HINDU LAW

STUDY MATERIAL FOR B.A.LLB

STUDENTS
(Fifth Semester)

Prepared by

Saema Jamil
Assistant Professor
Lloyd Law College
 Unit 1: Sources and Schools of Hindu Law
The Indian Civilization is one of the oldest civilizations in the world and Hindus form a
majority in this civilization. Thus, it is difficult to trace the origins of Hindu Law. Long back,
there was no distinction between religion, law and morality and they were together referred to
as “Dharma”. It is difficult to define the word Hindu because it means different things.

The sources of Hindu law as administered by the courts are generally divided into ancient and
modern. The ancient sources of Hindu Law are Srutis, Smritis, Commentaries and digests and
customs. The modern sources are justice, equity and good conscience, legislations and
precedents.

1. Srutis (4000-1000 B.C.): “Shru” means "to hear". These are considered to be of
divine origin and to have been passed orally over the generations. These are the laws revealed
to the sages who gained spiritual heights to the extent that they could talk to God. They are
considered to be the fundamental source of Hindu law and are considered to be the source of
all knowledge. Shrutis include the four Vedas –
o Rig Veda
o Yajur Veda
o Sama Veda, and
o Athrava Veda

along with their brahmanas. Each Veda comprises of two parts- samhita and brahma. Samhita
is a collection of hymns praising God and the latter is a theological explanation of the former.
The brahmanas are like the apendices to the Vedas. Vedas primarily contain theories about
sacrifices, rituals, and customs. They do not expound laws but certain stories that were to be
taken as precedents. They described the life of people. They emphasised on two things:

o Dharma: These were the duties and obligations of people

o Karma: This was the belief that “do good to others and good would happen to
you”.

2. Smritis: Smriti means “what is remembered” and is based on the memory of sages.
They are a collection of manuals written by medieval authorities on Hindu Law
known as “rishis”. Smritis are divided into early and late Smritis. Early smritis are
referred to as dharmasutra (800-200 B.C.) which were written in prose. Some of the
important sages whose dharmasutras are known are: Gautama, Baudhayan,
Apastamba, Harita, Vashistha, and Vishnu.

Dharmashastras were mostly in metrical verses and were based on Dharmasutras. However,
they were a lot more systematic and clear. They dealt with the subject matter in three parts

o Aachara : This includes the theories of religious observances,

o Vyavahar : This includes the civil law.
o Prayaschitta : This deals with penance and expiation.
Of the late smritis, 3 are the most important:

a. Manu Smriti (200 B.C.): It has 12 chapters and 2694 slokas and is a collection of
rules of law. It gives a vivid idea of customs. According to Manusmriti, the King
is subordinate to law but has divine powers with divine rights. It believed in
Danda, i.e. rule by stick. The Manusmriti is pro-Brahamin and harsh on shudras
and women.

b. Yajnavalkya Smriti (300 A.D.): It is based on Manusmriti but is more

synthesized, concise and logical. It emphasizes on the importance of customs and
defined civil law (vyavahara). According to it, law is the king of kings and it is
liberal on women and shudras.

c. Narada Smriti (100-300 A.D.): It is the most logical and precise. It emphasizes
on custom and civil law.

3. Commentaries and digests: The work done to explain a particular smriti is called a
commentary. Two most important commentaries are Mitakshara by Vijnaneshwara
and Dayabhaga by Jimtavahana (which is a digest of all the Codes).

4. Customs: Customs were the laws of primitive society. When proper laws came into
being, custom became a source of law. Customs originated from common conscience,
convenience or necessity, judicial decisions of Kings, imitated habits in a group, etc.
The retention of customs becomes important because there is a rational expectation of
their continuance. The following are essentials of customs:
o Antiquity: they must be in existence from time immemorial
o Continuous: They must be followed continuously without a break
o Certain: There must not be any ambiguity as to what the custom is
o Obligatory force: There must be a social obligation to perform the custom
o Reasonable: The custom must be reasonable
o Moral: Customs must not be immoral or opposed to public policy

The modern sources of Hindu law are:

1. Equity, justice and good conscience: This is an English concept. It means there
must be fairness and reasonableness in dealing.

2. Legislations: When the Parliament enacts laws, the laws become a source of Hindu
law. There could be two approaches of making legislations into sources:
o Piecemeal Approach: A few changes are brought about with the help of Acts.
For example: the Castes Disability Removal Act, 1850
 o Major Acts: The entire law is overhauled in one go. For example: the Hindu
Code cam in 1955-56.

3. Precedents: After the Britishers came, the doctrine of stare decisis started being
followed. Cases were recorded and future decisions were based on previous
judgments. According to Article 141 of the Indian Constitution, the law declared by
the Supreme Court is binding on all courts within the territory of India.

Schools of Hindu Law

There are basically two schools of Hindu law:

1. Mitakshara: The Mitakshara is a running commentary on the code of Yajnavalka. It

has been written by an eleventh century jurist by the name of Vijnaneshwar and
prevails in all parts of India (except parts of Punjab and West Bengal).
Mitakshara literally means “a brief compendium”.
Hindu law is divided into five sub-schools. These are:
o Mithila
o Benaras
o Dravida
o Maharashtra
o Bengal

Mitakshara prevails in the Mithila, Benaras, Maharashtra and Dravida sub-schools while
Dayabhaga law prevails in Bengal. All the four sub-schools governed by Mitakshara
acknowledge Mitakshara as the supreme authority but give preference to specific treatises
and commentaries controlling passages from mitakshara resulting in divergences between
them.

2. Dayabhaga: The Dayabhaga School, which is followed mainly in Bengal and

Bangladesh, is not a commentary or any particular code, but is a digest of all the
codes. It has been written by Jimutavahana in the latter half of twelfth century.
Jimutavahana’s doctrines of inheritance, succession and joint family system are
contrary to some basic rules of Mitakshara. Without accepting the set of propositions
laid down by other commentators, he deals with the subject of inheritance and
succession as an objective science with a forthright and direct approach. He appeals to
reason and logic.
The differences between the two schools of Hindu laws are as follows:

Mitakshara Dayabhaga

1 The son, grandson, great grandson have a The son or grandson or great grandsons
right in the joint family property having have no such right till the father is alive.
an equal interest with the father After his death, property, whether
ancestral or separate, devolves by
inheritance or succession.

2 Sons can ask for a partition during the Sons have no right to ask for partition
lifetime of father during the lifetime of father

3 Coparceners have community of interest Coparceners have specified and

and unity of possession ascertained shares in the joint family
property but have a unity of possession.

4 Coparceners have fluctuating interest in The interest of coparceners do not

the coparcenary property fluctuate

5 Doctrine of survivorship is applicable No doctrine of survivorship

6 Mitakshara coparcenary is a creation of Dayabhaga coparcenary stems from a

law and cannot be formed by agreement desire of the coparceners to live together
between parties

7 The starting point of a Mitakshara The starting point of a Dayabhaga

coparcenary is the birth of a son coparcenary is the death of the father

8 The members of a coparcenary cannot Coparceners can alienate their share

dispose of their shares whenever they like

Expected Question:

Question: Write short notes on: (5 marks)

o Manusmriti
o Mitakshara
o Customs

Q: What are the sources of Hindu law? (10 marks)

Q: What are the schools of Hindu Law (10 marks)

Q: What is the difference between the two schools of Hindu Law? (10 marks)

Q: “Among the sources of Hindu law, custom has an important place.” Support this
statement. (20 marks)

Q: Define custom. What are the essentials of a valid custom? (20 marks)

{Note: Use definition given in HMA (Section 3 (a)), HSA (section 3(d)), HAMA (section 3
(a))}
 Unit 2: Hindu Marriage Act, 1955

Nature of marriage in Hindu law

Marriage in Hindu law has been a sacrament as opposed to a contract. There are three
characteristics of a marriage as a sacrament:

 Holy Union: it must be performed in accordance with all rites and ceremonies
 Permanent Union
 Eternal Union

Widow Remarriage Act, 1856 allowed for widow remarriage and hence marriage is no longer
an eternal union. Under HMA, divorce may be granted and thus marriage is no longer a
permanent union either. However, it continues to be a holy union as a marriage not
solemnised in accordance with proper ceremonies is no marriage under HMA.

The fact that consent of the boy and the girl is required means that it is contractual. If the
consent is obtained by force or fraud, the marriage is voidable.

Thus, the status of Hindu marriages as a sacrament has been diluted but it is still very much a
sacrament.

Who is a Hindu?

Historically, the word “Hindu” referred to people who lived beyond the Indus valley. But
today the word has no territorial significance. It instead denotes a religion or a way of life.
The term Hindu has not been defined in the Act. However, it provides that a person would be
Hindu for the purposes of HMA if the Act applies to him/her by virtue of Section 2 of the
Act.

The Act applies to the following persons:

1. Person who is Hindu by religion

2. Person who is a Buddhist, Jaina or Sikh by religion
3. Person domiciled in territories where HMA extends and who is not a Muslim,
Christian, Parsi or Jew by religion.

The Act does not apply to members of any Scheduled Tribes within the meaning of Article
366 (25) of the Constitution unless the Central Government by notification in the official
gazette otherwise directs.
Cases:

1. Peerumal v. Poonnuswami 1971 AIR 2352

The court held that a person may become a Hindu if after expressing intention he lives as a
Hindu and community or caste accepts him as their member. No formal conversion is
required.

2. Surajmani Stella Kujur v. Durga Charan Hansdah AIR 2001 SC 938

If parties are members of a scheduled tribe and fall under section 2 (2) of HMA, then they
will not be governed by the Hindu Marriage Act. If the parties want to rely on a particular
custom, they must prove that the practice has attained the status of custom.

Conditions for the validity of marriage

The conditions for the validity of a Hindu marriage are enumerated in Section 5 of HMA.
These are:

1. Neither party should have a spouse living

2. Both parties should be capable of giving consent
3. Both parties must fulfill the age requirement
4. Parties must not be within the degrees of prohibited relationship unless the custom or
usage governing each of them permits of a marriage between the two
5. Parties must not be sapindas of each other unless the custom or usage governing each
of them permits of a marriage between the two

If any of the conditions are not fulfilled, the marriage is either valid, void or voidable
depending on which is the unfulfilled condition.

Section 11 declares a marriage in contravention of Section 5 (i), (iv) and (v) void and states
that any of the parties to the second marriage can approach the court for declaration of nullity
of marriage. Bigamy is punishable under Section 17 of HMA read with Section 494 of the
IPC. Contravention of Section 5 (iv) and (v) is punishable under Section 18 (b) with simple
imprisonment which may extend to one month, or with fine which may extend to one
thousand rupees or with both.

The contravention of Section 5 (ii) results in a voidable marriage under Section 12 (1) (c), i.e.
the aggrieved party can approach the court for annulment of marriage. There is no
punishment prescribed for the same.

A marriage in contravention of Section 5 (iii) is valid but punishable under Section 18 (a).
The doctrine of Factum Valet (an act cannot be undone by a 100 texts) is applicable in the
case of a child marriage. However, a child marriage is voidable (if court is approached by the
spouse who was married as a child within two years of attaining majority) or void (under
certain circumstances) under the Prohibition of Child Marriage Act, 2006.

Cases:

1. Bhaurao Shankar Lokhande v. State of Maharashtra AIR 1965 SC 1564

Facts: Man married a second time. He was prosecuted under Section 494 of the IPC. No
saptapadi performed and no invocation of fire.

Issue: Whether the second marriage was solemnised or not?

Decision: Merely going trough certain ceremonies with the intention that the parties be taken
to be married does not mean that the marriage has been solemnised. It has not been proved in
the present case that the two essential conditions for solemnisation of marriage (saptapadi and
invocation of fire) were not required and therefore the second marriage was void for want of
solemnisation. The man cannot be tried for bigamy.

2. Saramma v G. Ganapatalu AIR 1975 AP 193

The court held that child marriage is void. It interpreted the conditions mentioned in Section
5 of HMA as conditions that must be fulfilled before a valid marriage can be solemnised.

3. Pinninti Venkataraman v. State AIR 1977 AP 43

The court overruled Saramma case and held that child marriages are absolutely valid. They
gave three primary reasons for deciding so:

 HMA is not exhaustive and if there is no express provision then uncodified Hindu law
would be applied. Since HMA does not declare child marriage to be void or voidable,
it would be valid
 If child marriage were declared void, the children born from a child marriage would
be rendered illegitimate as Section 16 (1) would not be applicable to them
 Section 13 (2) (iv) states that a girl who was married before the age of fifteen, can get
a divorce after attaining the age of 15 and before attaining the age of 18. This clause
cannot be explained if a child marriage were void.

Effect of Conversion in Hindu Law

Any Hindu who converts to a different religion would be ordinarily governed by the laws of
the religion he/she has converted to. It is possible that customs and usages of his original
religion might still be applied.
There are a plethora of cases where Hindu men convert to Islam to be able to marry more
than once (as Hindu law does not permit polygamy). They attempt to escape from the
clutches of section 494 and 495 of the Indian Penal Code. The SC has dealt with these cases
so as to ensure that this practice is not encourages and has expressed the need for the
enactment of a uniform civil code.

Cases:

1. Sarla Mudgal v. UOI 1995 SCC (3) 635

Issue: Whether a Hindu husband married under Hindu law, by embracing Islam can
solemnise a second marriage?

Court: No, he cannot. The court held that a conversion to another religion by one spouse does
not automatically dissolve the marriage; it is merely a ground for divorce. The 2nd marriage
by an apostate under the shelter of conversion to Islam would be a marriage in violation of
HMA by which he is still governed so far as his 1st marriage is concerned. Therefore, the
second marriage qua his 1st wife is void.

The court held that the word “void” has a wider meaning in Section 494 of IPC than in
Section 17 of HMA as the former section does not specify the religion of the spouses but the
latter does.

Thus, husband cant marry again even after conversion to Islam without dissolving the first
marriage.

2. Lily Thomas v. UOI AIR 2000 SC 1650

The issue was same as the issue in Sarla Mudgal case. The court again held that 2nd marriage
even after conversion to Islam is void and punishable under Section 494 of the IPC.

Registration of marriage

The relevant Section is Section 8. Registration of marriages is not compulsory under HMA
but it can be made compulsory by the State Government. Registration of marriage facilitates
the proof of Hindu marriages.

Case:

1. Seema v. Ashwani Kumar (2006) 2 SCC 578

The court gave the following guidelines with respect of registration of marriage:
(i) The procedure for registration should be notified by respective States within three months
from today. This can be done by amending the existing Rules, if any, or by framing new
Rules. However, objections from members of the public shall be invited before bringing the
said Rules into force. In this connection, due publicity shall be given by the States and the
matter shall be kept open for objections for a period of one month from the date of
advertisement inviting objections. On the expiry of the said period, the States shall issue
appropriate notification bringing the Rules into force.

(ii) The officer appointed under the said Rules of the States shall be duly authorized to
register the marriages. The age, marital status (unmarried, divorcee) shall be clearly stated.
The consequence of non-registration of marriages or for filing false declaration shall also be
provided for in the said Rules.

(iii) As and when the Central Government enacts a comprehensive statute, the same shall be
placed before this Court for scrutiny.

(iv) Learned counsel for various States and Union Territories shall ensure that the directions
given herein are carried out immediately.

Void and voidable marriages

Marriages can be of three kinds:

1. Valid: when all requirements of a Hindu marriage are fulfilled.

2. Void: these are void ab initio. Section 11 specifies the circumstances when a marriage
is a void marriage (these are when the marriage is in contravention of Section 5(i),
(iv), (v) of HMA). In such cases, there is no need to obtain a decree of nullity and if it
is obtained, it has a retrospective effect.
3. Voidable: these are valid marriages to begin with but the aggrieved party can go to
court to obtain a decree of nullity to put an end to the marriage. Such marriages have
been dealt with in section 12 of HMA. The following are the grounds to get a
marriage annulled:

 that the respondent was impotent at the time of the marriage and continued to be so
until the institution of the proceedings; or
 that the marriage is in contravention of the condition specified in clause (ii) of section
5; or
 that the consent of the petitioner, or where the consent of the guardian in marriage of
the petitioner is required under section 5, the consent of such guardian was obtained
by force or fraud as to the
o the nature of the ceremony or
o as to any material fact or circumstance concerning the respondent
 that the respondent was at the time of the marriage pregnant by some person other
than the petitioner.
Cases:

1. Babui Panmato Kuer v. Ram Agya Singh AIR 1968 Pat. 190

Facts: petitioner was 18 years old. She overheard her father telling her mother that the boy to
whom she was married was between 25 and 30 years of age and was from an affluent family.
After marriage she discovered that the husband was over 60 years of age. She filed a petion
for annulment of her marriage under Section 12 (1) (c) of HMA.

Court: It is fraud and the court granted the girl annulment. Held that the mother is the
petitioner’s agent and the father’s statement to the mother amounted to fraud.

2. Raghunath v. Vijaya AIR 1972Bom 132

Facts: The parties married in 1962. The fact that the girl suffered from epilepsy was hidden
from the boy. Case filed for obtaining decree of annulment under Section 12 (1) (c) of HMA.

Court: Denied the relief. It differentiated between the meaning of fraud under Indian Contract
Act and HMA. It held that since the epilepsy was curable, the marriage was not voidable. It
relied on various texts to come to its decision. It quoted from 13th Edition of Mulla’s Hindu
Law: “A person who freely consents to a solemnization of the marriage with the other party
in accordance with customary ceremonies, that is, with knowledge of the nature of the
ceremonies and intention to marry, cannot raise an objection to the validity of the marriage on
the ground of any fraudulent representation or concealment. The test to be applied is whether
there was any real consent to the solemnization of the marriage.”

3. P v. K AIR 1982 Bom 400

Girl suffered from 2nd degree prolapsed of uterus. The court held that the marriage was
voidable under Section 12 (1) (a) as well as Section 12 (1) (c).

Restitution of Conjugal Rights

Marriage imposes a duty on both spouses to cohabit with each other. Section 9 provides for
the remedy of restitution of conjugal rights under which the court can order the spouse who
has withdrawn from the other’s society to cohabit with his/her spouse. The constitutional
validity of the section has been challenged but the SC has upheld the validity of the section.

There are two conditions which must be fulfilled to avail this remedy. These are:

 The spouse must have without reasonable excuse

 Withdrawn from the society of the other
What constitutes withdrawal of the society of the petitioner without reasonable excuse is a
subjective question and the court has altered its position on it over the years substantially.
Case laws need to be studied extensively to understand how the section has been applied by
the courts and under what circumstances.

Cases:

1. Kailashwati v. Ayodhia Parkash 1977 C.L.J. 109 (P. & H)

The court held that the locus of matrimonial home would be determined by the husband
provided he is acting bona fide. It passed the decree of restitution of conjugal rights in favour
of the husband.

2. Pravinaben v. Sureshbhai Tribhovan Arva (1974) GLR 169

The court denied the relief of restitution of conjugal rights to the husband on the following
grounds:

 It was an enforced separation

 Consent of the husband was there (that the wife can work)
 The wife did not deny access to the husband

3. Swaraj Garg v. K. M. Garg AIR 1978 Del. 296

The court held that an exclusive right to the husband to decide the matrimonial home would
be violative of the fundamental right to equality under Article 14. It further held that the
decision as to the matrimonial home has to be taken “on the balance of circumstances” and if
the circumstances are equally balanced in favour of the wife and the husband, then there
would be a stalemate. The court has held that in such a scenario the husband “must have a
casting vote” which is just a “tie breaker” and has suggested that a law which allows for the
breakdown of marriage in circumstances when there is a stalemate would aid in better
resolution of the situation.

4. Sareetha v. Venkata Subbaiah AIR 1983 AP 356

The court declared Section 9 of HMA unconstitutional as it violated Articles 14 and 21 of the
Constitution of India. It violated Article 21 because it was a savage and barbarous remedy,
violating the right to privacy and human dignity. The court stated that that the decree for
restitution of conjugal rights denies the woman her free choice whether when and how
her body is to become the vehicle for the procreation of another . Further, a decree for
restitution of conjugal rights deprives a woman of control over her choice as to when
and by whom the various parts of her body should be allowed to be sensed.
 5. Smt. Saroj Rani v. Sudarshan Kumar Chadha AIR 1984 SC 1562

It was held that the remedy under Section 9 is not merely a creature of the statute but a
codification of pre-existing law. The Apex court observed that sexual relations are an
important element in the concept of marriage but did not constitute its whole content and that
the remedy of restitution aimed at cohabitation and consortium and not merely at sexual
intercourse. Hence, it upheld the constitutionality of Section 9 and overruled Sareetha case.

Module 12- Judicial separation

Judicial separation has been provided for in Section 10 of HMA. A petition for judicial
separation can be filed on any of the grounds that are available for divorce (after 1976.
Before that the grounds were separate). A decree of judicial separation removes the
obligation of the petitioner to cohabit with the opposite party. During judicial separation,
marriage continues to exist and rights and duties of the parties are merely suspended.

Module 13- Theories of Divorce

There are several theories of divorce. These are:

1. Fault/disability theory: This means if after marriage if one of the spouses commits a
matrimonial fault or has a matrimonial disability, the other spouse can approach the
court in order to obtain a divorce. This theory has been incorporated in Section 13 (1)
and 13 (2) of HMA.

2. Theory of frustration of marriage: where none of the parties is guilty but the
marriage has become frustrated because of the circumstances. For eg. One parties
renunciation of the world.

3. Irretrievable breakdown of marriage: This has not been incorporated in HMA

though a Bill to introduce it is pending in the Parliament.

{Case: Naveen Kohli v. Neelu Kohli AIR 2006 SC 1675

Undoubtedly, it is the obligation of the Court and all concerned that the marriage status
should, as far as possible, as long as possible and whenever possible, be maintained, but
when the marriage is totally dead, in that event, nothing is gained by trying to keep the parties
tied forever to a marriage which in fact has ceased to exist.

The court recommended that the Union of India seriously consider bringing an amendment in
HMA to incorporate irretrievable breakdown of marriage as a ground for the grant of
divorce.}
 4. Divorce by Mutual Consent: the propounders of the this theory claimed that if
parties are permitted to get out of marriage as they are to enter into it, it would lead to
more happiness. This was introduced in HMA by virtue of Section 13 B in 1976.

Divorce

Divorce is dissolution of marriage prospectively. A petition can be filed for the decree of
divorce on any of the grounds mentioned in section 13, 13 (1 A) and 13B of HMA.

The grounds on which divorce can be sought by the husband as well as the wife are:

1. If after marriage the spouse had sexual intercourse with any other person.

2. Cruelty: mental + physical

{Cases:

1. N. G. Dastane v. S. Dastane AIR 1975 SC 1534

Cruelty is of such a character as to cause in the mind of the petitioner a reasonable

apprehension that it will be harmful or injurious for him to live with the respondent. It is not
necessary, as under the English law, that the cruelty must be of such a character as to cause
"danger" to life, limb or health or as to give rise to a reasonable apprehension of such a
danger. The apprehension of the petitioner that it will be harmful or injurious to live with the
respondent has to be reasonable. It is however wrong to import the concept of reasonable
person as known to the law of negligence for judging matrimonial relations. The question is
not whether the conduct or a person of average or normal sensibilities but whether it would
have the effect on the aggrieved spouse. That which may be cruel to one person may be
laughed off by another, and what may not be cruel to an individual under one set of
circumstances may be extreme cruelty under another set of circumstances. The Court has to
deal, not with an ideal husband and ideal wife (assuming any such exist) but with the
particular man and woman before it. The only rider is that of Section 23 (1) (a) of the Act that
the relief prayed for can be decreed only if the petitioner is not taking advantage of his own
wrong.

Acts like the tearing of the Mangal-Sutra, locking out the husband when he is due to return
from the office, rubbing chilly powder on the tongue of an infant child, beating a child
mercilessly while in high fever and switching on the light at night and sitting by the bedside
of the husband merely to nag him are acts which tend to destroy the legitimate ends and
objects of matrimony. The conduct of wife amounts to cruelty.

The threat that she will put an end of her own life or that she will set the house on fire, the
threat that she will make him lose his job and have the matter published in newspapers and
the, persistent abuses and insults hurled at the appellant and his parents are all of so grave an
order as to imperil the appellant's sense of personal safety, mental happiness, job satisfaction
and reputation.

In any proceeding under the Act whether defended or not, the relief prayed for can be
decreed only and only if "where the ground of the petition is cruelty the petitioner has
not in any manner condoned the cruelty" (Section 23 (1) (b)).

Condonation means forgiveness of the matrimonial offence and the restoration of offending
spouse to the same position as he or she occupied before the offence was committed. Cruelty,
generally, does not consist of a single, isolated act but consists in most cases of a series of
acts spread over a period of time. Law does not require that at the first appearance of a cruel
act, the other spouse must leave the matrimonial home lest the continued co-habitation be
construed as condonation. The evidence of condonation consists here in the fact that the
spouses led a normal sexual life despite the respondent's Acts of cruelty. This is not a case
where the spouses, after separation, indulged in a stray act of sexual intercourse, in which
case the necessary intent to forgive and restore may be said to be lacking. Such stray acts may
bear more than one explanation. But if during co-habitation the spouses, uninfluenced by the
conduct of the offending spouse, lead a life of intimacy which characterises normal
matrimonial relationship, the intent to forgive and restore the offending spouse to the original
status may reasonably be inferred. There is then no scope for imagining that the conception of
the child could be the result of a single act of sexual intercourse and that such an act could be
a stark animal act unaccompanied by the nobler graces of marital life.

But condonation of a matrimonial offence is not to be likened to a full Presidential Pardon

under Article 72 of the Constitution which, once granted, wipes out the guilt beyond the
possibility of revival. Condonation is always subject to the implied condition that the
offending spouse will not commit a fresh matrimonial offence, either of the same variety as
the one condoned or of any other variety. No matrimonial offence is erased by condonation.
It is obscured but not obliterated. Condoned cruelty can therefore be revived. For revival of
condonation it is not necessary that the conduct should be enough by itself to found a degree
for judicial separation.

Appeal was dismissed. Wife was guilty of cruelty but the husband condoned it and the
subsequent conduct of the wife was not such as to amount to revival of the original cause of
action.

2 V. Bhagat v. D. Bhagat 1994 SCC(1) 337

Mental cruelty: such mental pain and suffering as would make it not possible for that party to
live with the other. In other words, mental cruelty must be of such a nature that the parties
cannot reasonably be expected to live together. The situation must be such that the wronged
party cannot reasonably be asked to put up with such conduct and continue to live with the
other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the
health of the petitioner.
While arriving at such conclusion, regard must be had to

 the social status,

 educational level of the parties,
 the society they move in,
 the possibility or otherwise of the parties ever living together in case they are already
living apart and
 all other relevant facts and circumstances which it is neither possible nor desirable to
set out exhaustively.

What is cruelty in one case may not amount to cruelty in another case. It is a matter to be
Determined in each case having regard to the facts and circumstances of that case. If it is a
case of accusations and allegations, regard must also be had to the context in which they were
made.

3 Samar Ghosh v. Jaya Ghosh 2007(3) SCJ 253

The court enumerated some instances of mental cruelty. These are as follows:

(i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and
suffering as would not make possible for the parties to live with each other could come within
the broad parameters of mental cruelty.

(ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes
abundantly clear that situation is such that the wronged party cannot reasonably be asked to
put up with such conduct and continue to live with other party.

(iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of
language, petulance of manner, indifference and neglect may reach such a degree that it
makes the married life for the other spouse absolutely intolerable.

(iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment,
frustration in one spouse caused by the conduct of other for a long time may lead to mental
cruelty.

(v) A sustained course of abusive and humiliating treatment calculated to torture,

discommode or render miserable life of the spouse.

(vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical
and mental health of the other spouse. The treatment complained of and the resultant danger
or apprehension must be very grave, substantial and weighty.

(vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the
normal standard of conjugal kindness causing injury to mental health or deriving sadistic
pleasure can also amount to mental cruelty.
(viii) The conduct must be much more than jealousy, selfishness, possessiveness, which
causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of
divorce on the ground of mental cruelty.

(ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens
in day to day life would not be adequate for grant of divorce on the ground of mental cruelty.

(x) The married life should be reviewed as a whole and a few isolated instances over a period
of years will not amount to cruelty. The ill-conduct must be persistent for a fairly lengthy
period, where the relationship has deteriorated to an extent that because of the acts and
behaviour of a spouse, the wronged party finds it extremely difficult to live with the other
party any longer, may amount to mental cruelty.

(xi) If a husband submits himself for an operation of sterilization without medical reasons and
without the consent or knowledge of his wife and similarly if the wife undergoes vasectomy
or abortion without medical reason or without the consent or knowledge of her husband, such
an act of the spouse may lead to mental cruelty.

(xii) Unilateral decision of refusal to have intercourse for considerable period without there
being any physical incapacity or valid reason may amount to mental cruelty.

(xiii) Unilateral decision of either husband or wife after marriage not to have child from the
marriage may amount to cruelty.

(xiv) Where there has been a long period of continuous separation, it may fairly be concluded
that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported
by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity
of marriage; on the contrary, it shows scant regard for the feelings and emotions of the
parties. In such like situations, it may lead to mental cruelty. }

3. Desertion (actual and constructive desertion)

Ingredients of actual desertion are:

 Factum of separation
 Animus desirendi
 Without reasonable cause
 Without consent of other spouse
 Continuous two years of separation

{Cases:

1. Bipinchandra Jaisinghbhai Shah v. Prabhavati AIR 1957 SC 176 (on desertion)

Desertion is not the withdrawal from a place but from a state of things, for what the law seeks
to enforce is the recognition and discharge of the common obligations of the married state;
the state of things may usually be termed, for short, 'the home'. There can be desertion
without previous cohabitation by the parties, or without the marriage having been
consummated.

The person who actually withdraws from cohabitation is not necessarily the deserting party,
The fact that a husband makes an allowance to a wife whom he has abandoned is no answer
to a charge of desertion.

For the offence of desertion, so far as the deserting spouse is concerned, two essential
conditions must be there., namely,

(1) the factum of separation, and

(2) the intention to bring cohabitation permanently to an end (animus deserendi ).

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

(1) the absence of consent, and

(2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home
to form the necessary intention aforesaid.

2. Laxman Utamchand Kriplani v. Meena 1964 SCR (4) 331

An offer to return to the matrimonial home after sometime, though desertion had
started, if genuine and sincere and represented his or her true feelings and intention, would
bring to an end the desertion because thereafter the animus deserendi would be' lacking,
though the factum of separation might continue; but on the other hand, if the offer was not
sincere and there was in reality no intention to return, the mere fact that letters were written
expressing such an intention would not interrupt the desertion from continuing.

Minority judgment: there was desertion

Majority opinion: there was no desertion}

4. Change of religion
5. Insanity
6. Virulent and incurable form of leprosy
7. Communicable venereal disease
8. Renunciation of world
9. Has not been heard of as being alive for a period of seven years or more
10. No resumption of cohabitation for a period of 1 year or more after a decree of judicial
separation has been passed
11. No resumption of cohabitation for a period of 1 year or more after a decree of
restitution of conjugal rights has been passed.

The last two grounds were added in 1964 and are based on the theory of breakdown of
marriage.
{Case:

1. Dharmendra Kumar v. Usha Kumar AIR 1977 SC 2213

Section 13 (IA) (ii) of the Hindu Marriage Act, 1955 allows either party to a marriage to
present a petition for the dissolution of the marriage by a decree of divorce on the ground
that there has been no restitution of conjugal rights as between the parties to the marriage for
the period specified in the provision after the passing of the decree for restitution of conjugal
rights. Sub-section (IA) was introduced in section 13 by section 2 of the Hindu Marriage
(Amendment) Act, 1964 (44 of 1964). Section 13 as it stood before the 1964 amendment
permitted only the spouse who had obtained the decree for restitution of conjugal rights to
apply for relief by way of divorce; the party against whom the decree was passed was not
given that right. The grounds for granting relief under section 13 including sub-section (IA)
however continue to be subject to the provisions of section 23 of the Act.

But in order to be a 'wrong' within the meaning of section 23 (1) (a) the conduct alleged has
to be something more than a mere disinclination to agree to an offer of reunion, it must be
misconduct serious enough to justify denial of the relief to which the husband or the wife is
otherwise entitled.

2. Hirachand v. Sunanda AIR 2001 SC 1285

Section 13 (1A) was not introduced in order that the provisions contained in Section 23
should be abrogated and that is also not the effect of the amendment. The object of sub-
section (1-A) was merely to enlarge the right to apply for divorce and not to make it
compulsive that a petition for divorce presented under sub-section (1-A) must be allowed on
a mere proof that there was no cohabitation or restitution for the requisite period. The very
language of Section 23 shows that it governs every proceeding under the Act and a duty is
cast on the Court to decree the relief sought only if the conditions mentioned in the sub-
section are satisfied, and not otherwise.

After the decree for judicial separation was passed on the petition filed by the wife it was the
duty of both the spouses to do their part for cohabitation. The husband was expected to act as
a dutiful husband towards the wife and the wife was to act as a devoted wife towards the
husband. If this concept of both the spouses making sincere contribution for the purpose of
successful cohabitation after a judicial separation is ordered then it can reasonably be said
that in the facts and circumstances of the case the husband in refusing to pay maintenance to
the wife failed to act as a husband. Thereby he committed a wrong within the meaning of
Section 23 of the Act.}

Grounds on which only wife can seek divorce:

The following are the grounds on which the wife can seek divorce:
 1. If the husband has another wife living with whom marriage was solemnized before
the commencement of HMA
2. Husband is guilty of rape, sodomy or bestiality after the solemnization of marriage
3. When since the passing of a decree or order to award maintenance to the wife under
HAMA or CrPC, the parties have not been cohabiting for one year or more
4. When solemnization of marriage took place before the wife obtained the age of fifteen
years and repudiated it after the age of 15 but before the age of 18. The actual petition
for divorce may be filed after attaining the age of 18 years also.

Divorce by mutual consent:

A decree of divorce can also be sought mutually under Section 13B of HMA provided

 they have been living separately for a period of one year or more.
 They have not been able live together
 They mutually agree to dissolve the marriage.

The Section states that divorce can be granted on the motion of both the parties made not
earlier than six months after the date of the presentation of the petition and not later than
eighteen months after the said date, if the petition is not withdrawn in the meantime.

{Cases:

1. Priyanka Khanna v. Amit Khanna, (2011) 15 SCC 612

The Supreme Court waived the six month waiting period as there was no possibility od
reconciliation and granted divorce by mutual consent.

2. Sureshta Devi v. Om Prakash 1 (1991) DMC 313 (SC)

Issue: Can a spouse unilaterally withdraw the consent or whether the consent once given is
irrevocable?

Court: no decree of divorce under Section 13 B can be passed without mutual consent. The
six month waiting period was intended to give time and opportunity to the parties to reflect
on their move and seek advice from relations and friends. In this transitional period one of the
parties may have a second thought and change the mind not to proceed with the petition.
There is no requirement that change of mind must be by both the parties.

The court gave a wide interpretation to the phrase “living together” and held that they might
be not living together even when they are living under the same roof if they are not living as
husband and wife.
 3. Ashok Hurra v. Rupa Hurrarupa Bipin Zaveri AIR 1997 SC 1266

It recommended that Sureshta Devi’s case be reconsidered by a larger bench as the

observations of this Court to the effect that mutual consent should continue till the divorce
decree is passed, even if the petition is not withdrawn by one of the parties within the period
of 18 months, appears to be too wide and does not logically accord with Section 13 B (2) of
the Act.

There is no useful purpose served in prolonging the agony any further and the curtain should
be rung at some stage. The cumulative effect of the various aspects in the case indisputably
point out that the marriage is dead, both emotionally and practically, and there is no chance at
all of the same being revived and continuation of such relationship is only for name-sake and
that no love is lost between the parties, who have been fighting like "Kilkenny cats" and there
is long lapse of years since the filing of the petition and existence of such a state of affairs
warrant the exercise of the jurisdiction of this Court under Article 142 of the Constitution and
grant a decree of divorce by mutual consent under Section 13B of the Act and dissolve the
marriage between the parties, in order to meet the ends of justice, in all the circumstances of
the case subject to certain safeguards.

Expected Questions:

Q:1 write short notes on the following: (5 marks)

 Divorce by mutual consent

 Sapindas
 Prohibited degrees of relationship
 Doctrine of factum valet
 Void and voidable marriage
 Registration of marriage
 Status of children born from void and voidable marriages (the answer lies in Scetion
16 of HMA)

Q:2 Is Hindu marriage a sacrament or only a civil contract? Discuss with relevant case law.
(10 marks)

Q: 3 Examine the nature of Hindu marriage and discuss the essential features of a valid
marriage under HMA. (20 marks)

Q: 4 Distinguish between void and voidable marriages. Under what conditions and on what
grounds can they be annulled? Are the children of such marriages legitimate? Discuss.
(20 marks)

Q: 5 Who is a Hindu? State the categories of persons to whom Hindu Law applies. “Hindus
are born as well as made”. Explain with case law.
Q: 6 Describe the grounds for divorce under HMA. (20 marks)

OR

What are the grounds available to a Hindu husband and wife for divorce under HMA. Explain
any two with the help of case law.

OR

What is the difference between “judicial separation” and “divorce”? What are the different
grounds for judicial separation under HMA? Elucidate.

Q: 7 What is the matrimonial remedy of restitution of conjugal rights? When can a decree for
restitution of conjugal rights be granted and when can it be refused? Are you in favour of
abolition of this remedy? (20 marks)

OR

What is restitution of conjugal rights? What are its defences? Explain.

Q: 8 What is the effect of conversion in Hindu Law? (10 marks)

(Note: Also read Sections 24 and 25 of HMA which deal with pendente lite maintenance and
permanent maintenance respectively)
 Unit 3: Hindu Succession Act, 1956

I. Hindu Joint Family

The Hindu Joint Family consists of all male members descended lineally from a common
male ancestor together with their mothers, wives or widows and unmarried daughters.

There are three ways to become a member of a joint family. These are:

o By birth
o By marriage
o By adoption

A member can be ousted from the joint family in the following circumstances:

o Daughters cease to be a member of the joint family on marriage.

o Males or females born in the family cease to be members of their joint family if they
are given in adoption.
o Marriage to a non-Hindu under Special Marriage Act
o Conversion to another religion

A Hindu joint family is not a legal entity. Membership to a HJF cannot be attained by an
agreement.

There is a presumption that members of a Hindu Joint Family are living in a state of unity.
However, there is no presumption that hindu joint family property exists.

A child in the womb is not a member of the family for the purpose of taxation but in Hindu
law, it is an entity.

Can females constitute a HJF?

Females before 2005 could not start a HJF but could continue a joint family till the time they
have the potential to bring a male member into the world. Thus, only daughters could
continue a family only after HAMA was enacted in 1956 as the Act gave them the right to
adopt.

Cases:

1. Commissioner of Income Tax v. Gomedalli Lakshminarayan AIR 1935 Bom. 412

Facts: A Hindu family consisted of a male, his wife and his father’s widow. The issue was
whether he should be assessed as an individual or as the Karta of the family.

Decision: He should be assessed as the Karta. The court held that there is a difference
between HJF and coparcenary. A sole surviving coparcener has wider powers but these
powers are subject to the rights of the females (right to maintenance). Merely because there is
no coparcenary does not mean there is no HJF.

2. Anant v. Shekhar (1943) PC

Issue: Can widows constitute a joint family?

Decision: Yes they can. A HJF cannot be brought to an end while it is possible in nature or
law to add a male member to it. The family cannot be at an end while there is a potential
mother if that mother in the way of nature or in the way of law can bring in a male member.

Position after 2005 amendment

After 2005, daughters have also been made into coparceners. Hence, now females can now
not only continue a HJF but can also start a HJF.

II. Coparcenary

Within a Hindu joint family, there exists a narrower institution called the “Coparcenary”.
Under Mitakshara, only sons up to four generations from a common male ancestor could be
coparceners but after 2005, even daughters can become coparceners. They acquire a right in
the joint Hindu family property by birth. Three generations (only males) next to the owner in
an unbroken male descent were coparceners because only they could do pind dana. One can
become a coparcener only by birth or adoption. To form a coparcenary at least two male
members were required.

[Case:

Moro Vishwanath v. Ganesh Vithal (1873) 10 Bom. 444

The court held that partition can be demanded by one more than four degrees removed from
the acquirer of original owner of the property sought to be divided but that it cannot be
demanded by one more than four degrees removed from last owner, however remote he may
be from the original owner thereof. ]

Rights of coparceners:

o They acquire a right in the joint family property by birth

o They have the right of common ownership
o Right of common enjoyment
 o Right of acquiring property according to the doctrine of survivorship (i.e. when one
coparcener dies, his share in the property goes to the surviving coparceners. This
doctrine has been abolished by the 20015 amendment)
o Right to accounts in certain situations like in cases of fraud. But they cannot ask for
past accounts.
o Right to ask for partition
o Right to renounce interest in the coparcenary property. But the renunciation has to be
with respect to his entire share and not a part.
o Right to challenge an unreasonable alienation by Karta. But this right accrues only
after the process of alienation is over.

Incidents of coparcenary

o There is unity of possession

o There is community of interest
o Collective enjoyment
o Right to ask for partition
o Each coparcener has a fluctuating interest in the coparcenary property
o The right in the JFP is acquired by birth
o The JFP cannot be alienated except by the Karta in certain situations
o Three generations (only males) next to the owner in an unbroken male descent are
coparceners (after 2005 daughters are also coparceners)

Sole surviving coparcener

When only one coparcener is left, he is referred to as a sole surviving coparcener. He cannot
form a coparcenary but if another coparcener comes into being, the coparcenary is revived.

Till the time he remains a sole surviving coparcener, the coparcenary property in his hands is
his separate property but he is under an obligation to maintain the female members and other
non-coparcener members of the family out of such property. The minute another coparcener
comes into existence, the nature of the property is converted into coparcenary property.

If no coparcener is added, the property devolves by laws of succession and not by the
doctrine of survivorship and the heirs would have the duty to maintain females.

III. Property

There are two kinds of properties in Hindu Law:

o Joint family property: This is the property held jointly by the members of a family,
with the incidents of survivorship (this concept has been done away by HSA and the
concept of notional partition has been introduced).
Joint Family Property (JFP) = [Ancestral property + Blended Property + Accretions] -
Deletions

o Separate property: It is the individual’s own property and he has absolute powers of
disposal over it and can use the property as he pleases. On the death of the owner, the
property either goes to the heirs of the owner or according to the person’s will.

Incidents of JFP:

o Only a coparcener can hold it. Property in hands of a sole surviving coparcener is his
separate property
o It is jointly held by the coparceners
o Four degrees of generations acquire a right in it by birth
o The coparceners can ask for its partition
o It is enjoyed by all members of the family
o It can be alienated by everybody collectively or by the Karta in certain circumstances
o Doctrine of survivorship is applicable and not succession laws
o In the absence of lineal male descendants , neither a right of partition nor the right to
claim property by survivorship is available to male collaterals. In such a case the
property devolves by succession.

A. Ancestral property

Property acquired from father, father’s father, father’s father’s father is said to be ancestral
property.

[Cases:

1. Smt. Dipo v. Wassan Singh AIR 1983 SC 846

Facts: there was a male F who died leaving behind a brother B, one daughter D and one son
S. S took the property by survivorship. Subsequently he died. The issue was whether the
property would go to D or his B’s sons.

D claimed it under succession laws as she was the nearest heir. B’s sons claimed it as it was
ancestral property and they were the preferential heirs according to custom.

Issue: whether the property in hands of S was ancestral property or not? If it was then B’s
sons would get, else D would get it.

Decision: The court held that S no doubt received it from his ancestors but he was a sole
surviving coparcener. Property inherited from paternal ancestor is ancestral as regards his
male issue but his absolute property as regards other relations.

Therefore, D would inherit the property.

 2. Muhammad Hussain Khan v. Babu Kishva Nandan Sahai AIR 1937 PC 233

Issue: Is the property received by maternal grandfather ancestral property or not?

Decision: It is true that Colebrooke's translation of the 27th sloka of the first section of the
first chapter of Mitakshara, which deals with inheritance, is as follows: "It is a settled point
that property in the paternal or ancestral estate is by birth." But Colebrooke apparently used
the word "ancestral" to denote grand-paternal, and did not intend to mean that in the estate,
which devolves upon a person from his male ancestor in the maternal line, his son acquires an
interest by birth. The original text of the Mitakshara shows that the word used by
Vijnanesvara, which has been translated by Colebrooke as "ancestral," is pitamaha which
means belonging to pitamaha. Now, pitamaha ordinarily means father's father, and, though it
is sometimes used to include any paternal male ancestor of the father, it does not mean a
maternal male ancestor.

27. Indeed, there are other passages in Mitakshara which show that it is the property of the
paternal grandfather in which the son acquires by birth an interest jointly with, and equal to
that of, his father. For instance, in the 5th sloka of the fifth section of the first chapter, it is
laid down that in the property "which was acquired by the paternal grandfather...the
ownership of father and son is notorious; and, therefore, partition does take place. For, or
because, the right is equal, or alike, therefore, partition is not restricted to be made by the
father's choice, nor has he a double share." Now, this is the translation of the sloka by
Colebrooke himself, and it is significant that the Sanskrit word, which is translated by him as
"paternal grandfather," is pitamaha. There can, therefore, be no doubt that the expression
"ancestral estate" used by Colebrooke in translating the 27th sloka of the first section of
the first chapter was intended to mean grand-paternal estate. The word "ancestor" in its
ordinary meaning includes an ascendant in the maternal, as well as the paternal, line; but the
"ancestral" estate, in which, under the Hindu law, a son acquires jointly with his father an
interest by birth, must be confined, as shown by the original text of the Mitakshara, to the
property descending to the father from his male ancestor in the male line.

Hence it was held that property inherited from maternal grandfather is not ancestral property.]

What all is ancestral property?

Property can be acquired through

o Inheritance
o Gift
o Will
o Partition
o Survivorship

In which of these cases is the property ancestral?

The property received on partition is definitely ancestral property. Similarly the property
acquired by the doctrine of survivorship is also ancestral property though the doctrine has
been abolished after 2005.

The property acquired by inheritance is separate property after 1956 by virtue of Section 8 of
the Hindu Succession Act, 1956.

The property acquired as a gift is also separate property.

The property acquired through a will depends on the intention of the maker.

[Cases:

1. Commissioner of Wealth Tax v. Chander Sen AIR 1986 SC 1753

Issue: whether property acquired through inheritance is ancestral property or separate

property?

Decision: the court held that it is separate property after the enactment of hindu succession
Act, 1956. The reasoning is as follows:

Under Section 8 of the Hindu Succession Act, 1956, the property of the father who dies
intestate devolves on his son in his individual capacity and not as Karta of his own family.
Section 8 lays down the scheme of succession to the property of a dying Hindu intestate. The
Schedule classified the heirs on whom such property should devolve. Those specified in class
I took simultaneously to the exclusion of all other heirs. A son's son was not mentioned as an
heir under class I of the schedule, and, therefore, he could not get any right in the property of
his grandfather under the provision.

The right of a son's son in his grandfather's property during the lifetime of his father which
existed under the Hindu law as in force before the Act, was not saved expressly by the Act,
and therefore, the earlier interpretation of Hindu law giving a right by birth in such property
"ceased to have effect". So construed, section 8 of the Hindu Succession Act should be taken
as a self-contained provision lying down the scheme of devolution of the property of a Hindu
dying intestate. Therefore, the property which devolved on a Hindu on the death of his father
intestate after the coming into force of the Hindu Succession Act, 1956, did not constitute
HUF property consisting of his own branch including his sons.

The Preamble states that it was an Act to amend and codify the law relating to intestate
succession among Hindus.

In view of the preamble to the Act, i.e., that to modify where necessary and to codify the law,
it is not possible, when Schedule indicates heirs in class I and only includes son and does not
include son's son but does include son of a predeceased son, to say that when son inherits the
property in the situation contemplated by section 8 he takes it as Karta of his own undivided
family. The Act makes it clear by section 4 that one should look to the Act in case of doubt
and not to the pre-existing Hindu law. It would be difficult to hold today the property which
devolved on a Hindu under section 8 of the Hindu Succession would be HUF in his hand vis-
a-vis his own son; that would amount to creating two classes among the heirs mentioned in
class I, the male heirs in whose hands it will be joint Hindu family property and vis-a-vis son
and female heirs with respect to whom no such concept could be applied or contemplated.

Under the Hindu law, the property of a male Hindu devolved on his death on his sons and
grandsons as the grandsons also have an interest in the property. However, by reason of
section 8 of the Hindu Succession Act, 1956, the son's son gets excluded and the son alone
inherits the property to the exclusion of his son.

As the effect of section 8 was directly derogatory of the law established according to Hindu
law, the statutory provision must prevail in view of the unequivocal intention in the statute
itself, expressed in section 4(1) which says that to the extent to which provisions have been
made in the Act, those provisions shall override the established provisions in the texts of
Hindu law.

The intention to depart from the pre-existing Hindu law was again made clear by section 19
of the Hindu Succession Act which stated that two or more heirs succeed together to the
property of an intestate, they should take the property as tenants-in- common and not as joint
tenants and according to the Hindu law as obtained prior to Hindu Succession Act two or
more sons succeeding to their father's property took a joint tenants and not tenants-in-
common. The Act, however, has chosen to provide expressly that they should take as tenants-
in-common.

Accordingly the property which devolved upon heirs mentioned in class I of the Schedule
under section 8 constituted the absolute properties and his sons have no right by birth in such
properties.

2. C.N. Arunachala Mudaliar v. Muruganatha Mudaliar AIR 1953 SC 495

Issue: whether property acquired through a will is ancestral property or separate property?

Decision: As the law is accepted and well settled that a Mitakshara father has complete
powers of disposition over his self acquired property, it must follow as a necessary
consequence that the father is quite competent to provide expressly, when he makes a gift,
either that the donee would take it exclusively for himself or that the gift would be for the
benefit of his branch of the family. If there are express provisions to that effect either in the
deed of gift or a will, no difficulty is likely to arise and the interest which the son would take
in such property would depend upon the terms of the grant. If, however, there are no clear
words describing the kind of interest which the donee is to take, the question would be one of
construction and the court would have to collect the intention of the donor from the language
of the document taken along with the surrounding circumstances in accordance with the well
known canons of construction. Stress would certainly have to be laid on the substance of the
disposition and not on its mere form. The material question which the court would have to
decide in such cases is, whether taking the document and all the relevant facts into
consideration, it could be said that the donor intended to confer a bounty upon his son
exclusively for his benefit and capable of being dealt with by him at his pleasure or that the
apparent gift was an integral part of a scheme for partition and what was given to the son was
really the share of the property which would normally be allotted to him and in his branch of
the family on partition. In other words, the question would be whether the grantor really
wanted to make a gift of his properties or to partition the same. As it is open to the father to
make a gift or partition of his properties as he himself chooses, there is, strictly speaking, no
presumption that he intended either the one or the other.

B. Blended property:

Coparcenary property cannot be converted into separate property but the opposite can happen
in two situations:

o When separate property is thrown into joint family funds with intention of blending it
o Separate property can be converted into joint family property when there is no JFP to
begin with. (Note: this is not blending as for blending some JFP must be in existence)

Blending is different from surrendering one’s property as no exclusive right given to

somebody else, instead exclusive rights are converted into joint rights.

Blending is an irrevocable act and blended property cannot be converted into separate
property again.

For blending, an irrevocable and clear declaration is required though it need not be
accompanied with registered and stamped documents. There must be an intention to blend
clubbed with conduct showing the intention.

A female could not have blended her separate property before 2005 as she could not be a
coparcener. If she wished to convert her property into JFP, it was a gift and not blending.

C. Accretion:

Accretions are the properties acquired with the aid of JFP, i.e. when more property is
acquired with the help of JFP. This property is also JFP. For example: if rents are received
from giving JFP on rent, the money received is also JFP.

Gains of Learning: The general rule is that “any property or income acquired with the aid of
joint family funds or with detriment to the JFP would in itself become JFP.” The question
therefore arose: what if a person became successful as a result of education provided to him
by JFP? Would his income become JFP?

Prior to 1930, there was a conflict of opinion on the issue. The general rule was that if the
person received ordinary/primary education, his income would be his separate property but if
he was given special training with JFP then his income would be JFP. As a result, it was
practically impossible to have self acquisitions through own efforts if educated and trained
specially. It seemed as if education provided to the son was an investment to increase the
amount of JFP.

In 1930, the Hindu Gains of Learning Act was enacted. It said:

“Notwithstanding any custom, rule or interpretation of the Hindu Law no gains of learning
shall be held not to be exclusive and separate property of the member of the joint family who
acquires them merely by reason of-

(a) His learning having been, in whole or in part, imparted to him by any member, living or
deceased, of his family, or with the aid of joint funds of his family, or with the aid of the funds
of any member thereof; or

(b) Himself or his family having, while he was acquiring such learning been maintained or
supported, wholly or in part by the joint funds of the family, or by the funds of any member
thereof.

“Gains of Learning” means all acquisitions of property made substantially by means of

learning, i.e., education; whether elementary, technical or scientific, special or general”.

Thus, the Act made the source of funding of learning of a joint family member irrelevant

D. Deletions:

All expenditures incurred from the JFP are referred to as deletions.

IV. Karta

Only a coparcener can be a Karta. Karta is the senior most male member of the family who
represents the family in all matters and whose decisions are final and to be obeyed by all
family members. After 2005 amendment it is possible for a female member to be Karta also
as females can also have ownership over joint family property. The position of Karta is sui
generis (something that generates on its own). The karta of the family has several powers but
with powers come responsibilities.

Powers and responsibilities of Karta:

o To manage family affairs and JFP.

o To provide maintenance to all family members
o Can discriminate in expenditure of different members of family according to the need
of the hour and nobody can question
o He has limited alienation powers. Within his powers he can alienate JFP without the
permission of other coparceners.
o He receives the family income and decides what is to be done with it. He is under no
obligation to economise or save.
 o He does not need to keep accounts. But accounts can be demanded at the time of
partition. However, past accounts cannot be demanded unless there is a charge of
fraud or misappropriation.
o To represent the family in all legal, religious and revenue matters
o To pay taxes

A Karta’s decisions cannot be closely scrutinised if he is acting bona fide and honestly.
Karta’s position is an honorary position and he receives no salary for it though he may
receive a salary by an agreement.

Cases:

1. Tribhovan das Haribhai Tamboli v. Gujarat revenue Tribunal (1991) 3 SCC 442

The court held that a junior member cannot deal with the joint family property as Manager so
long as the Karta is available except in three situations. These are:

o where the Karta relinquishes his right expressly or by necessary implication or

o in the absence of the Manager in exceptional and extra-ordinary circumstances such
as distress or calamity effecting the whole family and for supporting the family or
o in the absence of the father whose whereabouts were not known or who was away in
remote place due to compelling circumstances and that is return within the reasonable
time was unlikely or not anticipated.

V. Alienation of joint family property

A coparcenary cannot alienate joint family property because all family members have certain
rights over it. It is only the Karta who can alienate joint family property for certain purposes.
The coparcener cannot obtain an injunction to stop Karta from alienating the JFP (Sunil
Kumar v. Ram Prakash(1988) 2 SCC 77). He has two remedies in such a situation:

a. He can either demand his share before alienation, i.e. seek a partition; or
b. He can challenge the alienation after the process of alienation is over.

The Karta has the power to alienate JFP for the following purposes:

1. Legal necessity: The essentials of legal necessity are:

a. Need
b. For lawful purpose, i.e. which can be sustained in law or justified in law
c. No alternate resource available from which requirement can be met
d. The course is such that an ordinary prudent man would take
Cases:

o Hunoomanpersaud Panday v. Mussumat Babooee Munraj Koonweree (1854-57)

6 Moore’s IA 393 (PC)

The power of the Manager for an infant heir to charge an estate not his own, is, under the
Hindoo law, a limited and qualified power. It can only be exercised rightly in a case of need,
or for the benefit of the estate. But where, in the particular instance the charge is one that a
prudent owner would make, in order to benefit the estate, the bond fide lender is not affected
by the precedent mismanagement of the estate. The actual pressure on the estate, the danger
to be averted, or the benefit to be conferred upon it, in the particular instance, is the thing to
be regarded. But of course, if that danger arises or has arisen from any misconduct to which
the lender is or has been a party, he cannot take advantage of his own wrong, to support a
charge in his own favour against the heir, grounded on a necessity which his wrong has
helped to cause. Therefore, the lender unless he is shown to have acted mala fide will not be
affected, though it be shown that, with better management, the estate might have been kept
from debt. The lender is bound to.' inquire into the necessities for the loan, and to satisfy
himself as well as he can, with reference to the parties with whom he is dealing, that the
Manager is acting in the particular instance for the benefit of the estate. But they think that if
he does so inquire, and acts honestly, the real existence of an alleged sufficient and
reasonably-credited necessity is not a condition precedent to the validity of his charge. It is
obvious that money to be secured on any estate is likely to be obtained on easier terms than a
loan which rests on mere personal security, and that, therefore, the mere creation of a charge
securing a proper debt cannot be viewed as improvident management; the purposes for which
a loan is wanted are often future, as respects the actual application, and a lender can rarely
have, unless he enters on the management, the means of controlling and rightly directing the
actual application. A bona fide creditor should not suffer when he has acted honestly and with
due caution, but is himself deceived.

o Dev Kishan v. Ram Kishan AIR 2002 Raj. 370

The issue was whether alienation for the purpose of marrying daughters who were mnors was
a legal necessity. The court held that where the marriage of the minor was performed in
violation of the provisions of the the Child Marriage Restraint Act, 1929, the debt having
been incurred for that purpose, which was not lawful, cannot be regarded as a lawful debt and
alienation on that ground cannot be regarded as lawful alienation binding upon the minors. If
the property was mortgaged or sold for the purpose of marrying minors, such transactions
would be opposed to public policy, in view of the prohibition of child marriage under the Act
of 1929.

2. Benefit of estate: alienation which is for the benefit/advantage of estate is permitted.

However while alienating, the Karta has to be more cautious than while he would be
when alienating his separate property and the sale proceeds must be used for the
benefit of the family estate. They cannot be used for normal expenditure.
Case:

Balmukund v. Kamla Wati AIR 1964 SC 1385

The court held that for a transaction to be regarded as of benefit to the family it need not be of
defensive character so as to be binding on the family. In each case the court must be satisfied
from the material before it that it has in fact conferred or was reasonably expected to confer
benefit on the family at the time it was entered into.

3. Performance of religious or indispensible duties

Property can be alienated by the Karta for religious obligations when alternate resources are
not available. For example: shraadh, marriage, funeral rites, etc.

Apart from these three circumstances, the Karta can alienate JFP in two more situations if he
is also the father. These are:

o Gift to daughter: Daughter has a special position and a gift to her shows a
contribution of natal family property to her. The mitakshara states that the daughter
must be given a share when father dies and if no share is given, it is a sin, Similarly
Manusmriti states, “Let each brother give 1/4th of his own distinct share and those
who refuse to give shall be degraded”.

Therefore, a Karta who is also a father has wider powers of lienation. However, the gift to
the daughter has to be of a reasonable portion of JFP.

o To pay antecedent debts: A Karta who is also a father can also alienate property to
clear antecedent debts provided they are legal as well as moral from the JFP. These
antecedent debts should be antecedent in time as well as in fact.

VI. Partition
Partition means bringing the joint status of a family to an end. For a partition to take place
there must at least be two coparceners. Partition can be of two kinds:

1. De jure partition/numerical division: when there is no community of interest but

unity of possession is there. The interest is no longer fluctuating but the members do
not know who will get what. No doctrine of survivorship is applicable.

Joint tenancy is converted into tenancy-in-common.

2. De facto partition/ partition by metes and bounds/ physical division: when there is
neither community of interest nor unity of possession.
Who can ask for a partition:

1. Coparcener: a coparcener can ask for a partition any time. He needs to give no reason
for his decision to anyone. Even a minor coparcener can ask for a partition through a
next friend. But the ultimate decision lies with the court.
2. Alienee: he can ask for a partition in two conditions:

a. In states where coparceners are permitted to alienate his share.

b. Where a coparcener took debts and the alienee gets an execution of money
decree

3. Father: a father has special rights. He can bring about a partition between his sons
even without their consent

In two situations, there is an automatic partition irrespective of whether the coparcener

wants one or not. These are

o Conversion to another religion: it results in ouster from the joint family but the
coparcener is given his share
o Marriage to a Non-hindu under special marriage Act.

Persons entitled to get a share on partition:

The following persons get a share on partition:

1. Coparceners
2. Three categories of females get a share on partition (but not where dravida sub school
is applicable). They cannot ask for partition but get a share when there is a partition
by metes and bounds. These females are:
a. Father’s wife: step mother is included
b. Widowed mother: step mothers also get
c. Paternal grandmother: step grandmothers also get

Mode of partition:

For making a valid demand for partition, three essentials have to be fulfilled:

1. Formation of intention to separate

2. manifestation of this intention: verbal or written
3. Communication of this intention to the Karta
Cases:

1. Raghvamma v. Chenchamma AIR 1964 SC 136

The mere making of a will does not amount to partition as no communication to anybody. A
declaration cannot be in vacuum.

As far as date of severance of status is concerned, once each coparcener comes to know, the
date relates back to the date of intention but the doctrine is limited by any vested interest
created in the meantime. In other words, vested interest overrides the doctrine of relation
back.

2. Puttrangamma v. M. S. Ranganna AIR 1968 SC 1018

The communication of the intention to separate can be any form. No formal despatch to or
receipt by other members of the family is required.

Partition is an irrevocable act. A unilateral declaration of withdrawal of intention to separate

is not possible. Only a reunion can make them united again which is possible only when all
coparceners agree to unite again.

3. Kakumanu Pedasubhayya v. Kakumanu Akkamma AIR 1968 SC 1042

In the case of a minor also, the date of severance of status relates back to the date of
institution of suit by next friend. The court merely decides whether the next friend’s decision
is for the welfare of the minor or not.

Even if the minor on behalf of whom the suit for partition is filed by the next friend dies
before the determination of the matter, the suit can be continued as the matter affects the
manner in which his share would devolve. If the partition was in favour of the minor, the
property would devolve according to succession laws else doctrine of survivorship would be
applicable.

Rules of Partition:

Rule 1: Where father and son: each son takes a share equal to the father

Rule 2: Where two brothers: each brother takes an equal share

Rule 3: Where coparcenary consists of several branches: each branch takes per stripes and
the members of each branch take per capita.

There are two steps of partition when two generations are present:

 Step 1: property divided between father and sons equally in accordance with rule 1
 Step 2: partition between second and third generations.
Rule 4: where a coparcener dies leaving behind male issues, then “doctrine of representation”
is applicable. This means that male issues of deceased coparceners represent their ancestor in
a partition and take his share provided such issues are within the limits of coparcenary.

VII. Pious Obligation of son

Under the Hindu Law, a son is under a pious obligation to discharge his father's debts out of
his ancestral property even if he had not been benefited by the debts, provided the debts are
not avyavaharika. The sons get exonerated from their obligation to discharge the debt of their
father from the family assets only if the debt was one tainted with immorality or illegality.

The duty that is cast upon the son being religious and moral, the liability of the son for the
debt must be examined with reference to its character when the debt was first incurred. If at
the origin there was nothing illegal or repugnant to good morals, the subsequent dishonesty of
the father is in not discharging his obligation will not absolve the son from liability for the
debt.

In Hindu law there are two mutually destructive principles, one the principle of independent
coparcenary rights in the sons which is an incident of birth, giving to the sons vested right in
the coparcenary property, and the other the pious duty of the sons to discharge their father's
debts not tainted with immorality or illegality, which lays open the whole estate to be seized
for the payment of such debts.

This ancient doctrine of pious obligation was governed by Smriti law. There is a pious
obligation on the sons and grandsons to pay the debts contracted by the father and
grandfather. According to Privy Council this obligation extends to great grandsons also
because all the male descendants upto three generations constitute coparcenary and every
coparcener is under a religious obligation to pay the debt contracted by their ancestor,
provided such debt was not taken for an immoral or unlawful purpose.

The concept of pious obligation has its origin in Dharmashastras, according to which non-
payment of debt is a sin which results in unbearable sufferings in the next world. Hence the
debts must be paid off in all circumstances provided it was not for immoral and illegal
purposes. Vrihaspati has said, “If the father is no longer alive the debt must be paid by his
sons. The father’s debt must be paid first of all, and after that a man’s own debts, but a debt
contracted by the paternal grandfather must always be paid before these two events.

The father’s debts on being proved, must be paid by the sons as if their own, the
grandfather’s debt must be paid by his son’s son without interest, but the son of a grandson
need pay it at all. Sons shall not be made to pay (a debt incurred by their father) for spirituous
liquor, for idle gift, for promises made under influence of love or wrath, or for surety ship,
nor the balance of a fine or toll liquidated in part by their father. Yajyavalkya says, “A son
has not to pay in this world father’s debt incurred for spirituous liquor, for gratification of lust
or gambling, nor a fine, nor what remains unpaid of a toll; nor idle gifts.” But in case of debts
for purposes other than the above, on the death of the father, or on his going abroad, or
suffering from some incurable disease, the debt contracted by him would be payable by his
sons and grandsons.

The liability to pay the debt is in the order, viz., in absence of father the son and in absence of
son the grandson.

The concept of pious obligation of the son has been abolished in 2005.

VIII. Hindu Succession Act, 1956

HSA made three major changes in the concept of coparcenary:

 The doctrine of survivorship was diluted by the introduction of notional partition:

Section 6 of the Act stated that if any female mentioned in class I heirs or any male
whom claims through such female is alive, then the deceased’s share would devolve
by succession and not by survivorship. To ascertain the share of the deceased
coparcener, the concept of notional partition was introduced which meant that it was
assumed that a partition was affected just before he died.
This dilution was made to ensure that the females were not left high and dry and that
they received some share from the property.
 Widow’s estate abolished by the enactment of Section 14 of HSA
 Wills with respect to the coparceners share in JFP was allowed. Before 1956, will wrt
JFP could not be made but now by virtue of Section 30 of HSA, wills can be made. It
is important to note that gifts of JFP still cannot be made.

Hindu Succession (Amendment) Act, 2005

Major changes were brought about in succession laws by the 2005 amendment Act. These
are:

1. Section 4(2) has been deleted with the implication that the Act is now applicable to
agricultural lands also
2. Abolition of doctrine of survivorship. Now there would be a notional partition
whenever any coparcener dies
3. Concept of notional partition is retained
4. Daughters have been made coparceners irrespective of their marital status. Section 6
states that the daughter of a coparcener shall,—

(a) by birth become a coparcener in her own right in the same manner as the son;
(b) have the same rights in the coparcenary property as she would have had if she had
been a son;
 (c) be subject to the same liabilities in respect of the said coparcenary property as that
of a son,
and any reference to a Hindu Mitakshara coparcener shall be deemed to include a
reference to a daughter of a coparcener:

Provided that nothing contained in this sub-section shall affect or invalidate any
disposition or alienation including any partition or testamentary disposition of property
which had taken place before the 20th day of December, 2004.

Therefore now a daughter can:

o Ask for a partition

o Be a Karta
o Can start a family on their own

Section 6 is a retroactive provision as applies to daughters born even before 2005 but does
not give them the right to challenge a partition or alienation made before 2005.

5. Pious obligation of the son has been abolished

6. It abolished special rules relating to dwelling house by omitting Section 23 of HSA.
Now females can ask for partition of the dwelling house also and get their share.
7. Section 24 has been deleted which was merely a superfluous provision as on
remarriage widows do not remain a part of their ex-husband’s family and would not
get inherit any property as a widow.
8. Added four new heirs to Class I heirs
9. Oral partition has been derecognized. Now “partition” means any partition made by
execution of a deed of partition duly registered under the Registration Act, 1908 (16
of 1908) or partition effected by a decree of a court.

Succession to property of a male intestate

Where there is no will, property devolves in accordance with HSA. The Act prescribes
different rules for males and females respectively. The heirs of a male are divided into the
following categories:

1. Class I heirs: mentioned in the Schedule. There are sixteen heirs mentioned in class I
heirs. There were initially 12 heirs and four heirs were added in 2005. These heirs are:
a. Son: includes natural, adoptive and posthumous sons but not illegitimate and
step sons
b. Daughter: includes natural, adoptive and posthumous daughters but not
illegitimate and step daughters
c. Widow: must be of a perfectly valid marriage and does not include a divorced
wife. Chastity of the widow is inconsequential
 d. Mother: includes biological and adoptive mother but not step mother. Marital
status and chastity of the mother is irrelevant
e. Son of a pre-deceased son
f. Daughter of a pre-deceased son
g. Son of a pre-deceased daughter
h. Daughter of a pre-deceased daughter
i. Widow of a pre-deceased son,
j. Son of pre-deceased son of a pre-deceased son,
k. Daughter of a pre-deceased son of a pre-deceased son,
l. Widow of a pre-deceased son of a pre-deceased son.
m. Son of a predeceased daughter of a predeceased daughter
n. Daughter of a predeceased daughter of a predeceased daughter
o. Daughter of a pre-deceased son of a pre-deceased daughter
p. Daughter of a predeceased daughter of a predeceased son

2. Class II heirs: there are 19 heirs in class II. 10 are males and 9 are females. These
are:
I. Father
II. (1) son’s daughter’s son, (2) son’s daughter’s daughter, (3)
brother, (4) sister
III. (1) daughter’s son’s son, (2) daughter’s son’s daughter, (3)
daughter’s daughter’s son, (4) daughter’s daughter’s daughter
IV. (1) brother’s son, (2) sister’s son, (3) brother’s daughter, (4)
sister’s daughter
V. Father’s father, father’s mother
VI. Father’s widow; brother’s widow
VII. Father’s brother; father’s sister
VIII. Mother’s father; mother’s mother
IX. Mother’s brother; mother’s sister

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

to a brother or sister by uterine blood.

Note: by virtue of Section 18, a full brother is preferred over a half brother.

3. Agnates: Section 3 (1) (a) defines agnates as “one person is said to be an “agnate” of
another if the two are related by blood or adoption wholly through males.”

4. Cognates: Section 3 (1) (c) defines cognates as “one person is said to be a cognate of
another if the two are related by blood or adoption but not wholly through males.”

Rules of Succession

Section 8 provides the general rules of succession in the case of males. The property of a
male Hindu dying intestate shall devolve first to class I heirs, if no class I heirs are alive then
to class II heirs; if there are no class II heirs, then to agnates; and if there are no agnates , then
to cognates.

Section 29 states that if there are no heirs qualified to succeed the intestate’s property, such
property shall devolve on the government; and the government shall take the property subject
to all the obligations and liabilities to which an heir would have been subject. This is known
as the Doctrine of escheat.

Class I and II heirs are enumerated in the Schedule and the order of succession among heirs
has been provided for in Section 9. Among the heirs specified in the Schedule, those in class I
shall take simultaneously and to the exclusion of all other heirs, those in the first entry in
class II shall be preferred to those in the second entry, those in the second entry shall be
preferred to those in the third entry, and so on in succession.

The rules for distribution of property among heirs of Class I have been given in Section 10.
These are:

1. The intestate’s widow, or if there are more widows than one, all the widows together,
shall take one share.
2. The surviving sons and daughters and the mother of the intestate shall each take one
share.
3. The heirs in the branch of each pre-deceased son or each pre-deceased daughter of the
intestate shall take between them one share.
4. The distribution of the share referred to in the previous rule
 among the heirs in the branch of the pre-deceased son shall be so made that his
widow (or widows together) and the surviving sons and daughters gets equal
portions; and the branch of his predeceased sons gets the same portion;
 among the heirs in the branch of the pre-deceased daughter shall be so made that
the surviving sons and daughters get equal portions.

The heirs specified in any one entry of Class II heirs take equal shares in the property.

The order of succession among agnates and cognates has been provided in Section 12. The
rules are:

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

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

Rule 3.- Where neither heirs is entitled to be preferred to the other under

Rule 1 or Rule 2 they take simultaneously.

Limited estate of widow abolished (Section 14)

Before `1956, the property of women was divided into two categories:

 stridhan: this literally means woman’s property. But it has a technical meaning in
Hindu law. According to smritikars, stridhan consists of those properties which she
received by way of gift from relations which included mostly movable property such
as ornaments and dresses and by strangers at the time of marriage. Property acquired
through self exertion or property purchased with stridhan or acquired by adverse
possession was also her stridhan.
She had an absolute right over stridhan. She could alienate it the way she wanted at
least till the time she was unmarried. Once she married she had absolute right over
stridhan received from relatives but not over stridhan received from strangers or by
her own efforts. For the alienation of the latter she needed the consent of her husband.
On her death, her stridhan went to her own heirs.

 woman’s estate: also known as widow’s estate. The woman had only limited
ownership. She was the owner subject to two limitations:
o she could alienate the property
o on her death the property devolved on the heirs of the last full owner. These
heirs are known as “reversioners”.

She could alienate the property only when there was a legal necessity or for the
benefit of the estate or for the discharge of indispensable religious duties of her
husband.

Examples of woman’s estate are property she receives on inheritance or on partition.

The widow took her husband’s property as a limited owner under Hindu Women’s
Right to Property Act, 1937.

Section 14 of HSA has abolished woman’s estate.

Section 14 of HSA states:

Property of a female Hindu to be her absolute property.—

(1) Any property possessed by a female Hindu, whether acquired before or after the
commencement of this Act, shall be held by her as full owner thereof and not as a
limited owner. Explanation.—In this sub-section, “property” includes both movable
and immovable property acquired by a female Hindu by inheritance or devise, or at a
partition, or in lieu of maintenance or arrears of maintenance, or by gift from any
person, whether a relative or not, before, at or after her marriage, or by her own skill
or exertion, or by purchase or by prescription, or in any other manner whatsoever,
and also any such property held by her as stridhana immediately before the
commencement of this Act.
 (2) Nothing contained in sub-section (1) shall apply to any property acquired by way of
gift or under a will or any other instrument or under a decree or order of a civil court
or under an award where the terms of the gift, will or other instrument or the decree,
order or award prescribe a restricted estate in such property.

Object of legislature-

 To wipe out the disabilities suffered by a Hindu woman, under the old Shastric Law,
in regard to ownership of property-
 To recognise her status as an independent and absolute owner of her property.

Sub Sec. (1) of Sec. 14 is large enough in its amplitude to cover every kind of acquisition of
property by a female Hindu, including acquisition in lieu of maintenance. Sub Sec. (2) of Sec.
14 is confined only to cases where property was acquired for the first time by a Hindu woman
without any pre-existing right. Right to receive maintenance is a pre-existing right and
therefore possession of property pursuant to or in recognition of such a right is sufficient title
to enable ripening of possession into full ownership.

There are two conditions that must be fulfilled for the application of Section 14. These are:

 The woman must be the owner at the time of the commencement of the Act
 She must be in possession of the property as a limited owner. Possession could be
active or constructive possession.

Cases:

1. Jagannathan Pillai v. Kunjithapadam Pillai AIR 1987 SC 1493

The issue was when a woman alienates her property in which she has a limited interest and
regains its possession by reconveyance in her favour after the commencement of the Act,
does she become the absolute owner of the property or not.

The court held that she does become the absolute owner of the property. The reasoning is as
follows:

There is nothing in Section 14 which supports the proposition that a Hindu female should be
in actual physical possession or in constructive possession of any property on the date of the
coming into operation of the Act. The expression "possessed" has been used in the sense of
having right to the property or control over the property.

Once it is shown that at the point of time when the question regarding title to property held by
a Hindu female arises, she was 'possessed' of the property on that date, in the eye of law, the
property held by her would be held by her as 'full owner' and not as 'limited owner'. In other
words, all that has to be shown by her is that she had acquired the property and that she was
'possessed' of the property at the point of time when her title was called into question.

The fact that she alienated the property and then reacquired the property after the
commencement of the Act is of no consequence. Whatever she had lost ‘earlier’ was 'now'
regained by her by virtue of the transaction. The status-quo-ante was restored in respect of
her interest. In the eye of law, therefore, the transaction by which the vendee of the Hindu
female acquired an interest in the said property was 'reversed' and the Hindu female was
restored to the position prevailing before the transaction took place. In other words, in the eye
of law the transaction stood obliterated or effaced. What was 'done' by virtue of the document
executed in favour of the transferee was 'undone'. Such would be the consequence of a
retransfer by the alienee in favour of a Hindu female from whom he had acquired an interest
in the property in question. Thus on the date on which her right to the property was called
into question, she was 'possessed' of the property which she had inherited from her husband
she having by then reacquired and regained what she had lost. And by virtue of the operation
of Section 14(1) of the Act the limitation which previously inhered in respect of the property
disappeared upon the coming into operation of the Act. It is no longer open to anyone now to
contend that she had only a 'limited' ownership in the said property and not a 'full' ownership,
the concept of limited ownership having been abolished altogether, with effect from the
coming into operation of the Act.

2. Vaddeboyina Tulasamma v. Vaddeboyina Sesha Reddy AIR 1977 SC 1944

Under the Sastric Hindu Law a widow has a right to be maintained out of joint family
property and this right would ripen into a charge if the widow took the necessary steps for
having her maintenance ascertained and specifically charged on the joint family
property and even if no specific charge were created, this right would be enforceable
against joint family property in the hands of a volunteer or a purchaser taking it with
notice of her claim. When specific property is allotted to the widow in lieu of her claim
for maintenance, the allotment would be in satisfaction of her right to be maintained
out of the joint family property. It would not be a grant for the first time without any pro-
existing right in the widow. The widow would be getting the property by virtue of her pre-
existing right, the instrument giving the property being merely a document effectuating
such pre-existing right.
Section 14(1) is large in its amplitude and covers every kind of acquisition of property by a
female Hindu including acquisition in lieu of maintenance. Where such property
was possessed by her at the date of commencement of the Act or was subsequently
acquired and possessed, she would become the full owner of the property.

Sub-section (2) of Section 14 which is in the nature of a proviso to sub-s.(1), excepts certain
kinds of acquisition of property by a Hindu female from the operation of sub-s. (1).
Sub-section (2), must be read in the context of sub-s.(1) to leave as large a scope for
operation as possible to sub-s.(1). So read, it must be confined to cases where property is
acquired by a female Hindu for the first time. as a grant without any pre-existing right
under a gift, will, instrument, decree, order or award, the terms of which prescribe a
restricted estate in the property.

The legislative intendment in enacting sub-s.(2) was that this subsection should be
applicable only to cases where the acquisition of property is made by a Hindu female for
the first time without any pre-existing right. Where however, property is acquired by a
Hindu female at a partition or in lieu of her right to maintenance it is in virtue of a
pre-existing right and such acquisition would not be within the scope and ambit of sub-s.(2)
even if the instrument allotting the property prescribes a restricted estate in the
property.

3. Jupudy Pardha Sarathy v. Pentapati Rama Krishna (2015 SC)

H had three wives. Only his second wife had issues. His second and first wife died. In 1920
he executed a will in favour of his third wife giving her a life interest in some of his
properties. In his will, he stated that he was losing energy and was becoming weak and
therefore wanted to give her some property. The issue was whether the case fell under section
14 (1) or 14 (2), i.e. whether the property was given to her in lieu of maintenance or not.

The court held that the property was given in lieu of maintenance which was her pre-existing
right and hence Section 14 (1) would be applicable. The court held that the original owner of
the property (H), realized the fact that his third wife was issueless and she has a pre-existing
right to be maintained out of his property. He further realized that physically he was weak
and may not survive for long period. He therefore, decided to give his properties to his family
members. Thus, the property became her absolute property after 1956 Act came into force.

Succession to property of a female intestate

Sections 15 and 16 deal with succession of property of females. The property of a female
Hindu dying intestate shall devolve to:

1. Firstly, the sons and daughters

2. Secondly, upon the heirs of the husband.
3. Thirdly, upon the heirs of the father,
4. Fourthly, upon the heirs of the father, and
5. Lastly, upon the heirs of the mother.

Special rules have been provided in Section 15(2) according to which the property of the
female devolves according to the source of inheritance of the property.

Any property inherited by a female Hindu from

 her father or mother devolves, in the absence of any son or daughter of the deceased
(including the children of any pre-deceased son or daughter) upon the heirs of the
father, and
 her husband or from her father-in-law devolves, in the absence of any son or daughter
of the deceased (including the children of any pre-deceased son or daughter) upon the
heirs of the husband.

The order of succession and manner of distribution among heirs of a hindu female has been
given in Section 16 of the Act. The rules are as follows:
Rule 1 .- Among the heirs specified in sub-section (1) of section 15, those in one entry shall
be preferred to those in any succeeding entry and those including in the same entry shall take
simultaneously.

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

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

Case:

1. Om Prakash v. Radhacharan 2009 (7) SCALE 51

A 15 year old girl was thrown out of her matrimonial house after her husband died within
three years of her marriage. Her parents educated her and enabled her to get a job. After 42
years she died leaving behind a huge bank balance. The question was whether her mother and
brother would inherit or the heirs of her husbands (who never asked her about her
whereabouts and were not interested in her well being at all for four decades).

The court held that the heirs of the husband would inherit the property by virtue of Section
15(1)(a) and even though it was a hard case, they had to apply the law.

Right of child in womb:

Section 20 states: A child who was in the womb at the time of the death of an intestate and
who is subsequently born alive have the same right to inherit to the intestate as if he or she
had been born before the death of the intestate, and the inheritance shall be deemed to vest in
such as case with effect from the date of the death of the intestate.

Therefore a child in the womb is a legal entity for the purposes of Hindu Law provided two
conditions are fulfilled:

 The child was in the womb when the Hindu died

 The child was born alive

Disqualifications

There are two disqualifications mentioned in HSA for inheriting property. These are:
 1. Murderer: if a person commits or abets the murder of the person whose property he
is to inherit or in furtherance of the succession, he cannot succeed to his property.
This is based on public policy, equity, justice and good conscience.

Vellikanu v. Singaperumal 2005 SC: the son murdered his father and therefore was
disqualified from inheriting his property. The issue was whether his wife could inherit the
property. The court held that even the wife cannot inherit because she has no better claim
in the property of the deceased. Once the son is totally disinherited then his whole stock
stands disinherited i.e. wife or son.

2. Convert’s descendants: when a Hindu has ceased or ceases to be a Hindu by

conversion to another religion, the children born to him or her after such conversion
and their descendants shall be disqualified from inheriting the property of their Hindu
relatives, unless such children or descendants are Hindus at the time when the
succession opens.

The convert is not disqualified but it is his descendants who are disqualified. There are two
conditions to be fulfilled for disqualifying:

 The descendant should be born after the conversion

 The descendant should not be a Hindu.

Section 27 provides for the consequence of disqualification. It states that when any person is
disqualified from inheriting any property, the property would devolve as if such person had
died before the intestate, i.e. as if he had never been born.

Expected Questions:

Q: 1 Write short notes on: (5 marks)

 Testamentary succession
 Stridhan
 Karta
 Who are class I heirs under HSA
 Agnates and cognate
 Right of pre-emption with regard to HSA

(Note: The answer lies in Section 22 of HSA. It is a right given to prevent fragmentation of
family estate and to avoid introduction of strangers into family business. The essentials for
the application of the Section are:

 Property inherited must be an interest in immovable property or in any business

 Property must be inherited by two or more heirs specified in Class I of the Schedule
 One of such heir must propose to sell or otherwise transfer it.
  Consideration is based on mutual agreement and in absence of any agreement, it can
be decided by the Court.

This provision is not applicable when:

 Property in question is capable of being partitioned or of being enjoyed separately

 Property is already partitioned.]

 Full blood, half blood and uterine blood

 Testamentary disposition of HJP
 What is the right of a child in the womb? Discuss the relevant provisions of HSA.

Q: 2 What are the general rules of succession to the property of a Hindu female dying
intestate? (10 marks)

Q: What do you understand by coparcener according to Mitakshara law? Can the daughter of
a coparcener become a coparcener in her own right and have the same rights in the
coparcenary property as she could have had if she had been a son? Discuss with provisions of
Hindu Succession (Amendment) Act, 2005.` (20 marks)

Q: Discuss with the help of cases the pious obligation of the son to pay their father’s debt.

(10 marks)

Q: “By the Hindu Succession Act, equality was introduced between the sexes in regard to
right of succession”. Comment. (10 marks)

Q: Distinguish between devolution of property by succession and by the doctrine of

survivorship. When a Hindu dies after the commencement of HS (amendment) Act, 2005 his
interest in Mitakshara joint family property shall devolve by intestate succession or by the
rule of survivorship? Explain. (20 marks)

Q: What are the general rules of succession to the property of a male Hindu dying intestate?
(10 marks)

Q: When can HJP be alienated by the Karta? (20 marks)

Q: What are the powers and responsibilities of the Karta? (10 marks)

Q: what are the disqualifications for a coparcener from inheriting property under HSA?
(10 marks)

Q: HSA has abolished the concept of woman’s estate by making the woman an absolute
owner of the property? Discuss with reference to Section 14 of HSA and with the help of
cases. (20 marks)
 Unit 4: The Hindu Adoption and Maintenance Act, 1956

According to Shastric law, adoption was a sacramental act. The purpose of adoption was two-
fold:

o to secure one's performance of one's funeral rites and

o to preserve the continuance of one's lineage

Hindus believed that one who died without having a son would go to hell and it was only a
son who could save the father from going to hell. This was one of the reasons to beget a son.

In the Hindu Shastras, it was said that the adopted son should be a reflection of the natural
son. This guaranteed protection and care for the adopted son. He was not merely adoptive
parents, but all relations on the paternal and maternal side in the adoptive family also came
into existence.

Due to the spiritual reasons, daughters could not be adopted and women could not adopt
(except widows who adopted in the name of their deceased husbands with the permission of
the sapindas).

The law relating to adoptions was overhauled and codified in 1956 by the enactment of the
Hindu Adoptions and Maintenance Act, 1956.

The differences between the old and new law of adoption are as follows:

Old Law New law

1 Only boys could be adopted Girls can also be adopted

2 It was possible to adopt once age of Only a major person can adopt
discretion was attained

3 No consent of the wife was needed Consent of the spouse is needed

4 Married woman could adopt only with No such restriction

the permission of her husband or
sapindas and the adoption was in the
name of the husband

5 The boy to be adopted was to be of the No such restriction

same caste and adoptive father and
natural mother could not get married

6 An illegitimate boy could not be No such restriction

adopted
7 Only parents could give in adoption Now even guardian can give in adoption with
the permission of the court

8 No specific age difference required There must be a minimum difference of 21

between the person adopting and the years of age when a person adopts a child of
person adopted the opposite sex

Requisites of a valid adoption

Section 6 of the HAMA gives the requisites of a valid adoption. These are:

o The person adopting must be lawfully capable of taking in adoption

o The person giving in adoption must be lawfully capable of giving in adoption
o The person adopted must be lawfully capable of being taken in adoption
o The adoption must be completed in accordance with the other conditions
mentioned in the Act.

Capacity to take in adoption:

Sections 7 and 8 enumerate the requisites for a Hindu male and female to take in adoption
lawfully. After 2010 amendment, males and females have equal rights to take in adoption.
The requisites are:

o The person must be a Hindu

o And of sound mind and
o Must be a major,

To take in adoption, the person must take the consent of his/her spouse (if alive). The
requirement of consent is done away with under the following conditions:

o The spouse has completely and finally renounced the world or

o Has ceased to be a Hindu or
o Has been declared by a court of competent jurisdiction to be of unsound mind

In the case of a husband, if he has more than one wife living (whom he married before 1955),
the consent of all the wives is necessary unless the consent of any one of them is unnecessary
for any of the reasons specified above.
Case law:

1. Bajendra Singh v. State of Madhya Pradesh AIR 2008 SC 1056

This is a case based on the law before the amendment of 2010 was made. Under the earlier
law, a married woman could adopt only under the following conditions:

o If her married was dissolved

o If her husband was dead
o If her husband had completely and finally renounced the world
o If her husband had ceased to be Hindu
o If her husband was declared by a court of competent jurisdiction to be of
unsound mind

In the case, the woman was crippled and her marriage was a mere formality and she did not
live with her husband for more than a day. She adopted a son.

The issue was whether the adoption was valid or not.

The Court held that there is a conceptual and contextual difference between a divorced
woman and one who is leading life like a divorced woman. Both cannot be equated. Even
though a lady because of her physical deformity lived separately from her husband and that
too for a very long period right from the date of marriage, in the eye of law they continued to
be husband and wife because there was no dissolution of marriage or a divorce in the eye of
law. Hence, the lady was not capable of taking into adoption and the adoption was held to be
invalid.

2. Ghisalal v. Dhapubai 2011 (1) SCALE 325

The court held that the consent of the wife cannot be presumed simply because she was
present at the time of adoption. The wife's silence or lack of protest on her part also cannot
give rise to an inference that she had consented to the adoption. The consent should be in
writing or reflected by an affirmative act voluntarily and willingly done by her.

3. Vijayalakshmi v. B.T. Shankar 2001 SC

In this case, the husband had died and the senior widow adopted without the consent of junior
widow. The issue was whether the explanation to Section 7 could be read into Section 8 also,
i.e. was the consent of all widows required when one of the widows adopted.

The Court held that no such condition could be read into Scetion 8 and that the adoption was
perfectly valid.

Capacity to give in adoption:

Section 9 provides as to who can give in adoption. Only three persons are capable of giving
in adoption:
 o Mother
o Father
o Guardian

Mother: mother includes only natural mother. Adoptive mothers have been explicitly
excluded by the explanation attached to Section 9 of HAMA. In Dhanraj v. Suraj Bai 1975
AIR 1103, the Supreme Court held that step mothers cannot give in adoption.

Father: Father includes only natural father and not adoptive or step father.

The father and mother must get consent from the spouse unless the spouse has been declared
by a competent court to be of unsound mind, has renounced the world, or has ceased to be a
Hindu.

Guardian: If both the natural mother and father are

o dead, or
o have renounced the world, or
o have abandoned the child, or
o are of unsound mind,

a guardian (testamentary or court appointed) can give a child in adoption after obtaining
permission from the court. The guardian can give a child in adoption to himself also.

While granting permission, the court must see the welfare of the child and the wishes of the
child depending on the child's age. It also needs to ensure that the applicant has not received
or agreed to receive and that no person has made or given or agreed to make or give to the
applicant any payment or reward in consideration of the adoption except such as the court
may sanction. Section 17 of HAMA makes receiving or agreeing to receive any payment or
other reward in consideration of the adoption of any person an offence punishable with
imprisonment which may extend to six months or with fine or both.

Capacity to be taken in adoption:

Only the following can be taken in adoption:

o he or she is a Hindu;
o he or she has not already been adopted
o he or she has not been married, unless there is a custom or usage applicable to
the parties which permits persons who are married being taken in adoption;
o he or she has not completed the age of fifteen years unless there is a custom or
usage applicable to the parties which permits persons who have completed the
age of fifteen years being taken in adoption.
Other conditions for a valid adoption:

Some others conditions have been given under Section 11 of the Act. These are:

o If a male child is being adopted, the person who is adopting must not already have a
son, son's son, or son's son, whether natural or adopted, living at the time of adoption.
o If a female child is being adopted, the person who is adopting must not already have a
daughter or son's daughter, living at the time of adoption.
o If a male is adopting a female child, then their age difference must be greater than 21
yrs.
o If a female is adopting a male child, then their age difference must be greater than 21
yrs.
o Two persons cannot adopt the same child.
o The actual giving and taking of the child must happen. Only mere intention of giving
and taking is not enough. The child must be transferred from the home of the natural
parents, or in case of orphans, from the place he grew up, to the adoptive parent's
home.
o The ritual or ceremony of Dattak homam is not necessary.

Effects of Adoption

From the date of the adoption, the child is under the legal guardianship of the new adoptive
parent(s) and thus should enjoy all the benefits from those family ties. This also means that
this child, therefore, is cut off from all legal benefits from the family who had given him or
her up for adoption. Section 12 states that this severance from the family that gave him in
adoption would take effect from the date of adoption. The Section reads as follows:

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

Provided that-

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

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

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

Thus, the adopted child ceases to be the child of the natural family. His father and mother
cease to be his parents and all relations on his father’s and mother’s side cease to be his
relations. The only tie that he retains with his natural family is that he cannot marry any
person in his natural family whom he could not have married before his adoption (proviso
(a)).

Section 12, proviso (b) provides that any property that the child inherited from any relation
before adoption would continue to be his property even after adoption. A son’s interest by
birth in the Mitakshara JFP does not vest any property in him. Therefore, if such a son is
given in adoption, his interest together with any liabilities attached thereto cease on his
adoption.

Proviso (c) to Section 12 provides that the adopted child cannot divest any person of the
properties vested in him or her before the adoption.

It was held in Vasant v. Dattu (1987 SC 398) that a coparcenary interest is not a vested
interest and it is merely a fluctuating interest. Therefore, if a coparcener adopts a son or a sole
surviving coparcener adopts a son, the adopted son will acquire an interest in JFP from the
moment of his adoption as if he is born a natural son to the adopting coparcener.

(Note: keep in mind that after 2005, daughters are also coparceners)

Doctrine of relation back

The old doctrine of relation back has been done away with by the new law. According to the
doctrine, when a widow adopted, the date of adoption related back to the date of the
husband’s death and therefore any alienation made in between could be challenged by the
adopted son. But after 1956 since a widow can adopt unto herself, the doctrine of relation
back was no longer required.

However, the courts have resurrected the doctrine once again by holding that a widow adopts
to herself as well as her deceased husband (Sawan Ram v. Kalawanti 1967 SC 1761) for the
purpose of determining rights of adopted son to succeed to property of deceased husband.

There are two limitations to the doctrine of relation back after 1956. These are:

o Any lawful alienation made by the last absolute owner would be binding on
the adopted son
o If property by inheritance goes to the heir of sole surviving coparcener and no
adoption takes place during his lifetime, property of legal heirs cannot be
divested.

Adoption is irrevocable:

Section 15 of HAMA states that a valid adoption cannot be cancelled by the person adopting
nor can the adopted child renounce his or her status as such and return to the family of his or
her birth. This is because adoption is a matter of status and not of contract.
Maintenance (Sections 18-28)

Maintenance has been defined in Section 3 (b) of HAMA as :

"Maintenance" includes-

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

attendance and treatment;

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

incident to her marriage.

There are two kinds of obligations to maintain:

o Personal obligation: Personal obligation means that a Hindu is personally

liable, irrespective of the property that he has inherited or his earnings, to
provide for certain relations who are dependent on him.
o Obligation that arises out of property: This is obligation that is coextensive
with the property inherited.

Maintenance of wife:

Wife means a legally wedded wife. A widow is not included, though she can claim as a
dependent under Section 22 of HAMA. The maintenance of wife is a personal obligation.

The Act provides for the maintenance of wives if certain conditions are fulfilled. These are:

o The wife is staying with the husband or away from the husband when any of
the circumstances mentioned in Section 18 (2) exist
o She is not unchaste
o She has not ceased to be a Hindu by conversion to another religion

Section 18 (2) of HAMA enumerate the conditions when the wife is entitled to maintenance
even though she is living separately. These are:

o Desertion: It the husband is guilty of deserting the wife without her consent,
against wife's wishes, and without any reasonable cause, the wife is entitled to
separate residence. In the case of Meera v. Sukumar 1994 Mad, it was held
that willful neglect of the husband constitutes desertion.
o Cruelty: If husband through his actions creates sufficient apprehension in the
mind of the wife that living with the husband is injurious to her then that is
cruelty. In the case of Ram Devi v. Raja Ram 1963 Allahabad, if the
 husband treats the wife with contempt, resents her presence and makes her feel
unwanted, it is cruelty.
o If the husband is suffering from a virulent form of leprosy.
o If the husband has another wife living. In the case of Kalawati vs Ratan 1960
Allahabad, is has been held that it is not necessary that the second wife is
living with the husband but only that she is alive.
o If the husband keeps a concubine or habitually resides with one..
o If the husband has ceased to be a Hindu by converting to another religion.
o For any other reasonable cause. Any cause due to which husband's request of
restitution of conjugal rights can be denied could be a good cause for claiming
a separate residence as well as maintenance.

Maintenance of widowed daughter-in-law:

According to ancient texts the father-in-law was neither under any legal obligation nor any
personal obligation to provide maintenance to widowed daughter-in-law. It was merely a
moral obligation.

According to Section 19, any Hindu whether her marriage took place before the
commencement of the present Act or thereafter, on the death of her husband, would be
entitled to maintenance from her father-in-law to the extent or so long as

o She is unable to maintain herself out of her own earnings or other property; or
o She is unable to obtain maintenance from the estate of her husband; or
o She is unable to obtain maintenance from the estate of her father; or
o She is unable to obtain maintenance from the estate of her mother; or
o She is unable to obtain maintenance from her son; or
o She is unable to obtain maintenance from her daughter; or
o She is unable to obtain maintenance from the estate of her son or daughter;

The father-in-law must have the means to maintain her from any coparcenary property in his
possession out of which she has not obtained a share. Thus, this is an obligation that is
coextensive with the coparcenary property that the father-in-law has and is not a personal
obligation. Also the daughter in law must have remained unmarried.

Where the father-in-law has coparcenary as well as self acquired property to his credit and
the amount of earning from self acquired property is sufficient enough to enable him and his
wife to maintain themselves, the widowed daughter-in-law acquires a right to get herself
maintained out of the earnings of the coparcenary property.

Maintenance of children and aged parents:

Both females and males are bound to maintain their children and aged parents. This is a
personal obligation to maintain.
Section 20(1) declares that a Hindu is bound to maintain his children, legitimate or
illegitimate, and aged or infirm parents. Section 20(2) says that a child, legitimate or
illegitimate, can claim maintenance from father or mother, until the child is a minor. Section
20(3) says that the right to claim maintenance of aged or infirm parents and unmarried
daughter extends in so far as they are not able to maintain themselves through their other
sources of income.

In this Section, a childless step-mother is also considered a parent.

Dependants:

A person has obligation to support certain relations of another person whose property has
devolved on him. This obligation is not personal but only co extensive with the devolved
property.

Section 21 specifies the relations of the deceased who must be supported by the person on
whom the property of the deceased has devolved. The following are dependants:

o His or her father

o His or her mother
o His widow, so long as she does not remarry
o His or her son or the son of his predeceased son, or the son a predeceased son of his
predeceased son, until the age of majority. Provided that he is not able to obtain
maintenance from his father or mother's estate in the case of grandson, and from his
father or mother, or father's father or father's mother, in the case of great grandson.
o His or her unmarried daughter or the unmarried daughter of his predeceased son or his
unmarried daughter of his predeceased son of his predeceased son until she gets
married. Provided that she is not able to obtain maintenance from her father or
mother's estate in the case of granddaughter, and from her father or mother, or father's
father or father's mother, in the case of great granddaughter.
o His widowed daughter, provided and to the extent that she is unable to obtain
maintenance
o from the estate of her husband; or
o from her son or daughter, if any, or his or her estate; or
o from her father-in-law or his father or the estate of either of them;
o any widow of his son or of a son of his predeceased son, so long as she does not
remarry and provided and to the extent that she is unable to obtain maintenance from
her husband's estate or from her son or daughter, if any, or his or her estate; or in the
case of a grandson’s widow, also from her father in law’s estate.
o His or her minor illegitimate son, until the age of majority
o His or her illegitimate daughter, until she is married.
Section 22 (1) says that heirs of a Hindu are bound to maintain the dependents of the
deceased out of the estate inherited by them from the deceased. Thus, this obligation is to be
fulfilled only from the inherited property and so it is not a personal obligation.

Section 22(2) says that where a dependent has not received any share, by testamentary or
intestate succession, he/she shall be entitled to maintenance from those who take the estate.
Thus, a person who is a dependant as well as a heir is not entitled to maintenance from others
who have are also heirs.

Section 22(3) says that the liability of each heir is in proportion to the estate obtained by him.
It is not a joint liability.

Section 22(4) says that a person who himself is a dependent cannot be forced to pay any
amount of maintenance if the amount causes his share to reduce below what is required to
maintain himself.

Quantum of Maintenance

Section 23(1) says that courts will have complete discretion upon whether and how much of
maintenance should be given. Before coming to such a decision, the court is under an
obligation to give due regard to the guidelines provided under Section 23(2) and 23 (3).

Section 23(2) says that that while deciding the quantum of maintenance for wife, children,
and aged or infirm parents, the courts will consider:

o The position and status of the parties.

o The reasonable wants of the claimants.
o If a claimant has a separate residence, whether the clamant is justified in doing so
o The value of the claimant’s property and the income derived from it or from the
claimant's own earning or from any other source
o The number of claimants entitled to maintenance.

Section 23(3) says that while determining the maintenance for all other dependents the courts
shall consider the following points:

o The net value of the estate of the deceased after paying all his debts.
o The provisions, if any, made under a will of the deceased in favour of the dependant.
o The degree of relationship between the two.
o The reasonable wants of the dependent.
o The past relations between the deceased and the dependant.
o The value of the property of the dependant and any income derived from such
property, or from his or her earnings or from any other source
o The number of dependents entitled to maintenance.

The court has the power to alter the amount of maintenance awarded when there is a change
in circumstances (Section 25 of HAMA).
Expected questions:

Q: 1 Which persons are capable to give a child in adoption? Discuss. (10 marks)

Q: 2 What is adoption? What are its valid requisites under HAMA? Can an adoptive child
renounce his or her status and return to the family of birth? (20 marks)

Q: 3 Discuss the essential conditions and effects of a valid adoption under Hindu Law. Can a
married son be adopted? (10 marks)

Q: 4 When would a Hindu wife be entitled to separate residence without forfeiting her right
to maintenance from her husband? Discuss. (10 marks)

Q: 5 Who are dependents according to HAMA? Discuss. (10 marks)

Q: 6 What are the rights of maintenance of widowed daughter-in-law under HAMA? Discuss.
(10 marks)

Q: 7 Write a short note on: (5 marks)

 Can a divorced person take a child in adoption?

 Effects of adoption
 Unit 5: The Hindu Minority and Guardianship Act, 1956

Introduction

The concept of guardianship has changed from paternal power to the idea of protection in
modern times and the HMGA, 1956 codifies the law regarding minority and guardianship
with the welfare of the child at the core.

A person below the age of 18 yrs is declared to be a minor in Section 4 of HMGA.

Types of guardians:

Section 4 (b) of HMGA defines guardian. It reads:

“Guardian” means a person having the care of a person of a minor or of his property or of
both the person and his property and includes:

o natural guardian
o guardian appointed by the will of the minor’s father or mother
o a guardian appointed or declared by court
o a person empowered to act as such by or under any enactment relating to any Court
of Wards.

This list of 4 types of guardians is not exhaustive. A person who is taking care of a minor
without authority of law, can also be a guardian under the above definition and is called a de
facto guardian. However, a person does not have the right to sell or deal with the minor's
property if he is merely a de facto guardian by virtue of Section 11.

Natural guardians and their powers:

Section 6 of the Act declares who the natural guardian of a minor would be. Ordinarily, it is
the father who is the natural guardian and only after him, the mother, provided that the
custody of a child less than 5 yrs of age will be with the mother. This does not mean that
mother does not have the right to custody after 5 yrs of age. It has been held that a mother's
right to guardianship is not lost even upon conversion to another religion if she is able to
provide proper care to the minor. In custody matters, welfare of the child has to be
considered above all including the convenience and pleasure of the parents.

In the case of an illegitimate boy or an illegitimate unmarried girl, the mother is the natural
guardian; and after her, the father. Father over here means putative father.

In the case of a married woman, the husband is the natural guardian. In Hindu shastras,
husband and wife are considered to be one. Thus, it is believed that the guardianship of a
minor wife belongs to the husband. However, due to section 13 of HMGA, a court may revert
the guardianship to the father or mother depending upon the best interests of the minor.

The Section also gives the disqualifications for being a natural guardian. A person who:
 o has ceased to be a Hindu or
o who has renounced the world

is disqualified from being a natural guardian

The explanation to Section 6 clarifies that step father and step mother are not included within
the expression “father” and “mother”. They do not have any right to guardianship unless
appointed by the court.

Cases:

1. Jijabhai Vithalrao Gajre v. Pathankhan 1971 SCR (2) 1

The issue in the case was whether a mother can be considered the natural guardian of her
minor daughter when the father was alive.

The father and mother had fallen out and were living separately for over 20 years. The
mother was managing the affairs and the father was not taking interest in the affairs of the
minor.

The court held that in this case, the father was as good as non-existent so far as the minor
appellant was concerned and therefore the mother could be considered to be the natural
guardian of her minor daughter.

2. Githa Hariharan v. RBI (1999) 2 SCC 228

The question in this case was whether Section 6 (1) (a) was ultra vires the Constitution as
violative of Article 14 which guarantees equality. The court upheld the constitutionality of
the Section.

The court reasoned:

Section 4(c) provides that a natural guardian means a guardian mentioned in Section 6. This
definition section, however obviously in accordance with the rule of interpretation of statute,
ought to be read subject to Section 6 being one of the basic provisions of the Act and it is this
Section 6 which records that natural guardian of a Hindu minor, in the case of a boy or an
unmarried girl, is the father and after him the mother. The statute therefore on a plain reading
with literal meaning being ascribed to the words used, depicts that the mother's right to act as
a natural guardian stands suspended during the lifetime of the father and it is only in the event
of death of the father, the mother obtains such a right to act as a natural guardian of a Hindu
minor.

The whole tenor of the Act of 1956 is to protect the welfare of the child and as such
interpretation ought to be in consonance with the legislative intent in engrafting the statute on
the Statute Book and not de hors the same and it is on this perspective that the word `after'
appearing in section 6 (a) shall have to be interpreted. It is now a settled law that a narrow
pedantic interpretation running counter to the constitutional mandate ought always to be
avoided unless of course, the same makes a violent departure from the Legislative intent.
The validity of a legislation is to be presumed and efforts should always be there on the part
of the law courts in the matter of retention of the legislation in the statute book rather than
scrapping it and it is only in the event of gross violation of constitutional sanctions that law
courts would be within its jurisdiction to declare the legislative enactment to be an invalid
piece of legislation and not otherwise.

The word `guardian' and the meaning attributed to it by the legislature under section 4(b) of
the Act cannot be said to be restrictive in any way and thus the same would mean and include
both the father and the mother and this is more so by reason of the meaning attributed to the
word as "a person having the care of the person of a minor or his property or of both his
person and property...." It is an axiomatic truth that both the mother and the father of a minor
child are duty bound to take due care of the person and the property of their child and thus
having due regard to the meaning attributed to the word `guardian' both the parents ought to
be treated as guardians of the minor. As a matter of fact the same was the situation as regards
the law prior to the codification by the Act of 1956.

The expression `natural guardian' has been defined in Section 4(c) to mean any of the
guardians as mentioned in section 6 of the Act of 1956. This section refers to three classes of
guardians viz., father, mother and in the case of a married girl the husband. The father and
mother therefore, are natural guardians in terms of the provisions of Section 6 read with
Section 4(c). Incidentally it is to be noted that in the matter of interpretation of statute the
same meaning ought to be attributed to the same word used by the statute as per the definition
section. In the event, the word `guardian' in the definition section means and implies both the
parents, the same meaning ought to be attributed to the word appearing in section 6(a) and in
that perspective mother's right to act as the guardian does not stand obliterated during the
lifetime of the father and to read the same on the statute otherwise would tantamount to a
violent departure from the legislative intent. Section 6(a) itself recognises that both the father
and the mother ought to be treated as natural guardians and the expression `after' therefore
shall have to be read and interpreted in a manner so as not to defeat the true intent of the
legislature. The father by reason of a dominant personality cannot be ascribed to have a
preferential right over the mother in the matter of guardianship since both fall within the
same category and in that view of the matter the word `after' shall have to be interpreted in
terms of the constitutional safe-guard and guarantee so as to give a proper and effective
meaning to the words used.

The word `after' shall have to be given a meaning which would sub-serve the need of the
situation viz., welfare of the minor and having due regard to the factum that law courts
endeavour to retain the legislation rather than declaring it to be a void, we do feel it expedient
to record that the word `after' does not necessarily mean after the death of the father, on
the contrary, it depicts an intent so as to ascribe the meaning thereto as `in the absence
of `- be it temporary or otherwise or total apathy of the father towards the child or even
inability of the father by reason of ailment or otherwise and it is only in the event of
such a meaning being ascribed to the word `after' as used in Section 6 then and in that
event the same would be in accordance with the intent of the legislation viz. welfare of
the child.
In that view of the matter question of ascribing the literal meaning to the word `after' in the
context does not and cannot arise having due regard to the object of the statute, read with the
constitutional guarantee of gender equality and to give a full play to the legislative intent,
since any other interpretation would render the statute void and which situation in our view
ought to be avoided.

Section 7:

As per section 7, natural guardianship of an adopted son passes on to his adoptive father and
after adoptive father, to adoptive mother. It is but obvious that the position is the same in the
case of an adoptive daughter by virtue of Section 12 of HAMA which specifies that an
adopted child shall be deemed to be the child of his or her adoptive father or mother for all
purposes.

Powers of natural guardian:

Section 8 of HMGA 1956 describes the powers of a natural guardian as follows:

The natural guardian of a Hindu minor can do any act, subject to certain restrictions, that are
necessary or are reasonable and proper for the benefit of the minor or for the benefit of the
minor’s estate.

The following restrictions have been put on the powers of the natural guardian:

 The guardian cannot bind the minor by a personal covenant.

 The guardian cannot, without prior permission from the court,
o mortgage, charge, or transfer the immovable property of the minor by
way of sale, gift, exchange, or otherwise.
o lease the immovable property for a term exceeding 5 years or for a
term exceeding more than one year beyond the date on which the
minor will attain majority.

Any sale of immovable property in violation of the above two points, is voidable at the
insistence of the minor.

The court shall not give permission for sale of immovable property unless it is necessary
or clearly in the benefit of the minor.

Testamentary Guardian (Sec 9)

A person who becomes a guardian by virtue of the will of a natural guardian is called a
testamentary guardian. Section 9 defines a testamentary guardian and his powers.
Only a person entitled to act as the natural guardian of the minor can appoint a testamentary
guardian.

o For a legitimate boy or a girl, the father, who is a natural guardian, may appoint, by
will, any person to act as the guardian of the child after his death. However, if the
mother is alive, she will automatically become the natural guardian and after her
death, if she has not named any guardian, the person appointed by the father will
become the guardian.
o A Hindu widow who is a natural guardian of her minor legitimate children, or a
mother who is a natural guardian because the father is not entitled to be a natural
guardian, is entitled to appoint a person to act as a guardian after her death.
o For an illegitimate child, the power of appointing a testamentary guardian lies only
with the mother.

It is important to note that even though the husband is the natural guardian of his minor wife,
he has no power to appoint a testamentary guardian for her.

Powers of a testamentary guardian:

A testamentary guardian is not liable personally for the expenses and he can ask the guardian
of the property of the minor to meet the expenses through the property.
The rights of the guardian appointed by will cease upon the marriage of the girl.

A testamentary guardian assumes all powers of a natural guardian subject to limitations

described in HMGA and to the limitations contained in the will. This means that the same
limitations that are applicable to the powers of a natural guardian are applicable to
testamentary guardians also. These are:

o The guardian cannot bind the minor by a personal covenant.

o The guardian cannot, without prior permission from the court,
o mortgage, charge, or transfer the immovable property of the minor by
way of sale, gift, exchange, or otherwise.
o lease the immovable property for a term exceeding 5 years or for a
term exceeding more than one year beyond the date on which the
minor will attain majority.

Apart from this, any limitation mentioned in the will would also be put on the powers of the
testamentary guardian.
Can a minor act as guardian of property?

Section 10 specifies that a minor is incompetent to act as guardian of the property of any
minor. But property here does not include joint family property and therefore he can be Karta
of the family and can be guardian of person but not of separate property.

Guardian not to be appointed for minor’s undivided interest in joint family property

Section 12 says that where a minor has an undivided interest in joint family property and the
property is under the management of an adult member of the family, no guardian shall be
appointed for the minor in respect of such undivided interest; provided that nothing in this
Section shall be deemed to affect the jurisdiction of a High Court to appoint in respect of
such interest.

Welfare of the minor is of paramount importance (Sec 13)

Section 13 of the Act is a very important Section which states the principle that the welfare of
the minor is of paramount importance while deciding about the appointment and declaration
of a person as the guardian of the minor. This states the purpose and goal of the Act
succinctly. It is the soul of HMGA.

While appointing or declaring a guardian for a minor, the count shall take into account the
welfare of the minor.

No person shall have the right to guardianship by virtue of the provisions of this Act or any
law relating to the guardianship in marriage if the court believes that it is not in the interest of
the minor.

Thus, under this doctrine, any guardian may be removed depending on the circumstances on
per case basis and the court may appoint a guardian as per the best interests of the minor.

Cases:

1. Munnodiyil Peravakutty v. Kuniyedath Chalil Velayudhan AIR 1992 Ker 290

Facts: The mother died by drowning. The maternal grandparents and father were vying for
the custody of the 3 year old minor girl.

The child was attached to the grandparents and had been living with them for one and a half
years. The grandfather was a coconut plucker with modest income. His age was 76 years
while his wife’s age was 65. They lived with their sons: one was retarded and the other was a
divorcee.

The father was a sergeant in the Indian Army with a steady source of income. He lived with
his parents who were in their fifties.

Decision: The court gave the custody to the father

Reasoning: The court held that the following considerations have to be kept in mind while
deciding custody matters:

o Capacity to provide food, clothing, shelter

o Educational atmosphere
o Capacity to provide good health care
o Knowledge of guardian eith respect to eating habits, vaccination, health care
o Economic capacity

Further, the court held that affluency is not the deciding factor while deciding custody
disputes. The concern for the welfare of the minor is of paramount importance. All factors
need to be balanced.

In this case, the child would not be uprooted as she was of a tender age and the father was
more likely to provide a friendly atmosphere.

Expected Questions:

Q: 1 Write short notes on: (5 marks)

 Guardian under HMGA, 1956

 Can a guardian be appointed in respect of the undivided interest of the minor in the
HJP?
 Gaurdian ad litem (note: these are guardians appointed by the court)

Q: 2 Who is a minor under HMGA? Who are natural guardians of minor children and what
are their powers? Explain with relevant law and cases. (20 marks)

Q: 3 Who is a testamentary guardian? Who can appoint them? What are their powers?
Discuss. (20 marks)

Q: 4 How many kinds of guardians have been recognised under the HMGA, 1956? Discuss
the duties of each of them. (20 marks)
 Model Answer
Question: What are the grounds available to a Hindu husband and wife for divorce
under HMA. Explain.

Answer: Hindu Marriage Act, 1955 for the first time introduced the concept of divorce into
Hindu Law. Thus, marriage under Hindu law is no longer a permanent union. Divorce is
dissolution of marriage prospectively. A petition can be filed for the decree of divorce on any
of the grounds mentioned in sections 13, 13 (1 A) and 13B of HMA.

Under Section 13 (1), there are nine grounds mentioned on which the husband as well as the
wife can file a petition for divorce while section 13 (2) enumerates four grounds on which
only the wife can seek divorce.

Apart from these grounds the husband or wife can seek divorce on the ground that they have
been living separately for more than one year despite a decree of judicial separation or a
decree of restitution of conjugal rights having been passed (Section 13 (1A)). This ground
was inserted in year 1964.

Lastly, divorce can also be sought by mutual consent (Section 13 B which was inserted in
1976).

Each ground has to be read with Section 23 (1) (a) which states that the petitioner cannot
be granted any relief if he is taking advantage of his own wrong. Thus, if the petitioner is
himself/herself treating the respondent with cruelty, he/she cannot obtain divorce.

Each of these grounds will be discussed in the subsequent paragraphs.

The following grounds are enumerated in Section 13 (1). These are the grounds which can be
availed by the husband as well as the wife to get a divorce. They are:

1. Adultery: If after marriage the spouse had sexual intercourse with any other person.

2. Cruelty: Cruelty includes physical as well as mental cruelty. In

N. G. Dastane
v.
S. Dastane 1975, it was held that cruelty must be of such a character as to cause in the mind
of the petitioner a reasonable apprehension that it will be harmful or injurious for him to live
with the respondent. The court further cautioned that the concept of reasonable person should
not be applied, instead the court is to deal with the particular man and woman before it. The
only rider as mentioned earlier is that of Section 23 (1) (a) of the Act that the relief prayed for
can be decreed only if the petitioner is not taking advantage of his own wrong.
It also has to be kept in mind that the respondent must not have condoned the cruelty of
the petitioner (Section 23 (1) (b)).

Condonation means forgiveness of the matrimonial offence and the restoration of offending
spouse to the same position as he or she occupied before the offence was committed. In
Dastane v. Dastane 1975, it was held that if the respondent leads a life of intimacy which
characterises normal matrimonial relationship, the intent to forgive and restore the offending
spouse to the original status may reasonably be inferred.

Once cruelty has been condoned, it can be revived.

There are three ways of reviving a matrimonial offence:

a) By committing the same matrimonial offence again

b) By committing some other matrimonial offence
c) By committing an offence which is short of a matrimonial offence. For example,
being indecently familiar with a person of the opposite sex might revive a previous
matrimonial offence.

In V. Bhagat
v.
D. Bhagat (1994), mental cruelty has been defined as such mental pain and suffering as
would make it not possible for that party to live with the other. It is pertinent to note that it is
not necessary to prove that the mental cruelty is such as to cause injury to the health of the
petitioner.
The court held that while arriving at such conclusion, regard must be had to

 the social status,

 educational level of the parties,
 the society they move in,
 the possibility or otherwise of the parties ever living together in case they are already
living apart.

In Samar Ghosh
v.
Jaya Ghosh 2007, the Apex Court held that mere trivial irritations, quarrels, normal wear
and tear of the married life which happens in day to day life would not be adequate for grant
of divorce on the ground of mental cruelty.

3. Desertion: Desertion includes actual and constructive desertion. Constructive

desertion is when one of the spouses is forced to leave by the other spouse. In such a
case, it is the spouse because of whom the other spouse had to leave who is
committing desertion.

The ingredients of actual desertion are:

 Factum of separation
 Animus desirendi
 Without reasonable cause
 Without consent of other spouse
  Continuous two years of separation

The court in

Bipinchandra Jaisinghbhai Shah

v.
Prabhavati AIR 1957 held that desertion is not the withdrawal from a place but from a state
of things. Further the court observed that the person who actually withdraws from
cohabitation is not necessarily the deserting party.
In Laxman Utamchand Kriplani
v.
Meena 1964, the Apex Court held that an offer to return to the matrimonial home after
desertion had started, if genuine and sincere would bring to an end the desertion because
thereafter the animus deserendi would be lacking though the factum of separation might
continue.

4. Change of religion: Change of religion is only a ground for divorce and does not
automatically end the marriage.
5. Insanity
6. Leprosy: Leprosy must be virulent as well as incurable to be a valid ground for
divorce
7. Venereal disease: Venereal diseases are sexually transmitted diseases and in order to
be a ground for divorce, they must be communicable
8. Renunciation of world: This must be by entering any religious order
9. Has not been heard of as being alive for a period of seven years or more: Under
section 108 of Indian Evidence Act there is a presumption of death if a person is
unheard for seven years or more. This provision is to ensure that the person marrying
is not tried for bigamy in case the spouse returns after 7 yrs.

Section 13 (2) enumerates the grounds available only with the wife to ask for divorce. These
are:

1. If the husband has another wife living with whom marriage was solemnized before
the commencement of HMA
2. Husband is guilty of rape, sodomy or bestiality after the solemnization of marriage
3. When since the passing of a decree or order to award maintenance to the wife under
HAMA or CrPC, the parties have not been cohabiting for one year or more
4. When solemnization of marriage took place before the wife obtained the age of fifteen
years and repudiated it after the age of 15 but before the age of 18. The actual petition
for divorce may be filed after attaining the age of 18 years also.

Apart from the grounds mentioned in Section 13 which are based on fault, there are two more
grounds which were inserted in 1964 (section 13 (1A). These are:

1. No resumption of cohabitation for a period of 1 year or more after a decree of judicial

separation has been passed
 2. No resumption of cohabitation for a period of 1 year or more after a decree of
restitution of conjugal rights has been passed.

The question that arises is whether Section 23(1) (a) would be applicable to this provision.
The courts have held that the provision does apply. The court in

Dharmendra Kumar
v.
Usha Kumar AIR 1977 held that in order to be a 'wrong' within the meaning of section 23
(1) (a) the conduct alleged has to be something more than a mere disinclination to agree to an
offer of reunion; it must be misconduct serious enough to justify denial of the relief to which
the husband or the wife is otherwise entitled.

After 1976, divorce can also be obtained by mutual consent provided certain conditions are
fulfilled. These are:

 They have been living separately for a period of one year or more.
 They have not been able live together
 They mutually agree to dissolve the marriage.

The Section states that divorce can be granted on the motion of both the parties made not
earlier than six months after the date of the presentation of the petition and not later than
eighteen months after the said date, if the petition is not withdrawn in the meantime.
However, courts have been waiving the waiting period of six months when there is no scope
of reconciliation (for example in Priyanka Khanna v. Amit Khanna, (2011))

In Sureshta Devi
v.
Om Prakash 1 (1991), the court declared that no decree of divorce under Section 13 B can
be passed without mutual consent. The six month waiting period was intended to give time
and opportunity to the parties to reflect on their move and seek advice from relations and
friends. There is no additional requirement that change of mind must be by both the parties.
Also, the court in its decision gave a wide interpretation to the phrase “living together” and
held that they might be not living together even when they are living under the same roof if
they are not living as husband and wife.

Sureshta Devi’s decision was recommended to be reconsidered by a larger bench in

Ashok Hurra
v.
Rupa Hurrarupa Bipin Zaveri AIR 1997 as the court felt that the decision that mutual
consent should continue till the divorce decree is passed, even if the petition is not withdrawn
by one of the parties within the period of 18 months, appears to be too wide and does not
logically accord with Section 13 B (2) of the Act.
However, the law laid down in Sureshta Devi is the binding precedent so far.
In conclusion, divorce can be attained by the husband as well the wife on eleven grounds
(nine mentioned in Section 13 (1) and two mentioned in Section 13(1A)) or by mutual
consent. In addition four grounds are available solely to the wife under Section 13 (2) of
HMA.

{Note: It is a must to write case laws and to highlight them though writing their facts is not
necessary. Try making your answer easy to read and cover all points. Also note the difference
between how the material is given in the notes and how the same is written in the answer. }