or bankruptcy.

In addition to the above, S.6 of H.M.&G.A specifically lays down that no

person shall be entitled to act as the natural guardian of the minor if the guardian
has ceased to be a Hindu or if the guardian has completely and finally renounced
the world.

(iv) Guardian De Facto:

A de facto guardian means a self-appointed guardian. 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. De
facto guardianship is a concept where past acts result in present status. The term
literally means from that which has been done.

Powers of de facto guardian:

A de facto guardian has the power to alienate minor’s property for legal necessity
and benefit of estate. The other powers are the de facto guardian has powers to bind
the minor’s estate by a simple contract or debt or loan if it is for legal necessity or
benefit of the minor’s estate and provided further that the guardian has not excluded
his liability under the contract, debt or negotiable instrument. In no case is the minor
personally liable. S. 11 of the Act purports to abolish the de facto guardian.

(v) Guardian Ad Hoc:

When a person acts as guardian of the minor for temporary period or for a single
transaction, he is called Guardian Ad Hoc. He is similar to de facto guardian. An
ad hoc guardian does not find a mention in the Act and any alienation of minor’s
property by him would be void.

(vi) Guardian ad litem:

A person who is appointed to defend an action or other proceeding on behalf of
mior or person under a disability is called a guardian ad litem.
Question: When a Hindu wife is entitled to maintenance & separate
residence under the Hindu Adoption and Maintenance Act, 1956?

Answer:
S. 3(b)(i) of the Act says maintenance includes in all cases provision for food,
clothing, residence, education and medical attendance and treatment.
The right of a wife for maintenance is an incident of the status or estate of
matrimony and a Hindu is under a legal obligation to maintain his wife. The
obligation to maintain a wife is personal in character.

S.18(1) lays down the general rule that a Hindu wife is entitled to be maintained
by her husband during her lifetime irrespective of the date of marriage. It is
pertinent to note that this maintenance can be had without filing any petition for
divorce, judicial separation or restitution of conjugal rights whereas S. 25 of Hindu
Marriage Act does not confer such a right.

Under S. 18(2) of the Act lays down that a Hindu wife without forfeiting her
claim to maintenance is also entitled to live separately from her husband on any of the
following grounds:-
(i) If the husband is guilty of desertion: that is to say of abandoning her without
reasonable cause and without her consent or against her wish or of willfully
neglecting her.The duration of desertion can be of any duration unlike the 2 year
duration under Hindu Marriage Act.

(ii) If the husband has treated her with such cruelty as to cause reasonable
apprehension in her mind that it will be harmful or injurious to live with him

In Ram Devi vs. Raja Ram, the Court held that the conduct of the husband
which made it evidently clear that the wife was not wanted in the house and that
her presence was resented amount to cruelty.

(iii) Omitted by Act 6 of 2019 w.e.f. 1.3.2019

(iv) If the husband has any other wife living

(v) If the husband keeps a concubine in the same house in which the wife is living or
he habitually resides with a concubine elsewhere

(vi) If the husband has ceased to be a Hindu by conversion to another religion

(vii) If there is any other cause justifying her living separately

This is a residual clause. Any other cause means reasonable cause or
reasonable excuse. A justifiable cause is one which in the opinion of the court
was a grave and convincing reason for withdrawing from the society of the
husband.

S. 18(3) of the Act lays down that such a wife cannot claim maintenance and
separate residence
(i) if she is unchaste (S. 18(3) of Act) or
(ii) ceases to be a Hindu by conversion to another religion (Ss. 18(3) & 24 of Act)
 Remedy for maintenance under S. 18 of the Act and u/S. 125 of Cr.P.C. are
co-existent, mutually complementary, supplementary and in aid and addition of each
other. An order of maintenance u/S. 125 CrPC cannot foreclose claim u/S. 18 of the
Act.
An application for maintenance may be filed in the court within whose
jurisdiction the cause of action arose.

S. 19 of the Act provides that a Hindu wife irrespective of the date of marriage
shall be entitled to be maintained after the death of her husband by her father-in-law
provided that she is unable to maintain herself out of her own earnings or other
property or where she has no property of her own she is /unable to obtain
maintenance from the estate of her husband/her father/mother or from her children if
any and their estate and any such obligation shall cease on the re-marriage of the
daughter-in-law.
Question: Dependants

Answer:
Ss. 21 and 22 of the Hindu Adoptions and Maintenance Act deal with the subject
of dependants and their maintenance.
Dependants are relatives of deceased Hindu and they can claim maintenance
against the property of the deceased in the hands of heirs. The term heir includes all
those persons on whom the estate of the deceased devolves. The right of dependants
exists against the property and not against the heirs personally. The right of
dependants as dependants does not arise during the lifetime of the person on whom
they are dependant, they are termed dependants only after his/her death. This is
clearly implied from the opening words of S. 21 of the Act - dependants mean the
following relations of the deceased.
The principle general rule laid down in S. 22 of the Act is that a dependant of a
male or female deceased Hindu who has not obtained any share in the estate of the
deceased is entitled to claim maintenance from those who take the estate.

The following heads of dependants can claim maintenance:-

1) Parents:
Under this head are included parents of the deceased and they can claim
maintenance against the property of their son/daughter inherited by any person.
The maintenance is for throughout their life.

2) Widows:
Under this head are included widow of the deceased, widow of his/her
predeceased son and widow of his/her predeceased son of a predeceased son.

3) Daughters:
Under this head are included unmarried daughter, legitimate/illegitimate daughter,
widowed daughter, daughter of a predeceased son and daughter of a predeceased
grandson.

4) Sons:
Under this head are included illegitimate sons, son of a predeceased son and son
of a predeceased son of a predeceased son.

S. 23 of the Act deals with the subject of amount of maintenance and lays down 3
sets of rules and they are:
1) it is left to the discretion of the court to decide whether any maintenance
should be awarded
a) to wife, widowed daughter-in-law, minor son, unmarried daughter or aged
or infirm parents specified in Ss. 18-20 of the Act or
b) to any dependant of a deceased female or female Hindu under the
provisions contained in Ss. 21 and 22 of the Act.
2) in exercising its discretion in the matter of assessment of the quantum of
maintenance to be awarded to a wife, children or aged parents under the
provisions of u/Ss. 18-20 of the Act, the court must have regard to the factors
and circumstances set out in S. 23(2) of the Act
3) in exercising its discretion in the matter of assessment of the quantum of
maintenance to be awarded to a dependant under the provisions of Ss. 21 and
 22 of the Act, the court must have regard to the factors and circumstances set
out in S. 23(3) of the Act.

S. 24 lays down that a claimant to maintenance should be a Hindu, S. 25 lays

down that the amount of maintenance may be altered on change of circumstances and
S. 26 lays down that debts contracted or payable by deceased shall have priority over
claims of maintenance by dependants.
Q: Without consent of wife can a Hindu male adopt?

A:
Adoption is the admission of a stranger by birth to the privileges of a child by a
legally recognised form of affiliation.

S. 7 of the Hindu Adoptions and Maintenance Act, 1956 deals with the capacity
of a male Hindu to take adoption.
The proviso to the section provides that if the male Hindu has a wife living he
shall adopt only with the consent of the 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.
The explanation to the section provides that if the male Hindu has more than one
wife living at the time of adoption the consent of all the wives has to be taken unless
the consent of any one of the wives is not necessary for any of the reasons specified in
the priviso.
Failure to comply with any of the requirements of a valid adoption i.e., Ss. 7 to 11
will render the adoption null and void. The requirements are cumulative and must
be complied with.

Consent of wife:
The capacity of a male Hindu to adopt a son or daughter recognised by the
section is circumscribed by the rule enacted in the proviso that in case he has a wife
living he has no right to adopt except with the consent of the wife. The consent need
not necessarily be express. It can be inferred from the facts and circumstances of the
case. Usually, where adoption ceremonies are performed, the wife has to take a
prominent part in the same and no difficulty of proving consent should arise in
practice. Where however the wife was a mute spectator to the ceremony and there
was no active participation by her, the adoption would be invalid in absence of her
consent as held by the Apex Court in the case of Ghisalal vs. Dhupabai. The consent
may be dispensed with if the wife has finally renounced the world or has ceased to be
a Hindu by conversion to any religion other than Hinduism, Jainism, Buddhism or
Sikkism or if the wife is declared to be of unsound mind by a court having jurisdiction
to pass a declaratory decree to that effect.

In case the male Hindu who wants to adopt a son or daughter has more than one
wife, the requisite consent must be obtained from all the wives except that no consent
would be necessary from a wife who is unable to give consent or has disabled herself
from doing so in the circumstances already stated above.
Short Notes: Divorce by Mutual Consent - S. 13(B)

Answer:
Divorce:
S. 13 of HMA, 1955 deals with divorce. A divorce decree has the effect of
dissolving the marriage by putting an end to the marriage ties and the separation is
absolute and final.

Divorce by Mutual Consent:

The underlying idea for divorce by mutual consent may be treated from the
principle that if the marriage under most of the matrimonial acts is a civil contract,
contract based on certain conditions with the mutual consent of the parties, then the
parties must be given discretion to finish that contract of marriage. However,
although the basis has been derived from the common principle of a civil contract, yet
the marriage contract cannot be equated with contract under the Indian Contract Act.

Divorce can be obtained by mutual consent of the parties to marriage u/s. S. 13(B)
of HMA, 1955 as fault or ground-based matrimonial litigation is time consuming and
expensive. It also involves a lot of mud-slinging thereby further embittering the
relationships and thwarting prospects of amicable resolution of ancillary issues like
maintenance, child-custody/visitation and so on.

The requirements of the section are:

(i) there must be a petition jointly presented to the court by both the parties to the
marriage
(ii) the grounds for dissolution of the marriage by a decree for divorce must
clearly and categorically show:
(a) that the parties have been living separately for a period of one year or
more before the presentation of the petition
(b) that they have not been able to live together and
(c) that they have mutually agreed that the marriage should be dissolved.

The granting of the decree in a properly presented petition as above is not a

matter of discretion with the court, but the court shall pass a decree subject to the
provisions of the Act and after following the procedure and in the manner prescribed
by S. 13(B)(2) which are:
(i) On a joint motion of the parties presenting the petition, the court not earlier
than 6 months after the date of petition and not later than 18 months after the
date of petition they may be heard and decree dissolving the marriage may be
granted.
(ii) If the petition is not withdrawn in the meantime, the court may make such
inquiry into the correctness of the grounds set out in S.13(B)(1).
(iii) The court must thereafter be satisfied that the marriage of the parties had
been solemnised after the Act came into force in 1955 and that the
averments in the petition are true.
When all the ingredients are satisfied, a decree of divorce cannot be
refused. The section is not ultra vires the Constitution on the ground of
great hardship and inconvenience.
 In Raj Vinod vs. Durga Devi, the parties had reached a consensus that they
cannot happily live together as husband and wife and were living separate for a period
of 16 years. As a result, they decided to present joint divorce petition u/s. 13(B) and
the court passed a decree of divorce by mutual consent.

In Mittal Ramesh Panchal, a petition was filed by the wife as she was not granted
visa for USA on non-production of divorce decree of her earlier marriage. She and
her first husband had undergone a divorce by executing a deed under the belief that
such divorce was proper and both had remarried.
The Bombay HC held that under HMA, 1955, dissolution of marriage could only
be under the Act and directed the family court to dispose off the matter at the earliest
and also held that in the peculiar factual matrix it would not be proper to strictly
adhere to the waiting period of 6 months as directed in the provision.

In Rajesh Sharma vs. Preeti Sharma, when a petition for divorce instituted by the
husband was withdrawn by him after two years and the spouses preferred a petition
under this provision, it was held that since both parties were averse to a reunion the
period of 6 months could be waived.
 FAMILY LAW - I, Hindu Law - Balance Notes

UNIT - I

Family:
The word Family is a generic term which varies from country to country and
from statute to statute. In a broad sense a family means the whole household
including servants and possibly lodgers. In another sense, it means everyone who
descends from a common stock, that is to say common blood relations and includes
the husbands and wives of such persons and their children. Technically, the word
Family may mean the collective body of persons who live in one house and under one
head of manager and includes within its fold a household consisting of parents,
children and servants, lodgers or boarders as the case may be.
Burgess and Locke observe “family is a social group of persons united by the ties
of marriage, blood or adoption; consisting a single house hold, interacting and
intercommunicating with each other in their respective social roles of husband and
wife, mother and father, son and daughter, brother and sister creating a common
culture”.
Mating relationship through tthe institution of marriage, procreation and
legalizing the children, having distinct identifiable name for the family, common
habitation economic base, closely knitted relations are some of the important features
of the family.

Family Law:
The term Family Law denotes the law that governs family. Family Law deals
with personal laws. The word personal appertains to the person. Personal law of a
person is a law under which that person is brought up or governed either in
accordance with religion or by custom. Such law governs the status of a person and
applies to marriage, inheritance, guardianship, maintenance e, etc. For instance, a
Hindu is is governed by Hindu law as his or her personal law, a Muslim is governed
by Muslim personal law.

Hindu Law
It means a body of rules or commands which govern the conduct of a Hindu in
relation to both Civil and Criminal matters. It is contained in several Sanskrit texts
which the Sanskritists consider as books of authority on the governing the Hindus.
It should also be noted that Hindu Law is not a territorial law. In other words, it
is not a lex-loci i.e., law of locality/which applies only to a particular locality or State
but a Personal Law. It means that a Hindu in whatever country he may be is
governed by Hindu law in all personal matters. Territorial law of that country would
not apply on the “personal matters” of that Hindu.
Extent of application of Hindu law:
Hindu law as administered by the Court of India is applied to Hindus in some
matters only. Furthermore, it is not the original Hindu law which is applied to
Hindus in India. A considerable portion of it was subjected to changes and
modifications.

General Rule:
As a general rule, the Hindu law as administered by the Court of India is applicable to
Hindus in the following matters:
(1) Inheritance and
(2) Religious usages and institutions.

Besides the above-noted matters, there are other matters to which Hindu law is
applied either by virtue of
a) Express legislation or
b) Principles of equity, justice and good-conscience

Express Legislation:
(a) Adoption
(b) Maintenance
(c) Marriage
(d) Succession and
(e) Minority and Guardianship

Principles of equity, justice and good-conscience:

(a) Family relations
(b) Wills
(c) Gifts and
(d) Partition

As regards other matters of civil nature and criminal liability, the Hindus like other
Indians are governed by law of Contract and Torts, IPC, CPC, CrPC, etc.

Illustrative instances about application of Hindu law:

1. A mere association with a non-Hindu cannot prevent the applicability of Hindu
law.

Example: “A”, a Hindu recites the Quran and takes the food and meals
with a Muslim friend, “A” will not cease to be a Hindu unless he renounces
the Hindu religion.

2. A person of other faith if converted to Hinduism becomes Hindu and Hindu

law will be applied.

Example: where an European lady converted to Hinduism by the ceremony

of Suddhi, subsequently adopted a Hindu name and married a Hindu, the
Court held that she was a Hindu.
3. A person who re-converts to Hinduism is also a Hindu.

Example: a Hindu boy converted to Christianity and married a Christian girl.

After some time, boy reconverted to Hinduism and took a Hindu as a wife.
The Christian wife filed a suit for committing bigamy, but the Court held that
conversion into Christianity is no bar to re-conversion into other religion and
it can take place even in few hours.

4. Harijans are also Hindus irrespective of their different practices and usages of life.

5. Also, when a Hindu migrates from one place to another, he carries his Personal
law with him. In order to establish that he has adopted the local law, it
must be proved beyond doubt. That is, it is the law of his place of domicile
which would follow him to his place of migration.
Importance of Dharma Shastra on Legislation-

Introduction:
The legal literature of Ancient Law can be divided into two parts:
i) The religious texts in which certain principles/indications are laid down which later
developed into law
ii) The Dharmasutras and Smritis collectively called Dharmashastras and
Commentaries which specifically deal with civil and criminal law

Yagnavalkya states that the Sruti and Smritis are the sources of law. Sruti
means the Vedas. The Sruti or Vedas can be classified as purely religious works, but
containing only some rudiments of law. But, from a practical point of legal history,
the relevant parts of Dharmasutras and Smritis are the real legal literature comparable
to modern civil and criminal laws then in force.

Dharmashastra:
To meet the requirement of a changing society, laws and treatises regulating the
rights and liabilities of individuals inter se as also between the king and his subjects
were written which came to be known as Dharma Sutras and Smritis. Some of them
were in the form of Sutras/aphroisms (a short phrase that contains a wise idea) or
strings of rules chiefly in prose form therefore came to be called Dharma Sutras and
others were in the form of slokas/verses, Smritis (recollection handed down).
Dharma Sutras can be regarded as the earliest works of Hindu legal system and the
compilation of Smritis resembles the modern method of codification. All this
literature is collectively called Dharmasastra. Dharmasastras laid down the law or
rules of conduct regulating the entire gamut of human activity.

Importance of Dharma Shastra on Legislation:

Below are a few topics of law with examples of how the law as it was then in the
Dharma Shastras has been legislated now with slight modifications showing the
importance of Dharma Shastra on Legislation.

1. Civil Law

a) General Rules Regulating Contracts

Smritis:
There is no independent topic of general law of contract, but the same is clearly
ascertainable from the provisions of law on the topic like for example persons
competent to enter into contract.
As per Manu, Yajnavalkya and Narada Smritis, a contract entered into by an
insane or intoxicated person, a cripple, a dependent, an infant (minor) or a very old
person or by a person not authorised by the party on whose behalf he entered into the
contract is invalid and Katyayana Smriti repeats the same disqualifications but with
one added disqualification stating that a convict in incompetent to contract.

The Indian Contract Act, 1872:

Section 11 of the Indian Contract Act, Who are competent to contract.—Every
person is competent to contract who is of the age of majority according to the law to
which he is subject, and who is of sound mind and is not disqualified from contracting
by any law to which he is subject.
 On a comparison of the law laid down in the Dharma Shastras and in the Indian
Contract Act, it can be seen that they are similar.

2. Criminal Law

a) Theft:
Smritis:
The offence of theft has been referred to in all the works of Dharma Shastras right
from the Vedic texts.
As per Katyayana and Narada Smritis – Depriving a man of his wealth either
clandestinely or openly either during night or daytime is known as theft (Steya).

The Indian Penal Code, 1860:

Section 378 of IPC defines theft as follows: Whoever, intending to take
dishonestly any movable property out of the possession of any person without that
person's consent, moves that property in order to such taking, is said to commit theft.

On a comparison of the definition of theft as laid down in the Dharma Shastras

and in the Indian Penal Code, it can be seen that they are similar.
Similar is the position in other aspects of law whether it be in matters of evidence or
administration of justice.
Schools of Hindu Law:

How the differences cropped up may be illustrated by an example from the old law of
adoption.
The basic text on the widow’s power of adoption is that of Vasistha which runs:
“Nor let a woman give or accept a son unless with the assent of her lord.”
In all the four schools, this text has been interpreted differently. The Mithila
school interprets this text to mean that the consent of the husband must be obtained at
the time of adoption and since this cannot be done by a widow a widow has no power
of adoption.
On the other hand, the Bombay school explains away the text by saying that it
applies only to adoptions made during the husband’s life time and if a widow adopts a
son this text does not apply and therefore a widow has full power of adoption.
The Benaras school holds the view that for an adoption by a woman, husband’s
consent is necessary. If before his death, the husband authorised her to make an
adoption, the widow can adopt.
The Dravida school takes the view that if the husband did not give his consent
before his death, the want of authority on the part of his widow can be supplied by the
sapinda of the husband.
Problems:

Conversion:
1. Dahan Beevi vs. Ramprasad, married non-Hindu person
Hindu mother, non-Hindu father, child brought up in mother’s family, a Hindu
family. Mother converts/ceases to be a Hindu after some time. Since child is
already born to a Hindu mother, Hindu law applies to the child. But, if the child
converts to a non-Hindu religion after attaining majority, then that non-Hindu religion
laws applies to the child.

2. Commissioner of Wealth Tax vs. Sridharan

Father is a Hindu, Mother is a Christian. Son born means property becomes joint
because of co-parcener. So, Hindu law applicable.

3. Perumal vs. Ponnusami

Non-Hindu converted to Hindu, any ritual have to be followed?
No, faith, intention and belief enough as held by Privy Council.

Re-Conversion:
1. Hindu converts to non-Hindu
2. Then, converts back to Hinduism
No rituals required.

Problems:- consent for 2nd marriage - bigamy

In Santhosh Kumar vs. Surji Singh, the court held that even if the wife
shows/gives consent for 2nd marriage it was void because a bigamous marriage is
considered to be non-existance even if the decree of nullity of marriage has not been
passed by the court.
 UNIT - II

Doctrine of Factum Valet quod fieri non debuit:

It is a doctrine of the Hindu law enunciated by the author Dayabhaga and
recognised also by Mitakshara School that “a fact cannot be altered by a hundred
texts”. The “texts” referred to are texts that are directory in nature as distinguished
from those that are mandatory in nature.
The meaning of the doctrine is that where a fact is accomplished, in other words
where an act is done and finally completed, though it may be in contravention of a
hundred directory texts the fact will stand and the act will be deemed to be legal and
binding. The Maxim of the Roman civil law corresponding to this doctrine is factum
valet quod fieri no debuit which means that what ought to be done is valid when done.
For instance, the texts which prescribe rules for the consent of guardians for the
purpose of marriage ihave been held to be merely directory. Hence, a marriage once
performed and solemnised though it be without the consent of the guardian has been
held to be valid However, the non-observance of essential ceremonies cannot be
overlooked by applying the doctrine unless it is shown that the ceremonies have been
modified by custom.
In Milchand vs. Budhai, the Privy Council upheld the marriage saying that
marriage is a valid one since the condition requiring the consent of the 1st guardian is
only recommendatory/directory. In this case, the Court applied the doctrine of
factum valet to cure the defect of not getting the 1st guardian’s consent.

In Sri Balusu vs. Sri Balusu, the question arose whether an only son could be
given in adoption as the Mitakshara School of Hindu Law forbids the giving of an
only son in adoption. The Privy Council held that the text was only directory and so
the adoption of an only son was held to be valid notwithstanding the prohibitory text
of the Mitakshara.

Similarly, it has been held that the texts which enjoin the adoption of a relation in
preference to a stranger are only directory and therefore the adoption of a stranger in
preference to a relation if completed is valid and binding by applying the principle of
factum valet. But, the texts relating to the capacity to give, the capacity to take and
the capacity of being adopted are mandatory and hence the principle of factum valet
is ineffectual in contravention of the provision of those texts.

Kinship and Marriage

Kinship
It is relationship either by blood or marriage.
Marriage: affinal - through marriage - relatives of wife/husband
Blood: consanguineous - kindreds - father/son/grandfather-> lineal
ascendants/descendants
Marriage: Short Notes - Hindu Marriage as Sacrament

1) Law prior to Hindu Marriage Act

From the beginning of the Vedic period, the sacredness of marital union has been
recognized. According to Vedas, a marriage is “the union of flesh with flesh and
bone with bone”. Marriage according to Hindu Law is a holy sanskar (sacrament)
and not a contract, it is the very foundation of a stable family and civilised society.
The ideal of Hindu marriage has always been very high. Marriage is the nucleus of
the family. It is a process by which the physical union of a man and woman is
legalised and thereby regulates social life.
According to Sathpatha Brahmana, wife is verily the half of husband. Taittiriya
Samhita is also to the same effect - half is she of the husband that is wife. In the
Shastras, husband and wife are referred to by several names. The husband is known
as bhartri, because he is supposed to protect her. On the other hand, the wife is
known as jaya, because one’s own self is begotten on her. According to
Mahabharatha, a man’s half is his wife, the wife is her husband’s best of friends, the
wife is the source of Dharma, Artha and Kama and she is also the source of Moksha.
According to Ramayana, the wife is said to be the very soul of her husband. She is
grihini (the lady of the house) in her husband’s household, sachiva (wise counsellor),
sakhi(confidante) to her husband and dearest disciple of her husband in the pursuit of
art. She is grihalakshmi, ardhangini and samrajyi.
Thus, Hindus conceived of marriage as a sacramental union/holy union. This
implies that firstly, the marriage is of religious/holy character and not a contractual
union; secondly, marriage is obligatory for begetting a son, for discharging his debt to
his ancestors and for performing religious and spiritual duties. Marriage implies that
it is sacrosanct. (Sacrosanct - something that is sacrosanct is considered to be so
important that no one is allowed to criticize or change it). Such a marriage cannot
take place without the performance of sacred rites and ceremonies.
In Gopalakrishna vs. Mitilesh Kumar, the Allahabad High Court held that the
institution of matrimony under Hindu law is a sacrament and not a socio-legal
contract.

2) Marriage as Contract/Modern Concept of Marriage & u/Hindu Marriage Act,

1955:
The modern concept of marriage as a contract is an outcome of industrial
revolution, of its lofty ideals of liberty and equality. As all human and social
relations are based on the free volition of individuals, marriage too must be squarely
based on the free volition of individuals. Thus, consent plays an important part in
the formation of marriage contract.
Since Hindu marriage was considered to be a sacrament, the consent of the
parties did not occupy any important place. The result was that in Hindu law, the
absence of consent on the part of the bride/bridegroom did not render marriage invalid.
Thus, the person married may be a minor or even of unsound mind and yet if the
marriage rite is duly solemnized there is valid marriage (1908).
Hindu Marriage Act, 1955 has reformed Hindu law of marriage. But, has it now
become a contract or remained a sacrament? To understand this, Ss. 5, 11 and 12 of
the Act are pertinent provisions. S. 5 deals with the conditions of marriage. Clause
(ii) of the section deals with mental capacity, clause (iii) lays down that at the time of
marriage the bridegroom has completed the age of 21 years and the bride the age of
18 years. The age of marriage and soundness of mind relate to the consensual
element of marriage i.e., consent to marriage. If consent is precedent to a marriage,
then it can be looked at as a contract. S. 11 of Contract Act says that the contract of
a minor or of a person who is of an unsound mind is void. But, the fact of the matter
is that marriage of a person who is of unsound mind is a valid marriage under the Act.
Not merely this, the violation of the requirements of clauses (ii) and (iii) do not render
the marriage void. U/S.12 ,the violation of the former requirement renders the
marriage merely voidable while the violation of the latter condition does not render
the marriage void/voidable. It is amply clear that the Hindu Marriage Act does not
consider the question of consent as of much importance. Thus, a marriage without
consent is valid.
Then, could we say that Hindu marriage continues to be a sacrament? It has
been seen that the sacramental marriage among Hindus has three characteristics:
firstly, it is permanent and indissoluble union; secondly, it is an eternal union; and
thirdly, it is a holy union.
It is evident that the first element has been destroyed by the Act as divorce is
recognized. The second element was destroyed in 1856 when the widow remarriage
was given statutory recognition in contrast to eternal union which is the marriage is
valid not merely in this life but in lives to come. The third element is probably still
retained to some extent as in most Hindu marriage sacred or religious ceremony is
still necessary.
Thus, Hindu marriage has not remained a sacramental marriage and has also not
become a contract though it has semblance of both. It has a semblance of a contract
as consent is of some importance, it has a semblance of a sacrament as in most
marriages a sacramental ceremony is still necessary.
Betrothal or sagai is a contract of marriage. Most of the Hindu marriages are
preceded by the sagai or betrothal.
The Child Marriage Restraint (Amendment) Act, 1978 has deleted S. 6 of HMA,
1955 which dealt with guardianship in marriage. The HMA, 1955 has raised the
age of marriage from 15 to 18 for girls and from 18 to 21 years for boys and
therefore the question of guardianship in marriage has become irrelevant.
Types of marriages:
Under the Ancient Hindu law, there were formerly eight forms of marriages -
four approved and four unapproved. Of these eight, only the following three was
valid before 1955 - Brahma, Gandharva and Asura. But, under The Hindu Marriage
Act 1955, there is no prescribed form of marriage. Though the Brahma, Gandharva
and Asura types of marriage can be performed even today, but all marriages
performed after the commencement of the HMA, 1955 are approved forms as it calls
for solemnization of it in accordance with shastric rites and ceremonies or in
accordance with the customary ceremonies prevalent in the community for a valid
Hindu marriage.

Approved forms of marriage are:

1) Brahma marriage
2) Daiva marriage
3) Arsha marriage
4) Prajapathya marriage

Unapproved forms of marriage are:

1) Asura marriage
2) Gandharva marriage
3) Rakshasa marriage
4) Paisachi marriage

Brahma marriage:
Under this form of marriage, the father voluntarily invites and respectfully
receives and gifts his daughter clothed only in a single robe to a man learned in the
Vedas. The chief feature of this form was that the parents do not receive any
consideration for giving the girl in marriage.

Daiva marriage:
Under this form of marriage, the daughter was given to a person who acted as a
priest in a sacrifice performed by the father in lieu of the dakshina or fee due to the
priest. It was inferior to the Brahma type because the father derived a benefit.

Arsha marriage:
Under this form of marriage, the bridegroom gave a present of a cow and a bull or
two cows and two bulls to the bride’s father which was accepted for religious purpose
only, to keep his mind occupied.

Prajapatya marriage:
Under this form of marriage, the gift of the daughter was made with the condition
that they be partners for performing secular and religious duties.

Asura marriage:
Under this form of marriage, the bridegroom pays as much wealth as he can
afford to the father, paternal kinsman and to the bride herself and takes her as his
wife.

Gandharva marriage:
 Under this form of marriage, it was an uion of the man and the woman by mutual
consent. It was contracted for the purpose of amorous embraces and proceeded from
sensual inclination. In this type, sexual intercourse was with consent.

Rakshasa marriage:
Under this form of marriage, the maiden was seized forcefull from her house after
her kinsman and friends had been slain in battle or wounded. This type was allowed
only to the Kshatriyas or military classes.

Paishacha marriage:
Under this form of marriage, marriage of the girl to the man who had committed
the crime of ravishing her either when she was asleep or when she was drunk due to
administration of an intoxicating drug or when she was in a state of mental disorder.
In this type, sexual intercourse was done fraudulently.
Evolution of the Institution of Marriage and Family
Among primitive men, institution of marriage did not exist. At that time, man
lived more or less like any other animal. At that time, he was engaged in pursuit of
his primary needs of food and shelter and there was no time/occasion to think about
anything else. Sex life was absolutely free, sex promiscuity was the rule.
(Promiscuity - having many sexual partners)
But, as man advanced, the discoveries of milch cattle and of fire was made
leading him to wander less in search of food and he started using fire to protect
himself from his enemies, wild animals and other groups of men who attacked him
and also started to use the fire for cooking purposes. Also, with the emergence of
herds of cattle came the idea of possession and ownership of it and man started
leading some form of civilized life.
As promiscuity was the rule, paternity could not be determined though maternity
could be known. At some stage of human development, with the emergence of the
notion of possession and ownership came the idea of knowing his children. But, this
was not possible as sex promiscuity was rampant and this led to the idea of an
exclusive union of man and woman which in turn led to the institution of marriage
which process grew slowly. With the exclusive union of man and woman came the
family relationship.
When humanity came to the patriarchal stage i.e., when man succeeded in
establishing descent through the male, the institute of marriage as an exclusive union
came to be firmly established.

Marriage:
Whether it is seen as a sacrament or a contract it gives rise to a status. It confers
a status of husband and and wife on the parties to the marriage and a status of
legitimacy on the children of the marriage. In some ancient communities the
requirements of capacity to marry and the necessity of ceremonies and rites were
nominal. But, most systems even today insist on performance of some ceremonies
of marriage, religious or secular whether it be elaborate or simple. Hindus refined
the institution of marriage and idealized it. In this process, they have laid down
detailed rules covering practically all aspect of marriage. While maintaining some
continuity with the past, the Hindu Marriage Act has simplified the law of marriage.
The Act has also added a chapter on matrimonial causes. The patrilineal form of
marriage was widespread and though matrilineal system prevailed and which still
prevails it is prevalent in some parts of South India.

Divorce:
Once it came to be established that marriage was a civil contract, it was the
logical

Registration of Hindu marriages is dealth u/S. 8 of HMA, 1955

Registration of Hindu marriages under the Act is only for the purposes of
preserving a record of the same and facilitating their proof. Omission to do so does
not even when registration is made compulsory by the state affect in any manner the
validity of the marriage but will invite the penalty of a fine which may extend to 25
rupees.
 Furnishing false information by any person legally bound to give information to
any public servant or to any subject with knowledge or having reason to believe that it
is false is punishable as an offence u/S. 177, IPC.

MATRIMONIAL REMEDIES
The very purpose of the marriage is to unite legally a man and woman to live
together peacefully throughout the life. However, in some cases, matrimonial
disputes take place due to misunderstanding or indifferent attitudes between the
husband and wife. In such cases, to provide relief to the aggrieved spouse, certain
matrimonial provisions are incorporated in the HMA, 1955.
The matrimonial provisions are:
1) Restitution of Conjugal Rights (S. 9)
2) Judicial Separation (S. 10)
3) Void & Voidable Marriage (Ss. 11 & 12) aka Nullity &Annulment of
Marriage
4) Divorce (S. 13)
5) Divorce by Mutual Consent (S. 13-B)

Distinction between divorce and judicial separation:

The distinction between a decree for divorce and a decree for judicial separation
is: while a decree for divorce has the effect of dissolving the marriage and puts an end
to the marriage ties and the separation is absolute and final, the decree for judicial
separation is one for legal separation and does not of itself result in dissolution of the
marriage though it may furnish a ground for divorce where cohabitation has not been
resumed for a period of one year after the passing of the decree.

Sl. No. Judicial Separation Divorce

Section 10 of HMA, 1955 deals with Section 13 of HMA, 1955 deals
1
judicial separation with divorce
Object is to unite the couple though Object of divorce is to live
living separately after suspension of independently
2 certain mutual rights and obligations
by giving opportunity for
reconciliation and adjustment
It keeps the marriage alive It dissolves the marriage
3
Parties cannot marry during this Parties are free to marry after
4
period divorce
Divorce - Theories

1) Divorce (S. 13, HMA, 1955):

Divorce proceedings are proceedings of a civil nature. A decree of divorce
dissolving marriage whether solemnised before or after the commencement of the Act
may be obtained by the husband or the wife on the grounds set out in S.13 of the Act.

The grounds on which the divorce is taken are generally categorised into the
following theories:
a) Offence, guilt or fault theory of divorce:-
If either of the parties is guilty of committing any matrimonial offence, the
aggrieved party is entitled for divorce. The other party is supposed to be innocent.
For instance, if one of the parties committed adultery or treated the other party with
cruelty or deserted the other party, the other party is entitled for divorce. At times
even though one of the parties is not guilty of committing any matrimonial offence
but suffers from a fault like insanity the othe party is entitled for divorce. The
grounds u/ss. 13(1) and 13(2) mostly relate to this theory.

b) Consent theory:-
This theory is based upon the premise that the marriage is entered into by the
parties out of their free consent and volition and hence they must also be free to put an
end to the marriage when both of them agree. S. 13-B of HMA, 1955 covers this
aspect.

c) Breakdown theory:-
This theory provides that if the marriage is irretrievably broken down and became
a wreck leaving no substance in the marriage except the form, the parties must be free
to put an end to the marriage. S. 13(1-A) (I) and (ii) which provide grounds for
divorce in the case of non-resumption of cohabitation after the decree of restitution of
conjugal rights and judicial separation cover this theory. S. 13-C which was sought
to be introduced in 1981 recognised divorce on the ground of irretrievable breakdown
of marriage.
Bars to Matrimonial Relief: (S. 23?) (Pages 195-207 of Paras Diwan)
The grounds that make the petitioner non-innocent are nomenclatured as bars to
matrimonial relief. In other words, the petitioner to succeed in his petition should
not merely prove the fault of the respondent on the basis of which he seeks the
matrimonial relief but should also be able to cross the bars to such relief before his
petition will be granted.

S. 23(1) of the Act deals with the following bars:

(a) Doctrine of strict proof or standard of proof and burden of proof
(b) Taking advantage of one’s own wrong/disability [Clause (a)]
(c) Accessory [S. 23(1)]
(d) Connivance [Clause (b)]
(e) Condonation [Clause (b)]
(f) Collusion [Clause (c)]
(g) Delay [Clause (d)] and
(h) Any other legal ground [Clause (e)]
A decree passed in disregard to clauses (a) to (e) of S. 23(1) is a nullity.

Reconciliation - S. 23(2), HMA, 1955:

This section imposes a duty on the court to effect a reconciliation
between parties. This is a duty on the court and it has to be discharged
judicially. But, merely because the court did not do its duty, a decree in a
matrimonial cause cannot be challenged or held in nullity.

Ancilliary reliefs:
In matrimonial cases, two subsidiary proceedings one relating to children and the
other relating to maintenance of parties often arise either during the pendency of
proceedings or at the time of the passing of the decree or subsequently at any time
after the passing of the decree. Till 1958, in English law, these proceedings were
known as ancillary proceedings but now are considered to be independent
proceedings.
Ss. 24 and 25 of HMA, 1955 deal with maintenance and alimony. These are
terms of English matrimonial aw. Under the HMA, maintenance and alimony can be
claimed by either party.
Maintenance:

S.24, HMA, 1955 - Maintenance pendente lite and expenses of proceedings:

Pendente lite means during the actual progress of a suit. Maintenance pendente
lite means support/maintenance of the spouse during litigation. It is also known as
interim maintenance or temporary maintenance.

Maintenance refers to payments which a husband is under an obligation to make

to a wife either during the subsistence of the marriage or upon separation or divorce
under certain circumstances.. This liability of the husband flows from the bond of
matrimony. A wife is entitled to claim maintenance under the personal law as well
as under the provisions of CrPC, 1973.
While under personal law, an application for maintenance can be made only when
there are or have been matrimonial proceedings under Ss. 9 - 13 of the Act by either
party, in the case of CrPC there need not be any matrimonial litigation.

Under the personal law i.e., Hindu law, S.24 of HMA, 1955 deals with
maintenance pendente lite and expenses of proceedings while S. 25 of HMA, 1955
deals with permanent alimony and maintenance and S. 18 of HAMA, 1956 deals with
a Hindu wife entitled to live separately from the husband without forfeiting her claim
to maintenance provided her separate living is justified.
Unlike personal law i.e., laws which are applicable only to persons belonging to
a particular religion, the provision of S. 125, CrPC is applicable to all irrespective of
religion. Relief under this Code is speedy and is available irrespective of whether or
not any matrimonial proceedings are pending.

The section is explicit that the making of the order is a matter of discretion with
the court and rules that the court may make the order in favour of the wife or the
husband as the case may be where it is shown that such spouse has no independent
income sufficient for her or his maintenance and the necessary expenses of the
proceeding.

The section also prescribes that the amount of interim maintenance that one
spouse may be ordered to pay to the other must be such as appears reasonable to the
court in the exercise of its jurisdiction and directs the court that in doing so it must
have regard to the petitioner’s own income and the income of the respondent.

The court is empowered under this section to make an order which is to operate
during the proceeding-pendente lite-and where the matter is carried in appeal only the
appellate court would have power to make any interim order for maintenance pending
the disposal of the appeal.

The word support in the section implies maintenance as the words are
synonymous. Reimbursement of medical expenses would be a part of the support
contemplated in the section. Travelling expenses will be included in the expenses of
the litigation.

Maintenance pendente lite can be granted even before first making effort for
reconciliation.
The court may order maintenance pendente lite:-
(i) Even if the respondent denies factum of marriage
(ii) If objection to jurisdiction of the court is raised and not decided provided
the court is satisfied prima facie that it has jurisdiction to entertain the
substantive petition.
(iii) Irrespective of the defences raised by the respondent in the substantive
matter

If the non-applicant refuses to pay the amount of interim maintenance and yet
wants to proceed with the case, if the non-applicant happens to be the petitioner the
court has jurisdiction to stay all further proceedings until he/she pays the amount and
if the non-applicant happens to be the respondent the court may strike out his/her
defence.
In collateral proceedings under the HAMA, 1956 and the HMGA, 1956, the
visitation rights of the husband can be restricted if the orders of interim maintenance
are not complied with.
The decree for alimony and maintenance is not extinguished on the death of the
husband and is executable against the deceased husband’s estate.
S.25, HMA, 1955 - Permanent alimony and maintenance:
S.25 is a welfare legislation. The section vests wide power in the court making
orders for maintenance ans support of one spouse by the other where it passes any
decree for restitution of conjugal rights, judicial separation, dissolution of marriage by
divorce or annulment of the marriage on the ground that it was void or voidable.
Thus, court can award maintenance at the type of passing of any type of decree
resulting in breach of marriage relationship. Right to alimony is a larger part of right
to life and any agreement between the parties not to claim any permanent alimony
would be against public policy.

On application of either spouse, the court may pass an order for permanent
alimony and maintenance:
a) At the time of passing of the decree granting the petition or
b) At any time after the passing of the decree granting the petition
When an application is made after the passing of the decree, it should be
done by a petition in the court which granted the petition

Relevant consideration for determination of permanent alimony and maintenance are:

a) Status of parties
b) Their respective social needs
c) Capacity to pay having regard to reasonable expenses for own maintenance
and others whom the party is obliged to maintain
d) Amount of maintenance should be such that the party can live with dignity
and reasonable comfort
The amount may be paid monthly or periodically not exceeding the life
of the applicant or in lumpsum.

Under S. 25(2), the court may vary the order if it is shown that circumstances
have changed like income of the non-claimant has come down appreciably or the
expenditure of the claimant has gone up for example due to chronic diseases requiring
prolonged indoor treatment.
Under S. 25(3), the court may rescind the order passed in favour of a party if
he/she has remarried or if the wife has not remained chaste/husband has had sexual
intercourse outside wedlock.
Customary practices and legislative provisions relating to dowry prohibition:

Customary practices:
The dowry system as originally devised provided post-marital security to an
otherwise hapless (abala) bride. It started as customary presents given to the
daughter on her marriage with love and affection. In ancient days, it was customary
to give some presents to the bride and bridegroom and his family at the time of
marriage. It was considered as a sort of help to the newlyweds to establish their own
home. Mostly, the dowry in those days was in kind like say a variety of things
useful for new homes. Those gifts were given voluntarily and without any demand.
The parents of the bride or her relations out of affection and good intention used
to provide the couple something to fall back upon in case of need. The system
started at a time when girls were generally not very much educated and if they were
educated they were unwilling to take up gainful employment. There was also less
opportunity for them either to supplement the family income or to become financially
independent.
There was yet another reason for such customary gifts. The daughter then was
not entitled to share in joint-family properties when she had a brother. Hence, the
father out of affection or other consideration used to give some cash or kind to the
daughter at the time of her marriage.
But, unfortunately, giving of those customary presents became a right of bride’s
in-laws and turned out to be a demand by bridegroom’s family. It replaced bride
price as the common practice among middle and lower strata throughout the country.

Legislative provisions relating to dowry prohibition:

The Dowry Prohibition Act, 1961 prohibits giving or taking off dowry and
making it non-cognizable offence. By Criminal Law (2nd Amendment) Act, 1983, a
new section, S. 498-A was inserted in Indian Penal Code and another section, S.
113-A was inserted in the Indian Evidence Act. To deal effectively with those
responsible for dowry deaths, it also inserted S. 304-B in IPC and S. 113-B in the
Indian Evidence Act.

S. 498, IPC provides that whoever being the husband or the relative of the
husband of a woman subjects such woman to cruelty shall be punished with
imprisonment for a term which may extent to 3 years and will be liable to fine the
cognizance for which is taken u/s. 198-A, IPC on a police report or with the leave of
the Court.
S. 304-B(1), IPC adopts the meaning of dowry as defined in S. (2) of the Dowry
Prohibition Act and S. 304-B(2) prescribes minimum punishment of 7 years and
maximum of life imprisonment for the offence of dowry death.

S. 113-A of the Indian Evidence Act provides that when the question is whether
the commission of suicide by a woman had been abetted by her husband or any
relative of her husband and it is shown that she committed suicide within a period of 7
years from the date of her marriage and that her husband or such relative of her
husband had subjected her to cruelty, the court may presume having regard to the
circumstances of case that such suicide had been abetted by her husband or such
relative of her husband. This section adopts the meaning of cruelty as that of S.
498-A, IPC.
 S. 113-B of the Indian Evidence Act provides that when the question is whether a
person has committed the dowry death of a woman and it is shown that soon before
her death such woman had been subjected by such person to cruelty or harassment
for or in connection with any demand for dowry, the court shall presume that such
person had caused the dowry death.
This section adopts the meaning of dowry death as in S. 304-B, IPC

From the above discussion, it is clear that where death of a woman is caused by
any burns/bodily injury/occurs otherwise than under normal circumstances within 7
years of her marriage and it is also shown that before he death she was subjected to
cruelty or harassment by her husband or any relative of the husband for securing any
property or valuable security from her or her relative, it would come within the
meaning of dowry death provided it is in connection with any demand for dowry as
defined under the Dowry Prohibition Act.
The prosecution case does not rely upon the independentness of offence. The
demand for dowry and harassment do not constitute the basis for conviction because
the main part of the charge under S. 304-B was not established. Hence, it is not
possible to convict the accused under Ss. 3 & 4 of Dowry Prohibition Act.

THE DOWRY PROHIBITION ACT, 1961

- Modified as on 3rd December, 2018

The primary object of the Dowry Prohibition Act, 1961 is to include customary
presents at marriage to ensure that any dowry given would be for the benefit of the
wife and at the same time to discourage the dowry system by declaring it as a
punishable offence.

S. 2 of the Act defines dowry as:- “dowry” means any property or valuable security
given or agreed to be given either directly or indirectly—
(a) by one party to a marriage to the other party to the marriage; or
(b) by the parents of either party to a marriage or by any other person, to either
party to the marriage or to any other person;
at or before or any time after the marriage in connection with the
marriage of the said parties, but does not include dower or mahr in the case
of persons to whom the Muslim Personal Law (Shariat) applies.

Explanation II.—The expression “valuable security” has the same meaning as in

section 30 of the Indian Penal Code (45 of 1860).

S. 3 of the Act deals with penalty for giving or taking dowry:-

(1) If any person, after the commencement of this Act, gives or takes or abets the
giving or taking of dowry, he shall be punishable with imprisonment for a term which
shall not be less than five years and with fine which shall not be less than fifteen
thousand rupees or the amount of the value of such dowry, whichever is more
Provided that the Court may for adequate and special reasons to be recorded in
the judgment impose a sentence of imprisonment for a term of less than five years.

(2) Nothing in sub-section (1) shall apply to or in relation to —

 (a) presents which are given at the time of a marriage to the bride (without any
demand having been made in that behalf):
Provided that such presents are entered in a list maintained in accordance
with the rules made under this Act;
(b) presents which are given at the time of a marriage to the bridegroom (without
any demand having been made in that behalf):
Provided that such presents are entered in a list maintained in accordance
with the rules made under this Act:

Provided further that where such presents are made by or on behalf of the bride or
any person related to the bride, such presents are of a customary nature and the value
thereof is not excessive having regard to the financial status of the person by whom,
or on whose behalf, such presents are given.

S. 4 of the Act deals with penalty for demanding dowry:-

If any person demands, directly or indirectly, from the parents or other relatives
or guardian of a bride or bridegroom, as the case may be, any dowry, he shall be
punishable with imprisonment for a term which shall not be less than six months, but
which may extend to two years and with fine which may extend to ten thousand
rupees
Provided that the Court may, for adequate and special reasons to be mentioned in
the judgment, impose a sentence of imprisonment for a term of less than six months.
 UNIT - III

HUF - Hindu Undivided Family:

For the purposes of assessment of tax, the revenue statutes use the expression,
HUF. For instance, for the purpose of revenue statutes, there can be an undivided
family consisting of a man, his wife and daughters or even of two widows of a sole
surviving coparcener. This definition is meant purely for the purpose of determining
to which category the income should be assessed. This appears to be slightly
different from the definition of a Hindu joint family. A Hindu joint family cannot be
constituted by a single male/female even if the assets are purely ancestral.

The SC has said that the expression HUF in the Wealth Tax Act is used in the
sense in which a Hindu joint family is understood in the personal law of Hindus and a
joint family may consist of a single male member and his wife and daughters and
there is nothing in the scheme of the Wealth Tax Act to suggest that a HUF as
assessable unit must consist of at least two male members.
Thus, there can be a joint family consisting of a single male coparcener and a
widow of coparcener. There can also be a joint family where there are only widows.
The rule is that even on the death of sole surviving coparcener the Hindu joint family
does not come to an end so long as it is possible in nature or law to add a male
member to it.

Mitakshara Joint Family:

A joint family is a family in which members of a unilineal descent group live
together with their spouses and offspring in one homestead and under the authority of
one of the members. The existence of a common ancestor is necessary for bringing a
joint family into existence; for its continuance, common ancestor is not a necessity.
A daughter ceases to be a member of her father’s family on marriage and becomes a
member of her husband’s family. The joint family is an extension of a nuclear
family. The joint family is distinguished from the extended family only in that
members of the extended family live in separate households.

A nuclear family is a family consisting of only husband and wife as well as their
children. An extended family is a family that extends beyond the nuclear family
consisting of aunts, uncles and cousins all living nearby or in the same household.
A composite family is a family in which three or more generations of the same
family live together on one of the family land holding and was common in farming
areas but has now become common in urban areas What makes them composite is -
decisions concerning the families welfare are made jointly.

Formation and Incidents:

Within the joint family there exists a system called the coparcenary. The
coparcenars are the owners of joint family property. A Hindu coparcenary is a much
narrower body than the joint family. It includes only those persons who acquire by
birth an interest in the joint or coparcenary property. These are the sons, grandsons
and great-grandsons of the holder of the joint property.
To understand the formation of a coparcenary, it is important to note the
distinction between ancestral property and separate property. Property inherited by a
Hindu from his father, father’s father, father’s father’s father is ancestral property.
Property inherited by him from other relations is his separate property. The essential
feature of ancestral property is that if the person inheriting it has sons, grandsons or
great-grandsons, they become joint owner’s coparceners with him. After the
amendment of The Hindu Succession Act in 2005, a daughter of a coparcener has
been included as a coparcener along with the sons of the coparcener.

Property under both Schools

i.e., distinction b/w Mitakshara and Dayabhaga coparcenary:
Sl. No. Provision Mitakshara School Dayabhaga School
Interest by Acquire an interest in the Do not acquire an interest in
01
birth property by birth the property by birth
All members hold the Each heir holds determined
Defined
02 property jointly and no share
shares
shares are defined
Unity of There is a unity of ownership There is only unity of
03
ownership possession
A father cannot dispose of A father can dispose of
Father’s right the ancestral property ancestral property
04
of disposition without consent of
coparceners
Coparcener can demand for Sons do not possess any right
Right to partition even of ancestral to demand partition even of
05
partition property ancestral estate during the
lifetime of father

Debutter:
Whenever a property is dedicated to the idol a debutter comes into existence and such
property vests with the idol itself as a juristic person. The person in whom the
management of the debutter is vested is known as Shebaitship (Bengal), Dharmakarta
(TN and AP) and Panchayatdar (Tanjore and Malabar), Manager (English).

Religious endowments: paras diwan

Charitable endownments: paras diwan page 513