Hindu Law

Introduction - Concept of Dharma
Unit - I - In...
an
Unit - I - C...
Introduction and Concept of Dharma Page 1

Unit I Syllabus
UNIT – I
Introduction - Concept of Dharma - Sources of Hindu
Law – Modern and Ancient - Importance of Dharma
Shastra on Legislation – Two Principal Schools of
Hindu Law -Application of Hindu Law.
Application of Hindu Law Page 2

Application of Hindu Law
System of Faith and Worship
1. Hindus by Religion
2. Hindus by Birth
3. Any person who is not a Muslim, Christian, Parsi or Jew
• Word Hindu had a territorial significance

• Before 1955, a person who was a Hindu by religion was
certainly a Hindu, but the converse was not true

Application of Hindu Law: Hindus by Religion: case
Gajendragadkar, J in Shastri v. Muladas

2 basic concepts:- Swami Sastri_Yagn
1. Acceptance of Vedas as the highest authority Vivekanan... apurushad...
2. Belief in rebirth and pre-existence
http://www.uramamurthy.com/srk_phil.html
srk
A person who passes the test of Hinduness as laid

Test of Hinduness by the SC is a Hindu, but it cannot be said that a
who does not pass that test is not a Hindu.
Various forms of Hindu Religion

- The fundamental ideal before a Hindu always been the achievement of
ultimate goal, the realisation of the self.
- It may be realised by following the bhakti marg, Jnan marg or karma marg

Application of Hindu Law: Hindus by Religion
1. Hindus by Religion
A. Those who are originally Hindus, Jains, Sikhs

or Buddhist by Religion
B. Those who are Converts or Reconverts to Hinduism,
Sikhism or Buddhism
Followers of Hindu Religion:-

Any person who follows Hindu religion in any of its
form or development, either by
○ Practicing it or
○ Professing it, is a Hindu.

Followers of Jainism, Sikhism and Buddhism
Jainism
 Rejects authority of Vedas
 Jains do not believe in a creator
 It holds tapasya
Sikhism - theistic (believes in

 Omnipresent
 Omnipotent
 omniscient
Buddhism
 Preaches practically a total negation of

Converts and Reconverts to Hinduism
 Meaning
 A convert is a person who renounces his faith and adopts
 Prescribed ceremony
 Arya Samajists 'Sudhi'
 The Dharmashastra did not prescribe any ceremony
Sect. 2. Application of The Hindu Marriage Act, 1955

Sub-Sec. (1) This Act applies-
Expl'n. (c) any person who is a convert or reconvert to
Hindu
Hindu, Buddhist, Jaina or Sikh religion. Marriage ...

Converts and Reconverts to Hinduism: Cases
 Peerumal v. Poonuswami
 a bonafide intention to be converted to the Hindu faith,
accompanied by Perumal_...
 conduct unequivocally expressing that intention may be
sufficient evidence of conversion
J. Das v. State of Kerala

 Member of a SC / ST Board J._Das_vs_...

Converts : Hindu by declaration
Ram Mohandas v Travancore Devaswom Board,

[1975 KLT 55]
 Jesudas, a Catholic Christian (Playback singer)

Hindu by Birth: Hindu Parents
Under Modern Hindu Law
1. If he is born of Hindu Parents

2. If he is born to Hindu Parent and he is brought up as a
Hindu.
When both the Parents are Hindus: - Child is a Hindu

 Emphasis is on the birth
 Legitimate Child - Father - parental right
 Illegitimate Child - Mother - parental right

Hindu by Birth: Born to a Hindu Parent
2 conditions should be satisfied

1. at the time of his birth, one of the parents was a Hindu
and
2. he is brought up as a member of the tribe, community,
group or family to which Hindu parent belonged at the time
of the birth of the child
Under Uncodified and Codified Hindu Law - same
Sec. 2 (1) Expl'n. (b) of the Hindu Marriage Act, 1955

Hindu
word 'belonged'. Marriage ...

Persons who are not M, C, P or J by Religion
 Before the codified Hindu law it was well established that

Hindu law applied to every Hindu unless he could establish
valid custom to the contrary.
 Aryans - Hindu law applies
 Non-Aryan Hindus - if sufficiently Hinduised - Hindu law
 Bhuryyahs, Jats, aborigines of Assam, Kurmis, Mahtos, Santhals of Chhota Nagpur,

 Thattaus, followers of Makhathayan Thiyas,
 Ezhuvas of Malabar,
 Followers of Marumakhattayam law in Malabar,
 Aliyasantana law in Kanara are held to be Hindus

Persons who are not M, C, P or J by Religion
 The Khojahas, the Cutchi Memons, the Bohars, Mopals and the
Halai Memons are Muslims (Subject to Shariat Act, 1937)
governed in matters of succession and inheritance by Hindu law
or custom.
 The Vannia Tamil Christians of Chittur district are governed by
Hindu law in matters of succession and inheritance (except Sec.
of Hindu Succession Act.
Codified Hindu law: a person who is not Muslim,
Hindu
Christian, Parsi or Jew is governed by Hindu law. Marriage ...
Sec. 2 of the Hindu Marriage Act, 1955.

Atma, Karma
Saturday, August 26, 2017
10:06 AM
Atma
Eternal self
The spiritual essence of who you are
Karma
Person's action in life will determine their fate in the next life
Dharma
Sanskrit word 'Dhri' meaning 'that which upholds 'Rta'
'RTA" meaning according to Rig Veda is 'Natural Order' or 'Natural Law'
Moral force that orders the universe

Maintained through personal duty
Dharma is enterprise which allows us to become civilized, brings cohesion in our society, bring society together, people toge the
Dharma is enterprise tells us how communities, how families , work together
By -righteous living, honest living
What is unifying factor?
Trying to make sense of human condition
Who am I?
How I am linked with the rest of the creation?
How do we harness nature external and nature internal?
Manifesting divinity within oneself is Enterprising by Dharma
Internal we mean, desires, emotions, etc.
Rishi Kapeel
Layer physical, mind, the spirit (purush -Atma),
Brahman and Atman.
Manu Smriti Chapter VI 92
10 qualities NECESSARY FOR OBSERVANTS OF DHARMA
DHRITI PERSEVERANCE
KSHAMA PATIENCE
DAMA SOFT CONTROL
ASTEYA Refrain from theft
SHAUCH Purity
INDRIYA NIGRAH Control of one's
DHI Reasoning
VIDYA Learning
SATYA TRUTHFULLNESS
AKRODHA ABSENCE OF ANGER
According to Vedas
3 GUNAS = TENDENCIES
SATTVA, Tendency of Purity and Truth
RAJAS , Tendency of Action and Activity AND
TAMAS, Tendency of Inaction
These 3 tendencies influence persons
The thoughts
The behaviour
The personality
"we are not humans having spiritual experience…
We are spiritual beings having a human experience." French Philosopher

Schools of Hindu Law, Migration and Change of Religion
 Codified Hindu Law - no scope for existence of schools

 Schools of HL emerged in an era of Digests and
 There are 2 main schools of HL
1. The Mitakshara school  Commentary on Yajnavalkya Smriti
i. Benares school  Vijnaneshwara's commentary -
ii. Mithila school Mitakshara
iii. Maharashtra or Bombay school paramount authority throughout the
iv. Dravida or Madras school country except Bengal
1. Dayabhaga school  Digest on Leading Smritis
 Jimutavahana's Digest - Dayabhaga
 prevails in Bengal and Assam
 deals only with partition and
Schools of HL Page 15
Schools of HL: Sub Schools of Mitakshara
The Mitakshara school Authorities

Benares school Viramitrodaya and Nirnaya
Sindhu
Mithila school Vivida Chintamani and Vivida
Ratnakara
Maharashtra or Vyvahara Mayuka
school
Dravida or Madras Parashara Madhaviya
school
Differences between the two Schools in Coparcenary
Mitakshara Dayabhaga
i) Right of a son by birth in the ancestral property i) A son is entitled to his ancestral property
equal to the interest of his father. only on the death of his father. The father is
the absolute owner of his property in his
lifetime.
ii) A son becomes coparcener right after his birth. His ii) A son becomes coparcener by death of his
right is applicable to the property of his grandfather father. This right is not available within the
and grand-grandfather. property of his father, grandfather or grand-
grandfather.
iii) Everyone is entitled to the property as a unit. Their iii) Everyone’s share is defined. There is
shares are not defined. They have only the commodity tenancy-in-common.
of ownership. There is joint-tenancy.
iv) One cannot transfer his share to the third party. iv) One can transfer his share.
v) The joint-property can be partitioned. In that case, it v) As the shares are defined, one can easily
will be partitioned as it was in case of the father. partition with his share.
Differences between the two Schools in Succession
Mitakshara- Property of a deceased Hindu is partitioned into two ways

as the property is of two types- (a) Ancestor’s property, (b) Separate
property.
Ancestor’s property is partitioned in accordance to the Rules of
Survivorship.
But a Separate property is partitioned to the descendants.
Dayabhaga- Property is of two types- (a) Joint, (b) Separate. The
descendants inherits the property whatever type it is.
Mitakshara- In default of close heir, brother and immediate survivors

inherit, the wife does not inherit.
Dayabhaga- If coparcener dies, his widow will get the property in default
of a close heir but she cannot alienate.
Mitakshara- The order of heirs is decided by nearness of blood.

Dayabhaga- The order of heirs is decided by the competence to offer
Pinda and Sraddho to the deceased.
Coparcenary - Mitakshara
Saturday, September 2, 2017
12:39 PM
a. As to how the coparcenary arises

b. Nature of interest of coparceners
c. Expansion of coparcenary
A son born during the father's life-time is a coparcener under Mitakshar
d. Alienee's right to ask for partition
e. Persons entitled to partition
a.Dayabhaga - no birth right hence, no right to partition
Mitakshara - birth right and right to partition
f. Power of the Karta / Manager
a. Mitakshar - no responsibility to provide accounts unless fraud
Dayabhaga - provide accounts
Difference - Point wise
Friday, September 1, 2017
9:59 AM
1. Sons do not acquire any right by birth
2. Absolute power of the father to dispose of ancestral
3. No right of partition or accounts against the father
4. Concept of ancestral property under the Dayabhaga law
5. Coparceners according to the Dayabhaga law
a. On the death of the father
6. Coparcenary property - consist of
Ancestral property, joint acquisition, property thrown
into the common stock, accretions
7. Each coparcener takes a defined share
8. No right of survivorship
9. Absolute power of coparcener to dispose of his share
10. Enjoyment power of coparcenary property
a. Coparcener is entitled to make any use as he likes of
portion of the coparcenary property in his possession
11. Right to enforce partition
12. Powers of Managers
Migration and Domicile
Migration: Where a Hindu migrates from one part of India to another, prima facie, he carries
with him his personal law, and if it is alleged that he has become subject to the local law, the
it must affirmatively be proved that he had adopted the local law.
Domicile: "If nothing is known about a person except that he lived in a certain place, it will be
assumed that his personal law is the law which prevails in that place. In that sense only
is of importance."
Unit - II: Details
Marriage and Kinship - Evolution of the

Institution of Marriage and Family - Law
Prior to Hindu M arriage Act -A detailed
study of Hindu Marriage Act, 1955 -
Matrimonial Remedies - Maintenance
and Alimony; Customary Practices and
legislative provisions relating to dowry
prohibition.
Hindu
Marriage ...
Law prior to HMA Page 22

Evolution of the Institution of Marriage
Stage 1: Animal existence

Sex life was free - sex promiscuity (immorality) was the rule
Stage 2: twin discoveries - Milch cattle and the fire
Stage from herd of wander to the stage of settling in a place
Some civilized life started
Emergence of notions of possession and ownership
Stage 3: maternity alone could be known, sex relationship unregulated
The idea of knowing his children
Not possible to know the paternity if sex promiscuity rule followed
Exclusive union of a man and a woman could emerge
Stage 4: civilization dawned on man
With acquisition of knowledge of cattle breeding, agriculture and industr
Some sort of sex regulation established probably Group marriages
Stage 5: marriage different forms
Promiscuous sexual intercourse within a tribe
(women in the tribe belonged equally to every man and vice versa,- sexual
intercourse outside the tribe was prohibited)
Process of exclusion such as mother and son and then brother and sister

Evolution of the Institution of Marriage
A union loosely uniting the couple

Early Roman civilization
Marriage and divorce were easy matters
Patriarchal stage:

Law prior to the Hindu Marriage Act, 1955
1. Marriage: Minority, Lunacy, Fraud

 Marriage according to the Hindu law, is a holy union for the
performance of religious duties. It is not a contract.
 Marriage of minor is not render the marriage invalid
 Insanity - such character - understanding the ceremonies of
marriage - valid marriage
 A marriage brought about by force or fraud is altogether invali
○ Bombay HC held that marriage is a Sanskara or sacrament.
 Marriage with an impotent
○ Smt. Ratan Monti Debi v Nagendra Narain Singh
 In this case marriage has been held as nullity.

ChildRestrai
ntAct, 1929
Child Marriage Restraint Act, 1929
○ A child means - boy below the age of 18 years
- girl below the age of 15 years
○ Act, punishes a boy above 18 years, marrying a girl below 15
years
○ Act also punishes parents and guardians who are parties to a
Minor's marriage
○ Minor's marriage under the Act, is valid.
THE
PROHIBITI...

2. Forms of marriages Brahma
○ Eight forms of marriages  Gift of the girl
 Approved (Prashasta )  It is a pure and simple
□ Brahma
□ Daiva
□ Arsha Same ceremonies for both the forms of
□ Prajapatya
 Unapproved (Aprashasta )
□ Asura Asura
□ Gandharva  Sale of the girl
□ Rakshasa  Consideration (Shulka)
□ Paishacha
Gandharva form
 Voluntary union of the Youth and a damsel
 Marriage ceremonies are essential

1. Brahma Vivah ( Marriage)

Brahma marriage is the purest form of Hindu marriage. In this form of
the father offers his daughter to a man of good character and learning. The
daughter who is decked with ornaments and richly dressed is given as a kind
gift [danam] to a man of good character [srutisilavan] and high learning. The
smritis' regard this as the most honorable type of marriage. This form can be
traced back to the Vedic times. It is still in currency and popular in India
often disfigured with the ugly practice of dowry.

2. Daivya Vivah
In the Daiva form of marriage the father gives away his daughter as a
Dakshina [sacrificial fee] to a young priest who officiates the Yajna
which is arranged by him. This form of marriage is called Daiva
because the girl is gifted to a priest as sacrifice to a Daiva or god.
These girls are maidens who are offered as Dakshina. They are called
“vadhus”. Though this form of marriage was in practice during the
early period, during the later days it was considered improper. Hence
Daiva form of marriage was considered inferior to Brahma marriage.

3. Arsha Vivah
In this form of hindu marriage, the father gives his daughter in marriage
the bridegroom after receiving a cow and a bull or two pairs of these from
the bridegroom in accordance with the requirements of dharma. But this
form of marriage should not be confused with the form of the bride-price
with that of the dowry. The gift of cow and bull is to be made as a token of
gratitude to the man who offers his daughter to the groom to enable him
fulfill his grihasthashrama obligations. In course of time, with the
rituals, this form of marriage became out of date. Manu Smriti states that
“some prescribe the acceptance of one pair of cows in the arsha vivah,
is improper. It is a sale; it matters little whether one accepts a large sum
small one.”

3. Presumption as to Form
○ Brahma
 However this presumption may be rebutted
 Form of marriage is significant as to the devolution of
4. No restriction as to number of wives
○ No restriction, except in those States in which anti-bigamy Acts
been passed
 The Bombay Prevention of Hindu Bigamous Marriage Act, 1946
 The Madras Hindu (Bigamy Prevention and Divorce) Act, 1949

5. Polyandry
○ Wife to have only one husband at a time - living - if divorced
6. Remarriage of widows
○ The remarriage of Hindu widows is now expressly legalised by the
Hindu Widows' Remarriage Act, 1856.
 divests the estate inherited by her from her deceased husband
and it passes to the next heirs of her husband as if she were
 no divesting of estate if widow inherited it from her son or
daughter
 Old law is not applicable because of SC held in Gajodhari Devi v
Gokul case that she was a widow when the partition opened and
the widow had re-married subsequently

7. Who may give in marriage
○ The Shastras enjoin the marriage of a female before she arrives
at puberty, and prescribe rules for guardianship in marriage
○ According to Mitakshara school
 father, paternal grand father, brother, other paternal
 mother
○ Remarriage of minor widows
 Section 7 of the Hindu Widows' Remarriage Act, 1856
□ consent of the father
○ Indian Majority Act, 1875
 does not apply to Hindus in matters of marriage divorce and
adoption

Changes brought about by the HM Act, 1955
1. Marriage between persons of different castes is not prohibited

2. Monogamy - exclusive union - Section 5 (1)
3. Bigamy - Sec. 17 - punishable offence
4. Prohibited relation
a. Fifth degree from the father
b. Third degree from the mother
5. Several matrimonial reliefs
a. Restitution of conjugal rights
b. Judicial separation
c. Nullity of marriage
d. Dissolution of marriage etc.,
6. Legitimacy conferred on children born of void or annulled voidable
7. Provisions for maintenance has been made
8. Wide discretionary powers have been conferred on the Court
eg., Education, Custody, Maintenance pendente lite, etc.,
Changes Page 34
Changes
(1) The Act has declared that marriages amongst Hindus, Jains, Sikhs and
Buddhists, are valid Hindu marriages in the eyes of the law. (See Section 2.)
(2) The Act has abolished the divergence between the Mitakshara and the
Dayabhaga Schools in connection with the prohibited degrees of
for the purposes of a Hindu marriage. (See Section 3.)
(3) The Act also introduces monogamy for the first time amongst the Hindus,
and provides for punishment for bigamy under the Indian Penal Code. (See
Sections 5 and 17.)
(4) The Act abolishes the distinction between the marriage of a maiden and
that of a widow.
(5) The Act also prescribes the minimum age for marriage, being 21 in the
case of a boy, and 18 in the case of a girl. (See Section 5.) Ancient Hindu law
did not prescribe any such age for marriage.
(6) The Act does not specifically recognise any particular form of the eight
ancient forms of Hindu marriage. Rather, it merely lays down conditions of a
valid Hindu marriage. (See Section 5.)
(7) The Act does not prescribe any particular ceremony for a valid Hindu
marriage. It only provides that such a marriage can be solemnized in
accordance with the customary rites and ceremonies of any one of the
to the marriage. (See Sections 5 and 7.)
(8) The Act provides, for the first time, for the registration of Hindu
marriages. (See Section 8.)
(9) The Act also contains provisions for restitution of conjugal rights of the
parties to a marriage. (See Section 9.)
(10) The Act also lays down grounds on which a judicial separation can be
decreed by the Court. (See Section 10.)
(11) The Act lays down the grounds on which a divorce can be obtained by
any of the parties to Hindu marriage. Further, the concept of divorce by
mutual consent has also been introduced in the Act. (See sections 13, 13B
Changes Page 35
mutual consent has also been introduced in the Act. (See sections 13, 13B
14.)
(12) The Act also makes a provision for re-marriage, inasmuch as it provides
that after a valid divorce, either party may marry again. (See Section 15.)’
(13) The Act also provides for maintenance pendente lite and for expenses
legal proceedings. (See Section 24.)
(14) The Act also provides for permanent alimony and maintenance. (See
Section 25.)
(15) The Act also makes provisions for the custody of children during the
pendency of legal proceedings, as also after the passing of a decree. (See
Section 26.)
Changes Page 36
Introduction
The Hindu Marriage Act, 1955  In ancient Hindu Law, eight forms
 Marriage confers a status of husband and wife of marriage prevailed, of which
on parties to the marriage only three were valid before
 These were Brahma, Gandharva
 Status of legitimacy on the children of
and Asura
Brahma Approved Ashura Unapproved

Davia Gandharv
Arsha Rakshash
Prajapaty Paisacha
Forms of marriages in modern Hindu law

 Marriages are solemnized under the Act as Hindu marriages
may be performed in accordance with the Shastric ceremonies or
in customary ceremonies prevalent in the community.
Ceremonies Page 37
Betrothal or Sagai and Guardianship in Marriage
 According to Narada, a man who withdraws from

contract without proper cause, may be compelled
marry the girl against his will.
 Under modern Hindu law, a contract of marriage
cannot be specially enforced.
Section 6 of Hindu Marriage Act, 1955has been

by bringing amendment to Child Restraint Act, 1978.
Ceremonies Page 38
Ceremonies of Marriage
Performance of certain Shastric ceremonies is still necessary
a valid Hindu marriage
 Grihya Sutras lays minute details of these ceremonies
 vridhi sraha, i.e., offerings are made to the departed
ancestors with a view to obtaining their blessings for
the marriage
 Haladi - ceremony of giving bath
 Barat - bridegroom comes in a procession
 After arrival of the bridegroom, first ceremony is
 Sampradana consisting of water (padya) for washing the
feet, water mixed with flowers, durva grass, rice and
sandal paste for washing the head, a cushion for sitting,
and a mixture of honey, curd and ghee.
Ceremonies Page 39
Ceremonies of Marriage:Kanyadan
 Kanyadan, the father of the bride, pours
a libation of water-symbolising the gift of
the bride.
 sometimes the hands of the bride and
bridegroom are tied together with the
kush grass.
 certain presents are also made to the
bridegroom which include a piece of
as dakshina.
 bride's father invokes the bridegroom
and tells him never to fail the bride in
pursuit of dharma, artha, kama and
moksha.
Ceremonies Page 40
Ceremonies of Marriage: vivaha-homa & panigrahana
 vivaha-homa i.e., lighting of holy fire, symbolising it as
divine witness and
 sanctifier of the vivaha samskara.
 on the west the fire is placed a millstone and on the
north-east is placed a water-pot
 The bridegroom offers oblations to the holy-fire in
which the bride participates by grasping the hand of
the bridegroom.
□ this include oblations are offered in honour of
earth, sky and heaven
□ The bridegroom also recites certain sacred
Ceremonies Page 41
Ceremonies of Marriage: vivaha-homa & panigrahana
 laja-loma, the bride offers oblations to Aryama, Varuna,

Pushan and Agni, so that the Gods may be pleased to free
her from their bonds.
 The mantras of laja homa pray for long life, vigour and
prosperity
 Panigrahana, this is to be done by the bridegroom
standing up, holding the hand of the bride and recites
certain Vedic hymns.
 The relationship of wife is produced by the mantras
incidental to Panigrahana. The learned says that
mantras end with the Saptapadi
Ceremonies Page 42
Ceremonies of Marriage: Agni-parinayana, saptapadi
popularly known as pheras, which according

to the Grihya Sutras are three, though in
practice they are usually five or seven
Section 7: Ceremonies for a Hindu marriage.

(1) A Hindu marriage may be solemnized in accordance
the customary rites and ceremonies of either party
(2) Where such rites and ceremonies include the
(that is, the taking of seven steps by the bridegroom and
the bride jointly before the sacred fire), the marriage
becomes complete and binding when the seventh step is
taken.
Ceremonies Page 43
Incidental Ceremonies and their significances:-
1. Ganapati Puja
2. Nandi Devatas (Sukshma deha)
○ These are the builders of the subtle bodies
(Sukshma deha) around which the physical
is formed. Since the object of marriage is the
begetting of progeny, the invocation of the
Devatas is specially appropriate
3. Graha Yagna (nava grapas)
4. Snataka Ceremony - close of the studies under a
guru
5. Kasi Yatra
6. Vak Nischaya Muhurta - Betel leaves (Tambula) are
given to those present on the occasions who the
witnesses to the transaction
7. Sankalpa
8. Kanyadan
9. Bridegroom's Promise
10. Kankana Bandhana
11. Saptapadi
12. Pradhana Ahuti or Great Homa
13. Laja Homa
14. The Journey Home
15. Gruhapravesa Homa
16. Tri Ratra Brahmacharya (Three nights
Brahmacharya)
17. Sesha Homa
18. Garbha Dana
Ceremonies Page 44
Saptapadi
Ceremonies Page 45
Tuesday, September 13, 2016
10:50 PM
Ceremonies Page 46
Sec. 9 Restitution of Conjugal Rights
9. Restitution of conjugal right. 1*** When either the husband or the wife has,
without reasonable excuse, withdrawn from the society of the other, the
party may apply, by petition to the district court, for restitution of conjugal
land the court, on being satisfied of the truth of the statements made in such
petition and that there is no legal ground why the application should not be
granted, may decree restitution of conjugal rights accordingly.
----------------------------------------------------------------------
1 The brackets and figure "(1)" omitted by Act 68 of 1976, s. 3.
----------------------------------------------------------------------
1[Explanation.-Where a question arises whether there has been
reasonable excuse for withdrawal from the society, the burden of proving
reasonable excuse shall be on the person who has withdrawn from
the society.]
Sec. 9 Restitution Page 47

 A decree of restitution implies that the guilty party is ordered to live with
aggrieved party.
 Origin - Jewish law - English law - Indian law
 Concept of marriage was based on proprietary rights of the husband.
 wife was considered as a property of her husband
 if she refused to do so or ran away, she could be compelled to live with
him (mode of execution was - arrest)
 relief extended to the wife, (mode of execution was but not by arrest of
husband, but attachment of husband's property)
 English law abandoned this mode of execution.
 Non-compliance with the decree amounted to constructive desertion
the aggrieved party on the expiry of the statutory period, could obtain
divorce.
 Wife can claim maintenance on husband's non-compliance with the
decree of restitution
 In English law, the remedy of restitution of conjugal rights has been

3 conditions must be satisfied

a. the respondent has withdrawn from the society of the petitioner without
any reasonable excuse,
b. the court is satisfied about the truth of the statement made in such a
petition, and (proof)
c. there is no legal ground why the relief should not be granted. (bars u/s 23
the Act)
Withdrawal from the society:
 Marriage implies consortium - husband and wife are entitled to each
company and comfort. Cause of action arises when one withdraws from
society of the other.

What amounts to withdrawal from the society?

 Does the wife's refusal to give up her job at the instance of the
husband ? (Tirath Kaur v Kirpal Singh) - Answered affirmatively
 mere refusal of the wife to resign her job at the instance of the
husband - Katju, J. answered negatively
 wife's taking up of a job even contrary to the wishes of the
husband (Shanti v Romesh) - not amounting to withdrawal
 Sec. 18 (2) of Hindu Adoption & Maintenance Act, 1956
 Meaning of the term 'cohabitation'
 Living together as husband & wife, i.e., to say, the spouses
fulfilling their matrimonial duties
examples of withdrawn,
 Refusal to stay together,
 Refusal to have marital intercourse
 Refusal to give company and comfort
 In withdrawal there is an element of desertion

Respondent does not like him or

does not want to live with him or
he is too poor or
not a fit person to be a proper life companion - are not defenses
(Mohan v Shanti)
 Pre-marriage or post-marriage agreement to live separately or to
in the house of wife's father are not defenses (Pothuraju v Radha)

 Reasonable excuse or reasonable cause:

○ If there exist a ground on which, the respondent can claim any
matrimonial relief
○ If the petitioner is guilty of any matrimonial misconduct, not
to ground for a matrimonial relief
○ If the petitioner is guilty of such act, omission or conduct which makes
impossible for the respondent to live with him.
Examples:
 Husband's insistence that wife must live with his parents (Himansu v
 Husband's forcing an educated Brahmin wife to eat meat & drink liquor
(Chandra v Saroj)
 Husband having another wife (Bhagwati v Sadhu)
 Persistent nagging of wife by husband's parents (Robindra v Pramial)

T. Sareetha v T. Venkata Subbaiah

The AP HC Constitutional validity rejected
Harvinder Kaur v Harmender Singh
The Delhi HC Constitutional validity approved
Saroj Rani v. Sudharshan
The SC approved the view of Delhi HC
Section 13 (1-A) (ii) Irretrievable breakdown of marriage &

restitution

10. Judicial separation .—
1[(1) Either party to a marriage, whether solemnized before or after the commencement
of this Act, may present a petition praying for a decree for judicial separation on any of
the grounds specified in sub-section (1) of section 13, and in the case of a wife also on
any of the grounds specified in sub-section (2) thereof, as grounds on which a petition
for divorce might have been presented.]
(2) Where a decree for judicial separation has been passed, it shall no longer be
for the petitioner to cohabit with the respondent, but the court may, on the application
petition of either party and on being satisfied of the truth of the statements made in
petition, rescind the decree if it considers it just and reasonable to do so.
Consideration by Court
 It has also to be kept in mind that before granting the prayer to permanently snap
relationship between parties to the marriage every attempt should be made to
maintain the sanctity of the relationship which of importance not only for the
individuals or their children but also for the society. It would be too hazardous to
lay down a general principle of universal application; Hirachand Srinivas
Managaonkar v. Sunanda , AIR 2001 SC 1285.
 A ground which cannot be a ground for divorce, cannot operate as a ground for
separation.
--------
1. Subs. by Act 68 of 1976, sec. 4, for sub-section (1) (w.e.f. 27-5-1976). Earlier sub-
(1) was amended by Act 72 of 1956, sec. 2 (w.e.f. 20-12-1956).
Sec. 10 Judicial Separation Page 54

Sec. 13 - Divorce
(1) Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the
be dissolved by a decree of divorce on the ground that the other party—
[(i) has, after the solemnisation of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or]
[(ia) has, after the solemnisation of the marriage, treated the petitioner with cruelty; or]
[(ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition;
or]
(ii) has ceased to be a Hindu by conversion to another religion; or
[(iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to
such an extent that the petitioner cannot reasonably be expected to live with the respondent.
Explanation .—In this clause,—
(a) the expression “mental disorder” means mental illness, arrested or incomplete development of mind, psychopathic disorder or
other disorder or disability of mind and includes schizophrenia;
(b) the expression “psychopathic disorder” means a persistent disorder or disability of mind (whether or not including sub -normality
intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and w hether or
requires or is susceptible to medical treatment; or]
(iv) has 3[***] been suffering from a virulent and incurable form of leprosy; or
(v) has 3[***] been suffering from venereal disease in a communicable form; or
(vi) has renounced the world by entering any religious order; or
(vi) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had
that party been alive; 4[***]
[ Explanation. —In this sub-section, the expression “desertion” means the desertion of the petitioner by the other party to the marriage
without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the
other party to the marriage, and
its grammatical variations and cognate expressions shall be construed accordingly.]
[***]
[(1A) Either party to a marriage, whether solemnised before or after the commencement of this Act, may also present a petitio n for the dissolution
the marriage by a decree of divorce on the ground—
(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of 7[one year] or upwards after the
passing of a decree for judicial separation in a proceeding to which they were parties; or
(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of 7[one year] or upwards after
passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.]
(2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground,—
(i) in the case of any marriage solemnised before the commencement of this Act, that the husband had married again before such
commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnisation of the
marriage of the petitioner:
Provided that in either case the other wife is alive at the time of the presentation of the petition; or
(ii) that the husband has, since the solemnisation of the marriage, been guilty of rape, sodomy or 8[bestiality; or]
[(iii) that in a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), or in a proceeding under section 125
Code of Criminal Procedure, 1973 (2 of 1974) [or under the corresponding section 488 of the Code of Criminal Procedure, 1898 (5 of 1898)],
decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was
living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or
upwards; or
[(iv) that her marriage (whether consummated or not) was solemnised before she attained the age of fifteen years and she has repudiated
the marriage after attaining that age but before attaining the age of eighteen years.]
Explanation. —This clause applies whether the marriage was solemnised before or after the commencement of the Marriage Laws (Amendment)
Act, 1976 (68 of 1976)*.]

Judicial Separation
Separation by agreement Judicial separation

Agreement (consensual) Under decree of court of law
End of separation by the An orders of the court
revocation of agreement or by rescinding the decree is
cohabitation necessary
Implication of Sec. 13 (1-A) (i) not Implication of Sec. 13 (1-A)
available available
 A point of analysis on Separation by Agreement
 Judicial Separation and Separate residence and maintenance
18 (2)of the HA&MA, 1956.

Sec. 11 Void Marriages
Nullity relates to the pre-marriage impediments to
1. absolute impediments - marriage is void ab initio
2. Relative impediments - marriage is voidable
Sect. 11 Void marriages

 A void marriage is no-marriage  It confers a status of husband &
 It is a marriage which does not exist from wife on parties
beginning.  It confers a status of legitimacy
 No legal consequences flow from a void on the children of the marriage
marriage.  It gives rise to certain rights &
 No status as husband and wife obligations against each other
 No raise in the mutual rights & obligations well as third persons.
Nullity of Marriage Page 57

Grounds of void marriage
Contravention of Sec. 5 (i), (iv) & (v)
 Monogamy Within the
 Prohibited degrees of relation purview of
 Sapinda relation Sec. 11
 Contravention of Sec. 7 - Ceremonies outside the

 Contravention of Sec. 15 - purview of
within the period of limitation Sec. 11
Sec. 18 Punishment for Contravention of Sec. 5 (iii), (iv) & (v)
(iii) simple imprisonment which may extend to 15 days or
fine which may extend to Rs. 1000 or
with both
(iv) simple imprisonment which may extend to one month
fine which may extend to Rs. 1000 or
with both

Sec. 7 Ceremonies for a Hindu marriage
(1) A Hindu marriage may be solemnized in accordance with the

customary rites and ceremonies of either party thereto.
(2) Where such rites and ceremonies include the saptpadi (that is,
the taking of seven steps by the bridegroom and the bride jointly
before the sacred fire), the marriage becomes complete and
when the seventh step is taken.
Dr. A. N. Mukerji v. State
Action for bigamy - three mock ceremonies -
The court held that performance of such mock
of marriage does not constitute valid ceremonies and
therefore the prosecution for bigamy failed.

Distinction between void and voidable marriages
Void Voidable
Void ab initio Valid unless decree annuls
marriage
No mutual rights and mutual rights and obligations rise
and exists still marriage avoided
Declaratory decree Decree of annulment necessary

Sec. 12 Voidable Marriage
 A voidable marriage is a perfectly valid marriage so long as it is

avoided.
 Marriage can be avoided only on the petition of one of the parties
the marriage.
 If one of the parties dies before the marriage is annulled, no one
challenge the marriage & it will remain valid for ever.
 So long as it is not avoided, all the legal consequences of a valid
marriage flow from it.
 Once a voidable marriage is annulled, the decree is given with
retrospective effect, from the date of marriage
 Verbatim copied this provision from English ecclesiastical law
 Parsi Marriage and Divorce Act,1936

Grounds of Voidable Marriage
1. Inability of the respondent to consummate the marriage on

account of his her impotency.
2. Respondent's incapacity to consent or suffering from a
mental disorder.
3. Concealment of pre-marriage pregnancy by the respondent.
4. Consent of the petitioner being obtained by fraud or force.

Grounds of Voidable marriages: Impotency
1. Inability of the respondent to consummate the marriage on

of his or her impotency.
 Suvarnaben v. Chinubai
Impotency means inability to perform sexual act or inability to
consummate the marriage
 In Moina v Amardeep
Consummation means ordinary and complete sexual
 Mrs. Rita Nijhawan v Sri Balkrishna N.
Imperfect and partial intercourse would not amount to
consummation of marriage
 Impotency is usually either (i) Physical or (ii) Mental
 Barrenness and Sterility
According to Raghavachariar, Barrenness & Sterility by
themselves cannot & do not prove impotency, however long
been the period of such defect

Grounds of Voidable marriages: Impotency
Proof of Impotency
 In G. Venkata Narayan v Kurupati Laxmi Devi
- Party capable of consummating the marriage at the
of filing the petition - no decree for nullity
- Party compelled to undergo medical examination - no
violation of personal liberty (right of privacy)

Grounds of Voidable marriages: Incapacity to consent & Mental
Disorder
 Three clauses of section 5 (ii) are independent of each other

 A marriage can be annulled if the marriage is covered in any of these
 Clause (a) the unsoundness of mind should be such which incapacitates
person from giving a valid consent to marriage
 The Act still does not say that a valid consent is necessary for marriage.
 Clause (b) the words "has been suffering" requires that mental disorder
should be of some duration,
 It renders him unfit for marriage &
 Of procreation of children
 Clause (c) recurrent attacks of insanity

Cases relating to Matrimonial causes and remedies
 Force (Force vitiating consent implies not merely use of physical force, but also threats
to
use force. Sec. 12 (1) (c))
 Appibai v Khimji (1936) 60 Bom 455
→ It was held that where the petitioner was reduced to a state in
which he or she was incapable of offering resistance to coercion
threats, it vitiated the consent and the marriage could be
 Force - two English cases,
 Scott v Sebright 12 PD 21.
→ Where the bridegroom told the bride that if at the ceremony she
would not behave normally he would shoot her.
 Rice v Rice 72 LT 122
→ Where before the ceremony the bridegroom showed a pistol and
threatened to shoot her if she would not undergo the ceremony,
are good illustrations of force

 Fraud (Chief element in fraud is deceit). Fraud must affect the marriage
fundamentally.
Fraud vitiative of the consent should relate to:
i. nature of ceremony or
ii. any material fact or circumstance concerning the respondent
Concealment of pre-marriage
 Rukmani v Chari, 1938 Mad 616.
→ a fraudulent representation that he was a bachelor, while in fact
he was a married person. The Court refused to grant restitution
conjugal rights to a husband.
Identity of the party
 example
→ if A goes to G and says that he is B, and on that representation G
marries him though she would not have married had she known
that he was not B but A. G may get marriage annulled.

Concealment of disease
 Asha v R. K. Srivastava,
→ concealment of pre-marriage incurable schizophrenia
amounts to fraud.
 Praveen v Man Mohan,
→ concealment of pre-marriage incurable epilepsy amounts
fraud.
Concealment of religion or caste
 Bimla v Shanker Lal, (1959 MP 8)
→ a misrepresentation as to caste was held sufficient to
the petitioner to get the marriage annulled.
→ It is submitted that when we are promoting inter-caste
marriages, i.e., marriages between any two Hindus is
concealment of one's caste should not be considered as
material fact about the respondent.

Concealment of unchastity
 Surjeet v Harichand,
→ Kapoor, J. observed that an express misrepresentation by a
woman as to her chastity does not, by itself, amount to fraud.
However, if a husband attaches so much of importance to it
makes enquiries from the girl's relations and they misled
On proving that girl / her relatives were aware of unchastity
they misled them, then it may be held amounting to fraud.
Concealment of illegitimacy
 Bimla v Shankar Lal,
→ Subsequent discovery of illegitimacy held as fraudulent.
→ Modern outlook is radically different and this case has been
wrongly decided

Concealment of Pre-marriage
 Rukmani v Chari,
→ a pre-Act case, court refused to grant restitution of
conjugal rights to husband, as he had made
representation about his earlier marriage.
→ Under modern law, the wife is entitled to a decree of
nullity of marriage on this ground.
Concealment of financial status and nature of employment
 Anurag Anand v Sunita Anand,
→ monthly income and property status of husband was
held to be material facts and circumstances, and in
event of disprove, it would amount to fraud.

Is the time of representation material?

 Ananthanath v Lajjabati,
→ relevancy of custom at two
1. at the time when parties consent to
solemnise the marriage and cannot affect the validity
2. at the time when marriage itself is
solemnised. can affects the validity

The Prohibition of Child Marriage Act, 2006
This Act added some new grounds for void and voidable
marriages.
12. Marriage of a minor child to be void in certain
circumstances.—Where a child, being a minor—
(a) is taken or enticed out of the keeping of the
lawful guardian; or
(b) by force compelled, or by any deceitful means
induced to go from any place; or
(c) is sold for the purpose of marriage; and made
go through a form of marriage or if the minor is
after which the minor is sold or trafficked or used for
immoral purposes, such marriage shall be null and

The Prohibition of Child Marriage Act, 2006
3. Child marriages to be voidable at the option of contracting party being a child.—

(1) Every child marriage, whether solemnised before or after the commencement of this Act, shall be
voidable at the option of the contracting party who was a child at the time of the marriage:
Provided that a petition for annulling a child marriage by a decree of nullity may be filed in the district
court only by a contracting party to the marriage who was a child at the time of the marriage.
(2) If at the time of filing a petition, the petitioner is a minor, the petition may be filed through his or
guardian or next friend along with the Child Marriage Prohibition Officer.
(3) The petition under this section may be filed at any time but before the child filing the petition
completes two years of attaining majority.
(4) While granting a decree of nullity under this section, the district court shall make an order
both the parties to the marriage and their parents or their guardians to return to the other party, his or
parents or guardian, as the case may be, the money, valuables, ornaments and other gifts received on
occasion of the marriage by them from the other side, or an amount equal to the value of such
ornaments, other gifts and money:
Provided that no order under this section shall be passed unless the concerned parties have been
notices to appear before the district court and show cause why such order should not be passed.

Children of Void and Voidable Marriages: Sec. 16 of the H M Act,
Original notion,
 Children of a void marriage (Whether declared null and void or
 Children of annulled voidable marriage Illegitimate
Matrimonial Causes Act, 1950, Sec. 9. - status of legitimacy was conferred

Legitimacy Act, 1959; The Family Law Reform Act, 1969 many rights of
on illegitimate children so that the distinction is almost blurred.

Children of Void and Voidable Marriages: Sec. 16 of the H M Act,
The section is amended by the Marriage Laws

(Amendment) Act, 1976.
 Confers legitimacy on those void marriages which
void under Sec. 11 and not under Sec. 7.
 Where there was no marriage, children of such
relationship would not benefit from this section.
 That a child of void marriage is not entitled to an
interest in which his father is a coparcener.
→ Hanmantha v Dhondamabai, 1977 Bom 191;

Dissolution of Marriage
1. Fault grounds
a. Grounds on which either party may obtain divorce Sec. 13 (1)
b. Grounds on which wife alone may obtain divorce Sec. 13 (2)
2. Breakdown grounds Sec. 13 (1-A) clauses (i) and (ii)
3. Divorce by Mutual consent Sec. 13-B
Divorce
Fault Grounds Irretrievable Mutual Customary
Breakdown Consent
Available to both Available only to wife Sec. 13 (1 A) (i) (ii) Sec. 13 B
Husband and failure of decree of (1976)
S and R of C R
Sec. 13 (1) Sec. 13 (2)
9 Grounds 4 Grounds
(i) Bigamy
(ii) Guilty of rape,
or bestiality; or
(iii) Failure of Sec. 18 of
HA & M Act, 1956
(iv) Option of puberty -
repudiation
Misconduct Disease Other Causes
Adultery Unsoundness Conversion
Cruelty of Mind Not heard for 7
Desertion Leprosy years
Venereal Renounced the
disease world
Sec. 13 Divorce Page 76

Dissolution of Marriage
The Hindu Marriage Act, 1955
 9 fault grounds u/s 13 (1) - husband or wife
 2 fault grounds u/s 13 (2) - wife
1964 Amendment
 recasting two clauses
 Breakdown grounds recognised Sec. 13 (1-A)
Marriage Laws (Amendment) Act, 1976
 Makes the grounds of divorce and judicial separation common
 2 additional fault grounds were inserted for wife
 Section 13 B
Gaurav Nagpal v. Sumedha Nagpal,

• Section 13 was conceived as a provision to strengthen the institution of marriage.
• Since there is phenomenal increase in the breakdown of marriages, this provision
not serving the purpose, hence, removed from the Act.
• The SC held - validity of this provision cannot be questioned. Work has to be
at various other levels to strengthen this institution.

1. Fault grounds
a. Grounds on which either Grounds on which wife alone may obtain divorce
may obtain divorce Sec. 13 (2)
Sec. 13 (1) (i) Bigamy
(i) Adultery (ii) Guilty of rape, sodomy or bestiality; or
(iii) Failure of Sec. 18 of HA & M Act, 1956 (sec. 125 (3) Cr. P. C
(ia) Cruelty
(iv) (Option of puberty) - repudiation
(ib) Desertion
(ii) Conversion
(iii) Unsoundness of mind
(iv) Leprosy ACDCULVRN
(v) Venereal disease
(vi) Renounced the world
(vii) Not heard for 7 years

Sec. 13 (1) (i) Adultery
the other party

has, after solemnization of the marriage, had voluntary sexual intercourse with
any person other than his or her spouse.
Sec. 497 of IPC " whoever has sexual intercourse

with a person who is and whom he knows or a. adultery can be committed only by
reason to believe to be the wife of another man man & not by a woman
without the consent or connivance of that man, b. person committing adultery must
such intercourse not amounting to the offence know or should have reason to
rape, is guilty of adultery". believe that the woman with whom
he has had intercourse is wife of
"Adultery may be defined as consensual sexual another man, &
intercourse between a married person and a c. the sexual intercourse should not
person of the opposite sex, not the other amount to rape,
spouse, during the subsistence of marriage".

Sec. 13 (1) (i) Adultery
 The criminal action is filed not against the wife but against the adulterer. The wife is not
guilty of offence, not even as an abettor.
 In the matrimonial petition the relief sought is against the spouse and not against the
adulterer. If adulterer is known, is a necessary party as a co-respondent.
 It is immaterial that the co-respondent had knowledge or reason to believe that the
respondent was the wife or husband of the petitioner.
 Following are not adultery-
When the respondent did not consent - (it is a rape)
When unconscious or under influence of drug, liquor
When sexual intercourse in the belief that the adulterer is his or her spouse
 One single act of adultery is enough for divorce or judicial separation.
 Subbaramma v. Saraswathi,
If a unrelated person is found alone with a young wife, after midnight in her bed-room in
actual physical juxtaposition unless there is some explanation forthcoming for this,
compatible with an innocent interpretation, the only inference that a court of law can
must be that the two were committing an act of adultery together.
Sec. 13 (1) (i) has, after the solemnization of Sec. 497 Whoever has sexual intercourse with a
the marriage, had voluntary sexual person who is and whom he knows or has
with any person other than his or her to believe to be the wife of another man, without
the consent or connivance of that man, such
sexual intercourse not amounting to the offence
of rape, is guilty of the offence of adultery, and
shall be punishable with imprisonment of either
description for a term which may extend to five
years, or with fine, or with both. In such case
wife shall not be punishable as an abettor.

Sec. 13 (1) (ia) Cruelty
 It is a legal concept and its meaning varied from time to time, from society
society on the basis of social and economic conditions
 In early English Law - intention was considered
 Modern law - objects is to accord protection to innocent party
 Definition of cruelty:
○ Russel v Russel
"conduct of such a character as to have caused danger to life, limb or
bodily or mental, or as to give rise to a reasonable apprehension of such
danger".
○ Under the English statute, Matrimonial Causes Act, 1973
"the respondent has behaved in such a way that the petitioner cannot
reasonably be expected to live with the respondent".
○ In India originally cruelty was a ground for judicial separation u/s 13 (1)
The Marriage Laws (Amendment) Act, 1976 which makes cruelty a ground
for divorce & has changed the wording "Respondent has treated the
petitioner with cruelty".
 Mere allegations of cruelty, without specific particulars with regard to time,
date and manner of committing cruelty cannot form cruelty in strict sense

Sec. 13 (1) (ia) Cruelty
In Sayal v Sarla
- A case of administering "love-potion"
Intention to be cruel is not material (Williams v Williams)

- Persistent accusation of adultery by the husband who was found to be insane.
- Intention as an element of cruelty was rejected
Under Hindu Law Bhagwat v Bhagwat
- Husband tried to strangulate the wife - a case of schizophrenia.
Should act or conduct constituting cruelty be aimed at the petitioner

- For instance, a display of temperament, emotion or perversion giving vent to
feelings not intending to injure, may amount to cruelty, if it could be shown
& distinctly to have caused injury to health, life or limb.
Cooper v Cooper
- A criminal & indecent assault by a husband on his step-daughter amounts to
cruelty to wife although there is no intention to hurt or injure the wife.

Cruelty U/S 13 (1) (ia)
Should the act or conduct complained of be that of the respondent

Shyam Sunder v Santadevi
- soon after the marriage, the wife was locked up , kept without food, ill -treated by the
of the joint family, while the husband stood there idly, without least caring to protect his
It was held that an intentional omission to protect his wife from the ill -treatment of the
members of the joint family amounts to cruelty on the part of the husband.
Deva Kumar v Thilagavathy
- Just within five days of marriage, the in-laws treated her so harshly that she was driven to
commit suicide, it was held that it amounted to cruelty.
Cruelty of the child

- Ordinarily cruelty by a child of the parties towards one of its parents does not amount to
cruelty.
Savitri v Mulchand
- When a child so identifies himself with one of the parents & collaborates with that parent to
perpetuate cruelty on the other parent, the conduct of the child will be considered as cruelty
the part of the other parent.

Cruelty U/S 13 (1) (ia)
Classification of cruelty: a. Physical cruelty b. Mental cruelty

Physical cruelty
Kaushalya v Wiskhiram
- the husband ill-treated the wife, beat her, so much so that she had to go
the police to lodge a report., Dua. J. held amount to cruelty.
Sayal v Sarla and Jyothish Chandra v Meera are cases of physical cruelty
Jyotish_Cha
ndra_Guh...
Injury to private parts
Ashok v Santosh
Vinit joglekar v Vaishali joglekar

- Indulging in unnatural carnal relationship held to be cruelty
Roopal v Kartarao - It is ironical case of cruelty.

- Wife was suffering with a deadly disease
(Catrophic rhinitis)- fleshy portion of her nose

b. Mental cruelty
Mental cruelty must be of such a nature that the parties cannot reasonably be expected to
together.
N. Sreepadachanda v Vasantha
- Wife abused, humiliated her husband at home & public places. . .
Dastane v Dastane
- Wife took delight in causing misery to her husband through her child. . .
Expanding horizon of cruelty

 The Marriage Laws (Amendment) Act, 1976
"the respondent has treated the petitioner with cruelty".
False accusations of adultery or unchastity

Paras Ram v Kamleshi
- Punchhi J. observed that false accusation of adultery should be such as to cause danger
life limb or health or the petitioner;
Saptmi v Jagdish
- Husband constantly called his wife a prostitute. . . amounts to cruelty

Mental cruelty
Demand for dowry
Navneet kumar v Meena Kumar (2002 H. P. 16)
- Amounts to cruelty - criminal offence u/s 498 A of IPC
Persistent refusal to have marital intercourse

Shakuntala v Om Prakash
- Seth J. held it amounts to cruelty
Wilful refusal to sexual intercourse and impotency

- In Rita v Balkrishna N.
Delhi H C observed. . . In our submission it would make no difference in law
denial of intercourse is the result of sexual weakness of respondent or it is
of his wilful refusal
Drunkenness
 English law - not cruelty
 Hindu law - it may amount to cruelty
since it may cause great anguish and distress to the other spouse who may
living together not merely miserable but unbearable

Mental cruelty
False criminal charges
Kalpana v Surendra
Mental
- wife lodged report against the husband and his other relations & warrants Cruelty rel...
issued and they had to obtain bail from the court. But ultimately these turned
out to be false charges. . .
- The Allahabad HC held that this amounted to cruelty.
Refusal to have children

Wilful refusal to have any children including termination of pregnancy amounts
cruelty.
False complaints to the employer

Lajwanti Chandhok v O. N. Chandhok
- wife writing false anonymous complaint to the employer of the husband amounts
cruelty.

12Cruelty
• Suspecting wife's character amounts to cruelty, valid ground for divorce: Bombay HC
Vibha Goswami v. Goswami (Family Court Appeal No. 33 of 2016)
• Husband entitled to seek divorce from a wife who files false cases against him which
gets acquitted.
K. Srinivas vs. K. Sunita, (2014) 16 SCC 34.
• Gaining weight after marriage no ground for divorce:

Milind Anant Palse vs. Mrs. Yojana Milind Palse
• The SC in Civil Appeal No. 3253 of 2008 Narendra v. K. Meena, Forcing husband to
separate from his parents amounts to cruelty.
Denying sex to husband for long period (4 and half years) ground for divorce: Delhi
Court...
The Indian Express 12.10.2016.

(ib) Desertion
 Means permanent forsaking or abandonment of one spouse by

the other without any reasonable cause and without the
consent of the other
 Desertion is a total repudiation of obligations of marriage.
Desertion is a withdrawal not only from a place, but also from a
state of things, it is not merely an act but includes conduct.
 Desertion under HM Act falls under following categories:
a. Actual Desertion,
b. Constructive Desertion and
c. Wilful neglect.

Desertion: Actual desertion
The following are the constituent elements of desertion:

a. The factum of separation,
b. Animus deserdendi (intention to desert)
c. Desertion should be without any reasonable cause,
d. Desertion should be without the consent of the other party &
e. The statutory period of two years must have run out before a petition is
presented.
Factum Separation & intention to desert

In actual desertion it is necessary that respondent must have forsaken or
abandoned the matrimonial home with intention
Snehlata v Kewal
- when a spouse is forced to leave the matrimonial home, it does not amount
desertion
Rukmini v Srinivasa, 1984 Kant 131
- Abandonment of matrimonial home should be accompanied by animus
deserdendi

Desertion, Sec. 13(ia)
To constitute desertion, factum and animus must co-exist.

Bipin_Chand
er_Jaising...
Bipin Chandra v Prabhawati, 1957 SC 176

- Sinha J. said 2 things are important:
a. the act of departure from the other spouse draws its
for the purpose with which it is done, as revealed by conduct or
other expression of intention.
b. the party who intends bringing the cohabitation to an end and
whose conduct in reality causes its termination, commits the
of desertion
To constitute desertion it is necessary to prove that the deserting

spouse persisted in the intention to desert throughout the statutory
period.
Lachman (Laxman) v Meena 1964 SC 40
- Marriage in the year 1946 and lived in B'bay till 1954

Desertion: Constructive desertion
Jagannath v Krishna
- wife became a Brahma Kumari. . .
Teerath Ram v Parvati
- Separate Matrimonial home - not amounting to desertion
Constructive desertion
"Desertion is not withdrawal from a place but from a state of things", i.e., from
cohabitation.
Savitri Pandey v Prem Chand
- Desertion means withdrawing from matrimonial obligations and not withdrawal
place.
Jyotish Chandra v Meera, 1970 Cal. 266

- The averments of the wife were that she found him cold, indifferent and sexually
abnormal and perverse.

Wilful neglect
Conscious neglect - deliberate and intentional
Bhagwati v Sadhu Ram

- The wife was living separate from her husband in a rented house under
compromise in maintenance proceedings - not in desertion

IB Grounds: Section 13 (1-A)
Allahabad HC directs Law Commission to take steps to consider incorporating

'irretrievable breakdown of marriage' as grounds of Divorce in Section of 13
Marriage Act
(1A) Either party to a marriage, whether solemnised before or after the

commencement of this Act, may also present a petition for the dissolution of the
marriage by a decree of divorce on the ground—
(i) that there has been no resumption of cohabitation as between the parties
the marriage for a period of 7[one year] or upwards after the passing of a
decree for judicial separation in a proceeding to which they were parties; or
(ii) that there has been no restitution of conjugal rights as between the
to the marriage for a period of 7[one year] or upwards after the passing of a
decree for restitution of conjugal rights in a proceeding to which they were
parties.
Sudha Gupta v. Har Prasad Gupta
New Delhi High Court
Irretriveable Breakdown Page 94

IB Grounds:
Irretriveable Breakdown Page 95

Sec. 23 Decree in proceedings:-
(1) In any proceedings under this Act, whether defended or not, if the Court is satisfied that, -
(a) Any of the grounds for granting relief exists and the petitioner [except(ii) of Sec. 5] is not
any way taking advantage of his or her own wrong or disability for the purpose of such
relief; and
(b) Where the ground of the petition is adultery, the petitioner has not in any manner been
accessory to or connived at or condoned the act or acts complained of, or where the
ground of the petition is cruelty the petitioner has not in any manner condoned the
cruelty; and
(bb) When a divorce is sought on the ground of mutual consent, such consent has not been
obtained by force, fraud or undue influence; and
(c) the petition (not being a petition presented under Sec. 11) is not presented or prosecuted
collusion with the respondent;
(d) there has not been any unnecessary or improper delay in instituting the proceeding; and
(e) there is no other legal ground why relief should not be granted.
Then, and in such a case, but not otherwise, the Court shall decree such relief accordingly
(2) Duty of the Court - to make every endeavour to bring about a reconciliation between the
parties:
(except in the case of conversion, mental disorder, leprosy, venereal disease, renounced
world & not heard for 7 years)
Jurisdiction & Procedure Page 96

Sec. 23 Decree in proceedings:-
(3) for the purpose of aiding the Court - adjourn the proceedings not exceeding
15 days - to any person named by the parties - nominated by the Court . . .
(4) copy of the decree - free of cost to - each of the parties
Jurisdiction & Procedure Page 97

Sapinda Relationship
Sec. 5 Conditions Page 98

Mental Capacity: Incapacity to Consent and Mental Disorder Sec. 5 (ii) read with Sec. 12 (1) (b),
• Originally, HMA 5 (ii) laid down that neither party to marriage should be an idiot or lunatic at the time of
marriage.
• The Marriage Laws (Amendment) Act, 1976 has reframed the clause thus:
At the time of the marriage, neither party-

(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or
(b) though capable of giving a valid consent, has been suffering from mental disorder of
a kind or to such an extent as to be unfit for marriage and the procreation of children; or
(c) has been subject to recurrent attacks of insanity [(or epilepsy) - the word 'epilepsy'
by the Marriage Laws (Amendment) Act, 1999.
MARRIAGE IN VIOLATION OF THIS CONDITION IS VOIDABLE Non consent will not
render the marriage
The unsoundness of mind which Void
incapacitates a person from giving a valid consent to marriage.
need not be persistent or continuous "unsoundness of mind".
may exist just before the marriage

Mental Capacity: Incapacity to Consent and Mental Disorder
• Under clause (b), the words "has been suffering" requires that "mental disorder"
should be of some duration.
• It is not every mental disorder which renders the marriage voidable, but should
satisfy two conditions:
(i) it renders him unfit for marriage, and
(ii) of procreation of children
• The words "insanity" are not qualified with "incurable". Thus, if attacks of
are recurrent that is enough
The mental conditions specified in the clauses relate to pre-marriage conditions

not to post-marriage mental conditions.
• The burden of proof that the respondent is suffering from any of the mental
conditions specified in any of the three clauses is on the petitioner.

Dowry: Historical
 Marriage in any form for Hindus has been considered as Kanyadan…
 According to Dharmashastra, the act of Kanyadan is complete when the
bridegroom was given a dakshina…
Dowry prohibition Page 102

Unit Syllabus
UNIT – III
Hindu undivided family – Mitakshara Joint Family -
Formation and Incidents - Property under both
Schools – Kartha: His Position, Powers, Privileges and
Obligations - Debts – Doctrine of Pious Obligation -
Partition and Reunion –Religious and Charitable
Endowment.
Unit Syllabus Page 103

Joint Family and Coparcenary
 For a Hindu there is no escape from the joint family. Even broken by
joins automatically in next generation
 Hence a presumption that every family is a joint Hindu family
Composition of joint family
 A Hindu joint family consists of the common ancestor and all his lineal male
descendants up to any generation together with the wife or wives (or widows)
and unmarried daughters of the common ancestor and of the lineal male
descendants.
 Even an illegitimate son is a member of his father's joint family. Sometimes
even widowed daughters may return to their father's family and claim on the
joint family property.
 The existence of the common ancestor is necessary for bringing a joint family
existence; for its continuance common ancestor is not a necessity.
J F - Formation n Incidents Page 104

Corporate personality and composite family
 A Hindu joint family is not a corporation
 Hindu joint family is a unit and in all affairs it is represented by is Karta

 It confers a status on its members which can be acquired only by birth in the family or by
marriage to a male member
Composite family
 Composite family is a creature of custom and owes it constitution to an agreement.
○ Where two or more families agree to live and work together, pool their resources,
their gains and labour into the joint stock and shoulder the common risk, there comes
existence a composite family.

Hindu undivided family
• For the purpose of assessment of tax, the revenue statutes use

the expression, 'Hindu Undivided Family'.
•

Classification of Property : First
Apratibandha daya Sapratibandha daya

(Unobstructed heritage) (Obstructed heritage)
• All properties inherited by a Hindu male from a When a Hindu inherits property from any other
direct male ancestor, not exceeding three degree relation, such as maternal or paternal uncle or
higher to him is called Apratibandha daya nephew, etc., then it is known as
(Unobstructed heritage) Sapratibandha daya (Obstructed heritage).
• Properties inherited by a Hindu male from his
father, father's father, and father's father's father
are called Unobstructed heritage
In this property his son, son's son and son's son's In this property his son, son's son and son's son's
acquire an interest by birth. any other person does not acquire an interest by
The accrual of the right to it is not obstructed by
existence of the owner
This property devolves by survivorship This property devolves by inheritance
Coparceners can restrain the holder of this The holder of this property so long he is living, has
from alienating it. absolute rights of alienation over it.
Property Page 107

Classification of Property : 2.
Separate property or self-acquired Joint family property or Coparcenary

property property
Ancestral Property:
1. Property inherited from father, father's father or father's, father's father
2. Property inherited from maternal grand-father, and
3. Property inherited from any other relation
Property Page 108

Property inherited from father, father's father or father's, father's
father
1. Property inherited from father, father's father or father's, father's father

2. Property inherited from Maternal Father
3. Property inherited from any other relations
Property Page 109

Property inherited from Maternal Father \
The Privy Council decisions have necessitated this

classification
Venkayyamma v. Venkatarayyammamana
Two brothers case
Md. Hussain v. Kisheva
Son doesn't acquire any interest in by birth in
property inherits from his maternal grand-father
The SC in
Maktul v. Manbhari
The property inherited by a person from his
maternal grandfather is not ancestral quo his
descendants
Property Page 110

Property
Saturday, October 21, 2017
10:03 AM
Property obtained on Partition

Character of property after severance of status
Property Page 111

CHART: PROPERTY
Sapratibandha Daya
Apratibandha Daya
Separate Property
Joint Family Property
Ancestral Property
Property inherited from F, F's F and F's F's F
Property inherited from Maternal Grand Father
Property inherited from other relatives
Property obtained on partition (Severance Status)
Property received in gift
Gift by father of self-acquired property
Gift by father of a small portion of joint family property
Gift of joint family property by the Karta
Property jointly acquired by coparceners
Income of hereditary profession
Property exchanged for joint family property
Property thrown into common Intention
stock and blended property
Intention of abandoning
Not by the act of physical mixing
Intention by waiving or
surrendering his rights
Only by words or from acts and
conduct
Recovered joint family property
Accretions
PROPERTY
Property Page 112

Karta
 Pivotal position
 His position is sui generis
 with limited powers, but, within the ambit of his sphere, he
possesses such vast powers as are possessed by none else.
 Who can be the Karta?

○ Senior most male member
 Karta does not owe his position to agreement or consent
other coparceners
○ Junior male member
 The junior member owes his appointment to the
or consent of the coparceners.
Karta Page 113

Karta
 Female members as Karta

○ The Nagpur HC held that the mother can be, in
the absence of adult male members, Karta of
the Joint family
○ The SC in Comm. Of Income-Tax v. Seth Govind
Ram
 Mother or any other female could not be
the Karta of the Joint Family.
○ The Hindu Succession (Amendment) Act, 2005
 the bar of her becoming a Karta is no
there
 More thank one Karta

○ Darshan v. Prabhuy (1946) All. 67 - there can
be more than one Karta
Karta Page 114

Position of Karta
 Position of Karta
○ Sui generis
○ not principal or agent or partners
○ stands in fiduciary relationship, but not a
○ ordinarily, he is accountable to none, unless
charges of misappropriation, fraud or
levelled against him.
Karta Page 115

Liabilities of Karta
 Provide maintenance to all the members of the family

 Marriages of coparceners and all unmarried
 Pay taxes to the Government
 Representing the family in all the instances of suing
 Provide accounts at partition - when asked
Karta Page 116

Powers of Karta
1. Powers of Management
2. Right to Income
3. Right to representation
4. Power of compromise
5. Power to refer a dispute to arbitration
6. Power of acknowledgment
7. Karta's power to contract debts
- Loan on promissory note
8. Power to enter into contracts
a. Trading families
b. New Business
c. Partnership with strangers
d. Family arrangements
Karta Page 117

Pious Obligation
 This concept has been done away with by virtue of

Amendment Act of 2005.
This chapter is not concerned with

 the liability of sons to pay their father's debts as his heirs,
i.e., when they inherit his separate property. This is the
liability of every heir, "every heir takes the property
subject to the debts and liabilities of the deceased."
 the debts of the father which he might have taken in the
capacity of the Karta. Karta's debts taken for valid
purposes are enforceable against the joint family property.
 We are concerned with the personal debts of the father which

are enforceable against the son's interest in the joint family
property under Pious Obligation.
Debts Page 118

Pious Obligation: Nature of the liability
 Moral obligation
 Brihaspati ordained: one who does not repay his debts will be born hereafter in the creditor's
house as a slave, a servant, a woman or quadruped.
 According to Narada: if a very religious and devoted person died indebted, the whole of the
merit of his sacrifices and devotions will belong to his creditor.
 Sons must repay his father's debts - this is considered to be the religious or pious duty of
sons to discharge their father from the sin of his debts.
 Sons to repay the debt with interest + personal liability
 Son's sons (grand son) to repay only the principal amount + personal liability
 Son's son's son (great grand son) to repay only to the extent of his interest in the joint
property
 By a series of decisions it is now established that sons' liability (son, grand son & great
is co-extensive i.e., their liability is the same and they are liable to the extent to which they
joint family property in their hands. No personal liability
Debts Page 119

Pious Obligation: Nature of the liability
 The doctrine is not recognised under the Dayabhaga school.

 The liability of the son is pious, the character of father's debt is material.
 provided the debts are not avyavaharika,
 J. D. M. Derrett's expression - private, untainted, pre-partition debts.
 Mayne has enumerated debts which sons need not pay under the following 9
a. Debts due for spirituous liquor,
b. Debts due for lust,
c. Debts due for gambling,
d. Debts due for anything idle promised or promised without consideration
e. Unpaid fines,
f. Unpaid tolls,
g. Suretyship,
h. Commercial debts and
i. Debts that are avyavaharika
 Most of these heads stand modified.
Debts Page 120

Avyavaharika debt
- Colebrook's rendition of it, as those which are for "causes repugnant to good morals"
has been approved by the Supreme Court in Jakati v Borkar.
- Broadly speaking it mean those debts that are taken for "illegal or immoral purposes."
 The Unlawful debts are those which arise out of breach of law
○ Criminal breach of trust
 The debts resulting from the highly tortious acts
○ Civil liability of the father arises out of some irregularity
Sons are liable for the debts taken by the father
 to defend a suit of defamation,
 to defend himself against charges of forgery and fabrication
 damages for wrongfully cutting down the trees
 for liability arising out of negligence in the discharge of duties by the father.
 The immoral debts are those which are taken in furtherance of an immoral purpose
○ Prostitution or keeping a concubine
 In Logannathan v. Ponnuswami
- the father dishonestly defrauded certain minors of the money that he had collected
their behalf - sons to repay money which their father had unlawfully retained.
Debts Page 121

Avyavaharika debt
 Time-barred debt
○ no Hindu is bound to pay his time-barred debts, consequently sons
are not liable
○ Promissory note executed or an alienation made to for its
will be binding on the son
 What stage should the debt be an avyavaharika debt?

In Chhakauri v. Ganga, Rao, J. of the Madras High Court formulated the
following 2 propositions:
1. Even if the debt is not immoral at its inception, subsequent dishonesty
the father does not exempt the son, and
2. It is not every impropriety or every lapse from right conduct that
the debt as immoral. The father's conduct must be "utterly repugnant
good morals, or is grossly unjust or flagrantly dishonest."
Debts Page 122

Avyavaharika debt
The Privy Council in Hem Raj v. Khem Chand, said that

if the debt "at its inception" was not tarnished or tainted with immorality
illegality, it is binding on the sons. Thus, it is necessary to make out a
connection between the debt and the taint at the earliest opportunity.
 Burden of proof that debt is tainted is on sons

- The obligation on the sons to pay off their father's personal debts is a
religious obligation and if they want to wriggle out of it, they can do so
the debt is tainted.
- But has the son also to show that the creditor had the notice or knowledge
that the debt was tainted?
- Privy Council answered if affirmatively, through obiter in Sat Narayan v.
Behari Lal case.
- The Supreme Court in Luhar Amrit v. Doshi Jayant, has approved the obiter
observation.
Debts Page 123

Antecedent debts
The Dharmashastra imposed the liability to pay father's untainted debts on

sons only after the death of the father, but by judicial valour this has been
extended, and sons are not liable to pay father's debts during father's life
The Privy Council in Brij Narayan v. Magla Prasad, observed:

" if he (Karta) is the father and the other members are the sons, he may, by
incurring debts, so long as it is not for an immoral purpose, lay the estate
open to be taken in execution proceedings upon a decree for payment of that
debt.
If he purports to burden the estate by mortgage, unless that mortgage is to
discharge an antecedent debt, it would not bind the estate.
The doctrine has been further extended by laying down that the father himself
can alienate the joint family for the discharge of his personal debt and sons
challenge it only if the debt is tainted.
Debts Page 124

Antecedent debts
What is antecedent debt?

Lord Dunedin of the Privy Council in Brij Narayan v. Magla Prasad, defined the
antecedent debt as "antecedent in fact as well as in time", i.e., not a part of the
transaction impeached.
Thus two conditions are necessary:

a. The debt must be prior in time, and
b. The debt must be prior in fact.
Analysis concerning mortgage loans

○ In Devabhaktuni v. Challa, the Andhra Pradesh High Court rightly took the view
that mortgage debt is not an antecedent debt. Thus, attempts to circumvent
the doctrine of antecedency are made. It is pointed out that there is no textual
authority for the antecedency rule.
Suit of the creditor

Sons are not necessary parties for the suit but are for execution proceedings.
Debts Page 125

Sec. 6 (4) of The Hindu Succession (Amendment) Act, 2005
After the commencement of the Hindu Succession (Amendment) Act, 2005, no Court shall recognise
any right to proceed against a son, grandson or great-grandson for the recovery of any debt due
from his father, grandfather or great-grandfather solely on the ground of the pious obligation under
the Hindu law, of such son, grandson or great-grandson to discharge any such debt:
Provided that in the case of any debt contracted before the commencement of the Hindu
Succession (Amendment) Act, 2005, nothing contained in this sub-section affect-
(a) the right of any creditor to proceed against the son, grandson or great-grandson, as the
may be; or
(b) any alienation made in respect of or in satisfaction of, any such debt, ad any such right
alienation shall be enforceable under the rule of pious obligation in the same manner and to
the same extent as it would have been enforceable as if the Hind Succession (Amendment)
Act, 2005 had not been enacted.
Explanation:- For the purposes of clause (a), the expression "son:, "grandson" or "great-
grandson" shall be deemed to refer to the son, grandson or great-grandson, as the case may
who was born or adopted prior to the commencement of the Hindu Succession (Amendment)
Act, 2005.
Debts Page 126

Meaning of partition
a. the adjustment into specific shares the diverse rights of different members;
b. the severance of the joint status
 'the crystalization of the fluctuating interest of a Coparcenary into a

share in the joint family estate'
 Actual division of property in accordance with the shares so specified,
as partition by metes and bounds
1. Subject-matter of partition
2. Persons who have a right to partition and who are entitled to a share on
partition
3. How partition is effected & mode of partition
4. Rules relating to the allotment of shares
5. Reopening of partition and
6. Reunion
Partition Page 127

Subject-matter of partition
Properties which are not capable of division by their very nature

 Manu ordained: "A dress, a vehicle, ornaments, cooked food, water and
female slaves, property destined for pious use and sacrifices, and a
ground, they declare to be indivisible."
 Vijaneshwara said: "Water or a reservoir of it, as a well or the like, not
divisible, must not be distributed by means of the value but is to be used
the co-heirs by turns." "The common way road of ingress to and egress to
and from the house, garden or the like is also indivisible."
In respect of those properties, three methods of adjustment are available:

i. Joint or by turns enjoyment of the those properties
ii. May be allotted to the share of coparcener and its value adjusted
iii. Property may be sold and the proceeds be distributed
Partition Page 128

○ Dwelling house
In Ashamulla v. Kalli, the Court explained the principle thus: "If the property can
be partitioned without destroying the intrinsic value of the whole property, or
of the shares, such partition ought to be made. If, on the contrary, no partition
can be made without destroying the intrinsic value, a money compensation
should be given instead of the share which would fall to the plaintiff by
partition."
 The Partition Act, 1893

 The Act, empowers the court, in its discretion, to order a sale of property
instead of dividing it at the request of any coparcener where the former
course will be more convenient and beneficial.
 At such a sale, any coparcener may obtain the leave of the court to buy the
property at valuation ordered by the court.
 The court has inherent power to refuse to divide any property and adopt
other course as may appear equitable and just in the circumstances of a
Partition Page 129

○ Family shrines, temples and idols

- these constitute such species of joint family property which can neither be divided nor
The courts have adopted the following courses
a. The possession may be given to the senior coparcener or to a junior member, if he
happens to be the most religious & suitable among all others) with liberty to other
coparceners to have an access at all reasonable times;
b. The coparceners may be required to hold them in turn, for a period of tenure in
proportion to their share in the property
c. In case the family consists of pujaris who make a living out of the offerings, the court
settle a scheme
○ Stair cases, wells etc.,

 In respect of these, an arrangement has to be devised so that they remain in the
common use of all coparceners.
Partition Page 130

Deductions
i. Debts
a. debts taken by the Karta for family reasons
b. untainted personal debts of the father
ii. Maintenance
a. disqualified coparceners and their immediate dependants such as wife,
daughter, son, and in certain circumstances, illegitimate sons;
b. mother, stepmother, grandmother and other females entitled to be
maintained out of the joint family property
c. unmarried sisters of deceased coparceners till they are married and
d. widowed daughters of deceased coparceners, when they are entitled to be
maintained out of the joint family assets.
iii. Marriage expenses of
a. daughters, unmarried sisters, unmarried posthumous daughter of a
coparcener before partition;
iv. Performance of certain ceremonies & rites
a. Funeral expenses of mother,
b. Upanayana (sacred thread) ceremony
Partition Page 131

Persons who have a right to partition and who are entitled to a
share on partition
Father
○ The father has a right to partition between himself and his sons but he has
also the power to effect a partition among the sons inter se. It is necessary
that the father must act bona fide.
○ Father can cause partition of his separate property.
Son, grandson and great-grandson
○ Under the Mitakshara school, son, son's son, son's son's son have a right
partition
 In Bombay school - the son has a right to partition only with the assent
the father if father is in joint with his ascendants and collaterals.
 Under Punjab customary law, sons have no birth right so also right to
partition against their father;
A B brothers C
B sons C

BS CS
BS g. sons CS Whether BS and CS seek partition under Bombay
Partition Page 132

share on partition
Son born after partition

○ Son conceived at the time of partition but born after partition
 Pregnancy is known - postpone the partition - coparceners are not agreeing -
reserve a share.
 Pregnancy is not known - if no share reserved - re open the partition
○ Son begotten and born after partition

a. When the father has taken his share in a partition,
 After born son becomes a coparcener with his father
b. When the father has not taken any share.

 The after-born son has a right to get the partition re-opened and get the
estate redistributed as it then stood.
○ one instance of relinquishment of interest by the father

- Anjaneyulu v. Ramayya, Reddy, C. J. said: He could be a coparcener with his
father, but he could not be added to the original coparcenary, since no nexus.
Partition Page 133

share on partition
Adopted son
a. When there is a subsequently born aurasa (natural) son of his father,
- he has the same right to partition, he is not entitled to the same share.
- In competition with the subsequently born aurasa son, he takes a lesser share,
which differs from school to school and from one varnashram to another.
- The Hindu Adoption and Maintenance Act, 1956 has codified and reformed
law of adoption. Sec. 12 of the Act lays down that "an adopted child shall be
deemed to be the child of his or her adoptive father or mother for all purposes…"
b. When there is no such son.

- his position is the same as that of aurasa son.
Son of void marriage or annulled voidable marriage

- is not a coparcener, he cannot sue for partition.
Partition Page 134

Persons who have a right to partition and who are entitled to
share on partition
Illegitimate son: 2 categories

a. The Dasiputra, or a son born to a concubine (avarudha dasi) exclusively and
permanently kept by a Hindu, and
b. An illegitimate son born of a woman who is not a dasi.
An illegitimate son of both categories is not entitled to partition or to a share on
partition among the first three classes (varnashramas)as he is not a coparcener.
Among the Sudras, the dasiputra has a somewhat superior position.

a. A dasiputra does not acquire by birth any interest in the joint family property. Father
may give him a share equal to the share of a legitimate son.
b. On death of the father, dasiputra has maintenance from the father's separate property,
if no such property, then from the joint family property.
c. On the death of a sudra male, the dasiputra and legitimate sons succeed to his
property and hold it as coparcenary property.
d. The dasiputra will also share the joint family property obtained by partition with
collaterals by the legitimate sons of his putative father.
e. An illegitimate son is also a reversioner to his putative father's widow.
f. The Hindu Succession Act, 1956 - an illegitimate son is not recognised as his putative
father's heir.
Partition Page 135

share on partition
Persons who are entitled to a share if partition takes place

 Dravida school - female not entitled to a share
 Benaras school - female entitled to a share
○ Kerala follows the Benaras school
 Father's wife or widowed mother - given a share
partition and she has also received stridhan from
their / her husband or father-in-law --- her share
subject to deduction to the extent of the value of
stridhana received
 Prior to 1956, any share taken by a female on
partition - - -her absolute property---sec. 14 of
Hindu Succession Act, 1956
 Mother and wife are entitled to a share on
irrespective of a provision in HA & MA, 1956 -
Partition Page 136

on partition
Minor coparcener
Alienee
Absent - Coparcener
Partition Page 137

share on partition
Father's wife - entitled to a share
Mother (widowed mother) - entitled to a share
Grandmother
1. When partition takes place between her grandsons (son's son), her son being
dead, - she is entitled to a share of a grandson
2. When partition takes place between her son and sons of a predeceased son, she
entitled to a share equal to the share of a grandson
3. When partition takes place between her sons and their sons
Allahabad and Bombay HCs Calcutta and Patna HCs
She is not entitled to a share She is entitled to the share equal to the
share of a grandson
Partition Page 138

How Partition is Effected
Severance of joint status or interest

Expression of intention.
Unequivocal intention
Communication of intention to sever
○ In Babu Ramashray v. Radhika, the Privy Council said that severance may be
effected by giving a clear and unmistakable intention by his acts or declaration of
a firm intention to become separate.
○ The Supreme Court in Raghavamma v. Chenachamma, Subba Rao, J.,
 The communication to intention to sever must be communicated to all
interested parties (coparceners)
 Receipt of notice will relate back to the date of notice
 The vested rights that might accrue in the interval, between the date of
transmission and receipt are preserved.
○ The Supreme Court in Puttranganna v. M. S. Rangamma,
 The process of communication may vary with the circumstances of each
particular case.
Partition Page 139

Mode of Partition
1. Partition by suit
2. Partition by agreement
3. Oral partition
4. Unilateral declaration
5. Partition by arbitration
6. Partition by conduct
Automatic severance of status
Parties to partition
○ Heads of the branches are essential parties
Registration of partition deed
Partition Page 140

Partial partition
Partial as to property, or
• The Privy Council in Romalinga v. Narayan, said
that it is open to the coparceners to server their
interest in respect of part of joint estate, while
retaining their status of a joint family in respect
of the rest of the properties.
• Partial partition under compulsion
○ Statute forbids fragmentation of holdings
Partial as to persons.
re bus sic santi bus
Partition Page 141

Division of property by Metes and Bounds
Partition by metes and bounds means the

physical division of joint family property.
• Taking of Accounts
• Rules relating to division of property
1. Division between father and son
2. Division between brothers
3. When division takes place among branches
4. Doctrine of representation
Partition Page 142

Examples
S1 S2 S3 S4 S5
ss1 ss2 ss3 ss4 ss5 ss6 ss7 ss8 ss9 ss10
sss1 sss2 sss3 sss4 sss5 sss6 sss7 sss8 sss9 sss10 sss11 sss12 sss1 sss14 Sss15
Partition Page 143

Examples
S1 S2 S3
S
(DEAD) (DEAD) (DEAD)
SS 3 SS 4
SS 1 SS 2
(DEAD) (DEAD)
SSS 2
SSS 1
(DEAD)
SSSS
Partition Page 144

Successive partition
In the wake of partial partition

what shares do they take in the subsequent partition?
- Means how are shares are to be determined?
Rebus sic stantibus

Means that the existing facts are taken into consideration.
Bombay H C
A (Dead)
D C
dies b. (Dead)
D1 D2 D3 E F G
a. c. (Dead) (Dead) (Dead)
E1 F1 F2 G1
a. a. a.
Partition Page 145

Reopening of Partition
i. Re adjustment of properties and
ii. Re opening of partition.

a. Fraud b. Son in the womb
c. Adopted son d. Disqualified Coparceners
e. Son conceived & born after partition f. Absentee Coparcener
g. Minor Coparcener
Partition Page 146

Reunion
Dravida, Benares & Dayabhaga schools Bombay & Mithila schools

2 conditions 1 condition
1. A reunion can be made only between the 1. A reunion can be made only between the
parties to partition parties to partition
2. A reunion can take place only between
i. Father & Son,
ii.Paternal Uncle & Nephew,
iii.Brothers
Re union how effected

There must be an intention of the parties to reunite in estate & interest. There shall be
agreement between the parties.
Effect of reunion
Under the Mitakshara & Dayabhaga schools, status quo ante is fully restored after
reunion.
Partition Page 147

Reunion
Some examples:
1. A • A and B can have reunion
F Partition took place • A, B & F can have reunion
B • A & B cannot reunion with 'S'
S - subsequently son born
2. A B - Brothers • A and B can have reunion
Partition took place • B cannot reunion with 'S'
S - subsequently son born
3. A S SS • A cannot reunion with 'SS'
- partition takes place
4. A AS
P partition took place • 'AS' cannot reunion with 'BS'
B BS
Partition Page 148

Examples
S S1 S2 S3
S4
SS SS 2 SS SS SS SS SS SS
SS 1
SS 3 4 5 6 7 8 9
SSS SSS SSS SSS SSS SSS SSS SSS SSS SSS SSS SSS SSS SSS
SSS
1 2 3 4 5 6 7 8 9 10 11 12 13 14
Partition Page 149

Religious and Charitable Endowment
Gift for religious or charitable purposes is called
Essentials of a valid endowment:

1. Dedication must be complete,
2. Subject-matter must be specific,
3. The object must be definite,
4. The settler must have capacity to make the endowment.
Religious and Charitable Endowment Page 150

1. Essential: Dedication must be complete:
○ Sankalpa (intention to dedicate) b. Utsarga (renouncing the ownership)

○ Certain ceremonies
 Recitation of time, date, year of dedication & the object
 Libation of water on palms of the recipient or on the pot
 Recitation of some object
○ Deokinandan v. Murlidhar, the SC observed 3 ceremonies are must for the completion
of dedication; that is
 Sankalpa, Utsarga and Prathista
○ Shahazad Kunwar v. Raj Ram Karan,
 There was no formal dedication, still gift made was held valid because of the
○ A dedication may be absolute & partial & it may be dedicated orally also.
○ Dedication made is irrevocable

Essential:
2. Subject-matter must be specific,

The subject of the gift must be well defined.
3. The object must be definite,

Samadhi, gift for Dharma - divergent cases
4. The settler must have capacity to make the endowment

○ He must be major and
○ He must have Sound Mind

Maths (Mutt)
• Means residence of ascetics. It is a monastic institution presided

by Mahant.
• Property of a Math vests in the math and not in Mahant.
• Position of Mahant
○ Spiritual head
○ Manager of the property
 Right to representation
 Power of borrowing money
 Power of alienation
 Liable to accounts
• Succession to the office of Mahant

○ general rule of devolution laid down by founder
 these rules do not violate the provision of any law.
○ Privy Council observed. . .
 that succession on the basis of custom and usage

Maths (Mutt) Mahant
• Succession to the personal property of Mahant devolve on spiritual hei

• Termination of Mahantship:
○ Relinquishment
○ Supervening disability
○ By removal
 Mismanagement
 Mental infirmity
 Bodily disease
 Immoral life
 Acting contrary to the tenets of the Math

Debutter (Temples and Idols)
Debutter literally means "belonging to the deity"
Idol as a juristic person

1. It is an ideal sense that the endowed property vests in the deity as a
person and
2. The ideal personality of the Idol is linked up with natural personality of
Shebait, Dharmakarta or Manager
 Jogendra Nath v. I. T. Commissioner,
- The Income of the deity be liable to income tax
Public and Private Debutter

Deoki v. Murlidhar, the SC observed
- The distinction between public and private trust is that, in the former
beneficiaries constitute a body which is of ascertainment, whereas in
latter the beneficiaries are specific individuals.

Debutter (Temples and Idols)
- Real or nominal debutter

○ In determining whether a debutter is real or nominal, the
manner in which properties are held & enjoyed is the most
important fact…
- Dedication may be partial or absolute

○ depends upon the intention of the settler
○ to ascertain the intention regard must be had to the deed as a
whole & the terms used therein
- The Shebaitship
○ known by various names:
 as Shebait - Bengal
 Dharmakarta - Tamil Nadu and Andhra Pradesh
 Manager - English law - misnomer
• Trustee for properties
• He is holder of an office of dignity

The Shebaitship
Kalanka Devi Sansthan v. Maharashtra Revenue Tribunal, Nagpur and others,

- The SC reiterated the well established proposition that the properties in
the case of an idol or sansthan do not vest in the shebait but in the idol.
Legal position of Shebait

Shebait in its true conception involves two ideas, the ministrant of the
deity & its manager, it is not a bare office, but an office together with
certain rights attached to it.
Vidhayavarath v. Balusami,
- The Privy Council held that, shebait has a share in the usufruct of the
debutter property.

The Shebaitship
Manohar v. Bhupendra, A Full Bench of the Calcutta HC ,

- In Shebaitship, both elements of office & property, of duties & persona
interest, are mixed up and blended together.
- In 3 exceptional cases, office may be alienated-
 Where the transfer is not for any pecuniary benefit
 When the transfer is made in the interest of the deity
 When a valid custom is proved
Presents made to Shebait

- are his personal property

The Shebaitship
Powers and obligations of Shebait

- Duties - Spiritual and Temporal
Spiritual Temporal
- Perform puja & seva of the - Management of the debutter
- Custody of the idol - Reasonable care
- cannot make profit out of the properties
- Keep proper accounts
- Bring suits on behalf of the idol
- Borrow money

The Shebaitship
- Alienation of endowed property

○ Only in exceptional circumstances
- Suit on behalf of deity to challenge improper alienation.
○ can be made by - Pujari, devotee
- Contract for sale of endowed property is specifically enforceable
○ the burden of proof is on the alienee.
Devolution of Shebaitship
Founder's right to act or appoint Shebait
Devolution of office of Shebaitship

○ Will of the founder / deed of the endowment
○ Custom / usage
○ Ordinary rules of succession

The Shebaitship
Devolution contrary to the rule of Tagore's case

The founder has a right to lay down any scheme of succession
Tagore v. Tagore
○ All estates of inheritance created by gift or will, so far as they are inconsistent
the general law of inheritance are void.
○ Mukherji, J. held: The founder of a Hindu debutter is competent to lay down rules
to govern the succession to the office of a shebait subject to the restriction that
cannot create any estate unknown or repugnant to Hindu law.
Disqualification
Termination of office
○ Resignation
○ Relinquishment

Unit IV: Syllabus
UNIT – IV
Inheritance and Succession - Historical
perspective of traditional Hindu Law
relating to Inheritance - A detailed
of Hindu Succession Act, 1956.
Stridhana- Woman’s Property - Recent
State and Central Amendments to
Succession Act; Gifts and Testamentary
Succession – Wills.
Unit IV Syllabus Page 162

Changes brought by passing of HS (Amendment) Act, 2005
1. No school of thought is applied

2. Customary law of succession stand abrogated except Chudabanth (wife wise
determination of shares) which is a tribal custom and not territorial
3. Women's estate & reversioner have been abolished
4. The weightage given to aurasa son over adopted son has been abrogated &
replaced by the rule of equality
5. The privileged position of the dasiputra of a sudra has been abolished & he is
longer an heir to his father
6. The position of females has been improved substantially & some cognates of
propinquity have been brought at par with agnates.
7. Disqualifications streamlined and simplified
8. Sec. 30 amended - testamentary succession introduced on coparcenary interest.
9. Sec. 23 (regarding dwelling house) and Sec. 24 (regarding disqualification of
widows) have been omitted
10. 4 relatives have been inserted into the list of Class I heirs
11. Noteworthy change from Sec. 6
1. Daughters are entitled to share in ancestral property - as a coparcener
Changes Page 163

Woman's Property
Stridhan and Woman's Property

Enumeration of Woman's Property
1. Gift and bequests from relations Stridhan
2. Gifts and bequests from strangers Stridhan
3. Property acquired by self-exertion and mechanical Stridhan
4. Property purchased with stridhan Stridhan
5. Property acquired by compromise Stridhan
6. Property obtained by adverse possession Stridhan
7. Property obtained in lieu of maintenance Stridhan
8. Property obtained by inheritance Woman's Estate
9. Share obtained on partition Woman's Estate
Woman's Property Page 164

Characteristic features of Stirdhan
1. The Stridhan being her absolute property, the female has full rights of its alienation.
a. If she is a maiden or a widow

b. If she was a married woman
i. The Saudayaka (literally it means gift of love and affection)
Woman's Property Page 165

Sec. 8 General rules of succession in the case of males
The property the separate and the undivided interest in the Mitakshara family .
shall devolve
Firstly Class I
Secondl Class II
Thirdly Agnates
Lastly Cognates
Hindu Male Page 166

Class I Heirs
Son :
- Sec. 3 (1) 'related' - legitimate kinship (Natural or adopted)
- Gharjamai - like an adopted son
- Posthumous son - Sec. 20 of the Act
- Son of void marriage and annulled voidable marriage will inherit the
property of the father alone and no other relation.
- A step son not included
The above meaning of 'son' applies mutatis mutandis to the son of a

predeceased son and to the son of a predeceased son of a predeceased son.
Daughter, Son's daughter, son's son's daughter:
Daughter's son and daughter's daughter

- Illegitimate daughters and sons of a daughter are included
Widow, son's widow, son's son's widow:

- Wife of a valid marriage
- An unchaste widow can also inherit -
Mother:
- she may be unchaste, she might have remarried or of divorced
- a stepmother is not included in the expression mother
Hindu Male Page 167

Class I Heirs: Sec. 10 Distribution of property: Rules 1,2,3,4
10. Distribution of property among heirs in class I of the Schedule.—The

property of an intestate shall be divided among the heirs in class I of the
Schedule in accordance with the following rules:—
Rule 1.— The intestate’s widow, or if there are more widows than one, all the
widows together, shall take one share.
Rule 2.— The surviving sons and daughters and the mother of the intestate shall
each take one share.
Rule 3.— The heirs in the branch of each pre-deceased son or each pre-
deceased daughter of the intestate shall take between them one share.
Rule 4.— The distribution of the share referred to in Rule 3—
(i) among the heirs in the branch of the pre-deceased son shall be so
made that his widow (or widows together) and the surviving sons and
daughters gets equal portions; and the branch of his predeceased sons
the same portion;
(ii) among the heirs in the branch of the pre-deceased daughter shall be
so made that the surviving sons and daughters get equal portions.
Hindu Male Page 168

QP Problems
1. A male Hindu dies intestate leaving behind his father and two
What are the shares to which they are entitled under the Hindu
Act, 1956 ?
Answer: Father receives the whole of the property to the exclusion of two
brothers
Class II Heir Father entry 1 and
Class II Heir Brothers entry 2. Sec. 9
2.Mohan died intestate, leaving behind him, his mother, a legitimate son
and an illegitimate son. State the shares of each person.
Answer: Mother and Legitimate son receives 1 share each. Sec. 8, Sec. 9,
Sec. 10: Rule 2.
Illegitimate son shall not receive anything as sec. 3 clear on the word
'related'.
Hindu Male Page 169

QP Problems
3. 'A’ dies in 2012 leaving his wife, mother, two daughters,

sons and his father. Distribute the estate among them.
Answer: excluding father all other each heir shall receive a

share .
4.'A' dies intestate living behind his two widows 'Y' and 'x'
two daughters 'M', 'N' and one son 'Z" and mother 'k'.
Distribute the property among them.
Answer: two widows together shall receive a share and

the remaining each one shall receive a share
Hindu Male Page 170

QP Problems
5. A Hindu males owns self - acquired property. He dies intestate living behind
his mother , father, son and an illegitimate daughter. Assign the shares.
Answer: ??????
A child of void marriage is related to its parents within the meaning of section
3(1)(j) of Hindu Succession Act by virtue of section 16 of Hindu Marriage Act,
1955. Proviso to section 3(1)(j) is confined to those children who are not
with legitimacy under section 16 of Hindu Marriage Act; Rasala Surya
Prakasarao v. Rasala Venkateswararao, AIR 1992 AP 234.
Hindu Male Page 171

QP Problems
Bhandariswamy died leaving behind his self acquired property and his
unmarried daughter, two sons, one sister, and mother who got remarried
just before his death. Distribute his property.
Answer:?????
A, a Hindu dies leaving behind his daughter, son, father and mother in the
year 2007. Distribute the joint family property of the deceased among the
survivor.
Answer: 1/3
Hindu Male Page 172

Female Hindu
15. General rules of succession in the case of female Hindus.—(1) The
property of a female Hindu dying intestate shall devolve according to the rules set
out in section 16,—
(a) firstly, upon the sons and daughters (including the children of any pre-
deceased son or daughter) and the husband;
(b) secondly, upon the heirs of the husband;
(c) thirdly, upon the mother and father;
(d) fourthly, upon the heirs of the father; and
(e) lastly, upon the heirs of the mother.
(2) Notwithstanding anything contained in sub-section (1),—
(a) any property inherited by a female Hindu from her father or mother
shall devolve, in the absence of any son or daughter of the deceased
(including the children of any pre-deceased son or daughter) not upon the
other heirs referred to in sub-section (1) in the order specified therein, but
upon the heirs of the father; and
(b) any property inherited by a female Hindu from her husband or from
father-in-law shall devolve, in the absence of any son or daughter of the
deceased (including the children of any pre-deceased son or daughter) not
upon the other heirs referred to in sub-section (1) in the order specified
therein, but upon the heirs of the husband.
Hindu Female Page 173

Female Hindu
16. Order of succession and manner of distribution among heirs of a

female Hindu.—The order of succession among the heirs referred to in
section 15 shall be, and the distribution of the intestates property among
those heirs shall take place according to the following rules, namely:—
Rule 1.—Among the heirs specified in sub-section (1) of section 15, those in
one entry shall be preferred to those in any succeeding entry and those
included 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’s
death, the children of such son or daughter shall take between them the
share which such son or daughter would have taken if living at the intestate’s
death.
Rule 3.—The devolution of the property of the intestate on the heirs referred
to in clauses (b), (d) and (e) of sub-section (1) and in sub-section (2) 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.
Hindu Female Page 174

Sections 1 to 4
Preliminary Page 175

Introduction
The Dharmashastras did not deal with the law of guardianship of minor in any
detail.
Reasons:
1. The minor children mostly lived in the joint family and were always under the
protection of the Karta;
 Even after the death of the father, the child was not without protection;
whosoever was the karta protected the child
2. Even if a child was outside the pale of joint family, he, if belonged to the first 3
varashramas, had to go to guru's ashrama for study & was under the protection
of the guru.
The question of guardianship of minor's property could have arisen in

cases, where the child had no parents and was not a member of any joint
The King as the supreme guardian (parens patrie) protected all the children
and their property within the realm.
Introduction Page 176

Introduction
During the British regime,

The law of guardianship was developed by the courts
- Purshotam v Brundavan, Chennappa v Onkarappa, and some
other cases where the court held that the father is the naural
guardian of the children and after his death, the mother is the
natural guardian, and no one else can be the natural guardian
of minor children.
- Testamentary guardians were also introduced in Hindu law
- The Guardians and Wards Act, 1890 was passed
Introduction Page 177

Guardianship of the Person
 Guardianship as conceived originally was, in most systems, an extension

of paternal power.
 In modern law, it essentially implies an idea of protection.
 A minor is considered to be a person who is physically and intellectually
imperfect and immature and hence needs someone's protection.
 Sec. 4 (b) A guardian is "a person having the care of the person of the
or of his property or of both person and property" and includes
(i) a natural guardian,
(ii) a guardian appointed by the will of the minor’s father or mother,
(iii) a guardian appointed or declared by a court, and
(iv) a person empowered to act as such by or under any enactment
relating to any court of wards;
 Guardians may be of the following kinds:
1. Natural guardians
2. Testamentary guardians
3. Guardian appointed or declared by the court (De jure guardian)
4. De facto guardian
Guardianship of the Person Page 178

Natural Guardian
In Hindu law, only three persons are recognised as natural guardian, father, mother and
husband.
Sec. 6 Natural guardians of a Hindu minor.—The natural guardian of a Hindu minor, in respect
of the minor’s person as well as in respect of the minor’s property (excluding his or her
undivided interest in joint family property), are—
(a) in the case of a boy or an unmarried girl —the father, and after him, the mother:
provided that the custody of a minor who has not completed the age of five years shall
ordinarily be with the mother;
(b) in case of an illegitimate boy or an illegitimate unmarried girl —the mother, and after
her, the father;
(c) in the case of a married girl —the husband:
Provided that no person shall be entitled to act as the natural guardian of a minor under the
provisions of this section—
(a) if he has ceased to be a Hindu, or
(b) if he has completely and finally renounced the world by becoming a hermit
(vanaprastha) or an ascetic (yati or sanyasi).
Explanation.—In this section, the expression “father” and “mother” do not include a step-father
and a step-mother.

Father as a natural guardian
 The controlling consideration governing the custody of the children is the welfare of the
children and not the right of the parents; Rosy Jacob v. Jacob Chakramakkal, AIR 1973 SC
2090: (1973) 3 SCR 918: (1973) 1 SCC 840.
 Father is the natural guardian of a minor. In the absence of father, mother is the natural
guardian. The mother of the minor children was dead, but the father was not residing with
children, who were being looked after by the aunty. It was held that though father was not
residing with his children, he is still alive, has not ceased to be a Hindu or renounced the
and has not been declared unfit. This does not authorise any other person to assume the
of natural guardian and alienate the minor’s property; Essakkayal Nadder v. Sreedharan
AIR 1992 Ker 200.

Mother as a natural guardian
Githa Hariharan v. Reserve Bank of India & Vandana Shiva v Jayanta Bandhopadhaya,
(i) In the phrase "the father and after him, the mother" the word 'after' need not
mean after the lifetime of father. In the context in which it appears in section 6(a) it
'in the absence of ', the word 'absence' therein referring to the father's absence from the
care of minor's property or person for any reason whatsoever. If the father is wholly
indifferent to the matters of the minor or if by virtue of mutual understanding between
the parents, the mother is put exclusively in charge of the minor or if the father is
physically unable to take care of minor for any reason whatsoever, the father can be
considered to be absent and mother being a recognised natural guardian can act validly
on behalf of the minor as the guardian. Such an interpretation will keep the statute
within the constitutional limits otherwise the word 'after' if read to mean a
disqualification of a mother to act as guardian during lifetime of father the same would
violate one of basic principles of our Constitution i.e. gender equality;

Mother as a natural guardian
Jajabhai v. Pathankhan, AIR 1971 SC 315: (1971) 2 SCR 1: (1970) 2 SCC
717
(ii) Where the mother and father had fallen out and were living
separately and the minor daughter was under the care and protection
of her mother, the mother could be considered as the natural guardian
of the minor girl;
Sheela v Soli
Mother's right of guardianship is not lost on her conversion to another
religion so long as she is able to provide a congenial, comfortable and
happy home.

Husband as a Guardian
 Manu's text is in general terms and holds that the father protects a woman during her
maidenhood, her husband protects her during coverture, sons protect her during
widowhood; a woman is never free.
 Sec. 19 of the Guardians and Wards Act, 1890:
Guardian not to be appointed by the Court in certain cases:
Nothing in this Chapter shall authorise the Court to appoint or declare a guardian of
property of a minor whose property is under the superintendence of a Court of Wards
to appoint or declare a guardian of the person of a minor who is married female and
whose husband is not, in the opinion of Court, unfit to be guardian of her person,
1[***] of a minor whose father is living and is not in the opinion of the Court, unfit to be
guardian of the person of the minor; or

(c) of a minor whose property is under the superintendence of a Court of Wards
competent to appoint a guardian of the person of the minor.
----------
1. The words “subject to the provisions of this Act with respect to European British subjects”
omitted by Act 3 of 1951, sec. 3 and Sch.

Rights of Guardian of Person
a. Right to custody,
b. Right to determine the religion of children,
c. Right to control education,
d. Right to control movement and
e. Right to reasonable chastisement
Custody and access: welfare of children:The SC in Gaurav Nagpal v Sumedha
Parens patriae is Latin for "parent of the nation." In law, it refers to the public
policy power of the state to intervene against an abusive or negligent parent, legal
guardian or informal caretaker, and to act as the parent of any child or individual
who is in need of protection. For example, some children, incapacitated
individuals, and disabled individuals lack parents who are able and willing to
render adequate care, requiring state intervention.
Amit v Nirmal sahu,

Welfare of the child is the only deciding factor

Some instances
 Mother's remarriage,
 Reasonable wishes of he child in the age of discretion,
 A mother says that she has been living & will continue to live
her friends & would not mind begetting children from them. . .
 Custody of the child to the mother & grand father
 Convenience and pleasure of the parents is totally immaterial

9. Testamentary guardians and their powers.—
(1) A Hindu father entitled to act as the natural guardian of his minor legitimate children,
may, by will, appoint a guardian for any of them in respect of the minor’s person or in
respect of the minor’s property (other than the undivided interest referred in section 12)
in respect of both.
(2) An appointment made under sub-section (1) shall have no effect if the father
predeceases the mother, but shall revive if the mother dies without appointing by will, any
person as guardian.
(3) A Hindu widow entitled to act as the natural guardian of her minor legitimate children,
and a Hindu mother entitled to act as the natural guardian of her minor legitimate children
by reason of the fact that the father has become disentitled to act as such, may, by will,
appoint a guardian for any of them in respect of the minor’s person or in respect of the
minor’s property (other than the undivided interest referred to in section 12) or in respect
of both.
(4) A Hindu mother entitled to act as the natural guardian of her minor illegitimate children
may, by will, appoint a guardian for any of them in respect of the minor’s person or in
respect of the minor’s property or in respect of both.
(5) The guardian so appointed by will has the right to act as the minor’s guardian after the
death of the minor’s father or mother, as the case may be, and to exercise all the rights of
a natural guardian under this Act to such extent and subject to such restrictions, if any,
are specified in this Act and in the will.
(6) The right of the guardian so appointed by will shall, where the minor is a girl, cease on
her marriage.

• Guardians appointed by the Court
• Guardians and Wards Act, 1890
• Powers:
○ His powers are co-extensive with the powers of the sovereign
and he may do all those things (though with the permission of
the court) which the sovereign has power to do.

Guardianship of Minor's property
NG Sec. 8
TG Sec. 9 (5)
CG / De jure Sec. 27, 29 of G and W Act, 1890

Maintenance
The Hindu law of maintenance may be studies under the

three heads:
1. Personal obligation to maintain certain relations,
2. Obligation of a person to maintain the dependants of
whose property has devolved on him, and
3. Obligation of the joint family to maintain its members.
The law relating to (1) and (2) has, now, been codified by the
Hindu Adoptions & Maintenance Act, 1956
Maintenance as a Personal Obligation
Manu declared: "The aged parents, a virtuous wife and an infant
child must be maintained even by doing hundred misdeeds."
Maintenance Page 189

Cases_press release
Tuesday, November 29, 2016
8:23 PM
In what comes as a relief to a man who had defaulted on payment of

to his estranged wife, the Bombay high court quashed a non-bailable warrant
issued against him by a magistrate.timesofindia.indiatimes.com
HC: Husband may not be arrested for not paying maintenance - The Times of
India - http://toi.in/Mc2aKZ/a18ag
Maintenance Page 190

Course-IV: Family Law-I: (Hindu Law): Syllabus
Objectives:
The knowledge of family laws is important for lawyers. This course is designed to endow the students with
knowledge of both the codified and uncodified portions of Hindu law. The course concerns itself with the
schools, institutions, succession, maintenance, menace of dowry, etc.
Course contents:
UNIT – I
Introduction - Concept of Dharma - Sources of Hindu Law – Modern and Ancient - Importance of Dharma
Shastra on Legislation – Two Principal Schools of Hindu Law -Application of Hindu Law.
UNIT – II
Marriage and Kinship - Evolution of the Institution of Marriage and Family- Law Prior to Hindu Marriage Act -A
detailed study of Hindu Marriage Act, 1955 -Matrimonial Remedies - Maintenance and Alimony; Customary
Practices and legislative provisions relating to dowry prohibition.
UNIT – III
Hindu undivided family – Mitakshara Joint Family - Formation and Incidents - Property under both Schools –
Kartha: His Position, Powers, Privileges and Obligations - Debts – Doctrine of Pious Obligation - Partition and
Reunion –Religious and Charitable Endowment.
UNIT – IV
Inheritance and Succession - Historical perspective of traditional Hindu Law relating to Inhe ritance - A
study of Hindu Succession Act, 1956. Stridhana- Woman’s Property - Recent State and Central Amendments
Hindu Succession Act; Gifts and Testamentary Succe ssion – Wills.
UNIT – V
Law relating to Hindu Minority and Guardianship: Kinds of Guardians; Duties & Powers of Guardians; A
study of Hindu Adoption and Maintenance Act, 1956; Maintenance: Traditional Rights and Rights under Hindu
Adoption & Maintenance Act 1956.
Prescribed Books: Reference Books:

Paras Diwan – Modern Hindu John D. Mayne – Hindu Law Usages
M ulla – Principles of Hindu Law
Paras Diwan – Law of Adoption, Ministry Guardianship’s custody
J. D. M. Derrett – Hindu Law – Past and Present
Syllabus Page 191

Hindu Law

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Introduction - Concept of Dharma

Introduction and Concept of Dharma Page 1

Application of Hindu Law Page 2

• Word Hindu had a territorial significance

Application of Hindu Law Page 3

Gajendragadkar, J in Shastri v. Muladas

2. Belief in rebirth and pre-existence

A person who passes the test of Hinduness as laid

Various forms of Hindu Religion

Application of Hindu Law Page 4

A. Those who are originally Hindus, Jains, Sikhs

Followers of Hindu Religion:-

Application of Hindu Law Page 5

Sikhism - theistic (believes in

Application of Hindu Law Page 6

Sect. 2. Application of The Hindu Marriage Act, 1955

Application of Hindu Law Page 7

J. Das v. State of Kerala

Application of Hindu Law Page 8

Ram Mohandas v Travancore Devaswom Board,

Application of Hindu Law Page 9

1. If he is born of Hindu Parents

When both the Parents are Hindus: - Child is a Hindu

Application of Hindu Law Page 10

2 conditions should be satisfied

Under Uncodified and Codified Hindu Law - same

Sec. 2 (1) Expl'n. (b) of the Hindu Marriage Act, 1955

Application of Hindu Law Page 11

 Before the codified Hindu law it was well established that

 Bhuryyahs, Jats, aborigines of Assam, Kurmis, Mahtos, Santhals of Chhota Nagpur,

Application of Hindu Law Page 12

Sec. 2 of the Hindu Marriage Act, 1955.

Application of Hindu Law Page 13

Moral force that orders the universe

Application of Hindu Law Page 14

 Codified Hindu Law - no scope for existence of schools

The Mitakshara school Authorities

Mitakshara- Property of a deceased Hindu is partitioned into two ways

Mitakshara- In default of close heir, brother and immediate survivors

Mitakshara- The order of heirs is decided by nearness of blood.

a. As to how the coparcenary arises

Marriage and Kinship - Evolution of the

Law prior to HMA Page 22

Stage 1: Animal existence

Law prior to HMA Page 23

A union loosely uniting the couple

Law prior to HMA Page 24

1. Marriage: Minority, Lunacy, Fraud

Law prior to HMA Page 25

Law prior to HMA Page 26

Law prior to HMA Page 27

1. Brahma Vivah ( Marriage)

Law prior to HMA Page 28

Law prior to HMA Page 29

Law prior to HMA Page 30

Law prior to HMA Page 31

Law prior to HMA Page 32

Law prior to HMA Page 33

1. Marriage between persons of different castes is not prohibited

Brahma Approved Ashura Unapproved

Forms of marriages in modern Hindu law

 According to Narada, a man who withdraws from

Section 6 of Hindu Marriage Act, 1955has been

 laja-loma, the bride offers oblations to Aryama, Varuna,