Professional Documents
Culture Documents
Hindu Law 2019
Hindu Law 2019
BANGALORE
Answer:-
Introduction:-
Vedas (The smritis), Sadachara (approved customs and usages) , What is agreeable
to one’s conscience.
1. Ancient
a. Sruitis
b. Smritis
c. Commentaries & Digest
d. Customs
2. Modern
a. Judicial decisions
b. Legislation
c. Justice, equity & good conscience
a. Srutis:-
It is derived from rood word ‘sru’ (to hear) and signifies what is heard . By sruti or
what was heard from above is meant the Vedas.
b. Smritis:-
Among all the writers Manu and his code has always been treated as being of
paramount authority. Because he has treated his code the whole sense of the Vedas
and no code is authoritative.
Next to Manu is Yajnayavalkya:-
His work is based on manu smriti’s but his said to be more dynamic than
Manu. His work is greater in detail and more concise and logical.
The earlier practice was to write commentary on a particular smriti but after
12the century there was a different trend of writing commentary on different
smritis together. This type of work came to known as Digests.
There was a lot of incompleteness darkness and conflicts in the rule of the
Smritis and the need of interpretation of the smritis so as to suit the prevalent
customs and usages in different parts of the country there was the necessity to
reconcile them on the points of issues
1. Dayabhaga by Jimutavahana
2. Mitakshara a commentary on Yajnavalkya Smriti by Vijaneshwara
3. Viramitrodaya by Mitra Misra
4. Vivada Chintamani by vachapati Misra
5. Vivada Ratnakara by chandeshwara
6. Dayatatwa by Raghunandana
7. Dayakramasnagraha by Sri Krishna
8. Smriti chandrika by devan Bhatta
9. Parashara Madhaviya, commentary on parashara by Madhavacharya
10. Vyavahara Mayukha by Nilkantha.
DIGESTS:- Vivadranava setu commonly known as Halhed’s code compled ate the
request of warren hastings & Vivada Bhugarnava Complied by Jagnnadha
Tarjaoabchanan at the instance of Sir Williams jones were prepared during British
administration.
D. Customs:-
Custom is the parent of personal law in all countries and India a country
with diverse customs is not an exception to it .
Customs is its legal sense means a rule which in a particular family, class or
district has from long usage obtained the force of law. It must be ancient certain
reasonable and continuously followed.
CASE LAW
In this case it was held that a custom to have the force of law must be
ancient, certain and reasonable.
MANU:- declares that it was the duty of the king to decide all the cases which fell
under the eighteen titles of Vyavahara or civil law according to the principles
drawn from the local usages and from the Institutes of sacred law and the king who
know the sacred law must inquire into the law of castes of districts and guilds and
of families and settle the peculiar law of each.
What is custom?
Sec 3(a) of the HINDU MARRIAGE ACT 1955 :- The expression “customs and
Usages” signify any rule which, having been continuously and uniformly observed
for a long time, had obtained the force of law among Hindus any local area, tribe
community group or family provided that the rule is certain and not unreasonable
or opposed to public policy, provided further that in the case of a rule applicable
only to a family it has been discontinued by the family.
For the custom to have the colour of a Rule of law it is necessary for the
party claiming it to plead and thereafter that such custom is ancient, certain and
reasonable.
KINDS OF CUSTOMS:
1. Local customs
2. Class customs
3. Family customs
ESSENTIALS OF CUSTOMS:-
1. Ancient:- A custom should be very old. It should have been accepted as law
bindng upon them.
CASE LAW
The supreme court held “a custom in order to be binding must derive its force form
the fact that by long usage it has obtained the force of law but the English rule that
a custom in order that it may be legal and binding must have been used so long that
the memory of men runneth not to the contrary should not be strictly applied to
Indian conditions.
When a particular custom has been discontinued for a period it would come to an
end.
3. Established by clear and unambiguous evidence:-
If a custom has repeatedly come to the notice of thecourts it may be said to have
almost become a part of the general law, and need not be proved in each individual
case.
4. Onus of proof:
The burden of proof as to the existence of a custom rests on the persons who sets
up a custom contrary to law.
5. Reasonable:-
Customs are not to be enlarged beyond the usage without the party of reason. It
cannot be said that a custom is founded upon reason though an unreasonable
custom is void.
A custom should not be opposed to the express provisions of any law nor should it
be forbidden by law
A mere agreement among certain persons to adopt a particular rule cannot create a
new customs binding on others, whatever its effect may be upon themselves.
2.Modern sources
a. Judicial decisions:-
During the British regime, for administering law in India, the courts exercised the
old smritis and their commentaries while deciding the legal issues applicable to
Hindus.
The English judges administered Hindu law with the assistance of Hindu pundits,
later it was abolished.
The precedent is not merely an evidence of a law but also a source of law and the
courts are bound to follow the precedents.
The judicial decisions have modified and supplemented the pure hindu law and
now they have emerged as important source of law.
There are numerous instances where the judges in administering the hindu law
either modified or altered it.
b. Legislation:-
It has been an important factor in the development of Hindu law. Most of them
are in the direction of reforming the law of hindus and some supersedes hindu law.
Legislation has become at present potential source of law of India.
When there is conflict between the rules of smritis that one should be
followed which is based on reasons, justice and principles of equity.
CASE LAW
The supreme court has observed that it is now well established that in the
absence of any rule of Hindu law, the courts have the authority to decide cases on
principles of equality, justice & good conscience unless is doing so, it would be
inconsistent with any doctrine or theory of Hindu law.
……………………xxxxxxxxxxxxxxxxxxxxxxxxx…………………………..
2. Trace the history of the different schools of Hindu Law, pointing out their
distinguishing features.
INTRODUCTION
The Schools of Hindu Law came into being when different commentaries
appeared to interpret smritis with reference to different local customs in vogue in
different parts of India.
1. Mitakshara School
2. Dayabhaga School
1. Mitakshara School:-
This school prevails in all parts of India. It is a running commentary on code of
Yajnavalkaya & was written by Vijanneshwara in 11 th century. It is of supreme
authority thought out India except Bengal.
2. Dayabhaga School :-
This School prevail in Bengal. It is not a commentary on any one code, but
purports to be a digest of all the codes. It was written by Jimutavahana. It was
written 2 centuries after mitakshara. It is supreme authority in Bengal. Here also
Mitakshara is supreme but if there is no conflict between this schools.
I. Benaras School:-
Except in Mithila and Punjab this school prevails in the whole of Northern India
including Orissa.
The following commentaries are also held in high esteem in this school.
1.Mitakshara.
2. Viramitrodaya
3. Dattaka Mimansa
4. Nirnayasindu
5. Vivada Tandava
6. Subodhini &
7. Balam Bhatti
1.Mitakshara.
2.Vyavhar Mayukha
3. Viramitrodaya
4. Nirnayasindu
5. Vivada Tandava
6. Parasara Madhaviya
The whole Madras state is governed by the madras School of Hindu Law
This school was once sub-divided into Tamil, Karnataka and Andra school,
but there is no justification
1.Mitakshara.
2.Smriti Chandrika
3. Parasara Madhaviya
4.Saraswati Madhaviya
5. Viramitrodaya
6. Vyavhar Mayukha
7. Dattaka Chandrika
8.Daya Vibhaga
9. Vaiyayanti
10. Madhabi
11. Nirnay Sindu
12. Narada Rajya
13. Vivada Tandava
V.Punjab School
1.Mitakshara.
2. Viramitrodaya &
3. Punjab customs.
2.DAYABHAGA:-
It prevails in west Bengal, Assam with some variances. Dayabhaga is written
by Jimutvahana. The accepted authorities
1. Dayabhaga
2. Dayatatva
3. Daya-sangraha
4. Viramitrodaya
5. Dattaka Chandrika
Conclusion :
On the migration the family continues to be governed by the law of locality of
origin. The family carries with it the customs regulating succession and family
relation prevailing in the state from where it came. But the family has option of
adopting the law and usages of the state to which it has migrated.
xxxxxxxxxxxxxxx
Q.No.3. Who is a Hindu? Explain the classes of person who come under the
preview of Hindu law.
Answer:-
1. Introduction:-
India remains one of the most religiously diverse nations in the world. Hindus,
Muslims, Jains, Buddhists, Sikhs, Jews, and Christians have a home in India. The
oldest and most widely practiced religion in India, Hinduism, has deep roots in the
subcontinent. Throughout the numerous political upheaval and foreign invasions,
Hinduism remained the sole constant throughout the region’s history.
Hindu beliefs developed over the centuries and include many influences,
including numerous sacred texts, thousands of deities, and holy sites that continue
to draw millions of pilgrims.
One more question need to be answered that is To whom hindu law is applicable?
Hindus are all those persons who profess Hindu religion either by birth, or by
conversion to the Hindu faith.
But the court did not give correct explanation about it.
In short, a person who carries a Hindu way of life and who is known by others to
be a Hindu can be said to be a Hindu.
➢ But this is not correct because a person who is born to Hindu parents may
cease his status Hindu by converting to another religion.
➢ “So Hindu are those born as Hindus and also those who become converts to
Hinduism”
➢ Hindus are therefore born as well as made and thus the applicability of
Hindu law is not restricted or confined to those persons only who are Hindus by
birth.
It’s application has been extended to those person also who have accepted the
Hindu religion or who convert to Hinduism
Methods of conversion
A non-Hindu may renounce his religion and become Hindu by conversion by any
of the three methods:-
a. If he performs the ceremony of conversion prescribed by the caste or community to
which he converts.
b. If he expresses an intention to become a Hindu and actually lives as a Hindu and
the community or caste into the fold of which he is ushered in accepts him as a
member of that community or caste.
If he declares that he is a Hindu and lives as a Hindu
vi) Sons of Hindu dancing girls of the Naik caste converted to Mohammedanism
where the sons are taken into the family of the Hindu grand-parents and are
brought up as a Hindu.
vii) Brahmos, Arya samajishts and santhals of chota Nagpur, and also Santhals of
Manbhum except so far as it is not varied by custom.
viii) Hindu who made a declaration that they were not Hindus for the purpose of the
special marriage Act 1872; and
ix) A person who is born Hindu and has not renounced the Hindu religion, does not
cease to be a Hindu merely because he departs from the standard of orthodoxy in
matters of diet and ceremonial observances.
Following persons are Hindus for the purpose of these codified laws.
III. Any other person domiciled in the territories to which these Acts extend who
is not-
a. A Muslim by religion ; or
b. A christain by religion ; or
c. A parsi by religion; or
d. A jew by religion.;
a. Any child legitimate or illegitimate both of whose parents (father and mother) are
hindus, Buddhists, jains or sikhs by religion;
b. Any child , legitimate or illegitimate, one of whose parents either (father or
mother) is a Hindu, Buddhist, jains or sikh by religion and who is brought up as a
member of the tribe, community, group or family to which such parent (either the
father or the mother ) belongs or belonged.
c. Any person who is a convert to the hindu, Buddhist, jains or sikh religion.
Conclusion
It can be concluded that certain codified and uncodified law are applicable to
different people who are called Hindus under the broad classification as discussed
above.
xxxxxxxxxxxxxxxxxx
4. Discuss the important changes brought by the Hindu Marriage Act 1955
and marriage laws (Amendment) Act, 1976 to the Hindu Law.
Introduction
This enactment is exhaustive and it has brought important and dynamic changes in
Hindu matrimonial concept. It has not simply codified the Hindu law of marriage
but has introduced certain important changes in many respects.
The following changes were brought about by the Act in the law of marriage are
important,
1. Inter- caste marriage in not prohibited. According to Section 29 of the Act, the
marriage solemnized between the different caste or different religion is valid.
2. Monogamy which is essentially the voluntary union for life of one man with one
women to the exclusion of all others, is not enforced by legislation- Section 5(i) .
any marriage solemnized after the commencement of this Act is null and void if at
the date of such marriage either party had a husband or wife living
3. Bigamy has been made punishable as an offence under the Indian Penal Code (sec
17).
4. The conditions and requirements of a valid Hindu marriage have been considerably
simplified (section 5 to 7).
• The sapinda prohibition has although been accepted yet the degree of sapinda
relationship has been curtailed.
• It has now been confined to fifth degree from the father and third degree from the
mother in upward line.
• Further, the Act has enumerated the list of prohibited degree of relations, between
whom a valid marriage could not take place.
• Several matrimonial reliefs has been provided by the act. Ex. Divorce, judicial
separation.
• Legitimacy has been conferred on such children who are born of void and voidable
marriage.
• Provision for alimony pendent lite, permanent alimony and maintenance have been
made.
• Wide discretionary powers have been conferred on the court to pass suitable orders
relating to the custody, maintenance and education of minor children of the parties.
1. Section 13-B now provides for divorce by mutual consent of the parties.
2. Divorce on the ground of adultery has made easy. Now a single instance of
adultery on the part of the other spouse entitles the spouse to seek divorce.
3. Divorce on the ground of incurable unsoundness of mind, incurable leprosy or
venereal disease, formerly the party seeking divorce could not file petition for 3
years had elapsed. Now the party seeking divorce on this ground need not wait for
3 years.
4. Section 21 –B has been added which provides for the continuance of the trial (day
to day) until conclusion of the case.
xxxxxxxxxxxxxxxxxx
5. Explain the essentials conditions of valid marriage under the Hindu Marriage
Act 1955.
SYNOPSIS
➢ INTRODUCTION.
➢ DEFINITION OF MARRIAGE
➢ ESSENTIAL REQUISITIES OF HINDU VALID MARRIAGE
➢ Section 5(I): Monogamy.
➢ Section 5(Ii):- Soundness Of Mind
➢ Section 5(Iii):- Age Of Marriage
➢ Section 5(Iv):- Beyond Prohibited Degrees
➢ Section 5(V):- Beyond Sapinda Relationship
➢ CONCLUSION
INTRODUCTION
Under the ancient hindu law the object of marriage was sublime (means it has
wonderful quality that affects you deeply.
According Apasthamba “Marriage was meant for doing good deeds and for
attainment of moksha.
Under the old textual Hindu law three conditions were required for a valid
marriage, these conditions were:
This enactment is exhaustive and it has brought important and dynamic changes in
Hindu matrimonial concept. It has not simply codified the hindu law of marriage
but has introduced certain important changes in many respects.
Before the commencement of this act, a Hindu could marry any number of
wives, even if he had a wife or wives living, although this practice was always
looked with disfavor.
The condition laid down in this clause for a valid marriage is one of those
conditions, contravention of which would make the marriage void under section 11
of the Act.
Section 17:- this provision further states that the offending party liable for
prosecution under section 494 and 495 of Indian penal code. The marriage
between the two Hindus solemnized after the commencement of the act is void if at
the date of such marriage either party had a husband or wife living .
Example :- Mr. ‘A’ got married to Mrs. “B’ in the year 2000. In the year
2010 ‘Mr. ‘A’, again get marries to Mrs. ‘X’ when ‘Mrs. ‘B’ is alive and he has
not even given her any divorce. Hence the marriage between A and X is void and
also punishable.
Case law:-
In this supreme court held that the marriage becomes null and void where it
is in violation of the first condition of section 5 i.e Monogamy, It becomes void ab
initio and ipso facto.
The court further explained that the wife in void marriage cannot claim
maintenance under section 125 of the criminal procedure code. Thus a man whose
wife is alive and his marriage is valid and subsisting at the time, he cannot marry
another wife.
So, according to section 5(i) of this Act, a second marriage in the lifetime of
spouse of the first marriage, will be against law and void, even if the second
marriage was contracted outside India.
Case law
The supreme court held that the proof of the performance of ceremonies is
essential for a valid marriage.
In this case the only proof of re-marriage of a wife was the name in the
revenue record which was made by the wife herself.
There was no evidence to show that the wife had ever made any statement of
her re-marriage and the real brother of second husband also denied the marriage of
his brother with wife.
The supreme court held that on the basis of above facts, second marriage by
the wife could not be proved therefore, her re-marriage cannot be upheld.
The parties to the marriage are of sound mind and are not suffering from any
mental disability as to be unfit for giving a valid consent
AMINA ROY V.S PRABODH MOHAN ROY [AIR 1969 CAL 304]
• In this case the emphasis was upon the unsoundness of mind to a degree which
renders the marriage meaningless.
• The recurrent attacks of insanity have also been added to be ground of voidability
of marriage.
• Thus mental incapacity of any nature affecting the very purpose of marriage has
been ground of voidability of marriage.
• The onus of bringing a case under this clause lies heavily on the petitioner who
seeks annulment of the marriage on the ground of unsoundness of mind or mental
disorder.
Case law
The supreme court observed that a brand the wife as unfit for marriage and
procreation of children it needs to be established that the ailment suffered by her is
of such a kind or such an extent that it is impossible for her to lead a married life.
The marriage performed in contravention of section 5(2) is voidable and not void.
The words “at the time of marriage” in the clause are important.
Because the person where subsequent to the date of marriage becomes an idiot
or lunatic, the provision of this clause are not attracted.
CASE LAW
In this case it was laid down that if the condition in section 5(ii) is not fulfilled the
marriage is not a void marriage as provided in section 11 but a voidable marriage
under section 12.
• Originally, according to Hindu marriage Act, 1955, the age provided for the
bridegroom was 18 years and for the bride was 15 yrs.
• Though where the bride was below 18, the consent of her guardian was necessary.
• The child marriage restraint (Amendment)Act 1978, has raised the minimum age
fixed for marriage to 21 years in case of bridegroom and 18 years in case of bride.
• Section 2(a) child:- means a person who, if a male has not completed 21 yrs and if
female has not completed 18 yrs.
• A petition under this section can be filed before the child filing the petition
completes 2 years of attaining majority.
• Child marriage is punishable, with rigorous punishment of maximum 2 years and
fine upto 1 lakh.
• This clause prohibits marriage between persons who are within the prohibited
degrees of relationship with each other.
To prevent-
1. Physical degeneracy (decline in good qualities) of the race which the marriage
between near relations would lead to;
2. Moral degeneracy and consequent evil results which are apt to affect a society
built on the deifice of joint family-system.
Smt. Shakuntala devi v/s amar nath [AIR 1982 P & H 22]
The Punjab high court has held that the validity of marriage under section
5(iv) is subject to customs and useage accepted in the particular Hindu
community. Consequence of marriage solemnized between persons coming within
the prohibited degree
According to ancient texts, the word has been used in two senses, firstly, it
means a relation connected through the same body, and secondly, it means, relation
connected through funeral obligation of food.
The Act under section 3(f) lays down its own rules to determine whether a
person is the ‘sapinda’ of another or not.
It says that:-
1. ‘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;
2. 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.
Relationship includes:-
This extends
1. The third generation (inclusive) in the line of the ascent through the mother and
2. The fifth generation (inclusive) in the line of the ascent through the father.
CONCLUSION :-
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
6. Explain the grounds of divorce under the Hindu Marriage Act 1955.
Answer:-
Introduction
Under the Amendment laws, now it has been replaced by a simple requirement of
adultery, that is, voluntary sexual intercourse with any person other than his or her
spouse.
Now even a single act of adultery may constitute a sufficient ground for obtaining
divorce.
In the present clause the expression ‘voluntary sexual intercourse’ has been used.
Therefore the sexual intercourse by either of the spouse with a person other than
his or her spouse must be a voluntary act. If one of the spouses is raped it cannot
be said that there is voluntary intercourse.
Case law:-
In this case the wife was seen in a semi-naked state in a hotel with a
stranger, the court did not consider it sufficient to conclude adulterous relation of
wife with the stranger.
The court held that so long the act of cohabitation is not proved beyond doubt.
STANDARD OF PROOF :-
Adultery from its very nature is a secret act. Direct evidence of an act of
adultery is extremely difficult. Direct evidence, even when produced, the court will
tend to look upon it with disfavor, as it is highly improbable that any person can be
a witness to such acts, as such acts are generally performed with utmost secrecy.
CASE LAW:-
In this case it was held that it is not necessary to prove the fact of adultery
by direct evidence and such evidence if produced would normally be suspected and
likely to be discarded.
The facts were that the wife used to be usually absent from the house and
found to be in company with strangers. She was also found in the room of the
strangers. She did not have any explainations for being in their company. On the
petition for divorce by the husband the court held that under the conditions the
wife’s living in adultery would be established and the petition would be decreed.
The court observed that it was no longer required that adultery must be
proved beyond all reasonable doubt. It could be established by preponderance of
probabilities.
The law relating to standard of proof is clear and simple. It is not necessary
that the charge of unchastity must be proved beyond all reasonable doubt. It could
be established by preponderance of probabilities.
2.CREUELTY (SECTION 13(1) (1-a) :- cruelty where the petitioner has been
treated with cruelty after the solemnization of marriage he would be entitled to get
a decree of divorce. Cruelty has become a ground of divorce as well.
Cruelty is not defined in the act but for the purposes of establishing an act of
cruelty it should be so serious and weighty that cohabitation becomes impossible.
It should be somewhat more serious than ordinary wear and tear of routine marital
life.
CASE LAW
In this case it was stated that only some misunderstanding between parties
was established. It was held that merely saying that parties are unhappy is not
enough not even unruly temper of a spouse or whimsical nature of a spouse is
enough.
Cruelty consists of acts which are dangerous to life, limb or health. Cruelty
for the purpose of the Act means where one spouse has so treated the other and
manifested such feelings towards her or him as to have inflicted bodily injury, or to
have caused reasonable apprehension of bodily injury, suffering or to have injured
health. Cruelty may be physical and mental.
Mental cruelty is the conduct of other spouse which causes mental suffering
or fear to the matrimonial life of the other.
CASE LAWS
In this case the wife did not allow the husband to consummate the marriage
for the first seven days and nights. The wife abused her mother-in-law , wrote a
nasty letter to her husband making illegal demand for clothes for her brother etc.,
and threatened to burn the whole house by putting gas cylinder on fire and also to
file a false dowry case against the family members. It was held that wife is guilty
of cruelty.
Where the petitioner has been deserted continuously for a period not less
than 2 years immediately preceding the presentation of the petition for judicial
separation or divorce, such petition may be granted.
Desertion by the other party to the marriage without reasonable cause and without
the consent or against the wish of such party and includes the willful neglect of the
petitioner by the other party to the marriage.
For the offence of desertion, so far as the deserting spouse is concerned two
essential conditions must be proved:-
Case law:-
In this case the wife used to reside with the husband along with the parents.
Their marital life was happy and a son was born to them. Late the husband left for
England for a few months.
During his absence the wife developed intimacy with the old friend of the
husband, and one of the letters containing objectionable contents was intercepted
by the father-in-law of the wife.
On the return of the husband the father-in-law told him everything. When
the husband asked her to explain all this, she refused and on next day left for her
parents place.
Later the husband wrote a letter to her asking her to send the child, some
attempts to reach an understanding were made between them.
When the mother of the wife sent a telegram to the husband to receive his wife on
station, the reply sent back by the husband was that she should not be sent.
After sometime the husband filed a petition for divorce on the ground of
desertion by the wife. The defence of the wife was that it was petitioner who by
his treatment made her life unbearable and compelled her to leave matrimonial
home.
The supreme court held that the ‘question to be considered is whether her
leaving marital home is consistent with her having deserted her husband in the
sense that she had deliberately decided permanently to forsake all relationship with
him with intention of non-returning to consortium with our the consent of the
husband and against his wishes.
In this case the court concluded that even though the wife leaves
matrimonial home without any cause, she will not be guilty of desertion if
subsequently she shows an inclination to return and is prevented from doing so by
the petitioner.
CASE LAW
The Karnataka high court held that willful neglect by one spouse to the other
would come within the meaning of desertion. It is not necessary to prove that one
of the parties to marriage is living separately from the other.
The Supreme Court elaborately described about the decree of mental disorder
which will enable an aggrieved party to a marriage to obtain a decree of divorce.
The court held that the context in which the idea of unsoundness of ‘mind’ and
mental disorder occur in the section as grounds for dissolution of a marriage,
require the assessment of the degree of the ‘mental disorder’. It degree must be
such as that the spouse seeking relief cannot reasonably be expected to live with
the other.
6. LEPROSY [SECTION 13(1) (iv) ]:- here the spouse presenting the petition has
to show that the other spouse has been suffering from a virulent and incurable form
of leprosy.
Case law
The Supreme Court held that lepromatous leprosy is virulent. This type of leprosy
is malignant and contiguous.
It also an incurable form of leprosy and entitles the other spouse to a decree for
divorce.
The petitioner brought the divorce petition against the respondent on the ground of
lepromatous and it was decreed.
it is essential for petitioner to prove that the opposite party is suffering from
venereal disease in a communicable form.
He or she must perform the ceremonies necessary for entering the class of sanyasi;
without such ceremonies he cannot be regarded dead for worldly purposes.
Either of the party may seek divorce on this ground if the other party has not been
heard of as being alive for a period of 7 years or more by those persons who would
naturally have heard of it , had that party been alive.
The aggrieved party may marry again and have legitimate children
It provides that the either party to a marriage may present a petition for
dissolution of the marriage by a decree of divorce on the grounds that there has
been no resumption of cohabitation between the parties to the marriage for a period
of one year or more after the passing of a decree for judicial separation in the
proceeding to which they were parties.
A party will be entitled to a decree of divorce also when a decree for restitution
of conjugal rights has been passed and it has not been complied with within one
year of the passing of such a decree.
The spouse who fails to comply with it would do so at his or her risk and it
would not be necessary for the aggrieved spouse to prove that he or she had made
positive efforts to make the other party comply with the same and it would suffice
to show that there was no compliance with the decree.
GROUNDS AVAILABLE TO WIFE ONLY FOR DIVORCE [SECTION
13(2)
1. Section 13(2) (1)- BIGAMY:- A wife may also present a petition for the
dissolution of marriage by a decree of divorce on the ground of second marriage
by husband which was solemnized after the commencement of the Act .
It is held that the 2nd marriage of the husband was void ab -initio and the 2nd
marriage of the husband amounted to adultery. The petitioner therefore is entitled
to a decree of divorce under section 13(1) (i) and not under section 13(2).
A man is said to commit rape who has sexual intercourse with a women.
Where the decree or order has been passed against the husband awarding
maintenance to the wife in a suit after passing of such decree or order,
cohabitation between the parties has not been resumed for one year or upwards,
decree of divorce would be granted.
Conclusion:-
Section 13 provides the circumstances in which the right to divorce accrues for
husband and wife together and special grounds for wife alone.
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
HINDU COPARCENARY:-
The Hon’ble Supreme court has laid down special feature of a Mitakshara
coparcenary given below.
FEATURES OF COPARCENARY
1. UNITY OF OWNERSHIP:-
2. INDETERMINABILITY OF SHARES:-
3. COMMUNITY OF INTEREST:-
No coparcener is entitled to any special interest in the coparcenary property, nor is
he or she entitled to exclusive possession of any party of the property.
5. RIGHT BY BIRTH:-
1. By partition
2. By the death of the last surviving coparcener.
RIGHTS OF COPARCENERS
RIGHTS OF COPARCENERS
7. RIGHT OF ALIENATION
• Every coparcener has a right to set aside alienation made by a father, manager or
any other coparcener beyond his authority.
9. RIGHT TO MAINTENANCE
xxxxxxxxxxxxxxxxxxxx
Answer:-
CASE LAW
1. Impartibly property i.e. property which descends to one member only, either by
custom or under any provision of law or by the terms of grant.
2. Property indivisible by nature
3. Family idols and relics which are object of worship.
4. Separate property of a member
Certain provisions to be made before partition:-
From the properties which are liable to partition provision must first be
made for:-
1. Debts incurred for joint family which are payable out of joint family property.
2. Maintenance of dependent females members and disqualified heirs
3. Marriage expenses of unmarried daughters of the last male holder but not of the
collaterals.
4. Expenses for funeral ceremonies of the widow and the mother of the last male
holder.
CASE LAW
K.M. NARAYANAN VS. R.V. RANGANADHAN [AIR 1976 SC 1715]
The supreme court stated that while dividing the family estate the joint family
should take account of both the debts and assets and to make provision for
discharge of debts.
Partition of the joint family property may take place at the instance of the
following persons.
The supreme court has held that a purchaser of the joint family property
from a member of a Joint family may have the right to file a general suit for
partition against the members of joint family. Female Sharers:-
1. Wife
2. Widowed mother
3. Partenal grandmother
6. Adopted children:-
Adopted children are treated natural born child and they can demand partition.
ALLOTMENT OF SHARES-
1. On a partition between a father and his children; each child takes a share equal
to that of his father.
2. When a joint family consists of brothers, they take equal shares on partition.
3. Each branch takes per stirpes as regards every other branch but the members of
the same branch take per capita as regards each other.
4. on the death of a coparcener leaving issue, his right to share on partition passes
to his issues, provided each issue be within the limits of coparcenary, i.e within the
4th degree from the common ancestor.
FEMALE SHARERS:-
1. The wife
2. Widowed mother.
3. Widowed grandmother
4. Daughter.
MODES OF PARTITION:-
2. Partition by notice
A severance of joint status may be effected by serving a notice by a coparcener on
the other coparceners, including his intention to separate and enjoy the property in
severalty or demanding partition of the property.
3. Partition by will
Partition may be effected by a coparcener by making a will containing a clear and
unequivocal intimation to his coparceners of his desire to server himself from the
joint family or containing an assertion of his right to separate.
• According to this doctrine father can get the shares of his sons fixes and also get
them separated.
• But he does not have the right to get the joint family property partitioned through
the will.
• Although he could do the same with their consent.
9. Partition by suits.
The institution of a suit for partition effects severance of joint family status and as
such the mere institution of such a suit effects immediate severance of joint status.
EFFECTS OF PARTITON
SUIT BY MINOR:-
The Hindu law makes no distinction between a minor and major coparcener so far
as their rights to joint properties are concerned.
The court held that if a suit for partition by a minor, the court will direct
partition only if partition is in the interest of the minor but that limitation arises not
because of any peculiarity in the estate of the minor but is imposed for protection
of his interest.
1. demand partition
Reopening of partition :-
The general rule is that partition once made cannot be re-opened. But there are
certain exceptions
1. A son conceived at the time of partition, though not born before partition can re-
open it if a share has not been reserved for him.
On the other hand if a son is begotten as well as born after partition and if a share
has been allotted to the father, such after born is not entitled to have the partition
re-opened and same rule to daughter.
Answer :-
The affairs of a joint family, consisting of generally ladies and infants, cannot be
managed by all the members of it nor are they managed jointly by all the adult
male members, probably by reason of the inequality in their rank.
But ordinarily they are, by the consent of all managed by a singly male member
who is the head of the family by reasons of his seniority and superior rank.
If father is not there the elder senior brother, if the senior brother is away in a
remote place and a junior member can act has a karta.
POWER OF KARTA:-
Relating to family business the karta is having the power to contract, give receipts,
compromising or discharging contracts.
6. Power of compromise:-
The karta is having the power to settle accounts with the debtors and to make a
reasonable reduction either towards principal in the interest of the family. But here
the karta is having no power to give up a debt due to the joint family and give up a
valuable item without any return or consideration.
7. Power to acknowledge debts:-
The karta has power to give a valid discharge for debt due to the joint family.
The karta may sue or be sued in respect of the transaction entered by him as the
karta of the family and joint family property.
The member are binding to the decree passed in favour or against them.
10.Power to alienation :-
It includes sale, gift, mortgage lease, or exchange. The karta can alienate for
value the Joint family property so as to bind the interest of the other coparcener
(minor/adults) provided it is made .
CASE LAW
If the coparcener thinks the sale is illegal he can challenge the same afterwards.
Karta is bound to render accounts to the other coparceners regarding his dealing
with the joint family property & the income thereof. He is not responsible to show
the accounts of his past dealing unless there is proof of misappropriation. He is
liable to accounts at the time of partition only.
It is the duty of the Karta to make all possible efforts to realize the debts due
to the family.
Duty of the Karta to spend joint family funds reasonably and for the purpose of the
family.
4. Duty not to start new business without the consent of other coparceners.
It may impose risk upon minor and adults members so consent of all members is
required
The Karta shall not do so without the consent of the family members and it shall be
for legal necessity and for the benefit of the estate.
Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
Thus adoption is the transplantation of son from the family in which he is born, to
another family where he is given by the natural parents by way of gift. The
adopted son is then taken as being born in the new family and acquired rights,
duties, and status there only and his ties with the old family comes to an end.
1. The person adopting has the capacity and also the right to take in adoption.
2. The person giving in adoption has the capacity to do so;
3. The person adopted is capable of being taken in adoption.
4. The adoption is made in compliance with the other conditions mentioned in the
chapter.
Whether male or female they should have capacity and right to take a child in
adoption.
Case Law
The supreme court has laid down that the consent of wife either should be in
writing or reflected by positive act voluntarily and willingly done by her.
If the person is having 1 or more wives consent of all the wives is necessary.
The consent of the wife will not be necessary if the wife whose consent is sought
has,
Any female
1. If the adoption is son , the father or mother should not have son, son’s son, or
son’s son’s son living (whether legitimate or adoption) living at the time of
adoption.
2. If the adoption is of a daughter , the father and mother must not have a Hindu
daughter or son’s Daughter (Whether legitimate blood relationship or by adoption)
living at the time of adoption.
3. If the adoption is by a male and the person to be adopted is a female the adoptive
father is at least 21 yrs older than the person to be adopted.
4. If the adoption is by a female and the person to be adopted is a male the adoptive
mother is at least 21 yrs older than the person to be adopted.
5. The child shall not be adopted by 2 or more persons
6. The child to be adopted must be actually given and taken from the place of family
to the adopted family.
CASE LAW.
Section 9(1) prescribes the capacity of persons, who give the child in adoption to
another.
1.No person except the father or mother or the guardian of a child shall have the
capacity to give the child in adoption.
2. subject to the provisions of sub-sec 4 , the father, or the mother, if alive, shall
have equal right to give a son or daughter in adoption.
3. where both the father and mother are dead or have completely and finally
renounced the world, or have abandoned the child or have been declared by a court
of competent jurisdiction to be of unsound mind or where the parentage of the
child is not known, the guardian of a child may give the child in adoption with the
previous permission of the court to any person including the guardian himself.
4. before granting permission to a guardian, the court shall be satisfied that the
adoption will be for the welfare of the child.
Section 10:- No person shall be capable of being taken in adoption unless the
following conditions are fulfilled, namely,
i. He or she is a Hindu
ii. He or she has not already been adopted.
iii. He or she has not been married, unless there is a custom or usage applicable to the
parties which permits persons who are married being taken in adoption.
iv. He or she has not completed the age of 15 yrs, unless there is a custom or usage
applicable to the parties which permits persons who have completed the age of 15
yrs being taken in adoption.
Case law
In this case a person who was adopted when he was above the age of 15 yrs under
custom which permitted the adoption claimed the property of his adoptive father
on the ground that since the adoptive father died intestate, he being the adoptive
child was entitled to his property.
Adoption was made through a registered adoption deed that stated that the natural
parents of the claimant aged 18 had given him in adoption in presence of the
elders to Anne Seetharamaiah who was issueless in accordance with the Hindu
Adoption and Maintenance Act, 1956.
It also recited that the adoption was in accordance with the custom prevailing in
The court accepted the adoption as valid in view of the statutory exception made in
favour of custom to the contrary.
According to section 11 (iv):- the child to be adopted must be actually given and
taken in adoption by the parents or guardian or under the authority with intent to
transfer the child from the family of its birth, or in case of an abandoned child or a
child whose parents is not known, from the place or family where it has been
brought upto the family of its adoption.
Provided that the performance of Datta Homam shall not be essential to the
validity of an adoption.
Case law
The supreme court held that under the Hindu law whether among the regenerate
caste or among shudras, there cannot be a valid adoption unless the adoptive child
is transferred from one family to another and that can be done only by the
ceremony of giving and taking.
The object of the corporal giving and receiving in adoption is to secure due
publicity.
DATTA HOMAM:-
Datta humam is not essential in the case of an adoption in the twice born classes
when the adopted son belongs to the same gotra as the adoptive father.
Datta Homan could be performed at any time after the physical act of giving and
taking.
Under the present law Datta Homam is not essential for an adoption made by any
class of Hindus, Jains, Buddhists and Sikhs.
SECTION 12:-
‘An adopted child shall be deemed to be the child of his or her adoptive father or
mother for all purposes with effect from the date of the adoption and from such
date all the ties of the child in the family of his or her birth shall be deemed to be
severed and replaced by those created by the adoption in the adoptive family.
Provided that-
a. The child cannot marry any person whom he or she could not have married if he or
she had continued in the family of his or her birth;
b. Any property which vested in the adopted child before the adoption shall continue
to vest in such person subject to the obligations, if any attaching to the ownership
of such property, including the obligation to maintain relatives in the family of his
or her birth;
c. The adopted child shall not divest any person of any estate which vested in him or
her before the adoption.
On a valid adoption child ceases to have any right or, be subjected to any
liability or disability as a member of the family of his birth, but the tie of blood
between him and the members of that family and the disabilities arising therefrom
continue, with the result than in spite of the adoption he or she cannot marry any
person from the natural family within the prohibited degrees.
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
11. Narrate the rules as to the succession of the property of a male/Female under
Hindu Succession Act.
ANSWER
SECTION 8:- of the Act lays down general rules of succession in the case of male
dying intestate. Succession opens at the time of death of the person whose property
is to be succeeded, and is governed by the law in force at that time.
The section divides the heirs of a male for the purposes of inheriting the property
into four classes. These are:-
On the failure of the heirs qualified to succeed under the Act, the property of the
intestate shall devolve on the government according to section 29.
The property of a male Hindu dying intestate shall devolve according to the
provisions of this chapter-
Firstly, upon the heirs, being the relatives specified in class I of the schedule.
Secondly, if there is no heir of Class I, then upon the heirs, being the relative
specified in class II of the Schedule.
Thirdly, if there is no heir of any of the two classes, then upon the agnates of the
deceased;
Lastly, if there are no agnates, then upon the cognates of the deceased.”
Heirs mentioned in Class I succeed is prefered to all others mentioned in Class II.
For instance, if male dies intestate, leaving only a daughter surviving him, the
daughter shall succeed in preference to the father in entry I of class II
Section 9:-
Among the heirs specified in the schedule those in class I shall, take
simultaneously and to the exclusion of all other heirs; those in the first entry in
class II shall be preferred to those in the second entry; those in the second entry
shall be preferred to those in the third entry, and so on in succession.
Son
Daughter
Widow
Mother
Son of pre-deceased son
Daughter of a pre-deceased son
Son of pre-deceased Daughter
Daughter of a pre-deceased Daughter
Widow of pre-deceased son
Son of pre-deceased son of pre-deceased son
Daughter of a pre-deceased son of pre-deceased son
Widow of pre-deceased son of a pre-deceased son
Son of pre-deceased Daughter of pre-deceased Daughter
Daughter of a pre-deceased Daughter of a pre-deceased Daughter
Daughter of a pre-deceased son of a pre-deceased Daughter
Daughter of a pre-deceased Daughter of a pre-deceased son.
“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 is more widows than one all the widows
together shall take one share.
Explanation:- widow is entitled to one share, if more than one widows that all
widows together are entitled to one share.
Rule2:- the surviving sons and daughters and the mother of the intestate shall each
take one share.
Explanation :- each surviving sons, daughters and mother get one share each.
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.
Explanation:-the heirs of the deceased in the branches of predeceased sons and pre-
deceased daughters take not per-capita but per-stirpes.
Among the heirs in the branch of the pre-deceased son shall be so made that his
widow (or widows) and the surviving sons and daughters get equal portion and the
branch of his pre-deceased sons gets the same portion.
Among the heirs in the branch of the pre-deceased daughter shall be so made that
the surviving sons and daughters get equal portions”.
Explanation:- the heirs of pre-deceased son together shall get only one share just as
the branch of a pre-deceased son got only one share under Rule -3.
According to section 8(b) heirs in Class II in the Schedule, succeeded only in the
absence of any heirs in class-I.
Heirs in class II are divided into nine groups, each group is mentioned in a separate
entry in the schedule.
Section 9 lays:-
down that heir in the first entry is preferred to heirs in the second entry, and
heirs in the second entry are preferred to those in the third entry and so on in the
succession.
Section 11 which regulates the distribution of property among heirs in
class II of the schedule runs as follows:-
Thus when there is only heir in the entry preferred, he or she alone shall
take the whole of the estate but when there are more heirs than one, in the entry
preferred, then all such heirs shall take equally and the heirs related to the
intestate by full-blood shall be preferred to heirs related by half-blood.
I. Father
II. (1) son’s daughter’s son (2) son’s daughter’s daughter (3) brother and (4) sister.
III. (1) Daughter’s son’s son (2) daughter’s son’s daughter (3) daughter’s daughter’s
sons, (4) daughter’s daughter’s daughter.
IV. (1) Brother’s son (2) sister’s son (3) Brother’s daughter (4) sister’s daughter.
V. (1) father’s father (2) father’s mother
VI. (1) father’s widow (2) Brother’s widow
VII. (1) father’s Brother (2) father’s sister
VIII. (1) mother’s Brother (2) mother’s mother
IX. (1) mother’s Brother (2) mother’s sister
Section 12:- of the Act lays down rules of preference determining the order of
succession among agnates and cognates.
The order of succession among agnates or cognates as the case may be, shall be
determined in accordance with the rules of preference laid down hereunder-
Rule 1- Of two heirs, the one, who has fewer or no degrees of ascent, is preferred.
Rule 2- where the number of degrees of ascent is the same or none, that heir is
preferred, who has fewer or no degrees of descent.
Rule 3- Where neither heir is entitled to be preferred to the other under Rule 1 or
Rule 2, they take simultaneously.
Rules in this section do not determine the order of priority between an agnate and a
cognate, for a nearest cognate relation of the intestate is excluded by his remotest
agnate relation.
ABSENCE OF HEIRS:-ESCHEAT:-
In absence of all heirs of the intestate, his or her property shall devolve on the
government. The government takes the property by escheat and not that it is
forfeited to the government.
The onus is on the Government to prove that the intestate dies without any heirs
qualified to succeed in accordance with the provisions of this Act.
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
12. Explain the different types of guardians and their powers with reference of
Hindu Minority and Guardianship Act, 1956.
KINDS OF GUARDIAN
Section 4:- of the Act mention four kinds of guardians, these are:-
1. A natural guardian.
2. A guardian appointed by the will or the minor’s father or mothers (testamentary
guardian)
3. A guardian appointed or declared by a court, and
4. A person empowered to act as such by or under any enactment relating to any court
of wards.
Besides this, there are other types of guardians such as.
5. De facto guardian and
6. Ad hoc guardian.
NATURAL GUARDIAN.
Section 6:- of the Hindu minority and guardian ship act, runs as follows,
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 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 5 years
shall ordinarily be with the mother.
b. In the 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 provision 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 or an
ascetic (sanyasi)
Among the Hindus, the father is the natural guardian of his children during their
minority and in the absence the mother during their minority. He may, in exercise
of his discretion as guardian entrust the custody and education of his children to
another, but the authority he thus confers is revocable authority.
The powers of the father to act as a natural guardian do not come to an end simply
because the child is being looked after by his aunt and is living with her.
The father is the natural guardian of the person and of the separate property of his
minor children.
Where the father was alive but had fallen out with the mother of the minor
daughter and was living separately for several years without taking any interest in
the affairs of the minor who was in the keeping and care of the mother, it was held
by the supreme court that in the peculiar circumstances, the father should be
treated non-existent and the mother could be considered as the natural guardian of
the minor’s person as well as property.
The Madras High Court has held that custody of a child below the age of five years
should be given to its mother and only in exceptional circumstances, the father
may claim the custody of that child.
In case of a illegitimate boy or girl the mother is the natural guardian, and in
absence of the mother the father will be the natural guardian.
Married girl.
The husband would be the guardian, unless he has ceased to be a Hindu or he has
completely and finally renounced the world by becoming a hermit or an ascetic.
DISABILITIES TO BE A GUARDIAN.
The fact that a father had changed his religion was of itself no reason for depriving
him of the custody of his child.
If the father voluntarily abandoned his parental rights and entrusted the custody of
the child to another person the court may not restore back the custody of the child
to the father if such a course is detrimental to the interest of the child.
The Madras High court held that where father converted to Islam and married a
muslim girl, he creases to be natural guardian as a matter of legal right.
It would not be in the interest of child that such convert should be allowed to
continue as a natural guardian and exercise the power as such.
2. CIVIL DEATH:-
Any person who has completely and finally renounced the world by becoming a
hermit or an ascetic forfeits his right to continue as the natural guardian of his
minor child or wife.
3. MINORITY:-
A Minor shall be incompetent to act as guardian of the property of the minor. So,
in respect of the joint family property, even if the Karta is a minor, such property is
and remains under his protection.
4. AGAINST MINOR’S WELFARE:-
No person shall be entitled to the guardianship of the minor, if in the opinion of the
court his or her guardianship will not be for the welfare of the minor.
A Hindu widow does not, by her remarriage, lose her preferential rights of
guardianship over her minor children by the deceased husband whether such
marriage is permitted by custom or not.
After adoption the natural guardianship of the adopted child passes from his
natural father to his adoptive father.
Natural father after adoption can only be regarded as a defacto-guardian.
SECTION 8:-
1. The natural guardian of hindu minor has power, subject to the powers provision of
this section, to do all acts which are necessary or reasonable and proper for the
benefit of the minor or for the realization, protection or benefit of the minor’s
estate:- but the guardian can in no case bind the minor by a personal covenant.
2. The natural guardian shall not, without the previous permission of the court
a. Mortgage or charge or transfer by sale, gift, exchange or otherwise any part of the
immovable property of the minor, or
b. Lease any part of such property for a term exceeding 5 years of for a term
extending more than one year beyond the date on which the minor will attain
majority.
3. Any disposal of immovable property by a natural guardian, in contravention of
sub-section (1) or sub-section (2) is voidable at the instance of the minor of any
person claiming under him.
4. No court shall grant permission to the natural guardian to do any of the acts
mention in sub-section (2) except in case of necessity or for an evident advantage
to the minor.
5. The guardians and wards Act. 1890 shall be applicable.
6. Court means city civil court
The Supreme court clearly laid down that, the natural guardian has been
empowered to do all such acts which are necessary for the welfare and benefit of
the child.
The Delhi High court has held that any contract executed by the guardian of the
minor can be specifically enforced by the minor or against the minor. Under the
law the natural guardian has been empowered to enter into the contract.
If the contract is in the welfare of the minor, it will be binding and will be
enforceable.
FAMILY ARRANGEMENT:-
The natural guardian has the power to enter into family settlement on behalf of the
minor provided it is the nature of a bona fide compromise of doubtful claims.
POWER OF ALIENATION:-
The natural guardian of a Hindu minor has power in the management of the estate
to sell or mortgage any part of the estate in case of necessity or for benefit of the
estate, provided the natural guardian has taken permission of th court prior to such
alienation.
Case law
The court held that a sale of minor’s property effected by his natural guardian
without obtaining the specific sanction of the court under section 8(2) is an act
which is prohibited by law and is, therefore invalid.
The natural guardian without the previous sanction of the court shall do no
transaction by sale, gift, exchange or otherwise of any part of the immovable
property of the minor and lease of any part of such property for a term exceeding 5
years of for a term extending more than one year beyond the date on which the
minor will attain majority.
1. Necessity, or
2. An evident advantage to the minor.
An alienation made with the permission of the court, cannot be impeached by the
minor or any other person except in a case of fraud of underhand dealing.
TESTAMENTARY GUARDIAN
Are those guardians who are appointed by a will of the natural guardian, entitled to
act as a guardian for the minor. It becomes effective only after the death of the
testator.
Section 9
1. A Hindu father entitled to act as the natural guardian of his minor legitimate
children may, by will appoint a guardian for any of them in respect of the minor’s
property (other than the undivided interest referred to section 12) or in respect of
both.
2. An appointment made under sub-section (1) shall have no effect if the father pre-
deceases 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 person or in both.
5. The guardian so appointed by will has the power 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 powers of a natural guardian under this Act to such extent and subject to
such restrictions, if any, as are specified in this Act and in the will.
6. The right of the guardian so appointed by will shall, where the minor is a girl,
cease on her marriage.
The Act recognizes the right of the following persons to appoint guardian of the
person and separate property of a Hindu minor.
1. The father , natural and adoptive;
2. The mother, natural and adoptive;
3. The widowed mother, natural and adoptive.
1. The person desirous of being or claiming to be the guardian of the minor or;
2. Any relative or friend of the minor; or
3. The collector of the district or other local area in which-
a. The minor ordinarily resides.
b. The minor holds property or
4. If the minor belongs to a class the collector who has authority with respect to that
class.
Powers of guardian appointed by the court.
The powers are the same as of the natural guardian or testamentary guardian.
DE-FACTO GUARDIAN
A person having the care of properties of a minor but who is neither a natural
guardian, testamentary guardian nor a guardian appointed by the court is only a de
facto guardian and the restriction under section 11 will apply to his acts.
According to section 11 of the Act the de facto guardian is not recognized and he
cannot deal with the property of a minor.
AD HOC GUARDIAN.
It means “for this purpose.” There must be some course of conduct in that capacity,
it implies some continuity of conduct, some management of the property beyond
the isolated act of alienation which is being challenged.
A guardian, who has been deprived of the custody of his ward, has the following
remedies open to him:-
1. Writ of habeas corpus within the original civil jurisdiction of a High court.
2. Application to a Magistrate under section 97 or sec 98 of the criminal procedure
code 1973.
3. Regular suit by guardian for custody of the ward.
4. Petition for the restoration of the custody of his ward under section 25 of the
guardians and wards act, 1890.
1. Is entitled to the custody of his ward and exclusive possession of his property.
2. He alone is entitled to sue or be sued on behalf of the minor.
3. He can enter into a compromise or can agree to refer the dispute to arbitration in
order to preserve the interest of the child.
4. The compromise would be binding only when it fulfills the interest of the minor
and approved by the court.
5. The expensed incurred by the guardian can be taken from the minor’s property.
6. He is liable for breach of trust.
7. He is not entitled for remuneration unless it has been specified in the will.
8. Manage minor’s property prudently.
9. Render all accounts to the minor.
10. If a minor discharges the guardian once he attains the majority, the liability of the
guardian comes to an end.
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
13. What is an adoption? Explain the powers of a male and female Hindu in
adoption as per the Hindu Adoption and Maintenance Act 1956.
INTRODUCTION :-
Thus adoption is the transplantation of son from the family in which he is born, to
another family where he is given by the natural parents by way of gift. The
adopted son is then taken as being born in the new family and acquired rights,
duties, and status there only and his ties with the old family comes to an end.
The powers of a male and female Hindu in adoption as per the Hindu Adoption
and Maintenance Act 1956.
Case Law
The supreme court has laid down that the consent of wife either should be in
writing or reflected by positive act voluntarily and willingly done by her.
If the person is having 1 or more wives consent of all the wives is necessary.
The consent of the wife will not be necessary if the wife whose consent is sought
has,
Any female
Has the capacity to take a son or daughter in adoption. Consent of the husband is
necessary if husband is alive.
1. If the adoption is son , the father or mother should not have son, son’s son, or
son’s son’s son living (whether legitimate or adoption) living at the time of
adoption.
2. If the adoption is of a daughter , the father and mother must not have a Hindu
daughter or son’s Daughter (Whether legitimate blood relationship or by adoption)
living at the time of adoption.
3.If the adoption is by a male and the person to be adopted is a female the adoptive
father is at least 21 yrs older than the person to be adopted.
4. If the adoption is by a female and the person to be adopted is a male the adoptive
mother is at least 21 yrs older than the person to be adopted.
5. The child shall not be adopted by 2 or more persons
6. The child to be adopted must be actually given and taken from the place of family
to the adopted family.
CASE LAW.
Section 9(1) prescribes the capacity of persons, who give the child in adoption to
another.
1. No person except the father or mother or the guardian of a child shall have the
capacity to give the child in adoption.
2. Subject to the provisions of sub-sec 4 , the father, or the mother, if alive, shall
have equal right to give a son or daughter in adoption.
3. Where both the father and mother are dead or have completely and finally
renounced the world, or have abandoned the child or have been declared by a court
of competent jurisdiction to be of unsound mind or where the parentage of the
child is not known, the guardian of a child may give the child in adoption with the
previous permission of the court to any person including the guardian himself.
4. Before granting permission to a guardian, the court shall be satisfied that the
adoption will be for the welfare of the child.
Section 10:- No person shall be capable of being taken in adoption unless the
following conditions are fulfilled, namely,
Case law
In this case a person who was adopted when he was above the age of 15 yrs under
custom which permitted the adoption claimed the property of his adoptive father
on the ground that since the adoptive father died intestate, he being the adoptive
child was entitled to his property.
Adoption was made through a registered adoption deed that stated that the natural
parents of the claimant aged 18 had given him in adoption in presence of the
elders to Anne Seetharamaiah who was issueless in accordance with the Hindu
Adoption and Maintenance Act, 1956.
It also recited that the adoption was in accordance with the custom prevailing in
The court accepted the adoption as valid in view of the statutory exception made in
favour of custom to the contrary.
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
14. Define ‘Dependents’ under the Hindu Adoption and Maintenance Act, 1956.
How is the quantum of maintenance determined by the court?
INTRODUCTION
The right of maintenance arises from the concept of an undivided family. The
head of the family is bound to maintain its members, their wives, and their
children.
What is maintenance?
i) In all cases, provision for food, clothing, residence, education and medical
attendance and treatment
ii) In the case of an unmarried daughter, also the reasonable expenses of and
incident to her marriage.
(iv) his or her son or the son of his predeceased son or the son of predeceased son
of his predeceased son, so long as he is a minor:
PROVIDED and to the extent that he is unable to obtain maintenance, in the case
of a grandson from his father's or mother's estate, and in the case of a great grand-
son, from the estate of his father or mother or father's father or father's mother;
(v) his or her unmarried daughter, or the unmarried daughter of his predeceased
son or the unmarried daughter of a predeceased son of his predeceased son, so long
as she remains unmarried:
PROVIDED and to the extent that she is unable to obtain maintenance, in the case
of a grand-daughter from her father's or mother's estate and in the case of a great-
grand-daughter from the estate of her father or mother or father's father or father's
mother;
(vii) Any widow of his son or of a son of his predeceased son, so long as she does
not remarry:
PROVIDED and to the extent that she is unable to obtain maintenance from her
husband's estate, or from her son or daughter, if any, or his or her estate; or in the
case of a grandson's widow, also from her father-in-law's estate
xxxxxxxxxxxxxxxxxxxxxxxxx
15. When a Hindu Wife is entitled to Maintenance and separate residence under
Hindu Adoption Maintenance Act 1956. Explain it by citing cases.
The right of maintenance arises from the concept of an undivided family. The
head of the family is bound to maintain its members, their wives, and their
children.
What is maintenance?
Section 3(b) of the Hindu Adoption and maintenance Act, 1956 defines
maintenance includes-
i) In all cases, provision for food, clothing, residence, education and medical
attendance and treatment
ii) In the case of an unmarried daughter, also the reasonable expenses of and
incident to her marriage.
MAINTENANCE OF WIFE:-
1. MAINTENANCE
2. SEPARATE RESIDENCE.
1. MAINTENANCE:-
• It is a right of a wife for maintenance in an incidence of the status or state of
matrimony and a Hindu is under a legal obligation to maintain his wife.
• This right arises from the very existence of the relation between the parties.
Section 18:- 1. A Hindu wife, whether married before or after the commencement
of his Act, shall be entitled to be maintained by her husband during her lifetime.
2. A hindu wife shall be entitled to live separately from her husband without
forfeiting her claim to maintenance:
a. If he is guilty of desertion, that is to say, of abandoning her without reasonable
cause and without her consent or against her wish, or willfully neglecting her;
b. If he has treated her with such cruelty as to cause a reasonable apprehension in her
mind that it will be harmful or injurious to live with her husband.
c. If he is suffering from a virulent form of leprosy.
d. If he has any other wife living
e. If he keeps a concubine in the same house in which his wife is living or habitually
resides with a concubine elsewhere.
f. If he has ceased to be Hindu by conversion to another religion.
g. If there is any other cause justifying her living separately.
3. A Hindu wife shall not be entitled to separate residence and maintenance from her
husband if she is unchaste or ceases to be a Hindu by conversion to another
religion.
This maintenance is dependent on her living with him and discharging the duties as
wife.
The husband would not be absolved from his liability to maintain his wife simply
because he has ceased to be a Hindu.
The wife is not entitled to be maintained by the relatives of husband side unless
they have the possession of the property belonging to her husband.
RIGHT OF SEPARATE RESIDENCE.
The wife’s first duty to her husband is to submit herself obediently to his authority
and to remain under his roof and protection.
A wife is not entitled to separate residence from her husband, unless she proves
that by reasons of his misconduct or refusal to maintain her in his own place of
residence or other justifying cause, she is compelled to live apart from him.
According Section 18(2) (a) to (g) enumerates that the wife may live separately
from her husband without forfeiting her right to maintenance.
The grounds which will enable the wife to live separately claim maintenance from
the husband are as follows;
Section 24 of the Act deals with Maintenance Pendente lite during the proceedings
between a husband and wife.
Section 18(3):- When a wife not entitled to separate residence and maintenance.
This provision says, “Any marriage solemnized at the commencement of this Act
shall be null and void and may, on a petition presented by either party thereto
against the other party be so declared by a decree of nullity if it contravenes any
one of the conditions specified in clauses (i), (iv) and (v) of section 5.
Section 5(1):- if any party to marriage has a spouse living at the time of the
marriage.
Sec 5(iv) :- if the parties are within the degree of prohibited relationship unless the
custom or usage governing each of them permits such a marriage.
Sec 5(v):- if the parties are ‘sapindas’ of each other, unless the custom or usage
governing each of them permits such a marriage.
Where any of the three conditions mentioned in the section exists the marriage
would automatically be null and void, and a decree of nullity may be passed by the
court at the instance of either party to the marriage.
A marriage which violates any of these 3 conditions is void ipso jure. It is open to
the parties to treat it a nullity without even asking for declaration from the court.
CASE LAW;-
The supreme court has observed that the marriages covered under section 11
are void the very inception and have to be ignored as not existing in law at all.
A void marriage does not alter or affect the status of the parties nor does it create
any rights and obligations between the parties which normally arise from a valid
marriage.
The primary objet of marriage is procuring of issue and physical capacity potency
is an essential requirement.
It may arise from some incurable mental or moral disability the other spouse
resulting in inability to consummate the marriage.
Medical examination of the parties is essential to annul the marriage on the ground
of impotency
CASE LAW
The Delhi High court held that the petitioner would be entitled to a decree of
nullity of marriage if the marriage was not consummated due to impotence of the
respondent spouse.
Proof of Impotency
Marriage can be annulled when it contravenes section 5(ii) of the Act that is
neither the party shall suffer from unsoundness of mind at the time of marriage.
Section 12(1) (b) refers that any marriage shall be voidable and may be annulled if
the marriage is in contravention of the condition specified in section 5(ii)
it states that the marriage is voidable on the ground that the consent of the
petitioner or of the guardian has been obtained by force of fraud.
Child Marriage Act has given minimum age for marriage to male is 21 and female
is 18.
CASE LAW
NAND KISHORE VS. SMT. MUNNI BAI [ AIR 1979 MP. 45]
The High court of Madhya Pradesh has held that the terms force and fraud means
those condition in which there is absence of real consent
Exception:-
No petition more than 1 yrs after the fraud or force marriage is discovered.
The petitioner has with his/ her full consent has agreed to live together even after
discovering the fraud/force.
The marriage can be annulled if the respondant was at the time of the marriage
pregnant by some person other than the petitioner.
CASE LAW
In this case the baby was born to Sushila after 171 days from the date of
marriage (5month 21 days) and the child was fully developed healthy child.
In this case there was no evidence of the husband and wife to meet before
marriage and the wife admitted her pergancy from before the solemnization of
marriage, when the husband had not met her.
1. That the petitioner was at the time of marriage ignorant of the facts alleged
2. The petition is filed within one year of such commencement of this Act.
3. The marital intercourse with the consent of the petitioner has not taken place.
B. GIFTS
Under this Act, a gift of immovable property can only be effected by a registered
instrument signed by or on behalf of the donor and attested by atleast two
witnesses.
The essentials of a valid gift are that there must be a donor, a done, a proper object
of gift and a transaction involving certain formalities.
Gift consists in the relinquishment (without consideration) of one’s own right (in
property) and creation of the right of another, and the creation of another man’s
right is completed on the other’s acceptance of the gift, but not otherwise.
The following property may validly be disposed of by gift even after the
commencement of the transfer of property Act 1882.
No gift is invalid by reason only that any person for whose benefit it may have
been made was not born at the time of the gift.
REVOCATION OF GIFT:-
A gift once completed cannot be revoked unless it was obtained by fraud or under
influence.
Gifts to trusts –
---------------------------------xxxxxxxxxxxxxxxxxxxxxxxx-------------------------------
C. WILLS
DEFINITION:-
A will is the legal declaration of the intention of a testator with respect of to his
property.
Meaning of codicil:-
Every person of sound mind, not being a minor may dispose of his property by
will.
A mitakshara coparcener can dispose of by will his or her undivided interest in the
coparcenary property- according section 30 of Hindu succession act 1956.
A will or any part of a will, the making of which has been caused by fraud or
coercion or by such importunacy as takes away the free agency of the testator, is
void.
BEQUEST TO A CLASS.
If a bequest is made to a class of persons with regard to some of whom it is
inoperative, such bequests shall be void in regard to those persons only and not in
regard to whole class.
No bequest is valid whereby the vesting of the thing bequeathed may be delayed
beyond the lifetime of one or more persons at the testator’s death and the minority
of some person who shall be in existence at the expiration of that period and to
whom, if he attains full age, the thing bequeathed will belong.
In construing a will the intention of the testator is to be looked to and the prime
duty of the court is to ascertain from the words of the will what the intention of the
testator was.
In ascertaining the intention of the testator, the following may be taken into
account.
“It may be taken to be quite settled that , when a grant of an immovable property is
made to a Hindu female, she does not get an absolute or alienable interest in such
property, unless such power is expressly conferred upon her.
Under the Mitakshara father had complete power of disposition of his self-
acquired property and if he made any deed of gift in favour of his son or some
other relation, there would be no presumption that the bequest was to confer the
nature of a joint family so that the property bequeathed became ancestral in the
hands of the legatee unless there were express words to indicate the same.
D. PIOUS OBLIGATION.
The doctrine has its origin in Smritis. Non-payment of debt is a positive sin, that
evil consequences of which follow the undischarged debts even in the world
afterwards. An obligation is imposed upon the sons to pay their father’s debts.
If the debts have been contracted by the father and they are no immoral or
irreligious the interest of the sons in the coparcenary property can always be made
liable for such debt.
The hindu son is not liable for debts contracted by his father, which is
Ayavaharika i.e, illegal, dishonest or immoral.
Avyavaharika debts:-
There are many meaning to this word. Whether a debt is immoral or not is to
be judged with reference to the time when it originated and the rule is not rigid but
has to be applied with reference to the circumstances of each case.
The sons, grandson and great grandson are not bound to pay avyavahrika
debt of the father.
CASE LAW
The supreme court observed that it is the pious duty of the sons to discharge their
father’s debt not tainted with immorality or illegality.
1. FOR DEBTS
2. FOR PERSONAL
INCURRED BY FATHER
DEBTS OF THE
AS MANAGER OF THE
FATHER
JOINT FAMILY
The liability for the debt contracted before partition may be sub-divided
as shown in the above diagram into the following classes;
A. Debts incurred by father as manager of karta of the joint family for family
purposes.
The father , grand-father or great-grand father, as karta of a joint family, has
authority to contract debts for necessity or benefit of the family and whole joint-
family property including the interest of the sons, grandsons and great-grandsons
is liable for the payment of that debt only.
Thus the son, grandson or great-grand son are liable only to the extent of their
share in the coparcenary property.
This liability of the sons exists today even after the Hindu succession
(Amendment) Act 2005.
This liability is limited to the son’s interest in the coparcenary property and the
whole family property is not liable for the payment of the personal debts.
The sons after a partition with the father are under no legal liability to pay his
debts contracted after the partition.
The son is, however liable after partition for a debt contracted by the father before
partition but only to the extent of the share he has obtained on the partition.
The Liability of a son to pay the debts of his father exists, whether the father is
alive or dead.
Thus, it is open for the father during his lifetime to effect a transfer of any joint-
family property including the interests of his sons in order to pay off the
“antecedent debt” provided it is not tainted with immorality.
For, when is such a case he alienates the property, which he may be taken to
exercise the power of alienation which the sons would have exercised in discharge
of their pious duty which they owed him; he is virtually alienating the property for
them and on their behalf, in discharge of the duty.
CASE LAW
The supreme court reiterated the well-established view that the father may
alienate the joint family property to pay off his antecedent untainted debts and
observed that he(the father) must act prudently and if consideration in inadequate
the sale will not be valid.
E. Judicial Separation
SECTION 10(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 section 13 (1) and in case of
a wife also on any of the grounds specified in section 13 (2)and petition for divorce
might been presented.
(2)where a decree for judicial separation has bee passed, it shall no longer be
obligatory for the petitioner to cohabit with the respondent, but the court may on
the application by petition of either party and on being satisfied of the truth of the
statements made in such petition rescind the decree if it considers it just and
reasonable to do so.
1. ADULTERY:-
Where the other party has, after the solemnization of the marriage, had voluntary
sexual intercourse with any person other than his or her spouse.
A single act of adultery may be sufficient now for the relief under this head.
2. cruelty:-
Where the other party has treated the petitioner with cruelty
1. Desertion
Where the other party has deserted the petitioner for a continuous period of not
less than 2 years immediately preceding the presentation of the petition.
2. Conversion
Where the other party has ceased to be a Hindu by conversion to another religion.
3. Unsoundness of mind
Where the other party has been of incurable 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 excepted to live with the
respondent.
4. Leprosy
Where the other party has been suffering form a virulent and an incurable form of
leprosy
5. Venereal disease
Where the other party has been suffering from venereal disease in a communicable
form.
6. Renunciation of world
Where the other party has renounced the world by entering any religious order
6. Presumed death
Where the other party has not been heard of as being alive for a period of seven
years or more by the those persons who would naturally have heard of it had that
party been alive.
1. BIGAMY:-
That the husband has since the solemnization of the marriage, been guilty of rape
or sodomy or bestiality;
4.Option of puberty
That her marriage was solemnized before she attained the age of 15 yrs and she
has repudiated the marriage after attaining the age of 15 years but before attaining
the age of 18 years
2. the husband and wife are not bound to live together or dine together as judicial
separation is separation from bed and board.
3. it will not be obligatory for the parties to cohabit with each other.
4. it does not prevent the parties from subsequently resuming cohabitation and
living together as husband and wife as originally they did.
5. If either of the spouse marries during that period, he or she will be guilty of
bigamy and will be liable for punishment prescribed by sec 17 of the Act.
6. the petitioner, if she be the wife, becomes entitled to alimony from the husband,
and if he is the husband he can claim maintenance from wife under section 25 of
this Act.
7. the wife shall, from the date of the decree and till separation continues be
considered as a feme sole i.e ‘independent women’ with respect to property of
every description.
8. The mutual rights and obligations arising from the marriage are suspended and
the rights and duties prescribed by the decree are substituted therefore.
INTRODUCTION :-
Thus adoption is the transplantation of son from the family in which he is born, to
another family where he is given by the natural parents by way of gift. The
adopted son is then taken as being born in the new family and acquired rights,
duties, and status there only and his ties with the old family comes to an end.
1. The person adopting has the capacity and also the right to take in adoption.
2. The person giving in adoption has the capacity to do so;
3. The person adopted is capable of being taken in adoption.
4. The adoption is made in compliance with the other conditions mentioned in the
chapter.
Any female
Has the capacity to take a son or daughter in adoption. Consent of the husband is
necessary if husband is alive.
1. That both the parties have been living separately for a period of one year or more;
2. That both the parties have not been able to live together
3. That both the parties have mutually agreed that their marriage should be dissolved.
According to section 23(1)(bb) of the Act, the consent for petition of divorce by
mutual consent must not be obtained by force, fraud or undue influence. If this
elements are found in the agreement, the application will be rejected by the court.
The Karnataka High court has said that on filing a petition jointly by the wife and
husband the following points are to be proved for getting a decree under this
section:-
1. The parties to marriage are living separately for a period of one year or more;
3. They have reached a compromise that they would dissolve the marriage; and
4. That they have consented to divorce not under any force or fraud or under undue
influence.
In this case the court held that a party to the petition for divorce by mutual
consent, can unilaterally withdraw his consent at any time till passing of the decree
under this section.
If subsequent motion seeking divorce decree under sub section (2) is not of
both the parties because of the withdrawal of consent by one of the parties, the
court gets no jurisdiction to pass the decree.
The Supreme court has held that Sureshta devi’s decision that ‘consent can be
withdrawn at any time before decree is passed’ are too wide and requires
reconsideration.
In this case, the petition for divorce by mutual consent was pending for a
considerably long period and the wife had not withdrawn her consent within 18
months from the date of presentation of petition.
Neither divorce decree could be passed nor reconciliation could be brought about
between the spouses.
Moreover, during the pendency of the divorce proceedings, the husband had
contracted another marriage and begot a child.
Civil and criminal proceedings were also filed by the spouse against each other
during pendency of the suit. In the view of the above facts, the supreme court etc.
The cumulative effect of the various aspects in the case indisputably point
out that the marriage is dead, both emotionally and practically…..and there is long
lapse of years since the filing of the petition; existence of such a state of affairs
warrant the exercise of the jurisdiction of this court under Art 142 of the
constitution and grant a decree of divorce by mutual consent….. and dissolve the
marriage between the parties.
The court to meet the ends of justice, exercised its power under Art 142 of the
Indian constitution ‘decree for divorce was granted.
After the marriage the society of the husband and wife is entitled to each other.
Therefore a cause the action arises when one of the parties to the marriage
withdraws the society of the other.
one spouse is entitled to society and comfort-consortium- of the other spouse and
where either spouse has abandoned or withdrawn from the society of the other
without reasonable excuse or just cause the court should grant a decree for
restitution.
1. Either of the party has, without reasonable excuse, withdrawn from the society
of the other.
2. The court is satisfied of the truth of the statement made in the petition for
restitution of conjugal rights; and
According to this provision either of the spouse can institute proceedings in court
for directing the other spouse to give back the conjugal society which has been
unreasonably withdrawn.
The MP high court held that in order to sustain a petition for restitution of
conjugal rights, it is necessary to establish that the respondent has withdrawn from
the society of the petitioner.
It is for that person to prove the conditions which have necessitated such course to
be taken.
Thereafter the burden would shift to the other party to show that he or she has
withdrawn from the society of the other for a reasonable excuse
In this case Mrs. T. Sareetha a film actor leaves her husband house without any
reason.
Her husband files a case in the court for restitution of conjugal rights and the court
sanctions the same.
But again Sareetha moves the A.P High court validating the constitutionality of
section 9.
The A.P High court observes that this provision is a savage and barbarous remedy
violating the privacy and human dignity guaranteed by Art 21.
This provision denied the women a free choice, where, when and how her body
was to become the vehicle for procreation of another human being.
This rights deprived a women of control over her choice as and when and by
whom the various parts of her body should be allowed to be served .
It did not subserve any social good. It was arbitrary and void as offending Article
14 of the constitution.
The supreme court held that section 9 is not violative to Art 14 or 21 of the
constitution.
The society of the husband and wife together is not merely the creature of the
statute.
Married persons are bound to live together and if either of them withdraws from
the society of the other without lawful excuse, the court may compel the parties to
return to cohabitation.
Withdrawal from the society of the other depends upon whether the conduct
complained is of a grave and weighty character.
Each case must depend on its facts and circumstances and it is not possible to
give an exhaustive statement of law what may or may not constitute “reasonable
excuse’.
And whether there is a reasonable cause or not in a given case shall be decided
only on the evidence and the particular circumstances of that case.
The right of the husband to require his wife to live with him is not unqualified,
where the wife is gainfully employed in a place away from the husband’s home.
the court held it to be a reasonable excuse to live apart and the restitution petition
of the husband was not granted.
In this court the Punjab High court granted restitution of conjugal rights to the
husband, even though the wife was gainfully employed away from the
matrimonial home where the husband lived on the consideration that the husband
had the right to determine the locus of the matrimonial home and that he had the
means to support his wife.
ALKA BHASKER BARKE V/S SATCHIDANANDA BARKE [AIR 1991
BOM 164]
The matrimonial home must necessarily not be the house of husband or in-laws
house.
In this case the wife and husband were gainfully employed at different places and
decided to book a flat a Bombay.
The husband contributed initial amount and the wife paid the remaining balance.
It was held that this flat at Bombay was the matrimonial home of the parties.
I. Dharma
Dharma:- The Hindu shastrakaras have laid great emphasis on Dharma. Dharma
pervades throughout the Hindu philosophical thought, and the Hindu social
structure. Law is, in this sense considered as a branch of dharma.
Dharma signifies the sum total of religious, moral, social and legal duties . Hindu
sages and law givers have all along emphasized duties. Duties of individuals , of
all person in all walks of life. Duties of kings, priests, parents, warriors, peasants
servants etc. has been described in detail. Thus the duties are binding in character .
J. Dowry
At or before the marriage has consideration for the marriage of the said parties but
does not include dower or mahr in the case of person to whom muslim personal
law (Shariat) applies.
Section 6:- dowry to be for the benefit of the wife or her heirs.
If the any person receives dowry in connection with marriage that it shall transfer it
to the women.
A. if the dowry was received before marriage, within one year after the date of
marriage or
-----------------------------XXXXXXXXXXXXXXXXXXXXX------------------------
a. Kantimati refuses to live with her husband as long as he stayed with his
aged parents. She approaches the court against her husband seeking
separate residence and maintenance. Will she succeeded ? Decide.
Section 18:- of the Hindu Adoption and Maintenance Act 1956 deals with the
maintenance and separate residence of a wife.
Section 18(1):-Subject to the provisions of the Act a hindu wife, whether married
before or after the commencement of this Act, shall be entitled to be maintained by
her husband during her lifetime.
Section 18(2):- A Hindu wife shall be entitled to live separately from her husband
without forfeiting her claim to maintenance.
1. If he is guilty of desertion,
2. If he has treated her with such cruelty.
3. Suffering from virulent form of leprosy.
4. If he has any wife living
5. If he keeps a concubine in the same house or habitually resides with her.
6. If he has converted to another religion.
7. If there is any other reason justifying her living separately?
The provisions of the Hindu Hindu Adoption and Maintenance Act 1956 clearly
states the eligibility circumstances for a wife to claim maintenance and separate
residence from her husband.
In the above mentioned problem the wife wants maintenance and separate
residence since she is refuses to stay with her husband so long he stays with his
aged parents.
This reason mentioned by kantimati is not mentioned in either of the clauses of
section 18 of the Act.
To claim it a grave and serious nature of grounds should be there which is not
grave or serious in the above mentioned problem.
-------------------XXXXXXXXXXXXXXXXXXXXXX-------------------------------
b. Varun writes a will that if he dies, his child kiran should be taken care by
his sister and Varun’s wife srimati writes a will that in case of her death
her brother should be the guardian of her son. Both die in an accident.
Who shall be the guardian of the son?
Solution :-
1. A Natural Guardian.
2. Testamentary Guardian (guardian oppointed by natural guardian by will)
3. Guardian appointed by court.
4. Guardian empowered to act as guardian under any enactment relating to any
court of wards.”
Besides this there are other types of guardians.
5. Defacto guardian
6. Ad hoc guardian.
Section 9:-
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 to in section 12) or in respect of both.
2. An appointment made under sub-section (1) shall have no effect if the father
pre-deceases the mother, but shall revive, if the mother dies without
appointing by will, any person as guardian.
• So as per the provision a father can appoint a testamentary guardian only
in absence of minor’s mother.
• Appointment is of no value if mother is alive since she is a natural
guardian. But the appointment by father will continue if mother dies
without appointed a testamentary guardian for her children.
In the above mention problem father has appointed one testamentary guardian and
even mother has appointed one testamentary guardian and both died in accident.
The appointment made by the mother will be eligible to act as testamentary
guardian for the child.
--------------------------xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx-----------------------
c. A Joint Hindu family consist of father ‘F’ and his son ‘S’. Partition takes
place between ‘F’ and ‘S’. Two years after partition another son ‘T’ is
born to ‘F’. Now state who all coparceners are and what the share of
property of each person is.
ANSWER :- In this problem the coparceners are the father (F), his son(S). The
share of property of each person is 1/2rd of the property.
The son ‘T’ who is born as well as begotten to ‘F’ after the partition is entitled to
his father’s share at the partition. He is not entitled to reopen the partition.
Coparceners are such persons who jointly inherit property, whereof they have unity
of possession, which, however may be served at any time by partition.
Partition of the joint hindu family property may take place at the instance of the
following.
1. after born sons (and after born daughters of a coparceners. After born sons may
be considered in two sets.
Firstly, those born as well as begotten after the partition, and secondly, those born
after partition but begotten before it or those in their mother’s womb at the time of
partition.
In case of a son born as well as begotten after the partition, if his father has taken a
share for himself and separated from the other sons, then the after-born son, is
entitled to his father’s share at the partition and also his separated property to the
exclusion of the separated sons and is not entitled to reopen the partition.
So in the above mentioned case the son born as well as begotten after the partition
is entitled to get the share of his father and not entitled to re-open the partition.
------------------------------xxxxxxxxxxxxxxxxxxxxxxxxxxxx----------------------------
d. Father enters into an agreement to sell the minor’s property and delivers
actual possession of the same in pursuance of that agreement. Whether the
agreement is binding on the minor? Explain with reasons.
Answer:- In the above mentioned problem whether the agreement to sell the
minor’s property by father is binding on the minor, is subject to the prior
permission taken by the court. If the father has taken the prior permission of the
court then the agreement is binding, if he has not taken it, then the minor is not
binding to the agreement entered by the father.
Section 8(2):- the natural guardian shall not, without the previous permission of the
court
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
e. Father has incurred debt for personal benefit; son has self- acquired
property. Is son liable to discharge debt of his father? Decide
Answer:- No, the son is not liable to discharge debt of his father.
In the above mentioned problem the son will not be liable to discharge the debts of
his father, because according to pious obligation, the son’s liability is classified as,
Under the sub-head (b) , that is debt incurred by the father for his personal benefit,
the son on the basis of the doctrine of pious obligation will be liable for the
payment of the debt provided the debt is not tainted with illegality or immorality.
And the liability is limited to the son’s interest in the coparcenary property.
But in the above mentioned problem there is no coparcenary property and son has
self- acquired property hence, the son is under no obligation to pay the debts
incurred by the father for his personal benefit.
----------------------xxxxxxxxxxxxxxxxxxxxxxxxx------------------------------
f.A dies intestate leaving behind his two Widows “Y” and “X” and two
daughters “M” , “N” and one son “Z” and mother “K”. Distribute the
property among them.
Answer:-
The distribution of the property among the members will be divided into 1/5.
Here the property among the following members will be divided as per the rules
given under Hindu Succession Act 1956.
Section 8 :- divides the heirs of a male for the purpose of inheriting the property
into 4 classes. These are,
Section 9:- states among the heirs specified in the schedule those in Class I shall
take simultaneously and to the exclusion of all other heirs.
Son
Daughter
Widow
Mother
Son of pre-deceased son
Daughter of a pre-deceased son
Son of pre-deceased Daughter
Daughter of a pre-deceased Daughter
Widow of pre-deceased son
Son of pre-deceased son of pre-deceased son
Daughter of a pre-deceased son of pre-deceased son
Widow of pre-deceased son of a pre-deceased son
Son of pre-deceased Daughter of pre-deceased Daughter
Daughter of a pre-deceased Daughter of a pre-deceased Daughter
Daughter of a pre-deceased son of a pre-deceased Daughter
Daughter of a pre-deceased Daughter of a pre-deceased son.
“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 is more widows than one all the
widows together shall take one share.
Explanation:- widow is entitled to one share, if more than one widows that all
widows together are entitled to one share.
Rule2:- the surviving sons and daughters and the mother of the intestate
shall each take one share.
Explanation :- each surviving sons, daughters and mother get one share
each.
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.
Among the heirs in the branch of the pre-deceased son shall be so made that
his widow (or widows) and the surviving sons and daughters get equal
portion and the branch of his pre-deceased sons gets the same portion.
Among the heirs in the branch of the pre-deceased daughter shall be so made
that the surviving sons and daughters get equal portions”.
Explanation:- the heirs of pre-deceased son together shall get only one share
just as the branch of a pre-deceased son got only one share under Rule -3.
---------------------xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx----------------
G. A Hindu widow inherits property from her husband in 2003 and adopts
a son in 2007. Can the adopted boy inherit the property?
Answer:
Section 8 of Hindu Adoption and Maintenance Act 1956 lays down the condition
in which a Hindu female can adopt.
Any female Hindu
a. Who is of sound mind
b. Who is not a minor
c. Who is not married, or
If married,-
i. Whose marriage has been dissolved.
ii. Whose husband is dead
iii. Has completely and finally renounced the world
iv. Has ceased to be a hindu
v. Has been declared by a court of competent jurisdiction to be of
unsound mind,
In the above mentioned problem section 8 recognizes the right of a Hindu widow
to adopt a son or daughter to herself.
The effect of adoption by a widow of a son or daughter will be to clothe the
adopted son or daughter with all the rights of a natural born son or daughter in the
adoptive family and to create all the ties of the child in the family.
Hence the child adopted by the widow is having all the rights to inherit the
properties of the father.
------------------------xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx---------------------------
Answer :- section 9 of the hindu marriage Act 1955 is not violating any
provision of the constitution that is section 14 and 21.
Section 9 of Hindu Marriage Act 1955( Restitution of Conjugal Rights ) is
the foundation of the right is the fundament rule of matrimonial law that one
spouse is entitled to society and comfort- consortium- of the other spouse and
where either spouse has abandoned or withdrawn from the society of the other
without reasonable excuse or just cause the court should grant a decree for
restitution.
CASE LAW
The Andhra Pradesh High court has observed that a decree of restitution of
conjugal rights deprived a women of control over her choice as and when and by
whom the various parts of her body should be allowed to be served. She loses her
control over her most intimate decisions. It did not subserve any social good. It
was arbitrary and void as offending Art 14 of the constitution.
In this case the Supreme court observed that section 9 of the Act cannot be
said to be violative of Art 14 or Art 21 of the constitution if the purpose of decree
of restitution of conjugal rights in the Act is understood in its proper perspective
and if the method of its execution in cases of disobedience is kept in view.
In India conjugal rights, the right of the husband and wife to the society of
other spouse is not merely creature of the statute. Such a right is inherent in the
very institution of marriage itself. The term conjugal rights may be viewed in its
proper perspective.
Solution :- hence it can be stated that the wife who has moved to the court
questioning the constitutional validity of Section 9 of Hindu Marriage Act 1955(
Restitution of Conjugal Rights ) is valid and does violate Article 14 and Article
21.
------------------------------xxxxxxxxxxxxxxxxxxxxxxxx----------------------------------
According to section 5:- which states the conditions for a valid marriage under
Hindu Marriage Act 1955. Are as follows,
1. Monogamy
2. Soundness of mind
3. Age of marriage
4. Marriage between prohibited relationship
5. Marriage within sapinda relationship.
Section 5 (iii) state the 3rd condition is that the bridegroom must be completed the
age of 21 years and the bride age of 18 years at the time of marriage.
The child marriage restraint (Amendment ) Act, 1978 has raised the minimum age
fixed for marriage to 21 yrs in case of bridegroom and 18 years in case of bride.
The Prohibition of child marriage Act 2006 : According to sec 2(b) of child means
a person who if a male has not completed 21 yrs of age and if a female has not
completed 18 yrs of age.
According section 3 of the Act the child marriage is voidable at the option
of the contracting g party who was a child at the time of the marriage , but petition
under this section can be filed before the child filing the petition completes 2 years
of attaining majority.
Solution:- hence the marriage between Prabhakara and Kusuma is void and
Kusuma can repudiate her marriage before attaining the age of 18 yrs and the girl
can obtain a decree for dissolution of marriage.
-------------------------------xxxxxxxxxxxxxxxxxxxxxxx---------------------------------
PREPARED BY
JAYALAKSHMI.V
ASST PROF
AL-AMEEN COLLEGE OF LAW
BANGALORE.