22/01/2021

-Ancient law-6000 yrs

-Sources- modern and ancient

-Patriarchal – more prominent (male is head)

-Matriarchal- female is head of the family

-Virilocal- residence belongs to husband and wife goes in husbands family

-Uxirilocal – residence belongs to wife and husband goes in wife family (gharjamai)

~ types of family 1) extended family

2) composite family- two different families comes into agreement for staying together

(found in andhrapradesh)

*Joint family- 1) polygamous 2) poliamous 3)poliandres a. phreternal ( husband`s brothers are also
husbands), b. non- phretanal (many husbands bt not brothers)

*concubinage marriage

Husband and wife living together without legal marriage (not same as livein relationship)

*Process of social changes in india

1) sanskritisation-

- introduced by shrinivas- how the social changes happen and when it affect the rituals it affect
the family due to social changes in india

- when lower class people trying to be engage into higher class peoples, lower class peoples try
to benor follow high class peoples

- how the sanskruti changes is the basic line for sanskrutilisation.

2) westernization

3) industrialization – a. urbanization b. modernization

4) parochialism

5) secularization

family, traditions, customs, religious and political factors affects in india. Every factors are
connected to each other that affect the society.
 1/2/21

Sources of hindu law

 Ancient sources-
1) Shruti- to be heard
2) Smriti- Remenber
3) Commentaries & Digest
4) Customs & traditions

1) Shruti
- Means what is heard
- It is belived that nishi/ munis/ sasnt had reached the height of spirituality where they where
reached the knowledge of vedas
- It includes 4 vedas
a. Rigveda
b. Yajurveda
c. Samveda
d. Atharvaveda
2) Smriti
- Means what is remembered
- It is a systematic study & teaching of vedas
- The sages from time to time have written down the concepts hiven in the vedas
- In general it can be said that smriti is nothing but a written from of the knowledge of the
sages
- Famous smritis
a. Manustriti
b. Yajnavalkya smriti
c. Naradsmriti
 Dharmasutras –
- Mostly written in prose form and contain verses
- It was learning manual for sages for teaching students.
 Dharmashastra –
- Material verses and they were based on shastras
- More systematic than dharmasutras
 Manustriti
- Most important and famously used in india
- The name of real author is not known but he is known as manu
 Yajnavalya smriti –
- It was written after manusmriti
- It is considered as one of the important smriti
 - Language is very direct and lear
- It is more logical
- Gives importance to the customs but holds the kings below the law
 Naradsmriti-
- It was from Nepal and this smriti is well preserved
- It is a complete text which is available
- This is the only smriti that does not deal with religion and morality at all but concentrate
only on civil laws

3) Commentaries & Digest (nibhandhas)

- After 200 AD material of the work was done only on the existing material given under the
smriti
- The work done to explain a particular smriti called commentary
- Digests were mainly mainly written after 200 AD and in corporated & explained materials
from all the smrities i.e. manubhashya, manutika, mitakshara
* Atmaram v. Bajirao
-If commentary and digest complete smritis or puranas, commentaries and digest shall
prevail.
4) Customs and traditions-
- Local custom
a. Family
b. Class / cast
c. Guilg
- Ancient customes
a. Continues
b. Certain

Modern source of hindu law

1.Principle of equity , justice and good conscience

2.Precedent

3.Legislation

*Schools of hindu-

1.Mitakshara

2.Dayabhaga
Mitakshara school

-This school prevail throughout india except in bengal

-It is a running commentary on the code of yajnavalkaya

-Mitakshara is an orthodox school whereas dayabhaga is reformist.

-Rights in the joint family property is acquired by birth

-Females have no right of succession to the family property

-The right to property passes by survivorship to the other male members of the family

-Property of a deceased hindu is partitioned into two ways as a property of two rights

1.Ancestral property -property is partitioned according to the rules of survivorship

2.Seperate property- it is partitioned to the descendants

-In default of close heir brother and immediate survivor inherit ,the wife doesn't inherit.

-The orders of heirs is decided by nearness of blood

Dayabhaga school

Dayabhaga is a reformer school than Mitakshara

Rights in the joint family property are acquired by inheritance or by will and the share if a
deceased male member goes to his widow in default of a close heir

The descendants inherits the property ( joint and separate both)

If coparcener dies his widow will get the property in default of a close heir but she
cannot alienate .

The order of heirs is decided by the competents to of a pinda or shradha of deceased.

 MITAKSHARA DAYABHAGA
The right of a son by birth in ancestral a son is entitled to his ancestral property
property is equal to the interest of his only on death of his father. Father is
father. absolute owner of his property.
a son become coparcener right after his a son become coparcener by death of his
birth. His right is applicable to the propertyfather. This right is not available within the
of his grandfather and great grandfather. property of his father, grand father or
great grand father.
everyone is entitled to a property as a unit. everyone's share is defined. There is
Their shares are not defined, they have tenancy in common.
only the commodity of ownership.

one can't transfer his share to third party. one can transfer his share

joint property can be partitioned in that as the shares are defined one can easily
case it will be partitioned as it was in the partition its share.
case of the father.

 Coparcener-
1. It consists of a common male ancestor which is lineal descendents in the male line upto 4
degree inclusive of such ancestors.
2. Though no coparcenary can commence without a common male ancestor.
3. The continuance of the coparcenary is not dependent on the existence of a male ancestor.
4. The coparcenary may consist of uncles, brothers, sons, and grandsons of the common
ancestor upto three degrees.
5. Mitakshara school is based on blood relationship or the rule of propinquity which is a rule of
preference in succession.
6. A coparcenar is creation of law. It cannot be formed my contract between the parties.
7. The unique feature of coparcenary is community of interest and unity of possession
between all the members of coparcenary.
8. When anyone of the coparcener dies the surviving coparcener takes the property by
survivorship.
9. The undivided interest which each member of the coparcenary is entitled to its fluctuating
depending upon the birth and death of male member of the coparcenary.
10. The share reduces on the birth of a coparcener as person acquires the right to the property
from his birth.
11. If a coparcener consists of a father and his two sons then each coparcener is entitled to 1/3
of the property.
12. However if one more son is born now there are 4 coparcener thai is share shall be 1/4.
13. In the same way undivided interest will be agumented by the death of coparcenar as one
member will be less to share the property.
  Female coparcener* in Mitakshara law( imp )
- A female could never be a coparcener under Mitakshara law.
- She has a right to receive maintenance and in some case succession.
- An unmarried daughter has a right to receive her marriage expenses.
- The widow of a member in the Mitakshara family in place of a deceased husband if he dies
sonless she is entitled to the share of her husband though undefined. However she has
limited state.

- Though coparcenary pass from a common ancestor upon his death, the male holder can
start the coparsoner . In that case it will not be restricted to 4 th generation from the original
ancestor.
- The next coparcenar can have a male members in descent upto three generations from
himself.
- Ex- while a son , a grandson or a great grandson is coparcenar , a great great grandson will
not be coparcenar.
- An adopted son becomes part of the coparcenary in which he has been adopted.
- An insane coparcenar is also entitled to the right of survivorship.

 Power to alienate coparecenary property( short note question)

A)Father

B)Karta

C)Coparcenars

D)Soul surviving coparcenar

A) Father's power of alienation

1.He can give gifts out of love and affection.

2.He can alienate hindu undivided family property for discharging his personal debts.

B) Karta's power of alienation

1.Apatkale

2.Kutumbharate
 3.Dharmarthe

1. Legal necessaties- it means or includes all those things which are necessary and reasonable. Any
alienation of joint family property without legal necessity is not binding on the family. For example- food
, clothing, shelter, marriage expenses, medical care , performance of necessary ceremonies, for building
residential house, payment of debts, payment of government dues.

2. Benefits of estate- anything which is done for the benefit of the joint Hindu family property

3. Religious purposes- the performance of indispensable duties like religious pios or charitable acts. Ex-
shraddha or any other necessary samskara.

C) Coparcenar's power of alienation

1.voluntary alienation-- it includes sale or mortgage, gift or will.

2. Involuntary alienation- undivided interest of a coparcenar can be attached and sold in

execution of a decree against him for his separate debts.

D) Soul surviving coparcenars right of alienation

He can dispose of the entire property as if it was his separate property. Such an alienation
cannot be challenged by a subsequent bond or adopted son.

 Property
Partition – division
- Partition in hindu joint family is processed by which joint family status among the
coparcemers come to an end
- partition is a division of of the property which is held jointly by some person
- so that each person gets his share and becomes the owner of the share allotted to
him/her

Case law – raghavamma vs chenchamma

1. There should be imitation, indication or representation of intention to separate.

2. It is obvious that such intention to separate should be effected after giving knowledge to
the person affected.
3. Under mitakshara, no coparceners has any specific share in the property as long as property
remains joined . the share of coparcener is fluctuating and undefined.
 4. Partition is several of join status with partition the fluctuating undivided share become
definite.
5. No consent of other member or the decree of the court or any writing is required to bring
about partition
6. There is no need of actual meets and bounds if the share are define
7. The test for the partition under mitakshara is not whether is actual division of the property
but to see that the rights of the members are define and specific.
8. Once the share become specific the property does not remain as tenets in common.
 Partition under Dayabhaga
1. Here the share is defined even when family is undivided
2. Every adult male or female can enforce partition in coparcenery property
3. During the lifetime of the ancestor the son or great grandson cannot enforce against him,
as he holds the property absolutely.
4. A widow does not have any wested right in the property of the dead husband, she has only
right to receive maintenance.
 TOPICS UNDER PARTITION
1. Modes affecting partition
2. Reopening of partnership
3. Partial partition
4. Effect of partition
5. Reunion
 Modes of partition
1. By way of declaration to separate
2. By registered notice
3. Family arrangement
4. Partition by arbitration
5. Cesar in commensality
6. Marriage under special act
7. By specification of shares
8. On agreement
9. By will
10. By conversion or apostasy
11. By sale by one to another coparcener
 Person entitled to partition
1. Son’s grandson or great grandson
2. Son begotten at the time of partition but born after partition
3. Son begotten and born after partition will entitled to reopening of the partition
4. Illegitimate child
5. Adopted son
6. Purchaser
7. Absent coparcener
 8. Disqualified
9. Wife
10. Widower mother
11. Grandmother
12. Illegitimate son
 Allotment of share on partition
1. If the partition is taking place between father and son, each son take equal share to that of
the father
2. If the joint family consist of brothers, they all take equal shares.
3. Some cases there is a custom of giving an extra share to the eldest son, it is also called as
jyeshtabhaga.
4. Each branch takes per stripes. The members of each branch take per capita as regards each
other.
 Impartible estate
1. According to manu, the following things are declared not to be liable for partition
a. clothes, vehicles, ornaments, cooked food, women, well, sacrifices, pious acts and
common way.
b. All coparecenary property can bs divided on partition but some properties Which
doesn't admit of division by its very nature.
Ex- animals , furniture, etc. Cannot be made subject to partition. Even idols,
place of worship aren't divisible. They can be held by coparcenar in terms. It can be sold
and its value can be distributed and enjoyed by all the coparcenars in terms for a
specific time.
2. Before any property is made subject to partition following provisions has to be taken care
of-
a. Maintenance of dependent members and disqualified heirs.
b. Joint family debts which are payable out of the joint family property.
c. Personal debt of the father provided it is not illegal or immoral.
d. Marriage expenses of unmarried daughter
e. Funeral ceremony if widow and mother of the last male holder , in case partition takes
place between the sons after the death of the father.
f. Expenses of the threat ceremony of the joint family.
g. According to amendment of 2005 , of Hindi succession act, daughters are considered to
be coparcenar thus their marriage expenses or maintenance is not provided, as they will
receive the same share like that of the sons.
 Reopening of partition

As per the courts , partition once effected is final, yet it can be reopened in case of fraud,
mistake or subsequent recovery of property. If by some mistake over sight of fraud some portion are
joint property remains executed from partition , readjustment can be made , a partition need not be
reopened.
The partition can be reopened in the following circumstances-

1. When a son is begotten at the time of partition but is born after the partition. If in this case, no
share was reserved for him then he can seek to reopen the partition.
2. When the son is begotten and born after the partition he can claim or seek to reopen the
partition only when his father has not reserved any share for himself.
3. When a son is validly adopted by his widow after the partition.
4. when any coparcenar has obtained in the partition and unfair advantage upon another by
'fraud'.
5. When a coparcenar is by 'mistake', put under some disadvantage .
6. When the partition was prejudicial to the interest of the minor.
7. Due to disability a coparcenar was disqualified during the partition and now if he has get rid of
sale.
8. When the coparcenar was absent and no share was allotted to him at the time of partition.

Case laws

a. SukhRani v/s HariShankar

The SC observed that the partition affected was unfair or prejudicial to the minor's interest
and it could be reopened for the minor instance even if there was no fraud or undue influence or
misrepresentation.

b. Ratnam Chettiar v/s S.M.Keppuswami

It was held that the partition can be reopened on the ground of fraud , coercion,
misrepresentation or undue influence.

c. Venkata Subramania v/s Eswara

It was held by Madras HC that when in a partition when one member gets an excess share
out of which the acquired fresh property, he will be liable to account for co- ownership funds used
by him.
 Partial partition
- Kashinath Pamosa v/s Narsingra Bhaskara

The SC held that it is opened to the member of a joint Hindu family to divide a part of a
joint family property by restraining status of a joint family and holding rest as property of the
joint as an undivided family. But once it is shown that there is intention to severe, the joint
status comes to an end.

- Hari v/s Ganpatrao

There are general rules which are subject to certain qualifications as laid down-

1. Where different portions of such property are situated in and out of india .

2. Where property was excluded through mistake, accident, or fraud at the time of
previous partition

3. Where property is held along outsiders

4. Where the item excluded is the impartiable property.

A suit for partition by coparceners need not be for the whole of the property in certain
property
1. Where different portions of property are situated.
2. Where the portion of the property is not available for the actual partition ex- of the property
is in the possession of the mortgagee
3. Where the property is held in partnership by the joint family along with strangers, and no
interest in the family partition and they can't be made parties to it
4. Where the property was excluded through mistake accident or fraud at the time of previous
partition

- K T Prasad v/s C.I.T

The following principles were laid down by the supreme court –

1. Where there is a partition it is presumed that it was a total partition as regards

person and as regards property.

2. Where there is partition between brothers the presumption is that the partition is
between brothers and their descendants.

3.Partial partition has to be provided by the one who alleges

4. It is not required by hindu law that in case of partition , property should be divided
by meets and bound.
 5. If a coparcenar declares his intention to separate it brings above severance of joint
family.

 Effect of partition
1. The effect of partition is the dissolution of coparcenary. The members hold their shares
as separate property.
2. On the death of the member the property devolves by succession on his heirs.
3. In the case of partition between undivided son and his father, the undivided son takes
his share in the self acquired property of his deceased father, to the exclusion of the
divided son.
 Reunion
1. Even under Mitakshara once separated or divided if comes together they are told as
reunited.
2. It can be in the written or in the verbal form.
3. There must be an agreement between the parties to reunite in state with the intention
to revert to their former status as member of a joint family.
4. Reunion can takes place only between the persons who are parties to the original
partition.

- Kristraya v/s Venkatramia

It is established that under Mitakshara and dayabhaga school after reunion the status
quo ante is fully restored.

A partition of property of father and his two sons A & B subsequently as son S is born to
father, A and B can be reunited with the each other or with father but can't be reunited
with S ( who born later).
 Doctrine of factum valet

- Wooma Davee v/s Gokoolnund

Before passing the Hindu adoption and maintenance act this doctrine will apply to the

It was held that the text which prohibits the adoption of only son are nearly directory,
so also are those which enjoying the adoption of a relative in preference to a stranger.

 Pious Obligation
1. This doctrine is based on the benefit that will accure to the soul of the father by the discharge of
his earthly obligation.
2. The son by paying the debts of his father releases his father from hell that is called son as putra.
3. Under the law, the obligation of the son is not personal obligation irrespective of the assets
received by son as his share in joint family property, it is limited only to the son interest in the
 coparcenary property. It is the liability only to the son. The liability is limited only service
drawing of the son.
4. the liability of the son is to paid the debt with interest whereas the grandsons liability is limited
to the payment of principal only.
5. The liability of the son is not personal in the sense that the creditor of the father cannot proceed
against the personal or separate property of the son.
6. The liability of sons, grandson and great grandson to pay to discharge the debts of the father is
only as not only the debt payable by the father.
7. The son is not liable for debt contracted by the father after partition but he is liable only for the
debt before partition.
- Siddheshwar mukharji vs. bhuleshwar Prasad

The court observed in respect the origin of doctrine, ‘This doctrine has its origin in the
conception of smriti writer who regard non-payment of debt as a positive sin, the even
consequences of which follow the undischarged debtor even in the afterword. If the
debts have been contracted by the father and they are not immoral or illegal, the
interest of the sons in the coparcenary property can always be made liable for such
debts. Since the liability of the son is pious. The son is liable only if the debts id not
avyavarikha.

 Avyavaharika debt

Mulchand hemraj vs. jayram chaturbhuj

- The Debts which are held to be not lawful, usual, or normal or immoral are called as
avyavaharika debt.
- The son, grandsons, great grandson is not obliged to pay the avyavaharika debt of father.
- Debts like incurred for spiritual likes, influence by, gambling unpaid fines, promise made
without consideration, debts of being surety for the appearance, time bard, debts occurs for
cases repugrdgent to good morals, debt can be incurred for purpose of spending in
marriage of father in the consequences, malicious prosecution passed against father.

 Special liability of son to pay fathers debts

1. The undivided interest of a coparcenry property is always liable for the payment of it's
personal debt during his Lifetime. It can be attached in his Lifetime in a execution of a
decree passed against him for his debt. It can also be sold after his death if the property is
already attached.
2. The undivided interest if the coparcenar cannot be attached after his death because it
passes to the surviving coparcenar. The debtor coparcenar is not attached during his life
time the creditor would be absolutely without any remedy.
 3. Under Mitakshara law, when the coparcenar is constituted between father and his sons, the
entire coparcenary property is liable for the debts of the father even if the property is not
attached in the Lifetime of the father.

 Antecedent death
It means antecedent in time as well as facts. The death must be truly independent of
and not part of transaction increase of challenge the true transaction must be follows it
is not necessary that two creditors be different persons.

 Laws of debts under dayabhagha

In dayabhaga pious obligation not recognized by in ancestral property.

 Modern sources of hindu laws

- Hindu marriage is a religious sacrament unlike Islamic law it is not contract. Hindu
philosopher treated hindu marriage as a part of custom i.e, achar but not as a part of law
( vyavahar).
- It is an act by performance of which a thing become fit for a certain purpose. According to
vedas, ‘dharma’ must be practiced by man together with his wife.
- For a hindu marriage it is obligatory not merely for begetting a son but to discharge his
duties i.e, spiritual and religious .
- The wife in hindu law is just not a grihapatni but also a dharmapatni and sahadharmini.
- The marriage under hindu law is not only a sacrament but also a contract. Under ancient
hindu law, marriage is the last of the ten sacraments and it is a tie which can never be
broken. According to smritikars even death cannot break the relationship of husband and
wife. As per vedas, it is a union of flesh with flesh and bone with bone which is indissoluble .
The wife is half part the body of the husband that is “ardhangini’ that is who shares with him
equally the fruits of his act good or bad.

 Forms of marriage
- In grihyasutra and earlier dharma sutra the marriages were only if two forms : brahma
marriage and shulka marriage whereas other forms were later developed by yajnavalkaya
and Manu named 8 forms of marriages.
- Brahma marriage, Daivya marriage, Arsha, Prajapati all are approved form of marriages.
- Gandharva, Asura, Rakshasa, Paishacha are unapproved forms of marriages under during
ancient law
- In brahma form of marriage , bride is a gift to the bridegroom and there is no consideration .
- In asura form of marriage, the parent or guardians receive consideration which is called as
Shulka or bride's price.
  Caste and marriage
- to marry in the same caste was not approved because Hindu believed that people of the
same castes are *agnates*.
- It means that females of the same caste were considered to be the daughters of agnates.
 unapproved marriages
- Anulom - marriage between male of higher caste and female if lower caste is valid
- Protilom- marriage between male of lower caste and female of higher caste , it was
considered invalid.

 Guardianship in marriage (MCQ)

- Under Mitakshara school, father , paternal grandfather, brother, other paternal relation of
bride in order if proxamity and last is mother
- Under dayabhaga , father, paternal grandfather, brother, other paternal relation if bride in
order if proxamity , mother , maternal grandfather , maternal uncle.
- Polygamy is allowed in hindu law, but polyandry is not allowed. Marriage is indissoluble and
divorce is not allowed at all.
- A widow whether can remarry
according to manu, remarriage is not allowed because second husband of a pious
lady is not ti be found anywhere.

But a women can remarry in five situation

a. When husband is unheard of

b. When husband us deaf
c. When he becomes outcaste, When he becomes impotent
d. When he is atheist (does not believe in god)
e. Uncle, nephew is known as collateral descendent.

 SUB-SCHOOLS OF MITAKSHARA LAW

- Banaras school
A.It extends to the whole northern india expect in rural Punjab where it authority has
been considerably modified by customary law
B. the main authorities are- 1. Virmitradya 2. Nirnaya sindhu

- mithila school

It operates in triput and northern bihar. And the authorities are 1. Vivada chintamani 2.
Vivada ratankara

- Bombay school
It extends to the western india including the whole presidency as well as berar. The
main authorities are vyavahara mayukha and vitimitrodya and nirnaya sindare
 - Madras school
It is also called as dravida. It covers southern india. The authorities are smiti chandrika,
prashara madhriya, sarwasti vishala and vyavhara nirnaya

Migration and domicile

 Migration
- Where are hindu migrates from one part of india to another prima facie he carries with him
his personal law. If it is alleged that he ahas become subject of local law then it must be
proved.
- Ordinarily, the law of locality in which hindu family lives is its personal law. So when he
migrates he carries with him his personal law including the customs having the force of law.
This presumption is rebuttable, if it is proved that the person has adopted the custom and
usages where immigrated to live.

 Domicile-
- Under hindu law, if nothing is known about the person except where he lived it is assumed
that his personal law is the law of that place.
- Domicile is not of much importance under hindu law.
- It become important only in those cases where a person claiming to be hindu is outside
India.
- Example
a. a Hindu domiciled in india but living in England performs a Hindu marriage as per
Hindu marriage Act there. It is necessary that he must comply with the formalities
under hindu marriage Act and for solemnisation of marriage or will it is enough to
follow the local law.
b. It is a rule of private international law that capacity to marry is doubled by law if
domicile and the formalities are governed by the local law.
c. So now he is governed by foreign marriage Act.
d. But he can seek any matrimonial releif in India by showing that he is a hindu, under
the Hindu marriage act.

Lineal descendant
A lineal descendant, in legal usage, is a blood relative in the direct line of descent –
the children, grandchildren, great-grandchildren, etc. of a person.
Lineal ascendant
 It means a straight line of relationship upwards. For instance, a son, his father
and grandfather would constitute a lineal ascendancy.
 HINDU MARRIAGE ACT
Section 3 – definitions

a. V
b.
c. “full blood” and “half blood”—two persons are said to be related to each other by full blood
when they are descended from a common ancestor by the same wife and by half blood when
they are descended from a common ancestor but by different wives;
d. “uterine blood”—two persons are said to be related to each other by uterine blood when they
are descended from a common ancestress but by different husbands; Explanation.—In clauses
(c) and (d), “ancestor” includes the father and “ancestress” the mother;
e.
f. (i) “sapinda relationship” with reference to any person extends as far as the third generation
(inclusive) in the line of ascent through the mother, and the fifth (inclusive) in the line of ascent
through the father, the line being traced upwards in each case from the person concerned, who
is to be counted as the first generation;
(ii) two persons are said to be “sapindas” of each other if one is a lineal ascendant of the other
within the limits of sapinda relationship, or if they have a common lineal ascendant who is
within the limits of sapinda relationship with reference to each of them;
g. “degrees of prohibited relationship”-two persons are said to be within the “degrees of
prohibited relationship”—
(i) if one is a lineal ascendant of the other; or
(ii) if one was the wife or husband of a lineal ascendant or descendant of the
other; or
(iii) if one was the wife of the brother or of the father’s or mother’s brother or of
the grandfather’s or grandmother’s brother of the other; or
(iv) if the two are brother and sister, uncle and niece, aunt and nephew, or
children of brother and sister or of two brothers or of two sisters;

section 5 – conditions for hindu marriage

1. Monogamy
- Prohibits polygamy and polyandry which was permitted before the act came
into force
- The spouse should not be living at the time of the marriage, if it falls, then it
attracts sec 494, & 495 of IPC and it is also punishable under sec 17 of HMA.
Case law - Sarla Mudgal Vs uoi

The husband converted himself by adopting to Islam, then married another

wife. Here, the question was whether by conversion the first marriage is
annual or it becomes void and whether husband commits the offence of
bigamy.
The court held that the first marriage persists and the husband commits the
offence of bigamy. Against this an appeal was filed by the husband. This
appeal was disposed off.

Case law - Lily Thomas vs UOI

The same question arose before the court for the consideration. The SC
held that conversion doesn't automatically dissolved first marriage.
According to sec 17 of HMA, bigamous marriage is an offence. Any marriage
solemnised by the husband during the subsistence if the first marriage is
void under sec 11 and is punishable u. sec 17 of HMA read with sec 494 &
495 of IPC.

In this case also the court affirmed the decision of Sarla Mudgal case
and dismissed the husband appeal.

2. Absence of unsound mind

o The second condition for a valid marriage under the act is neither party should be
idiot lunatic or suffering from recurrent attacks of insanity or epilepsy.
o Under the old hindu law an idiot or a lunatic could marry but the present act has put
an end to this practice by making free consent necessary.
o As per the conditions mentioned under the Act, at the time of the marriage neither
party-
a. if he is incapable of giving valid consent due to the consequences if
unsoundness of mind
b. even if the person is capable of giving valid consent has been suffering from
mental disorder to an extent to be consider unfit for the marriage and
procreation of children.
c. subject to reccuernt act if insanity or epilepsy.
o If the above conditions are not fulfilled then the marriage becomes voidable under
sec 12 of the Act.
o If insanity super wings subsequent to the marriage it cannot be annulled.
o The onus is on the person to prove the lunacy to make the petition for annulment of
marriage.
 o The presumption is in favour of validity of marriage and mental capacity of the
spouse entering into the marriage ceremony.

Case law - Vineeta Saxena vs. Pankaj

It was held that mental disorders should be such a of a grave and serious nature
that the relationship in marriage become hazardous.

Case law * Mini Mathur vs. James*

It was held that the respondent was suffering from schizophrenia. At the time of
the marriage it would be sufficient ground for declaring the marriage null and
void.

3. The bridegroom has completed the age of 21 years and bride has completed the
18 years of age at time of marriage

4. Prohibited degree of relationship

- It is an punishable act
- If any particular community permits marriage between prohibitive
relationship, it is valid
- Case law- lata singh vs state of UP
Where there was an intercast marriage is criminal case filed
against a boy, in spite the statement of court that she married
of her free will.
The SC squashed the criminal proceeding, as abused of process
of court of law and directed the state to protect the parties. The
SC also stated that cast system is curse of the nation and such
intercast and interreligious marriage are in nation interest .
5. Sapindas-
Case law - arun navakar vs meena navakar
It was held that sapindas relations is a specific ground
from voidability of marriage unless parties to the marriage prove that
there is a custom of sapindas amongs in the community.

Section 6 – guardianship in marriage

Section 7 - ceremonies of hindu marriage

- The marriage is solemnized with certain customary rights on ceremony.

- It includes saptapadi. The marriage is complete with 7 steps which taken.
- Out of which kanyadan, vivah human and agniparinaujan and saptapadi are most
important ceremonies.

Case law – s. nagalingam v/s shivgami

- It was held that saptapadi is not a necessary ceremony as part of customary

right, it need not perform if there exist such different rights and ceremony has
to be established by party and they should be regarded as customary
- They must stand the test of time and should have cources of law without any
discontinue.
- If the non-performance of this customary ceremony whichever applicable to either party
or both would render to marriage void and prostitution of wide and que for bigamy
ceremony
- Mere admission of marriage by accused in the answer of prove of necessary ceremony is
no evidence of marriage for purpose of moving the offence of bigamy.

Case law- bhaurao Shankar lokhande v/s state of Maharashtra

The SC held that the word solemnized means marriage celebrated with
proper ceremony in due of course, it can`t said to be said to have beem
solemnized merely going to certain ceremony with the intension that the
parties to be taken to marriage will not meet ceremony by law and approved
by any established custom where it is proved before court that the marriage
is in fact perform the court will presume that it was valid marriage and that
necessary ceremony in perform. A person who challenges marriage has to
rabbet both this presumption.

o Law presume that when an man and women professing as husband and wife cohabited for
long time and if society has recognize relationship a presumption would that they are legally
held husband and wife.
Section 8 – registration of hindu marriage

o To separated proof of hindu marriage, state government made it compulsory for

registration of marriage in the that state.
o If the state government made it compulsory and any couple does not comply with it
they shall be punished with a fine which may extend to Rs. 20/-
o The marriage register maintain shall at all reasonable time to be open for
registration and it is admissible as evidence.

Case law- vinaya nair v/s corporation of kochi

Laid down that failure to provide compulsory registration of marriage has prejudice the
right of women and children

Section 11 – void marriage

Section 12 – voidable marriage

Case law : ruby roy v/s sudarshan roy

When the groom selected his wife with total knowledge of the defect it would
spoken from arguing that marriage was tainted.

Case law : beepyan chatterjee v/s papiya chatterjee

Where the annulment on the ground of fraud detailed which professional there
were no relevancy at parties are liberty to verify the fact.

Case law: Elizabeth v/s Stanley

In this case on the ground of impotency of the husband a divorce petition was
filed by wife it was proved that spouses for 4 months but the husband could not
has sexual intercourse with his wife, could held that this laid to conclusion that
the husband to rebate such contention.

Case law: surjit singh v/s kanwalit kaur

It was held that allowing medical examination to prove has virginity amount to
violation of right to privacy.

Case law: alka sharma v/s abhinesh Chandra

Wife were found on first night of the marriage no consumption, she was unable
to handle domestic violence of family members.

It was held that he wife was suffering from schizophrenia and husband was
entitled to decree of the nullity of marriage.
Section 16 – legitimacy of children of void and voidable marriage

- The section as amend by the marriage law act 1976 lays down that the children are
voidable and void marriage whether declare void and not are legitimate
- Even after amendment the position of children inheritance remains the same. The
children of annual voidable and void marriage are heirs to their parents alone and non-
heirs.

Case law: g mirmalamma v/s seethapati

The children of void marriage become member of family and held stared or as a
son by virtue of that as entitled to a right of survivorship.

Case law : sarijamma v/s lillama

Son of void or annealed voidable marriage is coparcener.

Section 9 – restitution of conjugal rights

Case law : T sareetha v/s T venkata subbaiah

The constitutional validity of sec. 9 of HMA arose, the court observe that the
remedy of constitution of conjugal rights provided us was barborous remedy
violating the right to privacy and human dignity under art. 21 of constitution,
hence it is void.

Case law: saroj rani v/s sudarshan kumar chadda

The court held that sec. 9 is not violating art. 14 and 21 of constitution. The
court pointed out that a decree for restitution of conjugal rights serve social
purpose as an aid to prevention breakup in marriage. In case to order of disobey
the court has no mean the enforce the sexual intercourse between spouse in
such situation defective spouse property can attach if the parties does not
resume cohabitation for the period of 1 year more laid down in sec. such as a
decree either party can obtain a divorce on the ground alone

Section 13 – Divorce (imp)

Section 13 (A) (1) deals with divorce

The dissolution of marriage by decree of divorce can be obtained on the following

ground

a. Adultery
Case law- miller vs minister of pension
 Such problems did not reach certainty but must carry a high degree of
probability
b. Cruelty –
Case law – punam gupta v/s ghansham gupta
Husband filed divorce on ground of cruelty but he was unable to prove it. The
defendant made counter allegation of misbehavior and torcher it was show that
the two can`t live together. During the pendency of petition husband remarry
and has two child from marriage. The decree of divorce in such circumstances
can be given.

Case law : A jaychandra v/s aneel kaur

SC stated that cruelty may be mental, physical, intentional or unintentional. If it
is physical the question of facts and decree needs to be consider if it is mental whether
it cause reasonable apprehential unlike of other
SC observe that mental cruelty can be define as that conduct which inflict upon
the others market such mental pain and suffering as would make it possible to live
together.
c. Desertion for continues period of 2 years.
Case law- jagdeesh v/s geeta
Where wife went to her parent`s house for delivery but refused to return unless
the husband earn more income and was financially secured. She also refused to resign
from her job. The court found her guilty of desertion.

Case law- bipin chander v/s prabhawati

The court observe that in case of desertion the below grounds must exit
a. The fact of separation
b. Animus desendi(intension to force the aggrieved facts)
d. The spouses has seized to be a hindu by conversion
e. The person is unheard for 7 years or more
f. Judicial separation
Case law – rambabau v/s sandhya
Alahabad HC which scrutinizing avidence to determine divorce is sort the very
fast of breakdown of marriage can be taken into consideration.

g. Non-restitution of conjugal rights

Case law – A V Janardhan v/s M aruna kumara
Both parties willing to a for leading marital life jointly. The court observe that
non-compliance of decree for restitution of conjugal rights hence husband entitled to
ground for divorce
h. Renouncing the goal by entering into religious world
i. Insanity, incurable and minor
j. Mental disorder
 Case law – ramnarayan gupta v/s smt rameshwari
SC examine the decree of mental disorder which enable an aggrieved party a decree of
divorce
The spouse as phrinfrenic is not sufficient the decree of mental disorder of spouse her
to be whom and shout be other spouse for reasonable experty to lived in her.
k. Leoporsy; it is a vicalaunt and incurable

Additional grounds in favor of wife

Section 13(A) (2)

1) Bigamy
2) Rape of solemnization of marriage
3) Non-resumption of cohabitation after order of maintenance
4) Ovation of puberty
it the wife is 15 yrs of age she wants to repugnant the marrying of attending
age but before attending 18 yrs. a decree if divorce can be obtained whether
the marriage is consummated or not.

Case law – rameshkumar v/s sunitadevi

It was held that wife can filed petition under clauses only after attending
age of 15 years.

Section 13 (B) – Divorce by mutual consent

Case law – rajashri v/s rajendra

It was held that bar of collusion under section 23 (1) ( c ) of the act can`t apply
to divorce on mutual consent

Case law – rupali v/s sunil

Has reverse the order of lower court where the wife has withdrawn her consent.

The court held that where consent his withdrawn divorce by mutual consent
can`t be allowed.

Case law – karanjeetsingh v/s neelam mann

The division bench of hariyana HC has held that the waiting period of 6 month is
mandatory and divorce decree by trial court before 6 months was reversed
Section 14 – no petition for divorce to be presented within one year of marriage

- No court shall entertain a petition for divorce before the expiration 1 year period
from the date of marriage
- The court may entertain before 1 year only in case of exceptional hardship to
petitioner or exceptional depravity to respondent.
- The section has duel purpose 1st is to not encourage divorce and 2nd is to provide
adequate and enough time to make out differences.
- Section 14 also provides that the interest of children born out of the marriage and
chances of reconciliation between parents.

Case law- Deepayan Chatterjee v/s Pipiya Chatterjee

In case there is a leave granted to institute divorce proceedings within one year of
marriage and there was no raising of objection by either of the parties and the trial
continue the parties are not at liberty to raise objection stating as granting of leave
improper .

Section 15 – divorced person when may marry again

- When the marriage has been resolved and there is no right of marriage against decree of
court
- If there is right of appeal the time has expired without appeal.
- A appeal has been filed but has been dismissed

Case law - Krishna gopal v/s prabha

The husband remmarried after getting an exparte divorce, the wife later got exparte
decree setting aside the divorce and the husband was prosecuted for bigamy. The
SC squashed the proceedings .

Case law - Savita pandey vs premchand pandey

It was held that if a party marriage during the pendancy of appeal he or she
does that in her own risk.

Section 17 – punishment for bigamy

- If the marriage is solemnized after the commencement of the HMA

- at the date of marriage either party has his spouse living.

Under the above condition sec 17 of the act makes the marriage void.
 Case law - Lily Thomas vs UOI

The SC observed that under the hma a bigamous marriage solemnised by the husband
during the subsistence of that marriage in spite of the this conversion to another
religion would be an offence triable under sec 17 of HMA.

Section 18- punishment for contravention of certain other condition for hindu marriage

Section 19- Court to which petition should be made.

It provide 5 alternative forums which invoke to filed petition in district court

1. Whether marriage was solemnised.

2. Where the respondent reside
3. Where the parties last resided together.
4. Where the wife is the petitioner
5. where she resides.

Sec 21-

The petition can be disposed within six months from the date of service of the notice of the
petition on the respondent.
 OFFENCES AND PUNISHMENT UNDER CHILD MARRIAGE ACT

OFFENCE PUNISHMENT
1. if the child contracted into Simple imprisonment or fine upto rs
marriage that is male between 1000/- or both
the age of 21 years
2. if the male is above the age of 21 Simple imprisonment upto 3 months
years and fine
3. whoever perform, conduct or Upto 3 month imprisonment and fine
directs ant child marriage
4. if parents or guardians contracts Simple imprisonment upto 3 months or
child marriage or does any act to fine
promote marriage or permits
solemnization or negligently face
such solemnization
5.if a person knowing that an injunction - imprisonment upto 3 months or fine
has been issued against him still upto 1000 rs or both
disobeys the order - women shall not punish with
imprisonment for contracting a child
marriage

Section 5 – neither void nor voidable

Sec 5 of the act said that the marriage is not void or voidable

Case law - Gadela v/s Gadela

The Andhra Pradesh HC laid down that a minors marriage in violation of the HMA shall
be void ab initio. Marriage solemnised in contravention of section 5 of HMA are neither
void or voidable but are punishable under HMA.
 DOWRY PROHIBHITION ACT 1961

SECTION 2- Dowry

- As in any property or valuable security given or agreed to be given

- Either directly or indirectly
- By one party to a marriage to the other party
- By parents of either party to marriage
- By any other person to either party to marriage
- Or to any other person
- At or before or any time after the marriage.

CASE LAW- shanti v/s state of hariyana

It was held that section 304 of IPC has following essentials

1. Death of women should be caused by burn or bodily injuries or

otherwise then under normal circumstances
2. Such death should have been occurred within 7 years of her marriage
3. She must have been cruelty or harassment
4. Such cruelty or harassment should be in connection with demand of
dowry

Case law – kundule balasubramanyam v/s state of Andhra Pradesh

The lack of education and economic dependance of women have encouraged

the greedy preprators of the crime what is needed is a wider social movement
of educating of the rights to conquer the of Dowry deaths , particularly in rural
areas where women are still largely uneducated and less aware of the rights.
 Hindu minority and guardianship act, 1956
Who is eligible for adoption? (Section. 10)

- He or she is a hindu .
- He or she has not already been adopted the child is not married unless there is a custom
which allows such person to be adopted.
- The child has not completed the age of 15 yrs unless there is a custom or a usage which
permits person over 15 yrs to be adopted.

Case law - R Minakshi Ammal v/s . Velusami

It was held that in the absence of certain circumstances the only son being given
in adoption would be unusual or improbable .

Case law - Virendra singh v Kashiram

The age of the adoptee was 25 years at the time of adoption, in absence of any
proof of any custom, the adoption was held to be void.

 Other conditions for valid adoption

1. If a son is being adopted the adoptive father or mother should not have son , son's son
living at the time of the adoption.
2. of a daughter, the adopter should not have a daughter or son's daughter natural or
adopted living at the time of Adoption.
Case law - Sandhya v/s UOI

The petitioner wanted to adopt 2nd female child and challenge the
constitutional validity that only son on daughter could be adopted It
was held that the personal law does not come in the definition of law
under article 13 of the constitution hence it doesn't violate the right of
adoption of two daughters.

3. if a person to be adopted is a female the adopter must ne 21 year older that her.
The object is to eliminate any probable immoral relationship between adapter
and adaptee. If the provisions is not followed properly the adoption become void.

Case law - suraj singh v/s Barni Devi

Difference of 19 years was not valid

4. If the person to be adopted is a male, the. Adoptive mother should be 21 year older
than him.
5. Same child cannot be adopted simultaneously by two or more persons.
 6. If the child to be adopted must be given and taken in adoption by the parents or
Guardians concern to the intent to transfer his child from the family of his birth to the
family of the adoption.

Section 12- effects of adoption

1. The adoption takes effect from the day of adoption

2. The child should be adoptive mother and father for all purposes from date of
adoption.
3. The moment the child is adopted all his relation to the natural family is cut off, they
are substituted by adoptive family
4. The adopted child cannot marry any person whom he or she couldn't have married,
he/she continued with family of his/ her birth
5. Any property which is vested in adopted child before adoption shall continue in
him/her, subject to obligation, if any attaching to ownership of such property
including obligation to maintain relative in family of his/ her birth
6. Any property the child inherited in before adoption it will continue to be his
property even after adoption.
7. The status of an adopted child in case of inheritance and maintenance shall be same
as that of a natural child .

Case law – T N Anatha V/s SMT gunamba

Full bench of karnataka HC has held that where Hindu died as a sole surviving
coparcener, adoption of son by widow will not invest the estate in the daughter.
Rights of coparcenar

1. There is community of interest and unity of possession between all the members of joint Hindu
family.
2. As the share of the coparcenar is fluctuating and undivided , no member can be entitled to a
definite share in the joint family property or its income. The share gets specific only when the
partition takes place.
3. All coparceners have a right to join possession and enjoyment of the coparcenary property. If
any coparcener has been denied his right of possession or use , he can file a suit to enforce his
rights.
4. All coparcenars have a right to receive maintenance for themselves and their family from the
joint family property.
5. Every adult coparcenar entitled to claim partition of his share in the joint hind property.
6. A coparcenar cannot do unauthorized acts which can alter the conditions of joint Hindu family
property.
7. A coparcenar has no power to transfer his interest in favour of one or the other coparcener. But
he can relinquish his right for the entire coparcenary. If he relinquishes his right or renounces his
rights or interest, he ceases to be member of the coparcenary.Even his son then, will not be
considered to be member of coparecenary.
8. The power of karta to charge the property is limited and qualified. Any unauthorized alienation
made by the karta ......
9. The alienee is not entitled to mesne profit from the date of his purchase till the date of his
parition suit is decreed but if the joint is family is divided in status though no partition is metes
and bound is made, the alien is entitled to mesne profit.
10. A coparcenar suing for partition has a right to ask for account of the past transaction.
11. Coparcenar has a right to alienate his undivided coparecenary interest by will after passing of
hindu succession act 1956.

* Rights of karta*

1. He is the manager of the family. It means he has control over the income and
expenditure of the family.
2. He can contract debts for joint family business and purposes
3. He can make contract........

*Duties of the karta

1. He is not liable to keep accounts unless the nature of the family property demands.
2. The karta is not liable to account in the absence of direct misappropriation of family funds
3. Karta cannot start a new business to bind other coparcenars unless they all are adults and give
their consent.
 4. The karta has to compensate other coparcenars if he causes any loss to other coparcenars by
misappropriation or fraud.
5. A karta cannot alienate a coparcenary property without any justified cause , it is voidable and
can be set aside by the other coparcenars.
6. The karta isn't liable to be arrested or detained if he doesn't satisfy the tax due by the hindu
undivided family ( HUF)/ Hindu joint family.
7. The karta is under the duty to maintain the family so he can be sued for arrears of maintenance.

CL- human prased v/s Babooee ( powers of karta)