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AL-AMEEN COLLEGE OF LAW

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MODEL ANWER Dec -2016

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HINDU LAW
I sem 3 yrs LL.B and V sem 5 yrs B.A.LL.B

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DURATION: 3 HRS MAX MARKS: 100

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INSTRUCTIONS TO CANDIDATES:-

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1. Answer Q.No.9 and any 5 of the following questions

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2. Q.No.9 carries 20 marks and the remaining questions carry 16 marks

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each.
3. Answer should be written either in English or Kannada completely.

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04X16=64
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Q.NO.1. Explain the ancient and modern sources of Hindu Law.

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Answer:-
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Synopsis
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Introduction

Sources of Hindu Law
OF

Ancient sources
∗ Srutis
E

∗ Smritis
EG

∗ Commentaries and Digests

LL

∗ Customs

Modern sources
CO

∗ Judicial decisions
∗ Legislation
N

∗ Justice, equity and good conscience

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Conclusion
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1.Introduction:-
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 India remains one of the most religiously diverse nations in the world. Hindus, Muslims, Jains,

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Buddhists, Sikhs, Jews, and Christians have a home in India. The oldest and most widely

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practiced religion in India, Hinduism, has deep roots in the subcontinent. Throughout the

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numerous political upheaval and foreign invasions, Hinduism remained the sole constant

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throughout the region’s history.

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Hindu beliefs developed over the centuries and include many influences, including

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numerous sacred texts, thousands of deities, and holy sites that continue to draw millions of

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pilgrims.

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1. SOURCES OF HINDU LAW
The main sources of Hindu law are as follows.

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1. Srutis

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2. Smritis

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3. Commentaries and Digests
4. Judicial decisions
5. Legislation
GA
6. Justice, equity and good conscience, and
AN

7. Customs
,B

1. The srutis:- the name (sruti) is derived from the root “sru” (to hear) and signifies “ ‘what is
W

heard’.
• By sruti or what was heard from above, it meant the veda.
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• It is believed to contain the very words of the diety revealed to inspired sages.
• Srutis are considered to be the primary and paramount sources of Hindu law.
OF

• This is a supreme authority as it is considered to be divine source.

• But practically the srutis is of no legal significance.
E
EG

• The srutis consists of the four Vedas and the Upanishads dealing chiefly with religious rites
and the means of attaining true knowledge and Moksha or salvation.
LL

The four vedas are as follows

CO

1. Rig veda
2. Yajur veda
N

3. Sam veda
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4. Atharva veda
AM

1.The Rig Veda : it is the oldest text. It contains the eulogies of gods and laws of sacrifices. It
consists of 1028 hymns arranged into 10 groups (mandala) some of which are sub-divided into
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 smaller groups, the compilation of each group being ascribed to some renowned saintly poet-

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priest (Rishi) of ancient times.

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2.The Yajur Vedas :- it is liturgical arrangement of part of hymns of the Rig veda with additions,

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for intoning in the appropriate manner at sacrificial ceremonies. It is in prose containing
explanations and directions, for the guidance of the priests.

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3.The Sam Vedas:- it consists of prayers composed in mantra intended to be chanted at

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sacrifices.

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4.The Atharva vedas:- it consists of magic charms.
The Upanishads are denominated as the Vedanta or the concluding porting of the Vedas and

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embody the highest principles of hindu religion and philosophy.

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2. Smritis:- the smritis means “what was remembered” and is of human origin and is

LO
believed to be the recollections of Rishis handed down to us, constituting the
principle sources of Hindu Law. GA
The smritis are divided into primary and secondary smritis,
AN

The primary smritis are again classified into

,B

a. Dharma sutras:- Baudhyana, Apastamba, Harita, Vasishtha and Vishnu are the chief writers.
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b. Dharmashastras :- Manu, Yajnyavalkya, Brihaspati and Narada are the writers of this Shastras.
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The Smritis are of 2 kinds:

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i. In prose style:- the Smritis in prose are called “Dharma Sutras”.

ii. In Poetry style:- the smritis in verse are called “ Dharmashastras”.
E
EG

The code of Manu has always been treated by Hindu sages and commentators, as a being of
LL

paramount authority.
CO

According to Brihaspati Manu holds the first place because he has expressed in his code the
whole sense of the vedas and no code is authoritative which contradicts him.
N
EE

Next to Manu it is work of Yajnayavalkya, in fact it is more dynamic though based on Manu
smriti. His work deals with rules of procedure in greater detail. His work is more concise and
AM

logical.
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3.COMMENTARIES AND DIGESTS:-

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The period of commentaries and digest is between 700 A.D. to 1700 A.D..

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The commentaries and digests were also the records of the traditional customs recorded in the

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Smritis as well as the new customs claiming for and found worthy of recognition.

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Because of incompleteness and frequent conflicts in the rules of the smritis and desirability of

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interpretation of the injunctions of smritis in a manner so as to suit prevalent custom and usages

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of different parts of the country, there was the necessity to reconcile them on the points of
difference. In this process there arose this important source.

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The commentaries, though professing and purporting to rest on the smritis, explained, modified

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and, enlarged the traditions recorded therein to bring them into harmony and accord with

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prevalent practices of the day.

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3.CUSTOM
WHAT IS A CUSTOM? GA
In section 3(a) of the Hindu Marriage Act 1955 the expression custom and usage signify
AN

any rule which, having been continuously and uniformly observed for a long time, has obtained
the force of law among Hindus in any local area, tribe, community, group or family; provided
,B

that the rule is certain and not unreasonable or opposed to public policy; provided further that in
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the case of a rule applicable only to a family it has not been discontinued by the family.
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Difference between custom and useage.

OF

It often that custom and useage terms are used as synonym but there is difference that is
Custom must be of antiquity and useage is of recent origin.
E
EG

So, the custom to have the force of law or rule of law, it is necessary for the party claiming it to
LL

plead and thereafter prove that such custom is ancient, certain and reasonable.
CO

Kinds of custom.
a. Local custom
N

b. Class custom
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c. Family custom.
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a. Local custom:- such customs belong to some particular locality, or district and they
are binding on the inhabitants of such place.
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Case Law
 Smt.Subhani V. Nawab [AIR 1941 Lah 154]

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That “it is undoubted that a custom observed in a particular district derives its force from the

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fact it has from long usage obtained in that district the force of law. It must be ancient; but it is

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not of the essence of this rule that its antiquity must in every case be carried back to a period
beyond the memory of man still less that it is ancient in the English technical sense.

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What is necessary to be proved is that the useage has been acted upon its practice for

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such a long period and with such invariability as to show that it has been acted upon in practice
for such a long period and with such invariability as to show that it has, by common consent,

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been submitted to as the established governing rule of the particular district.

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B. Class custom:-

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such customs are of a caste, or a sect or of the followeres of a particular profession or
occupation, such as agriculture, trade, mechanical art and the like.

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C. Family customs:-
such customs relate to a particular family, particularly concerning succession to an
GA
impartible Raj or succession to Maths or religious foundations.
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ESSENTIALS OF CUSTOM
• In order that a custom to be valid, it must be-
,B

• Ancient
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• It must be ancient in India.

• It need not necessarily be from time immemorial in the english technical sense.
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• In India the Hindu lawyers have laid down a reasonable rule on this question. One
hundred years is the limit suggested by them.
OF

• What ever is beyond a century is immemorial or out of mind of man whose span of life
according to the sruti extends to one hundred years only.
E
EG

1. Ancient:-
LL

A custom should be very old. It should have been accepted as law binding upon them.
In India the Hindu lawyers have laid down a reasonable rule on this question. One
CO

hundred years is the limit suggested by them.

N

In GOKAL CHAND V. PRAVIN KUMARI [ AIR 1952 SC 231]

EE

• The Hon’ble supreme court held that a custom in order to be binding must derive its force
AM

from the fact that by long usage it has obtained the force of law but the English rule that a
custom in order that it may be legal and binding must have been used so long that the
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 memory of men runneth not to the contrary should not be strictly applied to Indian

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conditions.

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All that is necessary to prove is that the usage has been acted upon in practice for such a

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•
long period and with such invariability as to show that it has, by common consent been

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submitted to as the established governing rule of a particular locality.

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2. Invariable and continuous :-

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Continuity is as essential to the validity of a custom as antiquity.

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• In the case of a widely spread local custom, want of continuity would be an evidence to
the fact that it never had a legal existence.

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• It is difficult to imagine that a custom once thoroughly established, would come to an end
suddenly.

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• Thus when a particular custom has been discontinued for a period it would come to an
end.

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• It is immaterial whether the discontinuance results from accidental cases, or from the
intention of the persons affected by it. GA
AN

3. Established by clear and unambiguous evidence :-

The evidence of custom must be clear and unambiguous.

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• A custom may be proved either by actual instances or by general evidence of the

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members of the tribe or family who would naturally be cognizant of its existence.
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• Custom must be proved by clear and unambiguous evidence.

• The testimony of experienced and competent person that certain acts done in accordance
OF

with a particular usage are held by them to be legal and valid, is admissible in evidence,
provided that statements are supported by examples of class, the history of the class is to
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be considered, in order to establish the custom.

EG

• The burden of proof as to the existence of a custom rests on the persons who sets up a
custom contrary to law.
LL

• The burden of proving that the family has abandoned the law of origin and has adopted
CO

the law of state where it has settled, lies on the party setting it up, and the burden can be
discharged by showing that in the matter of devolution of property, the rules obtaining in
the country of adoption have been accepted as rules governing the family.
N
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2. Reasonable :-
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The custom must be reasonable.

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• Customs are not to be enlarged beyond the usage without the parity of reason.
 • It cannot be said that a custom is founded upon reason, though an unreasonable custom is

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void.

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3. It must not be opposed to morality or public policy and

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• Though a custom may be clearly established, it cannot be enforced if it is immoral or is
against public policy.

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• A custom should not be opposed to the express provision of any law nor should it be

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forbidden by law.

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• A custom opposed to rules given in the texts of smritis or commentaries is not void.
Case law

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• Collector of Madura v. Mootoo Ramalinga

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In this case the Privy Council observed, under Hindu system of law, clear proof of custom

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will outweigh the written text of law.

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4. It must not be forbidden by any express enactment of the legislature.
GA
A mere agreement among certain persons to adopt a particular rule cannot create a new
custom binding on others, wherever its effect may be upon themselves.
AN

3. LEGISLATION
,B
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• Legislation is modern source of Hindu Law. It has been an important factor in the
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development of Hindu law. Most of them are in the direction of reforming Hindu law and
some of them supersedes Hindu law.
OF

The important legislations which have modified, altered and supplemented the textual
Hindu law are as follows,
E
EG

1. THE CASTE DISABLITIES REMOVAL ACT 1850:-

LL

A Person renouncing his religion or losing his caste is not deprived of his rights of
inheritance under the Act.
CO

2. The hindu widow’s remarriage Act 1956

N

This Act legalized remarriage of Hindu widows in certain cases and declared their rights
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and disabilities on remarriage.

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3. The native converts marriage dissolution Act 1866

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 A hindu who converts to Christianity may obtain a dissolution of marriage under

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circumstances laid down in the Act, though under the pure Hindu Law, marriage being a

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sacrament, would not be dissolved.

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4. The Special Marriage Act 1872:-

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It is amended in 1923 and now as repealed by Act 43 of 1954.

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5.The Indian Majority Act 1875:-

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Except is cases of marriage, divorce and adoption, the age of majority has been fixed on the

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completion of the 18th year.

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4. The T.P.Act 1882:-
It superseded the Hindu Law relating to Transfer of property.

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5. The Guardian and wards Act 1890:-

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It applied to appointment of guardianship by the court.
6. The Hindu Disposition of Property Act 1916:-

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It allowed bequest to an unborn person.
7. The Indian succession Act 1935:-
GA
It modified the Hindu law relating to wills.
8. Inheritance (Removal of Disabilities) Act 1928.
AN

It amended the Hindu Law relating to exclusion from inheritance of certain classes of heirs on
,B

account of physical defects.

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9. The Hindu Law of Inheritance (Amendment)Act 1919.

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It altered the order of heirs on intestate succession and created new female heirs.
10. The Child marriage Restraint Act 1929.
OF

It restrained child marriage.

11. The Hindu Gains of learning Act 1930
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It provides that the property acquired by a coparcerner by means of learning becomes his
EG

separate property.
LL

12. The Hindu women’s rights to property Act 1937:-

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A widow of a deceased Hindu was entitled to get a share along with the son.
13. The Arya marriage validation Act 1937:-
It recognized the validity of inter-caste marriage.
N

14. The Hindu marriage Disabilities Removal Act 1946.

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15. The Hindu married women’s Rights to separate residence and maintenance Act 1949.
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16. The Hindu marriage Validity act of 1949.

17. The special marriage Act 1954.
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18. The Hindu marriage Act 1955

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19. The Hindu minority and guardianship act 1956.

 20. The Hindu succession Act 1956.

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21. The Hindu Adoption and Maintenance Act 1956.

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22. The Child marriage Restraint (Amendment) act 1978

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23. Marriage law (Amendment) Act 1976.

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24. Hindu Succession (Amendment) Act 1976.

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Judicial Decision :-

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During the British regime, for administering law in India, the courts exercised the old Smritis

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and their commentaries while deciding the legal issues applicable to Hindus.

The English Judges administered Hindu law with the assistance of Hindu pandits, later it was

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abolished.

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The Judicial decision constitute an important source of law. A large number of decision have
now piled up on almost every point of law which have superseded the law laid down in

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commentaries on several fronts.
GA
The precedent is not merely an evidence of a law but also a source of law and the courts are
bound to follow the precedents.
AN

The judicial decision have modified and supplemented the pure Hindu Law and now they have
,B

emerged as important source of law.

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There are numerous instances where the judges in administering the Hindu law either modified
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or altered it.

Ex:- Adoption, son to pay father’s debts, restriction on definition of stridhan, curtailment of
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women’s rights
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EG

Q.No.2. Explain the grounds on which a Hindu Marriage can be dissolved by

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divorce.
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Synopsis
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Introduction
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Grounds for divorce by both wife and husband

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Grounds for divorce only by wife

Mutual consent divorce
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Conclusion
 in )
Introduction:-

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Hindu Marriage joins two individuals for life, so that they can pursue dharma (duty),

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artha (possessions), kama (physical desires), and moksa (ultimate spiritual release) together.

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SECTION 13: GROUNDS FOR DIVORCE.

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1. AVAILABLE TO HUSBAND AND WIFE BOTH.

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1. ADULTERY [SECTION 13(1)(i)]:-

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Under the Amendment laws, now it has been replaced by a simple requirement of adultery, that

RE
is, voluntary sexual intercourse with any person other than his or her spouse. Now even a single
act of adultery may constitute a sufficient ground for obtaining divorce.

LO
In the present clause the expression ‘voluntary sexual intercourse’ has been used. Therefore the
GA
sexual intercourse by either of the spouse with a person other than his or her spouse must be a
voluntary act. If one of the spouses is raped it cannot be said that there is voluntary intercourse.
AN

Case law:-
,B

P v. P [AIR 1982 BOM 498]

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In this case the wife was seen in a semi-naked state in a hotel with a stranger, the court did not
consider it sufficient to conclude adulterous relation of wife with the stranger.
LA

The court held that so long the act of cohabitation is not proved beyond doubt.
OF

STANDARD OF PROOF :-
E

Adultery from its very nature is a secret act. Direct evidence of an act of adultery is
EG

extremely difficult. Direct evidence, even when produced, the court will tend to look upon it with
disfavor, as it is highly improbable that any person can be a witness to such acts, as such acts are
LL

generally performed with utmost secrecy.

CO

But the evidence of adultery whether direct or circumstantial, must be necessarily of such
a character as would make a reasonable man to believe beyond any doubts and mere probability
N

that adultery may have been committed is not enough.

EE

CASE LAW:-
AM

SMT. PUSHPA DEVI V/S. RADHEYSHAM [AIR 1972 RAJ 26]

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 In this case it was held that it is not necessary to prove the fact of adultery by direct

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evidence and such evidence if produced would normally be suspected and likely to be discarded.

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THIMMAPPA DASAPPA V/S. THIMMVA [AIR 1967 SC 581]

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The facts were that the wife used to be usually absent from the house and found to be in

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company with strangers. She was also found in the room of the strangers. She did not have any

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explainations for being in their company. On the petition for divorce by the husband the court
held that under the conditions the wife’s living in adultery would be established and the petition

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would be decreed.

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HARGOVINDA SONI VS. RAM DULARI [AIR 1986 MP 57]

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The court observed that it was no longer required that adultery must be proved beyond
all reasonable doubt. It could be established by preponderance of probabilities.

LO
The law relating to standard of proof is clear and simple. It is not necessary that the
GA
charge of unchastity must be proved beyond all reasonable doubt. It could be established by
preponderance of probabilities.
AN

2. CREUELTY (SECTION 13(1) (1-a) :- cruelty where the petitioner has been treated
,B

with cruelty after the solemnization of marriage he would be entitled to get a decree of
divorce. Cruelty has become a ground of divorce as well.
W
LA

Cruelty is not defined in the act but for the purposes of establishing an act of cruelty it should
be so serious and weighty that cohabitation becomes impossible. It should be somewhat more
serious than ordinary wear and tear of routine marital life.
OF

CASE LAW
E
EG

INDIRA GANGELE VS. S.K. GANGELE [AIR 1993 MP 59]

LL

In this case it was stated that only some misunderstanding between parties was
established. It was held that merely saying that parties are unhappy is not enough not even
CO

unruly temper of a spouse or whimsical nature of a spouse is enough.

Cruelty consists of acts which are dangerous to life, limb or health. Cruelty for the
N

purpose of the Act means where one spouse has so treated the other and manifested such feelings
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towards her or him as to have inflicted bodily injury, or to have caused reasonable apprehension
AM

of bodily injury, suffering or to have injured health. Cruelty may be physical and mental.

Mental cruelty is the conduct of other spouse which causes mental suffering or fear to the
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matrimonial life of the other.

 CASE LAWS

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SHOBHA RANI V/S. MADHUKAR REDDI [AIR 1988 SC 121]

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The Hon’ble Supreme court considerably enlarged the concept of cruelty and held that

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the demand for dowry which is prohibited under law amounts to cruelty entitling the wife to get

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a decree for dissolution of marriage.

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RAJENDER BHARDWAJ VS. ANITHA [AIR 1993 DEL. 135]

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In this case the wife did not allow the husband to consummate the marriage for the first

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seven days and nights. The wife abused her mother-in-law , wrote a nasty letter to her husband
making illegal demand for clothes for her brother etc., and threatened to burn the whole house

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by putting gas cylinder on fire and also to file a false dowry case against the family members. It
was held that wife is guilty of cruelty.

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The question of legal cruelty justifying judicial separation or divorce on the ground may be

LO
considered under the following heads:-

a. Actual or threatened physical violence.

GA
b. Verbal abuse and insults
AN

c. Excessive sexual intercourse

d. Refusal of intercourse
,B

e. Neglect
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f. Communication of venereal diseases

g. Drunkenness and use of drugs
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h. Forcing association with improper persons

i. False charge of immorality against the wife
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j. Ill-treatment of children
k. Wife’s association persisting in with another women raising suspicion of her practicing
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lesbianism
EG

l. Wife suffering from deadly disease.

LL

3. DESERTION [SECTION 13 (1) (1-b) :-

CO

Where the petitioner has been deserted continuously for a period not less than 2 years
immediately preceding the presentation of the petition for judicial separation or divorce, such
N

petition may be granted.

EE
AM

Desertion means withdrawing from a matrimonial obligation i.e., not permitting or

allowing and facilitating the cohabitation between the parties.
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 Desertion is not a single act complete in itself, it is a continuous course of conduct to be

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determined under the facts and circumstances of each case.

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Desertion by the other party to the marriage without reasonable cause and without the

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consent or against the wish of such party and includes the willful neglect of the petitioner by
the other party to the marriage.

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For the offence of desertion, so far as the deserting spouse is concerned two essential
conditions must be proved:-

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1. The factum of separation
2. The intention to bring cohabitation permanently to an end.

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Desertion is classified into 2 kinds:-

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a. Actual desertion

LO
b. Constructive desertion

GA
a. Actual desertion:- in order to constitute actual desertion the following facts should be
established
AN

i. The spouse must have parted or terminated all joint-living

ii. The deserting spouse must have the intention to desert the other spouse
,B

iii. The deserted spouse must not have agreed to the separation
W

iv. The desertion must have been without reasonable cause, and
v. This state of affairs must have continued for the period of 2 yrs.
LA

Case law:-
OF

BIPIN CHANDRA V/S PRABHAWATI [AIR 1957 SC 173]

E
EG

It was a case decided by the Hon’ble Supreme court. It is an case example on animus
deserendi – an intention to bring cohabitation permanently.
LL

In this case the wife used to reside with the husband along with the parents. Their marital
CO

life was happy and a son was born to them. Late the husband left for England for a few months.

During his absence the wife developed intimacy with the old friend of the husband, and
N

one of the letters containing objectionable contents was intercepted by the father-in-law of the
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wife.
AM

On the return of the husband the father-in-law told him everything. When the husband
asked her to explain all this, she refused and on next day left for her parents place.
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 Later the husband wrote a letter to her asking her to send the child, some attempts to

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reach an understanding were made between them.

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When the mother of the wife sent a telegram to the husband to receive his wife on station, the

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reply sent back by the husband was that she should not be sent.

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After sometime the husband filed a petition for divorce on the ground of desertion by the

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wife. The defence of the wife was that it was petitioner who by his treatment made her life
unbearable and compelled her to leave matrimonial home.

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The supreme court held that the ‘question to be considered is whether her leaving marital
home is consistent with her having deserted her husband in the sense that she had deliberately

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decided permanently to forsake all relationship with him with intention of non-returning to
consortium with our the consent of the husband and against his wishes.

RE
In this case the court concluded that even though the wife leaves matrimonial home

LO
without any cause, she will not be guilty of desertion if subsequently she shows an inclination to
return and is prevented from doing so by the petitioner.
GA
b. Constructive desertion:- it consists of that state of things where one party to
AN

marriage has been compelled to leave matrimonial home owing to repulsive behavior
of the other party and the party thus living separately cannot be held to be deserter but
,B

the party compelling her/him would be held to be the deserter.

W

CASE LAW
LA

DR. SRIKANT RANGACHARYA VS. SMT. ANURADHA [AIR 2000 SC 1650]

OF

The Karnataka high court held that willful neglect by one spouse to the other would come
within the meaning of desertion. It is not necessary to prove that one of the parties to marriage is
E
EG

living separately from the other.

LL

4. CONVERSION :- section 13(1) (ii) :- conversion to another religion is one of the

ground for divorce. A decree for divorce can be obtained by a petitioner where the
CO

opposite party has ceased to be a Hindu by conversion to another religion.

N

5. UNSOUND MIND [SECTION 13(1) (iii) ]:- incurable unsoundness of mind or

EE

continuous or intermittent mental disorder of such a nature as to disable the petitioner to

live reasonably, with the respondent makes the petitioner eligible to get a decree of
AM

divorce.
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CASE LAW
 RAM NARAIN GUPTA VS. SMT. RAMESHWARI GUPTA [AIR 1988 SC 2260]

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The Supreme Court elaborately described about the decree of mental disorder

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which will enable an aggrieved party to a marriage to obtain a decree of divorce. The

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court held that the context in which the idea of unsoundness of ‘mind’ and mental

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disorder occur in the section as grounds for dissolution of a marriage, require the
assessment of the degree of the ‘mental disorder’. It degree must be such as that the

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spouse seeking relief cannot reasonably be expected to live with the other.

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6. LEPROSY [SECTION 13(1) (iv) ]:- here the spouse presenting the petition has to
show that the other spouse has been suffering from a virulent and incurable form of

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leprosy.

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Case law

RE
Swarajya laxmi v/s. Dr. G.G.Padma Rao [AIR 1974 SC 165]

LO
The Supreme Court held that lepromatous leprosy is virulent. This type of leprosy is
malignant and contiguous. GA
It also an incurable form of leprosy and entitles the other spouse to a decree for divorce.
The petitioner brought the divorce petition against the respondent on the ground of
AN

lepromatous and it was decreed.

,B

7. VENERAL DISEASE [SECTION 13(1) (v) ]:- it is essential for petitioner to prove
W

that the opposite party is suffering from venereal disease in a communicable form.
8. RENUNCIATION OF WORLD [SECTION 13(1) (vi) ]:-
LA

Renunciation of the world is regarded tantamount to civil and therefore it is given as a

ground for a decree of divorce.
OF

He or she must perform the ceremonies necessary for entering the class of sanyasi;
without such ceremonies he cannot be regarded dead for worldly purposes.
E
EG

9. PRESUMED DEATH [SECTION 13(1) (vii) ]:- either of the party may seek divorce
LL

on this ground if the other party has not been heard of as being alive for a period of 7
years or more by those persons who would naturally have heard of it , had that party been
CO

alive.
The aggrieved party may marry again and have legitimate children
N
EE

10. NON-PRESUMPTION OF COHABITATION AFTER THE DECREE OF

JUDICIAL SEPARATION [SECTION 13(1-A )( 1)]:-
AM

It provides that the either party to a marriage may present a petition for dissolution of the
-

marriage by a decree of divorce on the grounds that there has been no resumption of cohabitation
AL
 between the parties to the marriage for a period of one year or more after the passing of a decree

)
for judicial separation in the proceeding to which they were parties.

in
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A party will be entitled to a decree of divorce if a decree of judicial separation has already been

nla
passed and the other party has not resumed cohabitation within one year thereafter.

ee
am
11. FAILURE TO COMPLY WITH THE DECREE FOR RESTITUTION OF
CONJUGAL RIGHTS . [SECTION 13(1-A )]:-

.al
ww
A party will be entitled to a decree of divorce also when a decree for restitution of conjugal
rights has been passed and it has not been complied with within one year of the passing of such a

(w
decree.

RE
The spouse who fails to comply with it would do so at his or her risk and it would not be
necessary for the aggrieved spouse to prove that he or she had made positive efforts to make the

LO
other party comply with the same and it would suffice to show that there was no compliance with
the decree. GA
GROUNDS AVAILABLE TO WIFE ONLY FOR DIVORCE [SECTION 13(2)
AN

4 Additional grounds are available to wife only. They are as follows

,B

1. Section 13(2) (1)- BIGAMY:- A wife may also present a petition for the dissolution of
W

marriage by a decree of divorce on the ground of second marriage by husband which was
LA

solemnized after the commencement of the Act .

It is held that the 2nd marriage of the husband was void ab -initio and the 2nd marriage of the
OF

husband amounted to adultery. The petitioner therefore is entitled to a decree of divorce under
section 13(1) (i) and not under section 13(2).
E
EG

2. Section 13(2)(II)- Rape, sodomy or bestiality:- the expression rape and sodomy have been
LL

defined in section 375 and 377 of the IPC simultaneously.

CO

A man is said to commit rape who has sexual intercourse with a women.

1. Against her will, or

N

2. Without her consent or

EE

3. With her consent, when her consent has been obtained by putting her or any person in
AM

whom she is interested in fear of death or of hurt, or

4. With her consent , when the man knows that he is not her husband and that her consent is
-

given because she believes that he is another man to whom she is lawfully married or
AL
 5. With her consent, when at the time of giving such consent, by reason of unsoundness of

)
mind or intoxication or the administration by him personally or through another of any

in
stupefying or unwholesome substance she is unable to understand the nature and

w.
consequences of that to which she gives consent, or

nla
6. With or without her consent when she is under 16 yrs of age .
1. Section 13(2)(III)- NON-RESUMPTION OF COHABITATION AFTER DECREE

ee
OR ORDER OF MAINTENANCE :-

am
Where the decree or order has been passed against the husband awarding maintenance to the

.al
wife in a suit after passing of such decree or order, cohabitation between the parties has not been
resumed for one year or upwards, decree of divorce would be granted.

ww
2. Section 13(2)(IV)- OPTION OF PUBERTY :- where the wife’s marriage was

(w
solemnized before she attained the age of 15 yrs and she repudiated the marriage after attaining

RE
that age but before attaining the age of 18 yrs. It is immaterial whether the marriage has been
consummated or not.

LO
Conclusion
GA
Hindu Marriage Act of 1955 is a landmark in the history of social legislation. This enactment is
AN

exhaustive and it has brought important and dynamic changes in Hindu matrimonial concept. It
has not simply codified the Hindu law of marriage but has introduced certain important changes
,B

in many respects.
W

The Hindu marriage contemplated by the Act hardly remains sacramental. The Act has
LA

introduced some changes of far- reaching consequences which have undermined the
sacramental character of marriage and rendered it contractual in nature to a great extent.
OF

Q.No.3. show the mannerism the estate would devolve on the heirs when a
female Hindu dies after the commencement of the Hindu Succession Act 1956.
E
EG

SYNOPSIS
LL

Introduction
CO

Objects Of The Hindu Succession Act 1956

Rules Of Succession To The Property Of Female;-
N

Orders Of Succession – Section 16.

EE

Who Are The Heirs?

AM

Conclusion
-
AL

INTRODUCTION :-
 The Hindu succession Act 1956 marks a new era in the history of social legislation in

)
India. It has attempted to bring some reforms in the system of inheritance and succession.

in
w.
RAU’S COMMITTEE was set up to codify Hindu law

nla
Under this committee Hindu marriage act 1955, Hindu Minority and Guardian ship Act

ee
1956, Hindu adoption and Maintenance Act 1956 and Hindu Succession Act 1956 was passed

am
Objects of the Hindu Succession Act 1956

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1. It is was passed to meet the needs of a progressive society.

ww
2. Removes inequality between male and women with respect of rights and property and it
evolves a list entitled to succeed

(w
3. It is passed to codify and amend the Hindu law succession.

RE
The mannerism in which the estate would devolve on the heirs when a female Hindu dies is
as follows,

LO
RULES OF SUCCESSION TO THE PROPERTY OF FEMALE;-
GA
SECTION 15:- prescribes the general rules of succession of the property of a female dying
AN

intestate, and section 16 lays down the order of succession.

Section 15(1):- 1. The property of a female Hindu dying intestate shall devolve according to the
,B

rules set out in section 16-

W

a. Firstly, upon the sons and daughters (including the children of any predeceased
LA

son or daughter) and the husband.

b. Secondly, upon the heirs of the husband.
OF

c. Thirdly, upon the mother and father.

d. Fourthly, upon the heirs of the father; and
E

e. Lastly upon the heirs of the mother.

EG

2. Not withstanding anything contained in sub-section (1)

LL

a. any property inherited by a female Hindu from her father or mother shall devolve, in the
CO

absence of any son or daughter of the deceased (including the children of any pre-deceased son
or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein,
N

but upon the heirs of the father and,

EE

b. any property inherited by a female Hindu from her husband or from her father-in-law shall
AM

devolve, in the absence of any person or daughter of the deceased (including the children of any
pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order
-

specified therein, but upon the heirs of the husband.

AL
 ORDERS OF SUCCESSION – SECTION 16.

in )
The order of succession among the heirs referred to in section 15 shall be, and the distribution of

w.
the intestate’s property among those heirs shall take place, according to the following rules,

nla
namely-

ee
Rule 1- among the heirs specified in sub-section (1) of section 15 those in one entry shall be

am
preferred to those in any succeeding entry, and those included in the same entry shall take
simultaneously.

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Rule 2- if any son or daughter of the intestate had pre-deceased the intestate leaving his or her

ww
own children alive at the time of the intestate’s death, the children of such son or daughter shall
take between them the share which such son or daughter shall have taken if living at the

(w
intestate’s death.

RE
Rule 3- the devolution of the property of the intestate on the heirs referred to in clauses (b) (d)
and (e) of sub-section (1) and in sub-section (2) of section 15 shall be in the same order and

LO
according to the same rules as would have applied if the property had been father’s or the
GA
mother’s or the husband’s as the case may be and such person had died intestate in respect
thereof immediately after the intestate’s death”.
AN

Who are the heirs?

,B

Sec 15(1) divides the heirs of a Hindu female into 5 categories.

W

1). Heirs in the first entry:

LA

a. Sons
b. Daughters.
OF

c. Children of predeceased son.

d. Children of pre-deceased daughter.
E
EG

e. Husband.

2). Heirs in the second entry:

LL

The heirs of the husband of the female dying intestate come under second entry. The heirs of the
CO

husband are:
N

a. Heirs of the husband specified in class I of the schedule.

EE

b. Heirs of the husband specified in class II of the Schedule.

c. Agnates of husband.
AM

d. Cognates of the husband.

-

3). Heirs in the third entry.

AL
 a. Mother- it does not include step-mother but includes natural as well as adoptive

)
mother.

in
b. father “father” does not include step-father of putative father. But includes

w.
natural or adoptive father.

nla
4. Heirs in the fourth entry-

ee
am
Heirs of the father of the female dying intestate comes under this entry. The heirs
of the father are:

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a) Heirs of the father specified in class I of the schedule.

ww
b) Heirs of the father specified in class II of the schedule.
c) Agnates of the father.

(w
d) Cognates of the father.

RE
5. Heirs in the fifth entry-

Heirs of her mother come under this entry.

LO
1) Sons, daughters of the mother including sons and daughters of a pre-deceased son and
GA
daughter, and husband.
2) Heirs of husband of the mother.
AN

3) Father and mother of the mother.

4) Heirs of father of the mother.
,B

5) Heirs of mother of the mother.

W
LA

Section 15(2) is an exception to the general rule mentioned above

OF

Property inherited from her father or mother.

Property inherited from her father or mother shall devolve upon the heirs of father provided the
E
EG

intestate died leaving no son or daughter or any children of any pre-deceased son or daughter.

This excludes the heirs if alive, in the first entry, second entry, and the third entry.
LL

Therefore it is excluded the husband who is in the first of entry and his heir in the second entry.
CO

Property inherited from her husband or her father-in-law.

N

Such property shall devolves upon the heirs of the husband, who came in as father, or mother, or
EE

the heirs of the father or mother from inheriting such property.

AM

Order of succession :-
-
AL

The order of succession and manner of distribution among heirs of a female hindu dying intestate
are given in section 16 of the Act.
 Rule-1:- heirs in the first entry of section 15(1) of the Act 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

in
to those in the third entry and so on. Where there are more heirs than one, in the entry preferred,

w.
such heirs shall take simultaneously.

nla
Rule-2:- the children of pre-deceased son or daughter between them, get the share which son or

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daughter would have taken if living at the intestate’s death i.e., the division is per stripes.

am
.al
Q.NO.4. what is partition? How Partition can be affected?

ww
Synopsis

(w

Introduction

RE

Partition meaning

LO

Essentials ingredients of partition

Property liable to Partition:-

GA
Properties incapable of division and rule of partition of such property.

Certain provisions to be made before partition:-
AN

Partition of the joint family property may take place at the instance of the following
persons.
,B

Modes of partition
W
LA

Introduction
OF

Partition
E

According to Mitakshara Law:-

EG

Partition is the adjustment of diverse rights regarding the whole by distributing

LL

them or particular portions of the aggregate.

CO

CASE LAW
N

KALYANI VS. NARAYANAN [AIR SC 1173]

EE
AM

Essentials ingredients of partition

1. Male members should express his clear wish for partition.

-
AL

2. Expression according to circumstances

 3. The desire of partition must be noticed to all members of the family

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4. It is severance of the joint status

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5. Every coparcener has right to claim partition

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6. By partition the joint status comes to an end resulting in putting the
coparcenary to an end.

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Property liable to Partition:-

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It is should be understood that coparcenary property is liable to partition.

ww
Properties incapable of division and rule of partition of such property.

(w
1. Impartibly property i.e. property which descends to one member only, either

RE
by custom or under any provision of law or by the terms of grant.
2. Property indivisible by nature

LO
3. Family idols and relics which are object of worship.
4. Separate property of a member GA
AN

Certain provisions to be made before partition:-

From the properties which are liable to partition provision must first be
,B

made for:-
W
LA

1. Debts incurred for joint family which are payable out of joint family
property.
OF

2. Maintenance of dependent females members and disqualified heirs

3. Marriage expenses of unmarried daughters of the last male holder but not of
E

the collaterals.
EG

4. Expenses for funeral ceremonies of the widow and the mother of the last
LL

male holder.
CO

CASE LAW
N

K.M. NARAYANAN VS. R.V. RANGANADHAN [AIR 1976 SC 1715]

EE
AM

The supreme court stated that while dividing the family estate the joint
family should take account of both the debts and assets and to make provision for
-
AL

discharge of debts.
 Partition of the joint family property may take place at the instance of the

)
in
following persons.

w.
1. Sons, grandsons ( also daughters of the coparceners)

nla
2. After born sons ( & after born daughter of a coparcerner)

ee
After born sons are of 2 sets

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a. Those born as well as begotten after the partition
b. Those born after partition but begotten before it or those in their

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mother’s womb at the time of partition.

ww
3. Illegitimate sons:- an illegitimate sons among the 3 generation classes has

(w
no interest in property and cannot claim partition but entitled to
maintenance out of his father’s estate.

RE
4. Widows: she is not a coparcener but she is entitled to share when the

LO
partition is made.
5. Alinee :- An alienee of coparcener’s interest whenever such an alienation
GA
is valid has also a right to partition.
AN

CASE LAW
,B

SMT. KAILASHPATI DEVI VS. SMT. BHUWANESHWARI [AIR 1984 SC

W

1802]
LA

The supreme court has held that a purchaser of the joint family property
OF

from a member of a Joint family may have the right to file a general suit for
partition against the members of joint family.
E
EG
LL

6. Female Sharers:-
1. Wife
CO

2. Widowed mother
3. Partenal grandmother
N
EE

7. Adopted children:-
AM

Adopted children are treated natural born child and they can demand
partition.
-
AL
 FEMALE SHARERS:-

)
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The females, who take a share on partition are

w.
nla
1. The wife
2. Widowed mother.

ee
3. Widowed grandmother

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4. Daughter.

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MODES OF PARTITION:-

ww
1. Partition by mere declaration to separate:-

(w
2. Partition by notice

RE
3. Partition by will
4. Conversion to another faith

LO
5. Marriage under special marriage act 1954
6. Partition by agreement GA
7. Partition by arbitration
AN

8. Partition by father
9. Partition by suits
,B
W

1. Partition by mere declaration to separate:-

LA

To constitute partition is a definite and unequivocal indication of his ‘intention’ by

a member of joint-family to separate himself from the joint family and enjoy his
OF

share in severalty.
E

1. Partition by notice
EG

A severance of joint status may be effected by serving a notice by a

LL

coparcener on the other coparceners, including his intention to separate and

enjoy the property in severalty or demanding partition of the property.
CO

2. Partition by will
N

Partition may be effected by a coparcener by making a will containing a

EE

clear and unequivocal intimation to his coparceners of his desire to server

himself from the joint family or containing an assertion of his right to
AM

separate.
3. Conversion to another faith:-
-
AL
 Conversion of a coparcener to any other religion operates as partition of

)
in
the joint status as between him and other members of the family.

w.
4. Marriage under special Marriage Act, 1954.

nla
Marriage of a hindu under the Special Marriage Act causes severance
between him and the other members of the family.

ee
5. Partition by agreement.

am
The agreement between the members of a joint family to hold and enjoy

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the property in certain defined shares as separate owner operates as

ww
partition, although the property itself has not been actually divided by
metes and bounds.

(w
6. Partition by arbitration:-

RE
An agreement between the members of a joint family whereby they
appoint an arbitrator to arbitrate and divide the property operates as a

LO
partition from the date thereof.
7. Partition by father:- GA
The father may also cause the severance of the sons without their consent.
AN

Doctrine of patria potestas (paternal power)

,B

• According to this doctrine father can get the shares of his sons fixes
W

and also get them separated.

LA

• But he does not have the right to get the joint family property
partitioned through the will.
OF

• Although he could do the same with their consent.

8. Partition by suits.
E
EG

The institution of a suit for partition effects severance of joint family

status and as such the mere institution of such a suit effects immediate
LL

severance of joint status.

CO
N

EFFECTS OF PARTITON
EE

 Joint status comes to an end

AM

 Coparcenary also comes to an end

 Share is also determined
-
AL

 Partition does not annul the family and other relation

 SUIT FOR PARTITION

in)
Who can sue for partition?

w.
nla
1. Every adult coparcener :- every coparcener [son/daughter] is entitled to sue for
partition and is entitled to have a share on partition.

ee
am
2. a purchaser of a coparcenary interest of a coparcener at a sale in execution of
decree- such a purchaser can demand a partition.

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ww
SUIT BY MINOR:-

(w
The Hindu law makes no distinction between a minor and major coparcener so far
as their rights to joint properties are concerned.

RE
Hence, a minor is also eligible to file a suit for partition.

LO
VENKATA REDDI V/S LAKSHAMMA [AIR 1963 SC 1601] GA
The court held that if a suit for partition by a minor, the court will direct
AN

partition only if partition is in the interest of the minor but that limitation arises not
,B

because of any peculiarity in the estate of the minor but is imposed for protection
of his interest.
W
LA

Parties to the suit;-

The following persons should be made defendants in a suit for partition.

OF

1.The heads of all branches.

E
EG

2.females who are entitled to a share on partition, ex. Daughter of a coparcerner,

the wife, mother and grandmother.
LL
CO

3. the purchaser of coparcener’s interest, if any;

4. if the plaintiff himself is a purchaser from a coparcener his alienor.

N
EE

All persons who are entitled

AM

1. demand partition
-

2. to have a share on partition including female sharers

AL
 3. to have provision made for maintenance and marriage

)in
4. alienees of undivided interest are necessary parties to a suit for partition.

w.
nla
ee
Q.No.5. Explain the features of a Coparcenary and bring out the rights of a

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coparcenary.

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HINDU COPARCENARY:-

ww
A Hindu coparcenary is a much narrower body than a joint Hindu family. It

(w
includes only those who acquire by birth an interest in the joint or as, it is called
“coparcenary property”, these being the sons, grandsons, and great-grandsons of

RE
the joint property for the time being.

LO
Now even the daughter is also a coparcener according to section 6 Hindu
succession (Amendment )Act 2005. GA
AN

The essence of a coparcenary under the Mitakshara, is community of interest and

unity of possession between all the members of the coparcenary.
,B

Each coparcener is entitled to joint possession and, enjoyment of the common

W

property.
LA

The essence of the coparcenary being unity of ownership, no individual member of

OF

the family, while it remains undivided, can predicate of the joint and undivided
property that he has a certain definite share.
E
EG

Thus, if a person inherits property from his father, grandfather or great grandfather,
his sons, grandsons and great grandsons and daughters of a Mitakshara coparcener
LL

acquire an interest in it by birth and then they become with him joint owners of the
CO

coparcenary property with a right to demand partition of the same and all of them
are coparceners and constitute a coparcenary.
N
EE
AM

STATE BANK OF INDIA V. GHAMANDI RAM [AIR 1969 SC 1330]

-

The Hon’ble Supreme court has laid down special feature of a Mitakshara
AL

coparcenary given below.

 1. The Male descendants up to three generations from a common ancestor, who

in )
acquire an interest by birth, constitutes a coparcenary.

w.
2. These members of the coparcenary have right to demand partition.

nla
3. So long there is no partition, each of the coparceners has control over the
entire property along with others.

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4. Their ownership and right of joint possession are common, on account of co-

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ownership.

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5. There cannot be any transfer of the coparcenary property unless the

ww
necessity of such transfer is proved and all other members of the
coparcenary give their consent to this effect.

(w
6. On the death of any of the coparceners, hid share devolves on other

RE
coparceners by the rule of survivorship not be succession.

LO
Illustrations
GA
A
AN

_____________________________________________________________
_
,B
W

B C D1 D2
LA
OF

M N
E

E F O P
EG
LL
CO
N
EE

G H S T
AM
-

In the above illustration, during the lifetime of A, the male holder in the
AL

family, B, C the two sons of A, D1 and D2 the two daughters of A and E, F , M,N
 the grandsons and G,H,O,P the great-grandsons will constitute the coparcenary

in )
along with A. In this case S and T are not coparceners because they are removed

w.
from A beyond the three degrees. But as soon as A dies, S and T are also included

nla
within the coparcenary.

ee
FEATURES OF COPARCENARY

am
1. UNITY OF OWNERSHIP:-

.al
The essential feature of a Mitakshara coparcenary property is unity of ownership

ww
and community of interest. The ownership of coparcenary property is in the whole

(w
body of the coparceners.

RE
2. INDETERMINABILITY OF SHARES:-

LO
In a Hindu undivided family governed by the Mitakshara law, no individual can
predicate, while it remains undivided, that he has a definite share in the property of
GA
the family.
AN

3. COMMUNITY OF INTEREST:-
,B
W

No coparcener is entitled to any special interest in the coparcenary property, nor is

LA

he or she entitled to exclusive possession of any party of the property.

OF

4. DAUGHTER OF A COPARCENER MY ALSO BE A COPARCENER:-

E

The Hindu succession (Amendment)Act, 2005 – has made a daughter of a

EG

Mitakshara coparcener, a coparcener by birth as if she were a son.

LL
CO

5. Right by birth:-
N

The coparcenary property is a property in which the issue of the coparceners

EE

acquire an interest by birth.

AM

6. ABROGATION OF THE RULE OF SURVIVORSHIP:-

-
AL

The amendment act 2005 abolished survivorship.

 WHEN DOES A COPARCENARY COMES TO AN END

in)
w.
1. By partition

nla
2. By the death of the last surviving coparcener.

ee
am
Q.NO.6. what is the object of adoption? Explain the requirement of valid

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adoption under the Hindu Adoption and Maintenance Act.

ww
INTRODUCTION :-

(w
Manu defines an adopted son as follows:- “A son equal in caste and

RE
affectionately disposed whom his mother or father (or both) give with water at time
of calamity is known as the Dattrima (Dattaka Son).

LO
Thus adoption is the transplantation of son from the family in which he is born, to
GA
another family where he is given by the natural parents by way of gift. The
AN

adopted son is then taken as being born in the new family and acquired rights,
duties, and status there only and his ties with the old family comes to an end.
,B

The powers of a male and female Hindu in adoption as per the Hindu Adoption
W

and Maintenance Act 1956.

LA

Section 7 deals with adoption by a male

OF

Section 8 deals with adoption by a female

E

Section 7 deals with adoption by a male:-

EG

The capacity of a male to take in adoption.

LL
CO

Section 7 Any male Hindu

a. who is sound mind

N

b. who is not a minor has the capacity to take a son or daughter in

EE

adoption.
AM

Provided – if he has wife consent of the wife is needed

-
AL

The consent of the wife is not needed

  if the wife has completely renounce the world

)in
 has converted to another religion

w.
 or unsound mind the consent of the wife is not needed

nla
If the consent of the wife is not taken the adoption is invalid.

ee
Case Law

am
GHISALAL VS. DHAPU BAI [AIR 2011 SC 644]

.al
ww
The supreme court has laid down that the consent of wife either should be in
writing or reflected by positive act voluntarily and willingly done by her.

(w
If the person is having 1 or more wives consent of all the wives is necessary.

RE
Consent of wife when not necessary;

LO
The consent of the wife will not be necessary if the wife whose consent is sought
GA
has,
AN

1. Completely and finally renounced the world.

,B

2. Ceased to be a Hindu
3. Has been declared by a court of competent jurisdiction to be of an unsound
W

mind.
LA
OF

Section 8 deals with adoption by a female

E

The capacity of a female to take in adoption.

EG

Any female
LL

a. who is of sound mind

CO

b. who is not a minor

c. who is not married or
N

if married,
EE

i. whose marriage has been dissolved

AM

ii. whose husband is dead

iii. whose husband has completely and finally renounced the world.
-
AL

iv. Whose husband has ceased to be a hindu.

 v. Whose husband has been declared by a court of competent jurisdiction

in)
to be of unsound mind.

w.
Has the capacity to take a son or daughter in adoption. Consent of the husband is

nla
necessary if husband is alive.

ee
RIGHT OF MALE AND FEMALE TO ADOPT

am
Section 11 – other conditions for a valid adoption-

.al
ww
1. If the adoption is son , the father or mother should not have son, son’s son, or
son’s son’s son living (whether legitimate or adoption) living at the time of

(w
adoption.

RE
2. If the adoption is of a daughter , the father and mother must not have a Hindu

LO
daughter or son’s Daughter (Whether legitimate blood relationship or by adoption)
living at the time of adoption. GA
3. If the adoption is by a male and the person to be adopted is a female the
AN

adoptive father is at least 21 yrs older than the person to be adopted.

4. If the adoption is by a female and the person to be adopted is a male the
,B

adoptive mother is at least 21 yrs older than the person to be adopted.

W

5. The child shall not be adopted by 2 or more persons

LA

6. The child to be adopted must be actually given and taken from the place of
family to the adopted family.
OF

CASE LAW.
E
EG

GOLAK CHANDRA RATH VS. KRATIBAS [AIR 1979 ORI 205]

LL

In this case the Orissa High court held that,

CO

The condition under section 11 must be fulfilled in adoption otherwise adoption is

not valid.
N
EE

WHO MAY GIVE IN ADOPTION:-

AM

Section 9(1) prescribes the capacity of persons, who give the child in adoption to
another.
-
AL
 1.No person except the father or mother or the guardian of a child shall have the

)
in
capacity to give the child in adoption.

w.
2. subject to the provisions of sub-sec 4 , the father, or the mother, if alive, shall

nla
have equal right to give a son or daughter in adoption.

ee
3. where both the father and mother are dead or have completely and finally

am
renounced the world, or have abandoned the child or have been declared by a court

.al
of competent jurisdiction to be of unsound mind or where the parentage of the

ww
child is not known, the guardian of a child may give the child in adoption with the
previous permission of the court to any person including the guardian himself.

(w
4. before granting permission to a guardian, the court shall be satisfied that the

RE
adoption will be for the welfare of the child.

LO
Who may be adopted?
GA
Section 10:- No person shall be capable of being taken in adoption unless the
AN

following conditions are fulfilled, namely,

i. He or she is a Hindu
,B

ii. He or she has not already been adopted.

W

iii. He or she has not been married, unless there is a custom or

LA

usage applicable to the parties which permits persons who are

married being taken in adoption.
OF

iv. He or she has not completed the age of 15 yrs, unless there is a
custom or usage applicable to the parties which permits persons
E
EG

who have completed the age of 15 yrs being taken in adoption.

LL

Case law
CO

ATLURI MANADAM V. ANNE SAI BAPUJI [AIR 2011 SC 545]

N

In this case a person who was adopted when he was above the age of 15 yrs under
EE

custom which permitted the adoption claimed the property of his adoptive father
on the ground that since the adoptive father died intestate, he being the adoptive
AM

child was entitled to his property.

-
AL
 Adoption was made through a registered adoption deed that stated that the natural

in)
parents of the claimant aged 18 had given him in adoption in presence of the

w.
elders to Anne Seetharamaiah who was issueless in accordance with the Hindu

nla
Adoption and Maintenance Act, 1956.

ee
It also recited that the adoption was in accordance with the custom prevailing in

am
The court accepted the adoption as valid in view of the statutory exception made in

.al
favour of custom to the contrary.

ww
Ceremonies required for adoption

(w
According to section 11 (iv):- the child to be adopted must be actually given and

RE
taken in adoption by the parents or guardian or under the authority with intent to
transfer the child from the family of its birth, or in case of an abandoned child or a

LO
child whose parents is not known, from the place or family where it has been
brought upto the family of its adoption. GA
AN

Provided that the performance of Datta Homam shall not be essential to the
validity of an adoption.
,B

Ceremony of giving and taking is essential.

W
LA

Case law

LAKSHMAN SINGH KOTHARI V/S SRIMATI RUP KUWAR [AIR 1961

OF

SC 1378]
E

The supreme court held that under the Hindu law whether among the regenerate
EG

caste or among shudras, there cannot be a valid adoption unless the adoptive child
LL

is transferred from one family to another and that can be done only by the
ceremony of giving and taking.
CO

The object of the corporal giving and receiving in adoption is to secure due
N

publicity.
EE

To achieve this object it is essential to have a formal ceremony.

AM

DATTA HOMAM:-
-
AL
 It is the sacrifice of the burning of clarified butter, which is offered as a sacrifice to

in)
fire by way of religious propitiation or oblation.

w.
Datta humam is not essential in the case of an adoption in the twice born classes

nla
when the adopted son belongs to the same gotra as the adoptive father.

ee
Datta Homan could be performed at any time after the physical act of giving and

am
taking.

.al
Under the present law Datta Homam is not essential for an adoption made by any

ww
class of Hindus, Jains, Buddhists and Sikhs.

(w
EFFECTS AND CONSEQUENCES OF ADOPTION –

RE
SECTION 12:-

LO
‘An adopted child shall be deemed to be the child of his or her adoptive father or
GA
mother for all purposes with effect from the date of the adoption and from such
date all the ties of the child in the family of his or her birth shall be deemed to be
AN

severed and replaced by those created by the adoption in the adoptive family.
,B

Provided that-
W

a. The child cannot marry any person whom he or she could not have married
LA

if he or she had continued in the family of his or her birth;

b. Any property which vested in the adopted child before the adoption shall
OF

continue to vest in such person subject to the obligations, if any attaching to

E

the ownership of such property, including the obligation to maintain

EG

relatives in the family of his or her birth;

c. The adopted child shall not divest any person of any estate which vested in
LL

him or her before the adoption.

CO

RELATION WITH NATURAL FATHER ‘S FAMILY AND MARRIAGE.

N

On a valid adoption child ceases to have any right or, be subjected to any
EE

liability or disability as a member of the family of his birth, but the tie of blood
AM

between him and the members of that family and the disabilities arising therefrom
continue, with the result than in spite of the adoption he or she cannot marry any
-
AL

person from the natural family within the prohibited degrees.

 Q.No.7. Define ‘Dependents’ under the Hindu Adoption and Maintenance

in )
Act, 1956. How is the quantum of maintenance determined by the court?

w.
INTRODUCTION

nla
HINDU ADOPTIONS AND MAINTENANCE ACT 1956

ee
The right of maintenance arises from the concept of an undivided family. The head of

am
the family is bound to maintain its members, their wives, and their children.

.al
What is maintenance?

ww
It is right to get the necessities which are reasonable.

(w
Section 3(b) of the Hindu Adoption and maintenance Act, 1956 defines maintenance includes-

RE
i) In all cases, provision for food, clothing, residence, education and medical attendance and

LO
treatment

GA
ii) In the case of an unmarried daughter, also the reasonable expenses of and incident to her
marriage.
AN

“Dependents”:- “Dependants" means the following relatives of the deceased:

,B

(i) his or her father;

W

(ii) his or her mother;

LA

(iii) his widow, so long as she does not re-marry;

OF

(iv) his or her son or the son of his predeceased son or the son of predeceased son of his
predeceased son, so long as he is a minor:
E
EG

PROVIDED and to the extent that he is unable to obtain maintenance, in the case of a grandson
from his father's or mother's estate, and in the case of a great grand-son, from the estate of his
LL

father or mother or father's father or father's mother;

CO

(v) his or her unmarried daughter, or the unmarried daughter of his predeceased son or the
unmarried daughter of a predeceased son of his predeceased son, so long as she remains
N

unmarried:
EE

PROVIDED and to the extent that she is unable to obtain maintenance, in the case of a grand-
AM

daughter from her father's or mother's estate and in the case of a great-grand-daughter from the
estate of her father or mother or father's father or father's mother;
-
AL

(vi) his widowed daughter:

 PROVIDED and to the extent that she is unable to obtain maintenance-

in )
(a) from the estate of her husband, or

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

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

am
(vii) any widow of his son or of a son of his predeceased son, so long as she does not remarry:

.al
PROVIDED and to the extent that she is unable to obtain maintenance from her husband's estate,

ww
or from her son or daughter, if any, or his or her estate; or in the case of a grandson's widow, also
from her father-in-law's estate

(w
(viii) his or her minor illegitimate son, so long as he remains a minor;

RE
(ix) his or her illegitimate daughter, so long as she remains unmarried.

LO
GA
Q.NO.8. Write short note on any two of the following: Marks 8X2=16
AN

a. who is a guardian
,B

GUARDIAN - A Guardian means a person have the care of the person of another or of his
W

property, or of both.
LA

Section 4(b):- Guardina 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.
OF

1. Natural guardian.
E

2. A guardian appointed by the will of the minor’s father or mother

EG

3. A guardian appointed or declared by a court ; and

4. A person, empowered to act as such by or under any enactment relating to any court of
LL

wards.
CO

KINDS OF GUARDIAN

Section 4:- of the Act mention four kinds of guardians, these are:-
N
EE

1. A natural guardian.
2. A guardian appointed by the will or the minor’s father or mothers (testamentary
AM

guardian)
3. A guardian appointed or declared by a court, and
-
AL
 4. A person empowered to act as such by or under any enactment relating to any court of

)
wards.

in
Besides this, there are other types of guardians such as.

w.
5. De facto guardian and

nla
6. Ad hoc guardian.

ee
TESTAMENTARY GUARDIAN

am
Are those guardians who are appointed by a will of the natural guardian, entitled to act as a

.al
guardian for the minor. It becomes effective only after the death of the testator.

ww
Section 9

(w
1. A Hindu father entitled to act as the natural guardian of his minor legitimate children
may, by will appoint a guardian for any of them in respect of the minor’s property (other

RE
than the undivided interest referred to section 12) or in respect of both.
2. An appointment made under sub-section (1) shall have no effect if the father pre-deceases

LO
the mother, but shall revive, if the mother dies without appointing by will, any person as
guardian. GA
3. A Hindu widow, entitled to act as the natural guardian of her minor legitimate children,
AN

and a Hindu mother entitled to act as the natural guardian of her minor legitimate
children by reason of the fact that the father has become disentitled to act as such, may,
,B

by will appoint a guardian for any of them in respect of the minor’s person or in respect
of the minor’s property (other than the undivided interest referred to in section 12) or in
W

respect of both)
LA

4. A Hindu mother entitled to act as the natural guardian of her minor illegitimate children
may, by will, appoint a guardian for any of them in respect of the minor’s person or in
OF

respect of the minor’s person or in both.

5. The guardian so appointed by will has the power to act as the minor’s guardian, after the
E

death of the minor’s father or mother, as the case may be, and to exercise all the powers
EG

of a natural guardian under this Act to such extent and subject to such restrictions, if any,
as are specified in this Act and in the will.
LL

6. The right of the guardian so appointed by will shall, where the minor is a girl, cease on
CO

her marriage.
N

DE-FACTO GUARDIAN
EE

A de-facto guardian of a minor, is neither a legal guardian, nor a testamentary guardian nor a
AM

guardian appointed by the court, but he a person, who himself takes over the management of the
affairs of the minor, as if he was a natural guardian.
-
AL

Some continuous course of conduct is necessary on his part.

 A person having the care of properties of a minor but who is neither a natural guardian,

)
testamentary guardian nor a guardian appointed by the court is only a de facto guardian and the

in
restriction under section 11 will apply to his acts.

w.
nla
According to section 11 of the Act the de facto guardian is not recognized and he cannot deal
with the property of a minor.

ee
am
.al
AD HOC GUARDIAN.

ww
It means “for this purpose.” There must be some course of conduct in that capacity, it implies
some continuity of conduct, some management of the property beyond the isolated act of

(w
alienation which is being challenged.

RE
Even this type has no place in this Act.

LO
REMEDIES OF GUARDIAN FOR CUSTODY OF A MINOR.

GA
A guardian, who has been deprived of the custody of his ward, has the following remedies open
to him:-
AN

1. Writ of habeas corpus within the original civil jurisdiction of a High court.
2. Application to a Magistrate under section 97 or sec 98 of the criminal procedure code
,B

1973.
W

3. Regular suit by guardian for custody of the ward.

LA

4. Petition for the restoration of the custody of his ward under section 25 of the guardians
and wards act, 1890.
OF

B.WILL
E

DEFINITION:-
EG

A will is the legal declaration of the intention of a testator with respect of to his property.
LL

Meaning of codicil:-
CO

A codicil means instrument made in relation to a will and explaining, altering or adding to its
dispositions and shall be deemed to form part of the will.
N
EE

PERSON CAPABLE OF MAKING A WILL.

AM

Every person of sound mind, not being a minor may dispose of his property by will.

A mitakshara coparcener can dispose of by will his or her undivided interest in the coparcenary
-
AL

property- according section 30 of Hindu succession act 1956.

 The same rule is applicable for dayabhaga coparcener.

in)
THE ONUS OF PROOF.

w.
• The onus of proving a will is on the propounder.

nla
• In the absence of suspicious circumstances surrounding the execution of will.

ee
• The proof of testamentary capacity and the signature of the testator.

am
• Is sufficient to discharge the onus of proof.
• The propounder to explain them to the satisfaction of the court before the will could be

.al
accepted as genuine.

ww
• The testator must have a disposing mind.
• He must be able to dispose of his property with understanding and reasons.

(w
WHAT PROPERTY MAY BE DISPOSED OF BY WILL?

RE
According to mitakshara, the following property.

LO
1. Separate or self-acquired property.
2. GA
A sole surviving coparcener may dispose of his property by will.
3. Sandayika stridhan
AN

4. All stridhan during widowhood, and

5. Impartible property, unless prohibited by custom or the terms of the grant.
,B

REVOCATION AND ALTERATION IN WILL.

W

A will is liable to be revoked or altered by the maker of it any time when he is competent to
LA

dispose of his property by will.

OF

But marriage or birth of the son will revoke the will.

BEQUEST TO UNBORN PERSON.

E
EG

A will can be executed in behalf of an unborn person.

LL

WILL WHEN VOID?

CO

A will or any part of a will, the making of which has been caused by fraud or coercion or by such
importunacy as takes away the free agency of the testator, is void.
N
EE

BEQUEST TO A CLASS.
AM

If a bequest is made to a class of persons with regard to some of whom it is inoperative, such
bequests shall be void in regard to those persons only and not in regard to whole class.
-
AL

RULES AGAINST PERPETUITY:-

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

)
lifetime of one or more persons at the testator’s death and the minority of some person who shall

in
be in existence at the expiration of that period and to whom, if he attains full age, the thing

w.
bequeathed will belong.

nla
Construing of Hindu will.

ee
am
In construing a will the intention of the testator is to be looked to and the prime duty of the court
is to ascertain from the words of the will what the intention of the testator was.

.al
In ascertaining the intention of the testator, the following may be taken into account.

ww
1. The position of the testator;

(w
2. His family relationship;
3. The probability that he would use words in a particular sense;

RE
4. His race and religious opinions;
5. Ordinary notions and wishes of Hindus, with regard to the devolution of the property.

LO
RAM GOPAL V. NAND LAL [AIR 1951 SC 139] GA
The supreme court observed that,
AN

“It may be taken to be quite settled that , when a grant of an immovable property is made to a
,B

Hindu female, she does not get an absolute or alienable interest in such property, unless such
power is expressly conferred upon her.
W
LA

ARUNACHALA V. MURUGANATHA [AIR 1963 SC 496]

Under the Mitakshara father had complete power of disposition of his self-acquired property and
OF

if he made any deed of gift in favour of his son or some other relation, there would be no
presumption that the bequest was to confer the nature of a joint family so that the property
E

bequeathed became ancestral in the hands of the legatee unless there were express words to
EG

indicate the same.

LL
CO

C.PIOUS OBLIGATION

DEBTS
N
EE

PRIOR TO THE HINDU SUCCESSION (AMENDMENT ACT), 2005.

AM

The doctrine of the pious obligation of the sons to pay their father’s debt has been
abolished by section 6(4) of the Hindu succession (Amendment), 2005. Therefore, the law
-
AL

discussed in this respect below is the prior law as it stood before the Hindu succession
(Amendment) Act, 2005.
 PIOUS OBLIGATION

in )
The doctrine of the pious obligation is that obligation of the sons to pay their father’s

w.
debts.

nla
This doctrine was prevalent before the Hindu Succession (Amendment )Act 2005.

ee
Pious obligation of the son to pay his father’s debts.

am
The hindu law maintains high sense of morality as regards payment of debts as it is

.al
deemed necessary for the salvation of the debtor’s soul.

ww
The sons, grandsons, great-grandsons are liable to pay the debts of their ancestors if there

(w
are not immoral debts or illegal purposes.

NATURE OF LIABILITIES

RE
o Religious

LO
o Moral
o Legal GA
DOCTRINE OF PIOUS OBLIGATION:-
AN

The doctrine has its origin in Smritis. Non-payment of debt is a positive sin, that evil
,B

consequences of which follow the undischarged debts even in the world afterwards. An
obligation is imposed upon the sons to pay their father’s debts.
W
LA

Effects of judicial decision on the doctrine:-

Judicial decision has modified same aspects of Pious obligation. Obligation of the son is
OF

not a personal obligation. His obligation is confined to the assests received by him in his share of
the joint family property. The obligation of son exists whether the sons are major or minor,
E

whether the father is alive or dead.

EG

If the debts have been contracted by the father and they are no immoral or irreligious the
LL

interest of the sons in the coparcenary property can always be made liable for such debt.
CO

The fundamental Rule:-

N

The hindu son is not liable for debts contracted by his father, which is Ayavaharika i.e,
EE

illegal, dishonest or immoral.

AM

When does the liability of the son arises?

• When the father’s debt is not immoral or illegal

-
AL

• Both father and son is liable

 • It does not depend whether the father is dead or alive

)in
• Immediately when the father fails to pay the debts son’s liability arises.

w.
• Son’s liability is limited only to the son’s interest in the coparcenary property.

nla
According to Mitakshara school of hindu law.

ee
1. The son is under pious obligation to pay his father’s debt which is “vyavharika” that

am
is lawful and not avyavaharika” that is unlawfull, illegal or immoral incurred before
partition i.e, when they were joint.

.al
2. The son is not liable for a debt contracted by father after partition.

ww
Avyavaharika debts:-

(w
There are many meaning to this word. Whether a debt is immoral or not is to be
judged with reference to the time when it originated and the rule is not rigid but has to be

RE
applied with reference to the circumstances of each case.

LO
The sons, grandson and great grandson are not bound to pay avyavahrika debt of
the father. GA
CASE LAW
AN

S.M.JAKATI VS. SM. BARKER [AIR 1959 SC 282]

,B

The supreme court observed that it is the pious duty of the sons to discharge their father’s
W

debt not tainted with immorality or illegality.

LA

Unlawful Debts (avyavahrika debt)

OF

1. Debts due for spirituous liquors

2. Debts due for lust
E

3. Debts due for gambling

EG

4. Unpaid fines
5. Unpaid tolls
LL

6. Useless gifts or promises without consideration

CO

7. Promises made under the influence of lust and wrath

8. Commercial debts
9. Any debts which is avyavaharika
N

10. Surety ship debts

EE

SON’S LIABILITY CLASSIFIED

AM
-
AL
 )in
SON'S LIABILITY

w.
nla
ee
1. BEFORE PARTITION AFTER PARTITION

am
.al
ww
(w
1. FOR DEBTS

RE
2. FOR PERSONAL
INCURRED BY FATHER
DEBTS OF THE
AS MANAGER OF THE
FATHER
JOINT FAMILY

LO
GA
AN

1.LIABILITY FOR THE DEBT CONTRACTED BEFORE PARTITION

The liability for the debt contracted before partition may be sub-divided as shown
,B

in the above diagram into the following classes;

W

A. Debts incurred by father as manager of karta of the joint family for family
LA

purposes.
The father , grand-father or great-grand father, as karta of a joint family, has authority to
OF

contract debts for necessity or benefit of the family and whole joint-family property
including the interest of the sons, grandsons and great-grandsons is liable for the payment
E

of that debt only.

EG

Thus the son, grandson or great-grand son are liable only to the extent of their share in
the coparcenary property.
LL
CO

This liability of the sons exists today even after the Hindu succession (Amendment) Act
2005.
N

B. Debt incurred by the father for his personal benefit

EE

If the debt is incurred by the father for his personal benefit, the son will be liable of the
AM

payment of the debt provided the debt is not tainted will illegality or immorality.
-

This liability is limited to the son’s interest in the coparcenary property and the whole
AL

family property is not liable for the payment of the personal debts.
 in )
2. Liability for the debt contracted after the partition.

w.
The sons after a partition with the father are under no legal liability to pay his debts contracted

nla
after the partition.

ee
The son is, however liable after partition for a debt contracted by the father before partition but

am
only to the extent of the share he has obtained on the partition.

.al
FATHER’S POWER OF SALE TO SATISFY ANTECEDENT DEBTS:-

ww
The Liability of a son to pay the debts of his father exists, whether the father is alive or dead.

(w
Thus, it is open for the father during his lifetime to effect a transfer of any joint-family property
including the interests of his sons in order to pay off the “antecedent debt” provided it is not

RE
tainted with immorality.

LO
For, when is such a case he alienates the property, which he may be taken to exercise the power
GA
of alienation which the sons would have exercised in discharge of their pious duty which they
owed him; he is virtually alienating the property for them and on their behalf, in discharge of the
AN

duty.

CASE LAW
,B

PRASAD V. GOVINDASWAMI [AIR 1982 S.C.84]

W
LA

The supreme court reiterated the well-established view that the father may alienate the
joint family property to pay off his antecedent untainted debts and observed that he(the father)
OF

must act prudently and if consideration in inadequate the sale will not be valid.
E
EG

Q.No.9. Solve any two of the following problems: Marks 10X2=20

LL

a. A Joint Hindu Family consists of Father “F” and his sons ‘S1’ and ‘S2’. Partition takes
place between ‘F’ and his two sons. Three years after partition another son ‘S3’ is born to
CO

‘F’. Now state who are all the co-parceners and what is the share of property of each
person.
N
EE

Solution:- In this problem F,S1,S2 and S3 are coparceners. The share of property of each person
is 1/3, i.e, F, S1 and S2 each of them take equal share.
AM

In this case the partition has already taken between F,S1 and S2 and a son S3 is born after 3
-

years.
AL
 Coparceners are such persons who jointly inherit property, whereof they have unity of

)
possession, which, however may be served at any time by partition.

in
w.
Partition of the joint hindu family property may take place at the instance of the following.

nla
1. after born sons (and after born daughters of a coparceners. After born sons may be considered

ee
in two sets.

am
Firstly, those born as well as begotten after the partition, and secondly, those born after

.al
partition but begotten before it or those in their mother’s womb at the time of partition.

ww
In case of a son born as well as begotten after the partition, if his father has taken a share for
himself and separated from the other sons, then the after-born son, is entitled to his father’s share

(w
at the partition and also his separated property to the exclusion of the separated sons and is not
entitled to reopen the partition.

RE
So in the above mentioned case the son born as well as begotten after the partition is entitled

LO
to get the share of his father and not entitled to re-open the partition.
GA
b. X, a karta of a family in order to purchase a fertile land in the vicinity of a city area, sells
one acre of coparcenary property (barren land) to A. Whether karta has the power to do?
AN

Decide
,B

Answer:-
W

X the karta has the power to sell the barren land which is coparcenary property to A.
LA

The reasons are as follows,

OF

Who can alienate coparcenary property?

1.The Manager or Karta if there is

E
EG

a. legal necessity or
LL

b. for the benefit of the estate.

CO

2. The karta with the consent of all the coparceners

3. The karta if he is a father

N
EE

In the above mentioned problem the Karta can alienate the property for two reasons,
AM

a. Legal Necessity and

b. For the benefit of the estate
-
AL

In this Problem the Karta has alienated the property for the benefit of the estate.
 Sale of small shares in inferior land in three different villages to acquire a compact share in a

)
fertile land in one village.

in
w.
Hence the act of the Karta X is valid in the above mentioned problem.

nla
ee
c. A Hindu widow inherits property from her husband in 2003 and adopts a son in 2007.

am
Can the adopted boy inherit the property?

.al
Answer :- Yes, the adopted boy can inherit the property.

ww
The reasons are as follows,

(w
The adoption of the widow is valid

RE
Section 8 deals with adoption by a female

LO
The capacity of a female to take in adoption.

Any female GA
AN

d. who is of sound mind

e. who is not a minor
,B

f. who is not married or

if married,
W

vi. whose marriage has been dissolved

LA

vii. whose husband is dead

viii. whose husband has completely and finally renounced the world.
OF

ix. Whose husband has ceased to be a hindu.

x. Whose husband has been declared by a court of competent jurisdiction to be of
E

unsound mind.
EG

Has the capacity to take a son or daughter in adoption. Consent of the husband is necessary if
LL

husband is alive.
CO

Hence in the above mentioned problem the widow is having right to adoption and the child can
also inherit the property.
N

The adopted child also has all the rights of the natural child.
EE

-------------------------------------------xxxxxxxxxxxxxx---------------------------------------
AM
-
AL