FAMILY LAW - II ASSIGNMENT

 Whether couples in live-in relationship have right to adopt a

Child?

 Maintenance for Women under various personal as well as

secular laws.
 Powers and duties of a Karta and restrictions imposed on
alienation of Joint family Property.

Submitted by Submitted to

Gourav Malhotra Prof. Padmaja Chougule

BALLB (SEM – 5th)

B-‘28’

Date of Submission – 30/08/2023

Question. Whether couples in live-in relationship have right to
adopt a Child?

Ans. Synopsis:

1. Introduction.
2. Understanding it through Judicial approach
3. CARA ( Central Adoption Resource Authority)
4. Eligibility to adopt a child and other legal Rights
5. Conclusion.

INTRODUCTION

A live-in relationship is a relationship much the same as marriage where the two
players share a family however are not legitimately hitched to one another.
Even if the partners continue to live together, they are not required to share any
responsibilities with one another because there is no legal obligation.
The legal status of "live-in" relationships is not yet clear because Indian laws do
not specify what constitutes one.

ANALYSING LIVE-IN RELATIONSHIPS THROUGH JUDICIAL

APPROACH
The Supreme Court of India first thought to be the issue of live-in quite a while
on account of Badri Prasad v. Dy Head of Solidification in 1978. The partners
had been living together for roughly fifty years in this instance. The High Court
decided for the live-in couple, allowing legitimate status to their fifty-year
relationship.
Besides, the 2010 instance of D. Velusamy v. D. Patchaiamm tended to the pre-
conditions that should be met for a live-in relationship to be perceived
certifiable.
In the case of Indra Sharma v. V. K. V. Sharma in 2013, the Supreme Court
classified live-in partnerships into five types.
CARA (CENTRAL ADOPTION RESOURCE AUTHORITY)

In May of this year, the Central Adoption Resource Authority (CARA) had
previously prohibited applicants living together from adopting a child. "People in
a relationship cannot be considered a stable family," the organization stated. "The
Authority would like the children to be placed only with a stable family."

"We have decided to withdraw the circular, and applications from prospective
adoptive parents will be reviewed on a case-by-case basis," however, stated R K
Shrivastava, secretary of the Women and Child Development Ministry.
The change is said to help both homegrown and unfamiliar candidates, and that
implies that Indians who are in homegrown organizations yet live abroad will be
permitted to take on through CARA too. The association has expressed, in any
case, that any couple proposing to embrace ought to be truly, inwardly, and
monetarily secure to bring up a youngster.
ELIGIBILITY TO ADOPT A CHILD

The following people can adopt under the HINDU ADOPTIONS AND
MAINTENANCE ACT 1956:
• Any male Hindu (including Buddhist, Jain, or Sikh) who is of sound
mind, is not a minor, and is entitled to adopt a son or daughter. However,
if such a person has a live spouse at the time of adoption, he can only
adopt a kid with his wife's consent (unless the court has pronounced her
incapable to provide her consent).
• Any female Hindu who is not married, or if married, whose husband is
deceased, the marriage has been dissolved, or her husband has been found
incompetent by the court, has the right to adopt a son or daughter.
 If a Hindu male or female adopts a son, there must be no live sons in the
party's subsequent three generations at the time of adoption.
• If a Hindu male or female adopts a daughter, there must be no daughter or
son's daughter at the time of adoption.
• When a man adopts a girl, the adoptive father must be at least twenty-one
years older than the child.
• When a female adopts a son, the adoptive mother must be at least twenty-
one years older than the child.
LIVE IN RELATIONSHIP: LEGAL RIGHTS IN INDIA

• Right to live-in relationship - Many people believe that this is illegal

because it goes against Indian culture and society's standards. Those who
are in a live-in relationship are also threatened by arrests and fail. In a
historic judgement, the Supreme Court stated, "Notions of Social
Mentality are inherently subjective, and the criminal law cannot be used
as a means to unduly interfere with the domain of personal autonomy."
• Renting/owning a property jointly - It should be highlighted that property
rights in a live-in relationship are the same as any other individual's.
• Police Protection- Couples who live together have the right to seek the
appropriate police station for protection against interference with life and
personal liberty.
 Marriage
 Domestic Violence
 Maintenance.
 Adopting a child

CONCLUSION
A live-in relationship is frowned upon in India. Although conservative Indian
society views live-in relationships as immoral, Indian law is liberal enough to
not deem them unlawful.

Ques. Maintenance for Women under various personal as well as

secular laws.

Ans. Synopsis:
 1. Introduction
2. Maintenance under the CrPC
3. Maintenance under the Hindu Personal Law
4. Maintenance under the Muslim Personal law
5. Maintenance under the Christian and Parsi Personal law
6. Maintenance under the Special Marriage Act, 1954
7. Conclusion

INTRODUCTION

India is a secular nation, but the Indian definition of the term differs from that of
the rest of the world. After a legal separation or divorce, maintenance is defined
legally as financial support paid by one ex-spouse to another. This monetary help
is for the spouse's or separated from wife's work, her kids' property support, and,
in certain circumstances, to empower her to be suitably addressed in the claim.

Shifted regulations have changed arrangements for upkeep. However, Section

125 of the Code of Criminal Procedure, 1973 contains a secular maintenance rule.
Simultaneously, the law of support under the CrPC is given, which is mainstream
in nature and can be summoned by anyone, paying little mind to religion.

MAINTENANCE UNDER CrPC

India is a common country, however the Indian meaning of the term varies from
that of the remainder of the world. Maintenance is the legal term for support paid
by one spouse to another after a legal separation or divorce. The spouse's or
separated wife's work, the support of her children's property, and, in some cases,
her ability to be appropriately addressed in the claim all qualify for this financial
assistance.
Guidelines have changed plans for upkeep. However, a secular maintenance
rule enshrined under section 125 of the Code of Criminal Procedure from 1973.
All the while, the law of help under the CrPC is given, which is standard in
nature and can be summoned by anybody, paying little heed to religion.
MAINTENANCE UNDER THE HINDU PERSONAL LAW

The Hindu Marriage Act of 1955 and the Hindu Adoption and Maintenance Act
of 1956 govern women's maintenance under Hindu personal law.
Section 18 of the Hindu Adoption and Maintenance Act of 1956 allows for the
husband's support of the wife. A divorced wife is not considered a wife for the
purposes of this provision. The husband is obligated to support her throughout
her life. He is also obligated to support her even though she lives far from him.
This provision allows either the husband or the wife to seek maintenance. The
criteria for claiming maintenance differs between males and women. According
to the case of Kanchan v. Kamlendra, the husband is only entitled to
maintenance from his wife if he is physically or mentally incapable of having an
independent income, whereas the wife is entitled to maintenance if it is
discovered at any point during the proceeding that she does not have any
sufficient independent income.

Comparison with CrPC:

The law of maintenance under both of these legislations is substantially

different. According to the Hind Marriage Act of 1955, both the husband and
wife are entitled to maintenance, however only the wife is entitled to support
under the CrPC. Furthermore, in order to claim maintenance under the Hindu
Marriage Act of 1955, the woman just needs to demonstrate that she lacks
sufficient and independent income. To claim maintenance under the CrPC, she
must additionally show that her husband either refused or neglected to support
her.
It was clearly decided in the case of Shambhu Nath Pathak v. Kanti Devi that
the wife cannot claim double maintenance benefits under both the CrPC and the
Hindu Marriage Act, 1955. She is only eligible for maintenance under one of
them.

MAINTENANCE UNDER THE MUSLIM PERSONAL LAW

Despite the fact that India is a common country, the Indian meaning of the word
differs from that of the rest of the world. After a legal separation or divorce,
maintenance is the legal term for support paid by one spouse to the other. The
mate's or isolated spouse's work, the help of her youngsters' property, and, now
and again, her capacity to be fittingly tended to in the case all fit the bill for this
monetary help.
Plans for maintenance have changed as a result of changed guidelines. In any
case, a common upkeep rule revered under segment 125 of the Code of
Criminal Methodology from 1973. Throughout this time, the CrPC provides a
standard law of assistance that can be invoked by anyone, regardless of religion.

Comparison with CrPC:-

Under the CrPC, Muslim ladies can similarly look for Maintenance. Dissimilar
to Muslim individual regulation, the CrPC awards separated from ladies the
right to support. It was a combative issue and a legitimate concern whether
Muslim separated from ladies might guarantee the right to support under the
CrPC, regardless of whether they get the dower.
Moreover, Area 5 of the Muslim Ladies (Security of Privileges on Separation)
Act, 1986 states that the gatherings might decide to be represented by
mainstream regulation, as characterized in segments 125 to 128 of the CrPC, as
opposed to Muslim Individual regulation. Under the CrPC or the Muslim
Women (Protection of Rights on Divorce) Act of 1986, women can get help.

MAINTENANCE UNDER THE CHRISTIAN AND PARSI PERSONAL

LAW AND THE SPECIAL MARRIAGE ACT, 1954

Maintenance for Parsis is provided for by Section 40 of the 1936 Parsi Marriage
and Divorce Act. This section and Section 95 of the Hindu Marriage Act of
1955 are identical. As per this, either the spouse or the wife could look for
support.
When the husband obtains a decree of dissolution or judicial separation for the
wife, support is provided under Section 37 of the Indian Divorce Act of 1869.
As indicated by this, main the spouse is qualified for help.
Comparable provisos can be found in Area 38 of the Indian Separation
Demonstration of 1869 and Segment 41 of the Parsi Marriage and Separation
Demonstration of 1936. According to these sections, alimony can be paid to the
wife or her trustees. The Special Marriage Act of 1954 governs interfaith
marriages. This Act's Section 37 addresses the issue of upkeep. Only the wife
can claim maintenance under this provision, hence it is gender specific.
Comparison with CrPC:-
Unlike the Parsi Marriage and Divorce Act, the CrPC only provides for
maintenance up to the loge. Furthermore, the CrPC applies to all sects and
religions. However, the Parsi Marriage and Divorce Act of 1936 only applies to
Parsis, the Indian Divorce Act of 1869 only to Christians, and the Special
Marriage Act of 1934 only applies to inter-faith marriages.

CONCLUSION
The laws of maintenance differ according to the many personal laws as well as
the secular law of the CrPC. Thus, based on the entire discussion and
comparison, it would be prudent to conclude that the CrPC, as a secular, just,
economical, and rapid procedure, is the most advantageous path for divorced
women to choose to get maintenance.
Ques. Powers and duties of a Karta and restrictions imposed on
alienation of Joint family Property.

Ans. Synopsis:

1. Introduction
2. Duties and Powers of a karta
3. Conditions restraining alienation
4. Landmark Judgments
5. Conclusion

INTRODUCTION

The Hindu society's default state is the Hindu Joint Family. A Hindu Joint
Family incorporates all individuals from a commonplace male begetter's family,
as well as their moms, spouses or widows, and unmarried little girls.
On the Karta, the person in charge of ensuring that a joint family runs smoothly
is the family. He occupies a special position among his relatives. He is the
senior male individual from the Hindu Joint Families and holds a specific job.
Karta's status is sui-generis (unique). It is an extraordinary job, and the
communication among him and different individuals from the family is not
normal for some other.
POWERS OF A KARTA

• Manages revenue and expenditure powers: If the coparceners disagree on

the expenses, they can file for partition. The Manager/Karta has complete
control over the company's profits and expenses. He might spend this
money for the coparceners' and their families' support, residence,
education, Sharadha, marriage, and other religious ceremonies. If the
manager spends more on such meetings than the other coparceners
approve, the coparceners' only option is to partition.
• Manages power to alienate coparceners property: Acc. to the Mitakshara
the power of manager to make a valid alienation is confined to three
purposes: -
• In the time of distress (must be affecting whole family) b) It is for the
sake of benefits of the family
• For the pious purpose of the family the consent is not granted by and
coparceners, still the karta does alienation of properties, then that contract
will be Void-ab-initio at the option of the coparcener.
o Power of the of the Manager to Contract debts: The manager of a
Joint family has an implied authority to contract debts and pledge
the property for the family for this purpose such debts would be
binding on other members of the family.
o Power of manager to acknowledge debts
• Power to start a new business: A Karta of a Joint Hindu Family can start a
new business in the following five cases: -
o Where such new business though. started by manager alone has
been subsequently adopted by a Joint family business by all the
Coparceners. All of them being adults. and no minor coparceners is
in existence at business.
o Where such new business has been started the manager at Consent
(expressed or implied) & all the coparceners, all of them being
adults and no minor coparcener is in existence at the time of
starting such business.
 o Where the Karta started the new business during the minority of a
coparcener who having enjoyed the benefit, therefore has on
attaining majority accepted and adopted family business
o Where the new business has been started by the father, the
grandfather or the great grandfather and he has no male issue born
to him or in existence at the time when it is started that business
will be considered as a Joint family business.
o When the new business has been started by the sole surviving
coparcener and the other coparcener are being only subsequently
consent is not required.
• Power to give a valid discharge: The Karta has the full power to give a
valid discharge for all debts due to the family.
• Power of the manager to refer a dispute to arbitration: -
o The reference must be Bonafede
o It must be without any fraud or collision
• Power of the manager to represent the Joint family in suits and other
proceedings.
• Power of the manager to compromise

DUTIES OF A KARTA

• Duty to render account- The manager of work Joint Hindu Family is not
supposed to in accounts as long as a family remains a Joint Family. The
only exception of this rule is when the nature of the family property and
dealings is such that it becomes necessary to keep accounts. If a
coparcenary is dissatisfied with the kartas managements its only remedy
is to ask for a partition.
• Duty to recover family debts- It is the Karta's responsibility to recognize
and reclaim all family debts. He has no authority to discharge a debt
owed to the Joint family. He may, however, make a reasonable reduction
in the amount of interest/principle owed to the family in the interest of the
family.
• Duty to spend reasonably- If the other coparcener is unsatisfied or
believes that Karta is spending more than coparceners approve, the sole
remedy is to request partition.
• The obligation to start a new business without the proper consent.
• The obligation not to alienate Joint Family Property.
CONDITION RESTRAINING ALIENATION UNDER TRANSFER OF
PROPERTY ACT

Condition Restraining alienation (Section 10):-

According to this clause, with the exception of a lease and married

women, any condition that forcibly prevents the transferee from
selling the property is null and void if it is attached to a property
transfer.
According to Section 10, any restriction on the freedom to dispose of
property is incompatible with the fundamental characteristic of
ownership rights.

Essential Elements of Section 10:-

1. The subject matter, if it is a property transfer, must be a property

transfer.
2. The transfer is subject to a restriction or condition.
3. The transfer cannot alienate due to the limiting constraint.

JUDGEMENTS OF NOTE
• Kandasami v. Somakanda (1910)
In this instance, it was discovered that Karta might sell joint family property
with the other Coparceners' approval, even in the lack of a legal requirement,
for the benefit of the estate, or for activities involving irrevocable obligations.
provided that the adults who are consenting, coparceners are.
• Manchoe v. Dewan (1985),
The appellants' father, Dewan Chand, sold some land for Rs. 8000/-. The
appellants filed a lawsuit seeking shared possession of the subject property,
claiming that they and their father formed a single Hindu family, the sold
property was common property, and the sale was carried out without thought or
legal justification.
• Rani Shanta (1970)
Regarding the selling of a portion of the joint family's property, tensions at
home occurred. It was argued that their mother sold the aforementioned
property illegally and under duress. Since the Trial Count in this case found in
favor of the plaintiff, they filed an appeal with the High Court of Kolkata.
The SC said that it has now been established that "necessity" is not to be
appreciated in the sense of what is absolutely vital but rather what would be
considered proper and reasonable by a Hindu family.
In this case, it was decided that any alienation without Coparceners' approval
and for any reason other than legal necessity is void ab initio.

CONCLUSION
With the consent of all other cohabitants, Karta has the authority to alienate the
joint family property. However, such alienation can only be carried out in
circumstances including a need for the law, the advantage of the estate, and
carrying out essential duties like or pious activities.