PADALA RAMA REDDI LAW COLLEGE Yeliareddyguda, (Near) Ameerpet, Hyderabad-073, Phs: 23748936, 23740488 NOTES ON | THE HINDU LAW (FAMILY LAW-1) ACCORDING TO NEW EXAMINATION PATTERN-2607 By — SRI CH. SATYANARAYANA ASST. PROFESSOR IN LAW P.R.R LAW COLLEGE,33000 WA! IRON AMAR A gail (Co-leaaheemey Seago (mail alee ge (RPOKTEE AE et 7 nbaeten WAJ UQUIH 3HT (1-WAL YIIMAA) a AMAYARAMATTAS HD TBE x? WAL BI BOREATON . TRIA in PALES BA eaamiay = * ace allPADALA RAMA REDDI LAW COLLEGE Notes ON THE HINDU LAW INDEX PART-A SHORT NOTES MITAKSHARA AND DAYABAGHA SCHOOLS @ 2. COPARCENARY PROPERTY 3 3. DOCTRINE OF BLENDING 3 4, DOCTRINE OF PIOUS OBLIGATION 4 5. NULLITY OF MARRIAGE 4 6. VOID MARRIAGE (SEC. 11) 4 7. VOIDABLE MARRIAGE (SEC. 12) 5 8 MAINTENANCE PENDENTE LITE 5 9. MATRIMONIAL REMEDIES / RELIEFS 5 10. BARS TO MATRIMONIAL RELIEFS 6 11. RECONCILIATION 12. FAMILY COURTS, 7 13. INTESTATE SUCCESSION 7 14, DOCTRINE OF REPRESENTATION 7 15. DOCTRINE OF ESCHEAT (SEC.23 OF HINDU SUCCESSION ACT, 1956) 8 PART-B Essay Questions 1, Who is a ‘Hindu’? What is the scope of Hindu law? 8-10 2. What are the sources of Hindu law? Explain custom as the main source of Hindu faw. (Custom outweighs the written law. Explain.) 10-14 3. What is Joint Hindu Family? Distinguish between Joint Hindu 1416ii HINDU LAW ‘4. Who is 'KARTA’? Who can be a KARTA? What are his powers? 5. What is Partition? How Partition is effected? What are the modes of Partition? 6. What are the Conditions of a valid Hindu Marriage? 7. What are the Ceremonies necessary for the solemnization of a Hindu Marriage? Whether The Registration of marriage is compulsory? 8. Explain the concept of restitution of Conjugal Rights under Hindu Marriage Act 1955. What is the Constitutional validity of section 9 of HMA 1955? 9. What are the various grounds of dissolution of marriage under Hindu Marriage Act 1965? 10. What are the Conditions of a valid Adoption? What are the consequences of a valid Adoption? 11, Who are the persons entitled to maintenance under HAMA. ‘956? What are the circumstances under which a Hindu wife is entitled to maintenance under the HAMA 1956? 12. Explain the concept of Guardianship under Hindu Minority and "Guardianship Act, 1956. 13. What are the General Rule of Succession in Casé of Hindu Male Died Intestate? 14, What are the General Rules of Succession in case of Female Hindu Died Intestate 2? (Sec. 15,16) 15. What are the General Rules of Succession? What are the Disqualifications to Inherit property of a Hindu Died Intestate? 46. Explain the Charter of a Hindu Women's Properly under Hindu Succession Act, 1956. 47. Explain the Devolution of interest in coparcenary property under the Hindu Succession (Amendment) Act, 2005. PART - C CASE LAW PROBLEMS : 16-19 19-22 22-228 27-29 29-37 37-43 43-45 45-48 48-50 50-51 51-53 53-54 54-56 56-58.FACULTY OF LAW OSMANIA UNIVERSITY LL.B (3 YDC) - i = SEMESTER MODEL PAPER TIME ; 3 HRS: MARKS: 80 Sub: Family Law-1 ‘(Hindu Law) Paper+102 PART-A Answer any FIVE of the following in not more than 80 words (5x6=30 Marks) 1. Coparcenary under Mitakshiara Schoo! 2. Powers and functions of Karta 3. Registration of Hindu Marriage 4 Importance of conciliation in resplving family disputes a Concept of adoption 6. An intestate 7. Notional partition 8. “Maintenance Pendenti Lite” PART-B Answer any Two of the following (2x15=30 Marks) 3. Explain the scope and application of Hindu Law. 10. The concept of Hindu Marriage has undergone. from Spiritual institution to secular institution after 1955- Discuss. 11. “Restitution of Conjugal right is a positive remedy to feconcile ,, the parties Of marriage-Explain with the help of judicial décisions. 1:2. Who is a natural guardian of Hindu Minor Child? What are the functions?LAW COLLEGE Nr Answer any Two of the following (2x10=20 Marks)” 13. X and Y, two brothers were travelling in a car. The car met with an accident. Both died intestate and who died first was not known.-X was unmarried and Y married and left his widow. Both have their grand father FF, distribute their properties under, the Hindu Succession Act; 1956 between Y's widow and grant father F.F. i4.tata and Sudhakar riyarried and were living at Hyderabad. Sudhakar had gone to Bombay! for special training for a period of One year. During his absence, Lata was staying at her in-law's place, Nizamabad. The in-laws demanded additional dowry from lata. She wrote a letter to her husband about the’ demand of dowry. Sudhakar replied that such demands are common now-a-days. What is the remedy available to Lata under the Hindu Marriage Act, 1955? 15. A and Bare the wife ancl husband. They have two children boy and girl. The parents want to give their ‘daughter, D in adoption to x, who is their nearest relative: Give’ the legal advice to the parties. 16.P, a Hindu dies intestate, leaving behind his widow W, Son S Daughter D. Father F and Mother M. The value of the intestate's property is Rs.10 lakhs. Distribute among the legal heirs according to the Hindu Succession Act, 1956.5 y Notes ON THE HINDU LAW PART-A SHORT NOTES 1. MITAKSHARA AND DAYABAGHA SCHOOLS :—The two main schools of Hindu law are, Mitakshara and Dayabagha. These two schools of Hindu jurisprudence elaborated the thoughts and practices of Hinduism, Mitakshra School :—The law of Mitakshra School is a commentary written by Vignaneswara on the Yagnavalkya code. The expression Mitakshra means, the "limited words". This school its extends thought India, but in Bengal it was given second prominence. Under Mitakshra Schoo! there are four sub-schoals (1) Benaras Schoo! (2) Mithila School (3) Bombay / Maharashtra School and (4) Dravida / Madras School Dayabagha School:—This school extends over the subjects of Bengal and Assam. The law relating Daya bagha is a digest written by Jeemuthavahana literally means “Division of property". The Dayabagha Law is particular about joint family property and inheritance. Though, Mitakshra Law is second to Dayabagha in Bengal and Assam, wherever the Daya bagha law is silent Mitakshra shall apply. 2. COPARCENARY PROPERTY :—Coparcenary property is the property in the hands of a person inherited from his paternal ancestors of three generations above to him and goes to his three descendant generations. It includes : (a) all acquisitions with the aid of coparcenary property, (b) earings of all or any member of the joint family and (c) Separate property of a coparcener, which has been thrown into the common stock with an intention to abandon all the claims over it. Coparceners are the holders of copancenery property and they are entitled to share it on partition 3. DOCTRINE OF BLENDING:—When a coparcener mixes his separate property with the joint family property it is known as blending. However to consider the separate or self acquired property of such coparcener as the joint family property, the following requirements must be satisfied 1) it must be his separate property. 2) He must have thrown such property into the common stock of the joint family4 PADALA RAMA REDDI LAW COLLEGE 3) {t must be with an intention to abandon all claims over it. Mallesappa Vs. Mallappa AIR 1981 SC 1268, Lakkireudi Vs. Lakkireddi AIR 1963 SC 1601 4. DOCTRINE OF PIOUS OBLIGATION :—Generally, the heits of a person are liable to the debts of the person to the extent of the property in their hands. But under joint Hindu family system, for the debts of the Karta the joint Hindu family is liable. If the debt is personal, the son, grand son or great grand son can be made liable for such personal debt known as Pious obligation. The obligation is moral and itis the son, Grand Son or Great Grand Son to discharge the debts of his father, Grand Father or Great Grand Father. The obligation, however attached only to Vyavaharika debts but not to the tainted debts, i.e. avyavaharika, the debts which are repugnant to morals etc. Section 6(4) of Hindu succession (Amendment) Act, 2005 abolished the Doctrine of Pious obligation and no suit shall be maintainable on the ground of pious obligation for the recovery of such debts. This section has no application to the debts contracted prior to 20-12-2004. That the doctrine of pious obligation shall apply to the debts contracted prior to 20.12.2004. 5. NULLITY OF MARRIAGE :—Nullity of marriage is cancellation or annulation of a marriage. It is a matrimonial relief provided to either party to a marriage under HMA, 1955, but to no others. The Hindu Marriage Act. 1955 provides for the pre-marital conditions to solemnize a marriage between two Hindus Under-Sec 5. Out of them 3 conditions are Mandatory or absolute, the vilation of which makes the marriage void under Sec 11. Condition laid down Urs S{ii), mental capacity is a recommendatory condition, the violation of which makes the marriage only voidable under Sec 12 6, VOID MARRIAGE (SEC. 11) :—A Hindu Marriage solemnized in contravention of the conditions laid down under sections 5 (i) bigamy, 5(iv) Degrees of Prohibited Relationship or 5(V/) Sapinda Relationship is null and void. In the following cases a marriage becomes void 4). Ifit is a bigamous marriage. 2) When the patties to a marriage are within the Degree of Prohibited Relationship, or 3) When the parties to a marriage are within the Sapinda Relationship. R.C. Rampratapji Daga Vs Rameshwari R.C. Daga AIR 2005 SC 422 However Sec. 11 of HMA, 1955 shall apply to a marriage which is solemnized after the cominencement of this Act, 1955.a “6 ° e n 5 a ¥): HINDU LAW 5 7. VOIDABLE MARRIAGE (SEC. 12) A marriage which is voidable at the option of one of the patties is a voidable marriage. In other words, a voidable marriage is valid til itis avoided U/S 12 a marriage solemnized, whether before of after the commencement of the Hindu Marriage Act 1955. A marriages is voidable on any of the following grounds. (a) Impotency Sec. 12 (1) (a) :—When marriage has not been consummated owing to the impotency of the respondent, the marriage is voidable at the option of the potent party. (b) Pre-marital unsoundness of mind Sec. 12 (1) (b):—At the time of mariage if either party is suffering from mental disorder of any kind, subsequent to the marriage, it can be set-a-side at the option of the sane party. (c) Consent of the petitioner obtained by fraud or force (Sec 12 (1) (c) is a ground to set-a-side- the marriage. (d) Pre-marriage pregnancy of the wife is aground to set-aside the mariage. 6, MAINTENANCE PENDENTE LITE Maintenance under the-Hindo Marriage Act, 1955 may be provided in the following two cases (1) Maintenance pendent lite and expenses of the proceedings, and (2) Permanent Maintenance and alimony Maintenance Pendent lite Sec, 24 :—Maintenance during the pendency of the proceedings is known as maintenance pendentlite or interim maintenance. U/ s 24 of HMA, 1955, Either party ie. wife or husband, may file a claim for (a) his / her maintenance, and (b) expenses of the proceedings However, the claimant must establish that he or she has no means of livelihood to maintain himself or herself and to meet the expenses of the proceedings. The claim per maintenance may be made by either party to the proceedings during the proceedings for a matrimonial relief 9. MATRIMONIAL REMEDIES / RELIEFS :—The Hindu marriage Act, 1955 provides for various remedies for matrimonial disputes / causes They are 4. Decree for Restitution of Conjugal rights (Sec 9) 2. Annulation of marriage (Sec. 11 & 12): A Hindu Marriage can be annulled on the ground that itis either void or voidable. 3. Judicial separation (Sec. 10) 4. Dissolution of marriage (Sec. 13)6 * PADALA RAMA REDDI LAW COLLEGE For judicial separation and dissolution of mattiage, the grounds were made common by The Marriage Laws (Amendment) Act 1964 and 1976 10. BARS TO MATRIMONIAL RELIEFS :—In some cases the Court may refuse to grant the relief sought by the petitioner on the ground there they exists a egal ground to regect a relief. The following bars to matrimonial reliefs claimed by the petitioner, (1) Fair Trial of marriage (Sec 14):—According to section 14, No petition for divorce shall be presented to a court within one year from the date of marriage except in case of, {a) Exceptional hardship to the petitioner, a (b) Exceptional depravity on the part of tie respondent. (2) Taking advantage of one's own wrong Sec 23 (1):—A party seeking a relief must go to the Court with clean hands. If such party is itself the wrong doer the relief can be rejected by the court. (3) Accessory to or condonation of, acts of cruelty or petitioners connivance is a bar to claim a matrimonial relief (4) Collusion between parties is a bar to claim a matrimonial relief except in case of void marriage Sec. 11. (5) Unnecessary delay in institution of proceedings for matrimonial relief (6) Consent to petition for divorce by mutual consent is obtained by force, fraud or undue influence. (7) Any other legal ground existing to reject the petition 11, RECONCILIATION :—There may be various factors which may instigate ‘or encourage the parties to a marriage to litigate their conjugal rights. They may. some times, be gravious and trivial in some cases. Hence the courts, at first instance, required to endeavour to bring about reconciliation between them Sec 23 (2) of HMA, 1955 provides that it is the duty of the court, in all possible cases, to try for the reconciliation between the disputing parties. However the courts are required to act consistently with the nature and circumstances of the cases. The efforts at reconciliation may be made right from the start of the ‘case or at any time before proceeding to grant relief sought. Reconciliation proceedings are not applicable when petition for divorce or judicial separation is on the ground of conversion, insanity, leprosy. Venereal disease, renunciation of world or presumption of death (proviso to sec 23(2}).2 1 of ore val en seamen nm neers cnnene ite NAME LER HINDU LAW 7 12. FAMILY COURTS :—Family disputes particularly civorce, maintenance, custody of children need a settlement or reconciliation machinery than an adjudicating machinery as they need social therapeutic approach. The courts engaged in this task requires a fess formal and more active investigational and inquisitorial procedure rather than adversarial procedure, With this purpose in mind, the family courts were established under the Family Court Act, 1984. Sec 3 of the Act empowers the state Government to establish the Family Courts in a city or town whose population exceeds 10 Lakhs or in any, area if itis necessary. At present there are six Family court functioning at Hyderabad, Visakhapatnam, Vijayawada, Tirupathi, Kurnool and Warnagal The Constitutional validity of establishment of Family Courts on the basis of population was held to be not unreasonable and neither discriminatory nor violative of Art. 14 of the Indian Constitution (Pinople Vs. Union of India AIR 1993 Bom. 255) 13. INTESTATE SUCCESSION :—Succession is the devoiution of property of a person, upon his successors on his death. If any testament or will is made during the life time of the owner of the property, the property devolves upon the legatees, according to his Wil. The succession is called Testamentary succession if owner of the property fails to write a will during his / her life time the property goes to the successors called, heirs according to the law of inheritance. The succession is called intestate succession. The law of succession either testamentary or Intestate is governed by the personal law. Testamentary Succession of Hindus and Christian is governed by the Indian succession Act, 1925. The intestate Succession of Hindus is governed by the Hindu Succession Act, 1956. Christians are governed by the Indian succession Act, in respect of both Testamentary and Intestate succession. Muslims are governed by the personal rules in respect of both Testamentary and Intestate succession. 14, DOCTRINE OF REPRESENTATION :—When a person died intestate, his property shall devolve upon is heirs of Class |, Class 11, Agnates and Cognates. In case of Class | heirs, son, daughter, widow and mother are the simultaneous heirs. Ifthe son or daughter pre-deceases the owner of the property, the children of such pre-deceased son or daughter shall take the share that would have been allotted to the head of their branch, had it been alive at the time of death of the owner of the property. Such representation by the branch of the pre- deceased son or daughter, to the share of such son or daughter is called Doctrine of representation.8 PADALA RAMA REDDI LAW COLLEGE 45. DOCTRINE OF ESCHEAT (SEC.29 OF HINDU SUCCESSION ACT, 4956) :—If an intestate has left no qualified heirs to succeed to his or her property according to the provisions of the Hindu Succession Act, 1956, such property shall devolve on the Government. The falling of the properly of a person died instate, for want of heirs, on the Goverment. Is called Doctrine of Escheat. The Government shall take the property subject to all the obligations and the liabilities similar to that of heir. PART-B Essay Questions (Note: Some of the topics can be asked as short notes question) Q1. Who is a 'Hindu'? What is the scope of Hindu law? Ans. The word ‘Hindu’ has undergone many changes. Many meanings can be attributed to it in different senses. It has it's variant meanings in different senses i.e. territorial, theological, grammatical, political and legal. Under legal sense, the word 'Hindu' includes the following: (HINDU SHORT NOTES) 1) Hindus by religion 2) Hindus by birth 3) Other than Muslim, Christian, Jew or Parsi HINDU BY RELIGION ‘A Hindu by religion includes the following. a) Those who are originally Hindus, Jains, Sikhs and Buddhists b) The reformers and developers like Swami Narayan, Arya Samajists, Brahmos, Lingayats, Virashaiva, Radha Swamy etc. c) Converts or Reconverts ORIGINALLY HINDUS Any person, who follows Hindu religion in any of its form or development, either practicing or professing it, is a Hindu. However, it doesn’t mean that a person ceases to be a Hindu if he is neither practicing nor professing it. Further, a person does not cease to be a Hindu, if he becomes an atheist or a rationalist. Case Law: Yagnapurush Sastiiji Vs. Muladas (AIR 1966 SC 1119)? an nt lal 220 (atin connie attest tceareace emennumnaniinilicisteniescnnencn: HINDU LAW 9 The Supreme Court held that Hinduism includes its offshoots and reform groups. Hence, Sikhs, Jains, Buddhists etc., though they deviated from the central ideas of Hinduism, they are considered as Hindus for the purpose of law. Further, Arya Samaj, Brahmos, Lingayath, Swami Narayana etc., the reform groups are also considered as Hindus. CONVERTS OR RECONVERTS ‘—A convert is a person who renounces his faith in one religion and adopts another. A person may be a Hindu by conversion from any other religion to Hinduism. It not necessarily to Hinduisrn, it may be Sikhism, Jainism or Buddhism. Reconversion, technically speaking double conversion i.e. converting from Hinduism to any other religion of Islam, Christianity etc., and again coming back to Hinduism. Case Law: Perumal Vs. Ponnu Swamy (AIR 1971 SC p2352) Apperson may become Hindu either by expression or intension, ifhe lives as Hindu and such living is accepted by the community or caste into which he:is ushered. Case Law: Kusum Vs. Satya A non-Hindu may become a Hindu if he undergoes the ceremonies of conversion. However, it is submitted that Hinduism does not provide for any ceremony for conversion. No particular ceremony or expiatory rite is necessary unless the practice of caste or community makes it mandatory. (S. Anabalagan Vs. B. Devarajan AIR 1984 SC 411) Case Law: Mohan Das Vs. State of Kerala The Kerala High Court held that a person may become Hindu by declaration that he had faith in Hinduism. HINDU BY BIRTH Under Modern Hindu Law a person is a Hindu by birth, if a) he is born of Hindu parents b) one of the parents is a Hindu and he is brought up as a Hindu PERSONS OTHER THAN MUSLIM, CHRISTIAN, JEW OR PARSI Before the codification of Hindu Law, it was well established that Hindu Law applied to every Hindu unless he could establish that a valid focal, tribal or family custom applies. However, under the modem law if a person is not govemed by Muslim, Christian, Jew or Parsi law, Hindu law shall apply to him. Dr. Suraj Mani Stella Kajur Vs. Durga Charan AIR 2001 SC 93810 PADALA RAMA REDDI LAW COLLEGE Schedule Tribes are not governed by Hindu Law. They are governed by the customs and usages. However, if the tribe is sufficiently Hinduised, Hindu Law ~ becomes applicable. However, such Hinduisation is a question of fact. CONCLUSION :—Broadly speaking the cae Hindu Law is applicable to two types of persons 4) those who are Hindus, Sikhs, Jains or Buddhists by religion or birth or by conversion 2) those who are not Muslims, Christians, Jews or Parsi by religion It is submitted that the Hindu Law is applicable to a person, who is a sikh, jain or Buddhist though he is not a Hindu by retigion. Further, the Hindu Law is applicable who is not a Muslim, Christian, Jew or Parsi, though he is not a Hindu by religion or birth. Sec 2 of Hindu Marriage Act 1955 Sec 2 of Hindu Adoptions and Maintenance Act 1956, Sec 2 of Hindu Succession Act 1956, Sec 3 of Hindu Minority and Guardianship Act 1956 provides for the definition of the word Hindu and the application of the Hindu Law to them Q2. What are the sources of Hindu law? Explain custom as the main source of Hindu Jaw. (Custom outweighs the written law. Explain.) Ans. Hindu system of Law has the most ancient pedigree of the known systems of Law. It is believed to be six thousand years old. The Hindu Law is considered to be Divine Law and it was believed that it's a revelation by God Himself to the sages. However, the present modem Hindu Law has undergone many changes and it had various sources. The sources of Hindu Law can be classified into and as 4) Ancient Sources 2) Modem Sources ANCIENT SOURCES :—The following are the ancient sources of the Hindu Law, (a) Sruties or Vedas (b) Smrities (c) Digests and Commentaries (d) Customs SRUTIES OR VEDAS :—The word sruti signifies what is heard ie. it is heard by sages directly from God. Sruti consists of the Four Vedas, Upanishads etc. The following are various Vedas:wn is -od ne -be du arp tenner sgn HINDU LAW 14 1 Rig Veda 2. Yajur Veda 3. Sama Veda 4, Atharvana Veda ‘These Vedas are considered to be the sources upon which the ancient Law of Hindus was based. Even under the modern law Vedas are believed to be the source and development. Ex: Solemnization of marriages and ceremonies neccesary under Hindu Marriage Act, 1955 SMRITIES :—The word smriti means what was remembered. The Smrities were the recollection of words of the God by the sages. Even in the present day the Smrities are the major source of the modern Hindu law. The following are some of the important Smrities: Manu Smrit, Yagnavalkya Smrili, Narada Smrit, Bruhaspati Smit. Ex: The sapinda relations under Sec. 5(v) is based on Yagnavalkya Smnriti DIGESTS AND COMMENTARIES :—Commentaries and Digests are the multi authored titles by the various sages interpreting the Vedas, Codes etc., to the needs of changing society. Among the commentaries, the following commentaries are important even in the present society. They are Mitakhsara law a commentary by Vignaneswara on Yagnavalkya Code Similarly Dayabhaga law is a commentary by Jeemuthavahana. CUSTOM (SHORT NOTES) :—The ancient Hindu Scripts says that 'achara paramodharmaha’ ie. they gave prominence to achara and vyavahara. Custom is an important source of Hindu law. The present Hindu law mostly based on the customary practices of Hindus. However, to enforce a custom in the place of a valid law and as law the following requirements must be present: ESSENTIALS OF VALID OF A CUSTOM. a) Antiquity:The practice must be antique ie. it must be from time immemorial. It is the most essential requirement of the custom. b) Certainty: The Custom should be certain i.e. it should be clear and unequivocal. It should not be vague and uncertain. ¢) Reasonableness: To consider practice as custom it must be reasonable12 PADALA RAMA REDDI LAW COLLEGE d) Continuity: To enforce custom as law, the practice must be continuous _| and it should not have been discontinued. e) Not opposed to public policy, state policy or morals of the public: To enforce custom as law, it should not be opposed to public policy, State policy | or morals of the public. f) Not forbidden by any express enactmentilf the above requirements are present, custom will have binding force. In certain cases custom outweighs the written law also. In Collector of Madurai Vs Mootoo Ramalinga Sethupathy the Privy Council upheld the authority of custom. KINDS OF CUSTOM Custom can be classified into three categories 1. Local Custom 2. Caste/ Class Custom 3. Family Custom LOCAL CUSTOM -—The custom which is prevailing within a particular territory or locality is called local custom, Ex. In South India marriage between children of a brother and sister is customary, itis a local custom, CASTE / CLASS CUSTOM :—The custom which is prevailing within a particular caste or community is a Class Custom. M. Govindaraju Vs. K Munusami Gounder AIR 1997 SC 10. When Custom of the Caste provided that if a woman is tured out or abandoned the matrimony of her husband and she was Not brought back, itis deemed as divorce. Similarly dissolution of marriage before the caste tribunal or elders is valid in certain communities. FAMILY CUSTOM -—Where the custom is confine to a particular family or families, itis the family custom. However, such custom must be put to strict proof of its origin and continuance. In every Act of Hindu law, custom was defined. Ex: Sec 3(a) of Hindu Marriage Act, 1956. It defines: The expression ‘custom and usage signify any rule which, having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local are, tribe, community, group ot family: Provided that the rule is certain and not unreasonable or opposed to theHINDU LAW 13 dlar 2en na atif vas ~ore y or ~ oof ndu public policy: Provided further that in the case of a rule applicable only to a family it has not been discontinued by the family; MODERN SOURCES :—Though the ancient or traditional sources “contributed for the origin of Hindu law, modem sources plays an important role in the development of the law. The following are the modem sources. 1. Legislations a. The Hindu Marriage Act 1955 b. The Hindu Succession Act 1956 {including the Hindu Succession (AP Amendment) Act 1986, Hindu Succession (Amendment) Act 2005 ¢. The Hindu Adoptions and Maintenance Act 1956 d. The Hindu Minority and Guardianship Act 1956 etc These legislations for an example set the personal law in motion and they have introduced radical changes in the personal law. They are like Abolilion of Woman's estate, Doctrine of Reversion, Dissolution of Marriage, Right to Hindu Daughter in ancestral property etc., is the contribution of the legislature for the development of law. 2. Precedent (Judge made law): The judge made law also contributed for the development of Hindu law. Example: In Gurupdtl Vs. Hirabai AIR 1978 SC, a widows right to share in coparcenary property is recognized at the time of notional partition. The decision by Privy Couneil in Hanuman Prasad Vs, Babooee in 1856 is stil relavent in case of karta's powers and the’incidental powers of natural guardians under the Hindu Adoption and Maintenance Act 1956. 3. Equity, Justice and Good Conscience. it is also a source for the development of Hindu law particulary in case Of granting remedies for matrimonial disputes. In many cases various Courts including Supreme Court have applied this element for adjudicating the matrimonial disputes. Particularly, when marriage is broken down and itis iretrievable there is no meaning in asking the parties to stay together.14 PADALA RAMA REDDI LAW COLLEGE CONCLUSION :—Though Hindu law is a personal law relating to the Persons who practices the tenants of Hinduism, the application is very wide as it extents to persons Hindu by religion, by birth and the persons who are not governed by any other law like Muslim, Christian, Jew or Parsi. Q3. What is Joint Hindu Family? Distinguish between Joint Hindu Family and Coparcenary. (Short Notes) Ans. Joint family system is a unique contribution of Hindu jurisprudence which has no parallel in any ancient or modern systems of law. It is ar’ institution ‘sue generis’. It is peculiar to Hindu Society only. It is considered to be fundamental aspect of the life of Hindus. COMPOSITION :—A Hindu joint family consists of the common male ancestors, his wife, unmarried daughters and his male lineal descendants of unlimited generations, their wives and unmarried daughters. CHARACTERISTICS.OF JOINT HINDU FAMILY: 4. Patriarchal in character: Institution of Joint Hindu Family is patriarchal in character i.e. only male is the head of the family. 2. Common ancestor:To begin the institution of Joint Hindu Family common ancestor is the requirement, but not for its continuousness. In other words, senior most male person of the family is beginner and on his death, the next senior male will become the head of the family. The head of the family is called 'Karta’, 3. No legal status: Institution of Joint Hindu Family is not a juristic person nor has a separate legal entity from its members. 4. Members: The Joint Hindu Family consists of both male and female members. 5, Membership: The membership to the Joint Hindu Family may be by blood, by adoption or by marriage to the male members of the joint family. 6. Presumption of jointness: Unless the contrary is proved, the members of Joint Hindu Family are presumed to be living in a state of jointness. i.e. joint in food, shelter, worship and common enjoyment of the properties of the family. i payne nn ete en SEI SINT]a . Hie “Bit yot an - on be ale of .. hall ally ner the ris ion ale eby the ASS. tite HINDU LAW 15 7. Maintenance: It is the duty of the head of the family i.e. the karta to maintain all the family members. COPARCENARY (SHORT NOTES) Coparcenary isa narrower body within the-Joint Hindu Family consisting of male members within four generations from the last holder of the property. The condition precedent for the existence of coparcenary is the existence of Joint Hindu Family, however itis not necessary that in every Joint Hindu Family there is coparcenary. To constitute coparcenary minimum two male members within four generations are necessary, In other words, coparcenary is system consisting of the generation of the last holder of the property and his next generations of males. The members of the coparcenary are called the ‘coparceners’ and they.are the joint owners of the property. Itis submitted that according to the Hindu Succession (A P Amendment) Act 1986, and Hindu Succession (Amendment) Act 2005 - the daughter of a coparcener is also a coparcener. CHARACTERISTICS OF COPARCENARY (INCIDENTS) 1. Community of interest and unity of possession: The nature of ownership of the Mitaskhara Coprcenary is communal ownership i:@ entire coparcenary is having right over it and the enjoyment is joint 2. Unpredictable and fluctuating interests: The interest of the coparceners in the property is by birth. However, it is unpredictable until actual partition takes place. Further, their shares are fluctuating in character i.e. the shares of coparceners may be enlarged by deaths and diminished by births. 3. Membership: Only the male members within four generations can be the coparceners. According to present amendments daughter of a coparcener is also a coparcener. 4. Alienation: Every Coparcener is bound by proper alienation, if made, by the karta. 5, Right to object alienation: Every coparcener including a minor, has a fight to object and challenge any alienation, if made, without his consent or without any legal necessity, benefit for estate or for the performance of indispensable duties16 PADALA RAMA REDDI LAW COLLEGE DIFFERENCES BETWEEN JOINT HINDU FAMILY AND COPARCENARY JOINT HINDU FAMILY COPARCENARY 1. Itis unique system of Hindu law 1. Itis @ narrower body with in Joint Hindu Family. 2. In every Joint Hindu Family there may 2, Every coparcenery is a parl of Joint not be a coparcenary Hindu Family 3, Joint Hindu Family consists of common, 3. Coparcenary is the generation of the ancestor, his wife, unmarried daughters, last holder of the property and the mate linea descendents of unlimited next three male generations. generations and their wives and unmarried daughters. 4, Joint Hindu Family is consisting of both 4. Coparcenary consists of male members male and females as members. only. Daughter is the only female as coparcener. 5. The membership to the Joint Hindu 5. The membership to the Coparcenary is Family can be acquired by birth or by by birth and by adoption in some cases. marriage to male members of the family and by adoption in some cases. 2 6. Every person born in the family is a Coparcenary is limited only to male member. members within four generations 7. All the members can claim maintenance 7. Only coparceners can claim patrician. CASE LAWS: Rukma Bhai Vs. Lakshmi Narayana AIR 1960 SC 335, Bharath Singh Vs. Bhagiradhi AIR 1966 SC 405, Shankar Vs. Vittal AIR 1989 SC 579, Indra Narayan Vs. Rupa Narayan AIR 1971 SC 1962, K. Obul Reddy Vs. B. V. N Reddy through L R's AIR 1984 SC 1171. Q4. Who is 'KARTA'? Who can be a KARTA? What are his powers? Ans. KARTA (SHORT NOTES) Karta is the head of the Joint Hindu Family consisting of members of* unlimited generations. He is the manager of the family and the representative of = the family for all purposes, whether social, secular, legal or religious. He is the’ * porpoise cia at os common male ancestor of the family. His status as karta is based on his seniority <> in the family but not by agreement between the members of the familyHINDU LAW 17 WHO CAN BE KARTA? (SHORT NOTES) The system of Joint Hindu Family being patriarchal in character only male members can become Karta. Senior among the male members is the Karta by his status but not by agreement. However, in certain cases a junior male member may become Karta by agreement between the members of the cd-parcenéry. The question before the Courts is that whether a female can be a Karta. It has been held in many cases that only coparceners can become karta and as it was the males only the coparceners in a Joint Hindu Family. (Ram Avadh Vs Kedarnath AIR 1976 ALL 283, Commissioner of Income Tax Vs. Seth Govindrao Mills AIR 1966 SC 24) But, in Gangoji Rao Vs. H. K. Chennappa AIR 1983 KAR 222, ithas been held that nother as natural guardian of her minor son can be the manager of the joint family property and the appointment of a guardian is not justified. Itis submitted that in many cases the females are refused to be the Karta of joint family on the ground that they were not coparceners. But theHindu Succession (Amendment) Act 2005 made the daughter as a coparcener. Now it is to be seen that whether she can become a Karta, being a coparcener. POWERS OF KARTA (SHORT NOTES) ‘The powers of Karta can be classified into two categories. 1. General Powers and 2. Special powers General Powers In respect of general powers Karta is the supreme head of the family and no objection shall be raised against him. His powers are : 1. Power over income and expenditure 2. Power to make agreements 3. Power of reference to arbitration 4. Power of compromise of any disputes between Joint Hindu Family and others or disputes inter se. 5. Power to discharge of debts due to Joint Hindu Family 6. Power of acknowledgement of debts due by Joint Hindu Family 7. Power to sue and be sued in his own name 8. Power of maintenance of family business etc (Hanman Prasad Vs. Babooee 1856 PC)is PADALA RAMA REDDI LAW COLLEGE Special Powers :—In respect of special powers i.e. Power of Alienation and Power of Contracting Debts, karta's power is limited. These powers can be exercised, except in certain cases, with the consent of other coparceners. POWER OF CONTRACTING DEBTS :—The power to contract debts by the karta is conditioned by the existence of a legal necessity or for the benefit of the estate or religious duties. If this power is exercised, in all other cases, with the consent of other coparceners the debt binds the Joint Hindu Family. However, a bonafied lender is protected even ifthe alleged necessity did not really exist POWER OF ALIENATION:—Alienation means transfer of property, such as sale, mortgage. lease, gift etc. Generally, under mitakshara law, neither karta nor any coparcener has full power of alienation over the joint family property. No coparcener including Karta has the power of alienation of joint family property without the consent of others. However, it is recognized by the Dharma Shastras that in certain circumstances any member of the coparcenary has power to alienate the joint family property without the consent of others. The following were the:three exceptional cases in which alienation of the. joint family property could be made: 1. Apatkalé in the time of distress 2. kutumbarthe for the sake of the family 3. Dharmarthe for the performance of indispensable duties POSITION UNDER MODERN LAW 1. power of alienation can be exercised by karta alone no one else. 2. it can be for the following purposes only. a. legal necessity (apatkale + tal pashme) b. benefit of the Estate (Kutumbarthe) ©. Acts of indispensable duties (Dharmartha) LEGAL NECESSITY (SHORT NOTES) —1 egal necessity include all those things which are deemed necessary for the members of the family with due regard to the conditions of modem life. (Rani Vs, Shanta AIR 1971 SC 1028) 1. Food, shelter, clothing of the members 2. Marriage of the coparceners and females, 3. Medical care of the members. 4. Defence of members involved in criminal cases, (but not for the prosecution of a member who involved in a murder case of another member) ily a ar 9 HINDU LAW 19 5. For the payment of debts of family and decretal debts 6. For the payments of dues to Government, such as land revenue income-tax etc. 7. For the payments towards necessary ceremonies. BENEFIT TO THE ESTATE :—The term benefit of estate means beneficial to the joint family estate. The following have been held to constitute benefit of estate, justifying alienation of joint family property. a. An advantageous acquisition of some property made in the interest of the family b. Lands yielding no profit were sold to purchase land yielding profit c. A mortgage for making additions too and improvement to the family house, il INDISPENSABLE DUTIES implies Religious, pious or charitable nature. i.e. Devadhaya and Dharmadhaya BURDEN OF PROOF :—Whether a transaction is for legal necessity, benefit to the estate or for indispensable duty is valid or not depends upon the proof of it. The burden is on the alienee. In relation to that the Privy Council propounded the following propositions in the case of Hanuman Prasad Vs. Babooee 1856 PC. 1. The powers of karla are limited and qualified . He can exercise scale powers in limited cases such as for legal necessity, Benefit fo the estate, Religious duties. 2. Incase of karta’s prudent alienation, the lender or alienee must act as bona fide but should not have acted mala fide. 3. The alienee or lender is bound to make proper and bona fide enquiries as to the existence of legal necessity. 4. If the alienee acts bona fide and makes proper inquiries. The alleged necessity is not a condition precedent to the validity of alienation. 5. The alienee is not bound to see the actual application of the money for the legal necessity. Q5. What is Partition? How Partition is effected? What are the modes of Partition? Ans. The Essential character of Joint Hindu Family system is the presumption of joint ness among the members of the family. In other words, until the contrary is proved the members of Joint Hindu Family are living in a state of20 PADALA RAMA REDDI LA’ joint ness i.e. common enjoyment of properties, common in food, common worship etc. If that jointness is broken by partition among the members of the joint family, the system comes to an end. Partition under Mithakshara law shall take effect in two stages i.e. breaking the jointness and actual division of property. But in Dayabagha school parttionis effected only by the actual division of property as the shares of coparceners are pre determined. = The subject matter of partition:—The joint family property or the coparcenary party is the subject matter of partition. However, the entire property may not be divisible as it may consist of both divisible and indivisible properties. The following are some of the properties which are indivisible by their very nature. ‘They are: Common dwelling house, stair cases, common pathway, water reservoirs like lakes, wells, temples, shrines etc. In respect of such indivisible Properties, the following is the mode of adjustments— a. Some of these properties may be enjoyed by the coparceners jointly or by tums b. Some of the properties may be allotted to the share of the coparcener and its value adjusted with the other property allotted to the other coparceners. c. Some of these properties may be sold and the sale proceeds distributed among the coparceners. In the property capable of division, the following deductions and provisions shall be made before effecting partition— (a) Debts (b) Maintenance (c) Marriage Expenses of female members. (d) Performance of certain religious duties. Right to partition and Right to share :—The general rule, both under Mithakshra and Dayabagha Schools, every coparcener has a right to claim partition and entitled to a share on partition. Every coparcener, major or minor, can demand partition. Females of joint family have no right to demand partition However, according to Sec.6 of Hindu Succession (Amendment) Act 2005, daughter of a coparcener is also a coparcener and hence, she can demand partition. Other than coparceners an alienee of share of joint family property is entitled to claim partition and his share. Every coparcener including daughter of a coparcener is entitled to a share on partition. However, the following females are also entitled a share on partition claimed by the coparceners. They are - Karta's wife, if the partition is between father and sons; Mother, if the partition is between the brothers; Grand Mother, if the partition is between grand children. i : iHINDU LAW au Effecting partition :—In Mithakshara School, partition is effected in two stages. 4. Severance of joint status (Division of Status) 2. Actual division of property by metes and bounds (Division of property) 4. Severance of joint status :—The first stage of effecting partition is severance of the joint status among the members of the family. The joint status can be severed in the following mode — a. Expression of intention to separate b. Communication of intention to sever Raghavamma Vs. Chenchamma AIR 1964 SC 136, Putta Ranganna Vs. M. S. Rangamma AIR 1968 SC 1018. 2. Division of property by metes and bounds: (SHORT NOTES) After the severance of status, the property is to be divided by metes and bounds. The following are the rules relating to allotment of shares. a. If partition is between father and sons, the rule is that each son takes a share equal to the share of father. a b. When coparcenary is between brothers partition takes place between them, the rule is that they take equal shares. c. When the partition is between branches, the rule is that each branch shall take per stripes and thereafter they take per capita among them Different modes of partition Partition may be effected in any of the following modes. 1. Partition by suit: partition can be effected by a suit at the instance of any coparcenerlcoparceners. In such case, from the date of suit the severance of Status is said to be effected and on the date of decree actual division takes place. 2. Partition by agreement: partition may be effected among the coparceners by agreement between them. Agreement may be either oral or written 3. Partition by unilateral declaration: The essential element of severance of status is the communication of intention of a coparcener to separate from the joint family. If such communication is made by the coparcener, it Is sufficient and consent of other coparceners is not necessary. A coparcener may effect partition in respect of his share in the property by unilateral declaration that he intends to separate. 4. Partition by arbitration: Where coparceners fail to arrive at a consensus in respect of partition, it can be referred to arbitration22 PADALA RAMA REDDI LAW COLLEGE 5. Partition by conduct: Where the conduct and behavior of a coparcener is in such a way that it is unequivocal and implies that he intends to separate, partition can be effected. 6. Partition by conversion of a co-parcener: Ifa coparcener ceases to be a Hindu by conversion to any religion, partition effects automatically. Q6. What are the Conditions of a valid Hindu Marriage? Ans. Under the Hindu law, marriage is considered as an essential ‘sacrament and as a holy union between a man and a woman for begetting children necessary for the salvation and for the performance of religious duties ‘The ideal of Hindu marriage continuous to be so even after the enactment of the Hindu marriage Act, 1955 because itis not inconsistent with the provisions of the said Act. The Hindu Law relating to marriage has been considerably reformed by the Hindu Marriage Act, 1955. The Act brought some important changes in the law of marriage, they are (4) Any two persons, who come within the broad connotation given to the expression ‘Hindu’, can marry. Under the Act, the word 'Hindu’ includes Buddhist, ‘Sikhs, Jains, as well Hindu by birth, conversion and reconversion and any other person who is nct governed by the laws of Muslim, Christian Jew or Parsi (2) The Act prohibited polygamy and monogamy is made as rule. Further Section 17 of the Act provides that bigamy is punishable under Sec. 494 of IPC. (3) The conditions and ceremonies of a valid marriage have been simplified and they are now more clear. CONDITIONS OF VALID HINUD MARRIAGE (SEC. 5) (SHORT NOTES) ‘ Section 5 of Hindu marriage Act 1955 provides for certain pre-marital conditions which are essential to solemnize a marriage between two Hindus. They are: 1) The marriage must not be bigamous (Sec. 5 (i)) 2) The parties to the marriage must have mental capacity. (Sec. 5 (ii)) 3) The parties to the marriage must be of the marriageable age (Sec. 5 (ii) 4) The parties to the marriage must be beyond the degrees of prohibited relation ship (Sec. 5 (iv)) 5) The parties to the marriage must be beyond the sapinda relationship (Sec. 5 (v)) lrr HINDU LAW 23 1. THE MARRIAGE MUST NOT BE BIGAMOUS (SEC.5 (i)) BIGAMY (SHORT NOTES) Section (i) lays down that neither party to the marriage should have spouse living at the time of marriage. In other words, if either party is married earlier and spouse living at the time of contracting marriage, such mairiage becomes void, being bigamous(Sec. 11) The following are the requisites to constitute bigamy. a) The party must have been married earlier b) Such marriage must.be valid and in substance c) Such party must have been married subsequent d) Such subsequent marriage must also be a valid marriage. To constitute bigamy both earlier and subsequent marriages must be valid If either of them is invalid it does not constitute bigamy. (Dr. AN Mukharjee Vs. State AIR 1969 ALL 489) (BHAURAO Vs. State of Maharastra AIR 1965 SC 1564) 2. THE PARTIES TO THE MARRIAGE MUST HAVE MENTAL CAPACITY. (SEC. 5 (i)) Ne, Section 5 (i) provides that neither party to the marriage a) is incapable of a giving a valid consent to it in consequence of unsoundness of mind; or b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extend as to be unfit for marriage and the procreation f children. The condition specified under Sec. 5ili)is a recommondatory condition and about pre marital mental disorder of any kind which renders a party to the marriage incapable of giving a valid consent. In such case, the marriage becomes voidable under Sec. 12(1)(b) of the Hindu Marriage Act, 1955 3. THE PARTIES TO THE MARRIAGE MUST BE OF THE MARRIAGEABLE AGE (SEC. 5 (Ill) Though the ancient Hindu Law was not particular about marriageable age, the modern law recognized the marriageable age prescribed by the Child Marriage Restraint Act, 1929. According to Sec. 5(il) the marriageabie age is 1824 PADALA RAMA REDDI LAW COLLEGE years for the bride and 21 years for the bridegroom. However, if this condition is ‘violated, inspite of the contravention the marriage is valid on the application of Doctrine of Factum Vallet ie. Hundred Texts cannot change a fact. This Doctrine is applicable only in case of contravention of a recommendatory condition only. (Venkata Ramana Vs. State AIR 1978 AP 43(FULL BENCH)) The Prevention of Child Marriage Bill 2006 has been passed by the 4 Parliament according to which a child marriage is void. Doctrine of Factum Vallet (SHORT NOTES) 4. THE PARTIES TO THE MARRIAGE MUST BE BEYOND THE DEGREES OF PROHIBITED RELATIONSHIP (SEC. 5 (IV): According to Sec. 5 (iv) the parties to the marriage must not be within the degrees of prohibited relationship. However, iit is customary, the marriage is valid. Sec. 3(g) provides for the instances of prohibited degrees of relationship and according to it two persons are said to be within the degrees of prohibited relationship 4) When one is a lineal ascendant of the other 2) When one is the wife or husband of her or his lineal ascendant or descendant 3) When one is the wife of the following relations a. Brothers’ b. Father Brothers’ c. Mother Brothers’ d. Grand Father Brothers’ (Paternal or Maternal) e. Grand Mother Brothers’ (Paternal or Maternal) 4) When they are children of the following a. Two Brothers b. Two Sisters and c. ABrother and Sister 5). When they stand to each other in the following relations a. Brother and Sister b. Uncle and Niece (Paternal or Maternal) c. Auntand Nephew (Paternal or Maternal) if the parties are within the degrees of prohibited relationship their marriage is void under Sec. 11 of Hindu Marriage Act. However, if custom permits such thi thi |: I. . AkHINDU LAW 25. marriage is valid. Example: Marriage between children of a brother and sister or maternal uncle and niece. 5. THE PARTIES TO THE MARRIAGE MUST BE BEYOND THE ‘SAPINDA RELATIONSHIP (SEC. 5 (v)) :—According to Sec. 5(v) the parties to the marriage must not be within the sapinda relationship. Section 3(f) provides that the supinda relationship exterids five generations on father's side and three generations on mother's side of a person. If parties to the marriage are within the sapinda relationship, their marriage is void under Sec. 11. However, if custom permits such marriage is valid. CONCLUSION :—The conditions laid down under the Sec. 6 are pre-marital conditions and some are mandatory and some are recommendatory. If mandatory conditions laid down under sec. 5(i), (iv) and (v) are violated, the marriage is void under Sec. 11. If condition laid down under Sec.5(ii) ie. mental capacity is violated, the marriage is voidable under Sec. 12. Though, condition laid down under Sec. 5(iii) marriageable age is violated, the marriage is valid inspite of the violation, on the application of Doctrine of Factum Valet. Itis submitted that though the marriage is valid inspite of the contravention, the Child Marriage Restraint Act, 1929 provides for punishment for those responsible for such violation. Further, Sec. 18 of Hindu Marriage Act also provides punishment for those responsible for such marriage Q7. What are the Ceremonies necessary for. the solemnization of a Hindu marriage? Whether The Registration of marriage is compulsory? Ans. The Hindu marriage, though it acquired a contractual form after the enactment of the Hindu marriage Act 1955, still it retains the Vedic or sacramental nature. The Hindu marriage Act 1955 provides for the solemnization of a Hindu marriage by opting for the customary ceremonies, in other words, though the Act of 1955 is not particular about the nature of ceremonies of the Hindu marriage, but it is said that a Hindu marriage may be solemnized either according to the Sastric ceremonies or customary ceremonies. Sastric Ceremonies :—The Hindu marriage is sacramental in nature. The ceremonies were laid down by the Dharma Sastras. Among them the following are the essential ceremonies. 1. Kanya Dana ie. gift of domain of the bride to the bridegroom. 2. Panigarhana i.e. the acceptance of domain by the bridegroom. 3. Saptapaadi i.e. walking seven steps around the Holy fire by which the marriage is finai and complete.ee | 26 PADALA RAMA REDDI LAW COLLEGE The other ceremeonies of marriage are only incidental and they are Ganapathi pooja, nandi devatha aavahanam, snataka ccremony, kasi yaatra, mangala soothra dharana etc. Customary Ceremonies Sec. 7(1) of Hindu Marriage Act, 1955 provides that Hindu marriage may be solemnized in accordance with the. customary rights and ceremonies. However, the parties are compelled to follow the ceremonies of either party only. Further, if such customary ceremonies include the saptapaadi, the marriage becomes complete and binding when the seventh step is taken. Importance of performance of ceremonies The marriage is said to be solemnized only on the performance of the prescribed ceremonies may be sastri or customary. In the following cases the validity of a marriage may be effected. 4. Non performance of ceremonies * 2. Mock ceremonies 3. invention of ceremonies Non performance of ceremonies: Non performance of ceremonies makes the marriage invalid. (Dr. AN Mukharjee Vs, State AIR 1969 ALL 489) If no ceremony of marriage has taken place, mere registration has no meaning. Registration will become null and void (Valasamma Vs. Cochin Units AIR 1996 SC 1011) Certificate of Registration does not validate an otherwise invalid marriage. (Kagavalli Vs. Saroja AIR 2002 MAD 7). Where marriage is denied some proof of performance of requisite ceremonies is essential (Balasubramanyam Vs, Sarittayan AIR 1974 SC 576) Mock ceremonies :-—(Short Notes) Sec. 7 (1) provides that the parties are at option to solemnize their marriage according to the customary ceremonies of either party only. If ceremonies are mocked, the consequence of which, the marriage is void. (Dr. A N Mukharjee Vs. State AIR 1969 ALL 489) Innovation of ceremonies:—If the ceremonies are customary, the patties required to follow the established ceremonies only. They shall not innovate a new ceremony. Innovation of ceremonies makes the marriage void. (Devayani Achi Vs. Chidambaram Chettiyar AIR 1954 MAD 657) However, if such innovation is recognized by the legislature, the marriage will be valid. The following are the instances where the new methods of solemnization of marriage were recognized by legislature. arHINDU LAW 27 1. The Ananda Marriage Act 1909 (Sikh marriages) 2. The Arya Samaj Marriage Validation Act 1937 3. Sec. 7-A Hindu Marriage (Tamil Nadu Amendment ) Act 1967 recognized marriage by self-tespecters cult or Swayam Maryathis Registration of marriage (Short Notes): Section 8 of Hindu Marriage Act provides for the registiation of a Hindu marriage, but it does not make it compulsory. However, in.Seema Vs. Aswani Kumar AIR 2006 SC 1158, Supreme Court held that the marriages of all persons who are citizens of India belonging: to various religions should be made compulsory registrable, in their respective states where the marriage is solemnized. In this case the SC further held that registration. of marriage Constitutes the vital statistics ie, Entry 30 of List 3 of the Schedule Vil, Further, the SC directed all the State Governments to make the laws relating to compulsory registration of marriage. Incidentally, the legislature of Siate_ of Andhra Pradesh had enacted the AP Compulsory Registration of Marriages Act 2002 (Act 18/2002) w.e.f, 25-October-2002 The Special marriage Act 1964 provides for the provision for solemnization 0 f marriage before the Registrar of manages. The Special marriage Act 1984 provides for two kinds of registrations and according to it any two persons who have domicile in India may many under its provisions. It provides for procedure for registered marriage and also for the registration of marriages celebrated even otherwise than under the Special Marriage Act 1955. It is submitted, that marriages under any other form including run away marriage gan pe registered under the Special Marriage Act 1954. A run away mariage can also be registered, if itis properly ceremonised. Q8. Explain the concept of restitution of Conjugal Rights under Hindu Marriage Act 1955. What is the Constitutional validity of section 9 of HMA 1955? Ans. Like a contract, marriage also creates obligations and rights between the parties to the marriage. The obligations and rights are correlative i.e. if one Party falls inits obligations, the other party can enforce itas a matter of right. Such Tights are known as conjugal rights and the obligations are conjugal obligations, RESTITUTION OF CONJUGAL RIGHTS (SHORT NOTES) ‘fone party has withdrawn from the conjugal society of the other, such other can claim the restoration of his / her matrimony known as ‘the restitution of28 PADALA RAMA REDDI LAW COLLEGE Conjugal rights’. The Court on application by the petitioner may grant a decree for restitution of conjugal rights on the satisfaction of the contents of the petition. Section 9 of Hindu Marriage Act provides for the issue of decree, by Civil Court or Family Court, for restitution of conjugal rights. REQUISITES FOR THE ISSUE OF DECREE FOR RESTITUTION OF CONJUGAL RIGHTS 4. Withdrawal by the respondent :—The respondent must have withdrawn from the conjugal society of the petitioner. There must be withdrawal by the respondent and such withurawal is not from the place of living but from the state of things or cohabitation. 2. Withdrawal must be without a reasonable cause / excuse—It is necessary that, to pass a decree for restitution of conjugal rights, the withdrawal by the respondent must be without a reasonable cause or excuse. The burden of proof lies on the respondent to prove that there is a reasonable cause for the withdrawal. If it is not proved the plaintiff is entitled to the decree. (Explanation to Sec. 9) 3. Application by the petitioner —The petitioner must make an application, stating that the respondent has withdrawn from his/her conjugal ‘society.’ District Court'is competent to entertain the petition in this respect. However, in cities where a Family court is established under the Family Courts Act 1984, petition can be made to such Court. 4, Satisfaction of the Court Before passing a decree for restitution of conjugal rights, the Court must satisfy with the statements made in the petition. 5, Legal grounds :—The Court must satisfy itself that there is no legal ground.exists for rejecting the petition for decree for restitution of conjugal rights Ifthere is any legal ground exists, the court may reject the grant of the same. Ex: If any bar to matrimonial relief lay down under Sec 23(1) existing, the Court may tefuse to grant decree for restitution of conjugal rights. CONSTITUTIONAL VALIDITY OF SECTION 9 :—The constitutional validity of Sec. 9 has arisen in number of cases and the question before the Courts was that whether a decree passed under Sec. 9 is constitutionally valid? According to Article of 13 (2) of the Indian Constitution ‘every law which is in force in India shali be in consistence with the fundamental rights guaranteed under the Chapter 3 of Indian Constitution. Any law, if itis, inconsistent with theHINDU LAW 29 fundamental rights, shall be declared void. Basing on this there were many contentions that decree passed under Sec 9 of H M A 1956 is invalid as it is violative of Article 21 i.e. Right to Life and personal liberty. CASE LAWS : Saritha Vs. Venkata Subaiah AIR 1983 AP 356 “The A P High Court held that the remedy under Sec.9' of HMA was jin violation of Article 21 i.e. Right to Life and personal liberty which includes right to live with human dignity and declared Sec.9 was unconstitutional. A divergent opinion has been delivered by Delhi High Court in Harvinder Kaur Vs. Harminder Singh AIR 1984 Delhi 66 In this case the Delhi High Court upheld the constitutionality of Sec.9 and observed that the aim of remedy underSec.9 of HMA is only amicable settlement of disputes and it seeks to uphold the institution of marriage. SUPREME COURT :--The conflict of decisions by High Courts of AP and Delhi is set at rest by the Supreme Court in Saroj Rani Vs. Sudarshan Kumar AIR 1984 SC 1562. The Supreme Court upheld the constitutionality of Sec.9 of Hindu Marriage Act on the ground that Sec.9 is providing for remedy in conelliating nature. If the cohabitation is not resumed for a period of one year or more, after the passing of decree the restitution of conjugal rights, either party to the decree may obtain decree for divorce under Sec. 13(1-A) (ii) of Hindu Marriage Act *955 CONCLUSION :—It is submitted that Sec.9 is remedy for the disputing parties to reconciliate their disputes. Ifitis not possible, either of them may obtain decree for dissolution on the theory of iretrievable break down of marriage. Q9. What are the various grounds of dissolution of marriage under Hindu Marriage Act 1955? Ans, (NOTE: The Concept of Grounds for Dissolution of Marriage under Hindu Marriage Act discussed below covers the following questions. Hence the student is advised to’study the above topic by kéeping the following questions in mind and answer them accordingly ) Qi. What are the Fau!t grounds available under a Hindu Marriage Act? Q2. Explain the concept of Cruelty as a ground for Divorce with leading cases. Q3. What is Desertion? What are the requisites to dissolve a marriage on the ground of Desertion?30 PADALA RAMA REDDI LAW COLLEGE Q4, Explain the concept of Break-down theory and. What are the Break-down grounds? Q5. Explain the circumstances under which the marriage may be dissolved on mutual consent. SHORT NOTES : Fauit grounds Break-down grounds Cruelty Desertion Presumption of Death fe Divorce by mutual consent Wife's special grounds Customary Divorce + yao ee SY Ans, Dissolution of marriage is putting an end to the marital relationship. A mariage dissolves in two instances i.e. either on the death of either party to the marriage of by decree of dissolution but not by any other arrangement ‘or agreement: The Hindu Marriage Act 1955 provides for various: grounds of dissolution of marriage basing on the following theories. 4.” Fault Theory :—!f a party to the marriage commits a wrong or fault, the other party may obtain a decree for divorce on the ground of the fault of that party. The grounds available under this theory are known.as Fault grounds. 2. Break-Down Theory :—Cohabitation between the disputing parties, if not resumed after passing a reconciliatory relief like Restitution of conjugal rights or judicial separation for a period of one year or more after passing such relief, the parties may obtain decree for divorce on the ground that their marriage is broken irretrievably and grant of divorce on such ground is known as Break-down theory and the grounds are irretrievable break down grounds. 3. Consent Theory :—The parties to the marriage may dissolve their muarriage without alleging against-each other but with mutual.consent. This is a new concept inserted to Hindu Marriage Act by the Marriage. Laws (Amendment) Act 1976. Dissolution of the marriage on mutual consent of the parties is the Consent theory.