KAMKUS COLLEGE OF LAW

B.A. LL.B. VTH SEM.

HINDU LAW
CODE BL-(5004)

1. SOURCES OF HINDU LAW

SUGGESTED DETAILED QUESTIONS ANSWERS

Q. 1. Can Hindu codified law be applied to a person who not traditionally a Hindu
by religion? If so under which provisions of law?

ANS. Concept of Dharma

Hindu law is a body of principles or rules called ‘Dharma.’ Dharma according to Hindu texts
embraces everything in life. according to the Hindus, ‘Dharma’ includes not only what is known as
law in the modern sense of the term but all rules of good and proper human conduct. dharma is used
to mean justice what is right in a given circumstance, moral, religious, pious or righteous conduct,
being helpful to living beings and things, duty, law and usage or custom having in the force of law
and also a valid Rajas asana.

Origin of Hindu Law

The Hindu system as modified through centuries has been in existence for over five thousand years
and has continued to govern the social and moral patterns of Hindu life with harmonizing the diverse
elements of Hindu cultural life. Magne says, “Hindu law has the oldest pedigree of any known
system of jurisprudence and even now it shows no signs of decrepitude.”

Nature and Scope of Hindu Law

Hindu law, though believed to be of divine origin, is based essentially on immemorial custom and
many of the acts of the people which were purely of a secular nature. But the secular nature of the
Acts has been modified to suit the religious preferences of a Brahmin community. With a desire to
promote the special objects of religion or policy, they have used their intellectual superiority and
religious influence to mold the customs of the people.

Who are Hindus?

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the term ‘Hindus’ denotes all those persons who profess Hindu religion either by birth from Hindu
parents or by conversion to Hindu faith in Vagnapurus Dasji v. Muldas [AIR 1966 SC 1119], the
Supreme Court accepted the working formula evolved by tilak regarding Hindu religion that
‘acceptance of Vedas’ with reverence, recognition of the fact that the number of gods to be
worshiped at large, that indeed is the distinguishing feature of Hindu religion.

In Shastri v Muldas SC AIR 1961, SC has held that various sub sects of Hindus such as
Swaminarayan, Satsangis, Arya Samajis are also Hindus by religion because they follow the same
basic concept of Hindu philosophy. Converts and reconverts are also Hindus.

If only one parent is a Hindu, the person can be a Hindu if he/she has been raised as a Hindu. In
Sapna vs State of Kerala, Kerala H.C, the son of Hindu father and Christian mother was held to be a
Christian

To whom Hindu Law apply

1. Hindus by birth
2. off shoots of Hinduism
3. Persons who are not Muslims, Christians, Parsis or Jews
4. Converts to Hinduism
5. Reconverts to Hinduism
6. Harijans
7. Aboriginal tribes

To whom Hindu law does not apply

• to converts from the Hindu to the Mohammedan faith

• to the Hindu converts to Christianity
• to the illegitimate children of a Hindu father by Christian mother and who are brought up as
Christians

Constitution of India and the enactments under the Hindu law

Presently, Hindu law is applied through the Hindu Marriage Act, 1955; the Hindu Succession Act,
1956; the Hindu Minority and Guardianship Act, 1956; and the Hindu Adoptions and
Maintenance Act, 1956

Constitutional Enactments are:

• Hindu Women’s Rights to Property Act, 1937

• Hindu Succession Act, 1956

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Impact of Hindu Law Enactments in Fundamental Rights
Several principles of Hindu Law have been held invalid on the ground that they infringe the
fundamental rights. For example, the rule of Damdupat is hit by Article 15(1) of the Constitution
and as such would be void under Article 13(1).

Sources of Hindu Law

Ancient Sources Modern Sources

Legislatures Judicial Decisions Justice, equity

(PRECEDENT) & Good Conscience

Shruti (Vedas) Smritis Commentaries Custom

and Digests

Dharmashastras Dharmasutra Manusmriti Yajnavalkya Narada

Smriti Smriti

Ancient Sources
Before the codification of Hindu Law, the ancient literature was the only source of the law. These
sources can be divided into four categories:

1. Shruti (Vedas)

Shruti: Shruti means "what is heard". It is believed that the Rishis and Munis had reached the
height of spirituality where they were revealed the knowledge of Vedas. Thus, Shrutis include the
four Vedas - Rig, Yajur, Sam, and Athrava along with their brahmanas. The brahmanas are like the
Appendices to the Vedas.
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Vedas - Primarily contain theories about sacrifices, rituals, and customs. Some people believe that
Vedas contain no specific laws, while some believe that the laws have to be inferred from the
complete text of the Vedas.

The synonym of Shruti is Veda. It is derived from the root “Vid” meaning ‘to know’. The term veda
is based on the tradition that they are the repository of all knowledge. Since Vedas had a divine
origin, the society was governed as per the theories given in Vedas and they are considered to be the
fundamental source of Hindu law.
Shrutis basically describe the life of the Vedic people.

There are four Vedas namely-

1. Rigveda - containing hymns in Sanskrit to be recited by the chief priest,

2. Yajurva veda - containing formulas to be recited by the officiating priest,
3. Sama veda - containing verses to be chanted by seers and
4. Atharva veda - containing collections of spells and incantations, stories, predictions,
apostrophic charms and some speculative hymns.

Each Veda has three parts viz.

1. Sanhita - which consists mainly of the hymns,

2. Brahmin - tells us our duties and means of performing them, and
3. Upanishad - containing the essence of these duties.
The Shrutis include the Vedas along with their components. The Brahmanas are like the appendices
to the Vedas. Vedas primarily contain theories about sacrifices, rituals, and customs.
Some people believe that Vedas contain no specific laws, while some believe that the laws have to
be inferred from the complete text of the Vedas.

Vedas do refer to certain rights and duties, forms of marriage, requirement of a son, exclusion of
women from inheritance, and partition but these are not very clear cut laws.

During the Vedic period, the society was divided into Varns and life was divided into Ashramas.
The concept of karma came into existence during this time. A person will get rewarded as per his
karma. He can attain salvation through "knowledge". During this period the Varna system became
quite strong.
The Vedic period is assumed to be between 4000 to 1000 B.C. During this time, several pre-smriti
sutras and gathas were composed. However, not much is known about them today. it is believed that
various rishis and munis incorporated local customs into dharma and thus multiple "shakhas" came
into existence.

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 2. Smritis:
The word Smriti is derived from the root “smri” meaning ‘to remember’. Traditionally, smritis
contain those portions of the Shrutis which the sages forgot in their original form and the idea
whereby they wrote in their own language with the help of their memory. Thus, the basis of the
Smritis is Shrutis but they are human works.

There are two kinds of Smritis viz. Dharmasutras and Dharmashastras. Their subject matter is
almost the same. The difference is that the Dharmasutras are written in prose, in short maxims
(sutras) and the Dharmashastras are composed in poetry (Shlokas). However, occasionally, we find
shlokas in Dharmasutras and sutras in the Dharmashastras. In a narrow sense, the word Smriti is
used to denote the poetical Dharmashastras.

The number of Smriti writers is almost impossible to determine but some of the noted Smriti writers
enumerated by Yajnavalkya (sage from, Mithila and a major figure in the Upanishads) are Manu,
Atri, Vishnu, Harita, Yajnavalkya, Yama, Katyayana, Brihaspati, Parashar, Vyas, Shankh,
daksha, Gautama, Shatatapa, Vasishtha, etc.

The rules laid down in Smritis can be divided into three categories viz.

1. Achar (relating to morality),

2. Vyavahar (signifying procedural and substantive rules which the king or the state applied
for settling disputes in the adjudication of justice) and
3. Prayaschit (signifying the penal provision for commission of a wrong).

1. Dharmasutras
The Dharmansutras were written during 800 to 200 BC. They were mostly written in prose form
but also contain verses. it is clear that they were meant to be training manuals of sages for
teaching students.

2. Dharmashastras
Dharmashastras were mostly in metrical verses and were based of Dharmasutras.
However, they were a lot more systematic and clear.

3. Manusmriti
This is the earliest and most important of all. It is not only defined the way of life in India but
is also well known in Java, Bali, and Sumatra. The name of the real author is not known
because the author has written it under the mythical name of Manu, who is considered to the
first human.

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 4. Yajnavalkya Smriti
Though written after Manusmriti, this is a very important Smriti. Its language is very direct
and clear. It is also a lot more logical. He also gives a lot of importance to customs but hold
the king to be below the law.

5. Narada Smriti
Narada was from Nepal and this Smriti is well preserved and its complete text is available.
This is the only Smriti that does not deal with religion and morality at all but concentrates
only on civil law.

3. Commentaries and Digests

After 200 AD, most the work was done only on the existing material given in Smritis. The work
done to explain a particular Smriti is called a commentary. Commentaries were composed in the
period immediately after 200 AD. Digests were mainly written after that and incorporated and
explained material from all the Smruitis. As noted earlier, some of the commentaries were,
Manubhashya, Manutika, and Mitakshara. While the most important digest is Jimutvahan’s
Dayabhag that is applicable in the Bengal and Orissa area. Mitakshara literally means ‘new
word’ and is paramount source of law in all of India.

4. Custom
Most of the Hindu Law is based on customs and practices followed by the people all across the
country. Even Smritis have given importance to customs. They have held customs as transcendent
law and have advised the kings to give decisions based on customs after due religious consideration.
Customs are of four types:

1. Local Customs- these are the customs that are followed in a given geographical area.
in the case of Subbane vs Nawab, Privy Council observed that a custom gets it force
due to the fact that due to its observation for a long time in a locality, it has obtained the
force of law.

2. Family Customs- these are the customs that are followed by a family from a long
time. These are applicable to families where ever they live. They can be more easily
abandoned that other customs. In the case of Soorendranath vs. Heeramonie and Bikal
vs. Manjura, Privy Council observed that customs followed by a family have long been
recognized as Hindu law.

3. Class and Caste Customs- these are the customs that are followed by a particular
cast or community. It is binding on the members of that community or caste. By far, this
is one of the most important sources of laws.

Requirements for Valid Custom

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1. Ancient
2. Continuous
3. Certain
4. Reasonable
5. Not against morality
6. Not against public policy
7. Not against any law

Modern Sources

1. Judicial Decisions (Precedents)

The doctrine of Stare Decisis started in India from the British Rule. All cases are now recorded and
new cases are decided based on existing case laws. Today, the judgment of S.C. is binding on all
courts across India and the judgment of HC is binding on all courts in that state.

2. Legislatures / Statutes (Codification of Hindu Law)

In modern society, this is the only way to bring in new laws. The parliament, in accordance with the
needs society, constitutes new laws. For example, a new way of performing Hindu marriages in
Tamil Nadu that got rid of rituals and priests was rejected by the SC on the basis that new customs
cannot be invented. However, TN later passed an Act that recognized these marriages.

3. Justice, Equity and Good Conscience

Equity means fairness in dealing. Modern judicial systems greatly rely on being impartial. true
justice can only be delivered through equity and good conscience. in a situation where no rule is
given, a sense of ‘reasonableness’ must prevail according to Gautama, in such situation, the decision
should be given that is acceptable to at least ten people who are knowledgeable in Shastras.
Yagyavalkya has said that where ever there are conflicting rules, the decision must be based on
‘nyaya’.

Schools of Hindu Law

The Mitakshara School the Dayabhaga School
Due to the emergence of various commentaries on Smiriti and Sruti, different Schools of thoughts
arose. The commentary in one part of the country varied from the commentary in the other parts of
the country.

1. The Mitakshara School

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The Mitakshara School exists throughout India except in the state of Bengal and Assam. The yagna
Valkya Smriti was commented on by Vigneshwara under the title Mitakshara. The followers of
Mitakshara are grouped together under the Mitakshara School.

Mitakshara School is based on the Code of Yagnavalkya commented by Vigneshwara, a great

thinker and a law maker from Gulbarga, Karnataka. The inheritance is based on the principle or
propinquity i.e. the nearest in blood relationship will get the property.

The school is followed throughout India except Bengal state. Sapinda relationship is of blood. the
right to Hindu joint family property is by birth. So, a son immediately after birth gets a right to the
property.

• Dravidian School of thought (Madras School)

• Maharashtra School (Bombay School of thought)
• Banaras School of thought
• Mithila School of thought

2. The Dayabhaga School:

It exists in Bengal and Assam only. The Yagna Valkya Smriti is commented on by
Jimootavagana under the title Dayabhaga. It has no sub-school. It differs from Mistakshara
School in many respects.

Dayabhaga School is based on the Code of Yagnavalkya commented by Jimutuvahana,

inheritance is based on the principle of spiritual benefit. It arises by pinda offering i.e. rice ball
offering to deceased ancestors.
• This school is followed in Bengal state only. Sapinda relation is by pinda offerings.
• The right to Hindu joint family property is not by birth but only on the death of the father.
• The system of devolution of property is by inheritance. the legal heirs (sons) have definite
shares after the death of the father.

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SHORT QUESTIONS ANSWERS:
Q,1. Define custom and its importance.

ANS. Custom
Custom is a principle source and its position is next to the Shrutis and Smritis but usage of
custom prevails over the Smritis. It is superior to written law.
Custom is regarded as the third source of Hindu law. From the earliest period custom (‘Achara’) is
regarded as the highest ‘dharma’. As defined by the judicial committee custom signifies a rule which
in a particular family or in a particular class or district has from long usage obtained the force of law.
Most of the Hindu law is based on customs and practices followed by the people all across the
country. Even Smrutis have given importance to customs. They have held customs as transcendent
law and have advised the kings to give decisions based on customs after due religious consideration.
Customs are of four types-

1. Local Customs
These are the customs that are followed in a given geographical area. in the case of Subbane vs
Nawab, Privy Council observed that a custom gets it force due to the fact that due to its observation
for a long time in a locality, it has obtained the force of law.

2. Family Customs
These are the customs that are followed by a family from a long time. These are applicable to
families where ever they live. They can be more easily abandoned that other customs. in the case of
Soorendranath vs Heeramonie and Bikal vs. Manjura, Privy Council observed that customs
followed by a family have long been recognized as Hindu law.

3. Class and Caste Customs

These are the customs that are followed by a particular cast or community. it is binding on the
members of that community or caste. By far, this is one of the most important sources of laws.
Requirements for a valid custom

1. Ancient
Ideally, a custom is valid if it has been followed from hundreds of years. There is no definition of
ancientness, however, 40yrs has been determined to be a ancient enough. a custom cannot come into
existence by agreement. It has to be existing from long before. Thus, a new custom cannot be
recognized. Therefore, a new form of Hindu marriage was not recognized in Tamil Nadu. in the case
of Rajothi vs Selliah, a self respecter’s cult started a movement under which traditional ceremonies
were substituted with simple ceremonies for marriage that did not involve Shastric rites. HC held
that in modern times, no one is free to create a law or custom, since that is a function of legislature.

2. Continuous
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 It is important that the custom is being followed continuously and has not been abandoned. Thus, a
custom may be 400 yrs old but once abandoned, it cannot be revived.

3. Certain
The custom should be very clear in terms of what it entails. Any amount of vagueness will
cause confusion and thus the custom will be invalid. The one alleging a custom must prove exactly
what it is.

4. Reasonable
There must be some reasonableness and fairness in the custom. Though what is reasonable depends
on the current time and social values.

5. Not Against Morality

It should not be morally wrong or repugnant. For example, a custom to marry one's granddaughter
has been held invalid. in the case of chitty vs. chitty 1894, a custom that permits divorce by mutual
consent and by payment of expenses of marriage by one party to another was held to be not immoral.
In the case of Gopikrishna vs. Mst Jagoo 1936 a custom that dissolves the marriage and permits a
wife to remarry upon abandonment and desertion of husband was held to be not immoral.

6. Not against public policy

If a custom is against the general good of the society, it is held invalid. For example, adoption of
girl child by Nautch girls has been held invalid. in the case of Mathur vs Esa, a custom among
dancing women permitting them to adopt one or more girls was held to be void because it was
against public policy.

7. Not against any law

If a custom is against any statutory law, it is invalid. Codification of Hindu law has abrogated
most of the customs except the ones that are expressly saved. In the case of Prakash vs
Parmeshwari, it was held that law mean statutory law.

Proof of Custom

The burden of proving a custom is on the person who alleges it. Usually, customs are proved by
instances. in the case of Prakash vs Parmeshwari, it was held that one instance does not prove a
custom. However, in the case of Ujagar vs Jeo, it was held that if a custom has been brought to
notice of the court repeated, no further proof is required.

Usage and custom

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The term custom and usage is commonly used in commercial law, but “custom” and “usage” can be
distinguished. A usage is a repetition of acts whereas custom is the law or general rule that arises
from such repetition. a usage may exist without a custom, but a custom cannot arise without a usage
accompanying it or preceding it. Usage derives its authority from the assent of the parties to a
transaction and is applicable only to consensual arrangements. Custom derives its authority from its
adoption into the law and is binding regardless of any acts of assent by the parties. in modern law,
however, the two principles are often merged into one by the courts.

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Q. 2. What are the differences between Mitakshara and Dayabhaga schools?

ANS. Differences between Mitakshara and Dayabhaga Schools

Mitakshara
1. As regards alimentation
Members of joint family cannot
dispose of their shares while undivided.
2. As regards inheritance
1. Before the Hindu Succession
Act, 1956 the principle of
inheritance was consanguinity
(i.e. blood-relationship).
2. But cognates are postponed
to agnates.
3. As regards joint property
1. Right to property arises by
birth (of the claimant);
hence the son [and after
the Hindu Succession
(Amendment) Act, 2005,
daughter] is a co-owner
with the father in ancestral
property.
2. Father has a restricted
power of alienation and
son(now daughter also) can
claim partition even against
the father.
3. Before the Hindu Succession
(Amendment) Act, 2005 the
intrest of the members of
joint family would on his
death, pass to the other
members by survivorship.
The principle of survivorship
has been abolished by the
Hindu Succession Amendment)
Act, 2005 in Mitakshara law
also.
Dayabhaga
1. Any member of joint family
may sell or give away his share
even when undivided.
1. Before the Hindu Succession Act,
1956 the principle of inheritance
was spiritual efficacy (offering of
Pindas.
2. But cognates like sister’s son are
Preferred to many agnates.
1. Right to property arises by death
(of the last owner); hence, son has
no right to ancestral property
during father’s life-time.
2. Father has absolute power of
alienation and son cannot claim
partition or even maintenance
during the life time of the father
after attaining majority.
3. The interest of every person
would, on his death, pass by
inheritance to his heirs, like
widow or daughters.

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As regards inheritance of separate property there is no difference between Mitakshara and the
Dayabhaga law after the commencement of the Hindu Succession Act, 1956.

4. As regards Doctrine of Factum

Valet, i.e., a fact cannot be altered
by hundred texts-

1. It recognized to a very limited extent. 1. Doctrine of Factum valet is fully

recognized.
2. Mitakshara is a commentary. 2. Dayabhaga is a digest of all the Codes.
3. Mitakshara is an orthodox school. 3. Dayabhaga is a reformed school.

VERY SHORT QUESTION ANSWERS

Q. 1. Who is Hindu?

ANS. Who are Hindus?

As per various legislation related to the Hindus, the following persons are deemed to be Hindus:
• Any person who is Hindu by religion irrespective of or regardless of its forms or
developments, including-
(a) A Virashaiva,
(b) A Lingayat,
(c) a follower of the Brahmo, Prarthana or Arya Samaj.

• Any person who is either-

(a) A Buddhist by religion;
(b) A Jain by religion; or
(c) A Sikh by religion.

• Any other person domiciled in the territories to which this Act extends who is not-
(a) A Muslim by religion; or
(b) A Christian by religion; or
(c) A Parsi by religion; or
(d) A Jew by religion, except when it is proved that any such person would or usage as a part
of that law (Hindu Law) in respect of any of the matters which are dealt with in these acts, if
these had not been passed.
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Q. To whom Hindu Law applies?

ANS. Persons to whom Hindu Law applies:

• Hindus by birth and also Hindus by conversion in any of its forms ore developments
including brahmans, arya samajists, etc.
• Illegitimate children whose parents are Hindus.
• Illegitimate children born of a Christian father and a Hindu mother and brought up as
Hindus.
• Buddhists, Jainism and Sikhs and namburdy brahmans except, so far as such law is
buried by custom and lingayats who are considered as shudras.
• Sons of Hindu dancing girls of the naik caste converted to Mohammedanism where
the sons are taken into the family of Hindu grandparents and are brought up as
Hindus.
• A Hindu by birth who having renounced Hinduism, has reverted to it after performing
the religious rites of expiation and repentance, or even without a formal ritual of
reconversion when he recognized as a Hindu by the community.

Categories of persons to whom Hindu law applies:

• Any person who is a Hindu, Jain, Sikh or Buddhist by religion, i.e., Hindus by
religion.
• any person who is born of Hindu parents (viz., when both the parents or one of the
parents is a Hindu, Jain, Sikh or Buddhist by religion), i.e., Hindus by birth, and
• Any person who is not a Muslim, Christian, Parsi or Jew, and who is not governed by
any other law.

Q. Is it true to say “Hindu Law is not lex loci but a law of status?”

ANS. In fact it is true to say that Hindu law is not lex loci but a law of status. The meaning of this
statement is that Hindu migrates from one particular locality but is personal law and when a Hindu
migrates from one place to another he carries his personal law with him. In order to establish that he
has adopted the local law it must be proved beyond doubt. It is the law of place of domicile which
would follow him to his place of migration. Thus, where a person belonging to Lucknow shifts to
Calcutta and is settled permanently there he would be governed by Mitakshra law particularly it’s
Banaras School rather than by Dayabhaga law which is the law governing the Hindus of west
Bengal but where nothing is known about the place of permanent residence. The Privy Council
observed “if nothing is known about a person except that he lived in a certain place, it will be
assumed that personal law is the law which prevails in that place.

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 2. SCHOOLS AND SUB-SCHOOLS OF HINDU LAW

Q What are the schools of Hindu law? Describe their fundamental differences
and effects of migration on the Schools of Hindu law.

ANS. Broadly speaking, there are two main schools of Hindu law, namely:-

1. The DAYABHAGA School, and

2. The MITAKSHARA School.

The MITAKSHARA is a running commentary on the code of YAJNAVALKA. It has been written
by an eleventh century jurist by the name of VIJNANESHWAR , and prevails in all parts of India
(except the province of west Bengal) and in Pakistan. The DAYABHAGA SCHOOL, which is
followed mainly in Bengal, Bangladesh, is not a commentary or any particular code, but is a digest
of all the codes. It has been written by JIMUTAVAHANA. It may also be noted that the Mitakshara
is the orthodox school, whereas the Dayabhaga is the reformist school of Hindu law.

The Dayabhaga is not divided into any sub-schools, however, the Mitakshara is sub-divided
into four schools prevailing in different part of India, and these four sub-schools are as follows:-

a. THE BANARAS SCHOOL, which prevails in northern and western India;

b. THE MITHILA SCHOOL, which has most of its followers in Bihar
c. THE DRAVIDA OR MADRAS SCHOOL, which prevails in southern India; and
d. THE MAHARASHTRA OR BOMBAY SCHOOL, which prevails in western India.

The Mitakshara and the Dayabhaga School differed on important issues as regards the rules of
inheritance. However, this branch of law is now codified by the Hindu Succession Act, 1956,
which has dissolved the differences between the two.

Today, the main divergence between the two refers to certain matters connected with the
joint family system. Under the Mitakshara system, rights in the joint family properties are
acquired by birth, and as a rule females have no right of succession to the family property, which
passes by survivorship to the other male members of the family. Under the Dayabhaga system,
rights in the joint family property are acquired by inheritance or by will, and the share of a deceased
male member goes to his widow in default of a closed heir.

Although it is the Dayabhaga Schools that prevails in Bengal, the Mitakshara is also regarded
there is being a very high authority on all question in respect whereof there is no express conflict
between the two schools. Likewise, the Dayabhga is also referred to sometimes in a case governed
by Mitakshara law, on points on which the letter is silent.
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Case ref: Mahavir Prasad vs. Rai Bahadar Singh

Differences between Mitakshara School & Dayabhaga School.

We know that the Mitakshara is anterior to Dayabhaga and it is a running commentary or the
Code of Yajnabalka written by Vijaneswara. The Dayabhga is the digest of all the Codes while
giving performance to the Code of Manu.

The two schools mainly differ or the following points:-

1. Inheritance
2. Devolution of property
3. Joint family property
4. Factum valet

1. Inheritance:
Inheritance under the Mitakshara School—

A. the right of inheritance arises from propinquity.

B. there are three classes of heirs—

i. Sapinddas,
ii. Samanadakas
iii. Bandhu

C. So long there are gotraja sapindas or samanadakas, no bandhu or

bhinn-gotra sapindas can generally inherit.
D. A large number of cognate (born of the same family-heirs are recognized
in Mitakshara than Dayavhaga

Inheritance under dayabhaga school—

A. the right of inheritance depends on spiritual efficacy.

B. there are three classes of heirs—
i. Sapindas
ii. Sakulyas
iii. Samanodakas

C. Both agnates and cognates come in the list of sapindas and inherit before
sakulyas or samanodakas.
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 D. Sapindas are those who can confer spiritual benefit on the deceased by
offering pindas and include both agnates and cognates.

2. Devolution of property:
Under Mitakshara School property devolves in two ways—
i. Survivorship, and
ii. Succession.
Under Dayabhaga no living Hindu has got any heir; succession opens after his death. but
survivorship is not recognized death.

3. Joint family property:

Joint family property under Mitakshara School—

A. A son, born to one of the coparceners acquires an interest in the property from the
moment of this birth and he cannot be ousted from such interest which he is alive.
B. The karta or manager has got a restricted right of transfer.
C. Property devolves on the male survivors only.

Joint family property under Dayabhaga School:

A. succession opens to a son only after the death of the father. A dayabhga father is
competent to make a testamentary disposition of the whole of property. A son has got
no right to object to it. a son cannot claim partition during the lifetime of his father.
B. succession once opens, share of each heir becomes fixed, and every member can
alienate his share in any way he likes.
C. property passes by inheritance only and may go to female heirs like widows, daughter
etc.

4. Factum Valet:
It is recognized by Dayabhaga School to a greater extent than Mitakshara School. But factum
valet is no defense when the act is immoral or against public policy or prohibited by any act of
legislature or against express principles of Hindu law.

Effect of Migration on the School of Hindu law:

When a Hindu family migrates from one state to another, the law draws a presumption that it carries
with it its personal law, i.e. the laws and customs prevailing in the state from which it came. The
presumption can, however, be rebutted, by showing that such a family has adopted the law and
usages of the new provinu where it has settled down. Thus for interest, where a Hindu family
migrates, say from Maharashtra (where Mitakshara law prevails), to Bengal (where the Dayabhaga
17
laws prevails), the presumption is that the family continuous to be governed by the Mitakshara law.
This presumption is that the family has abandoned the law of the province of its origin (i.e.
Mitakshara), and adopted the law of the province where it has settled. (i.e. Bengal).

3. MARRIAGE: ESSENTIALS OF A VALID MARRIAGE, VOID

AND VOIDABLE MARRIAGE

DETAILED QUESTIONS ANSWERS

Q. Explain the concept of Hindu marriage. Discuss?

ANS.. Concept of Hindu Marriage

According to Hinduism, marriage (vivah) between two persons is a sacred relationship that is
not limited to this life alone. it extends across seven or more lives, during which the couple help each
other progress spiritually. The adage that marriages are made in heaven is very much true in case of
Hinduism. Two souls come together and marry because their karmas are intertwined and they have
to resolve many things together upon earth in order to ensure their mutual salvation.

The relationship between couples is essentially a relationship of the souls. It is not necessary
that their gender roles are fixed forever. Sometimes they may switch roles and the husband may
become the wife and the wife the husband. Sometimes they may also temporarily part their ways and
come together again after one or two lives in a grand reunion.

Marriage in Hinduism is a sacred relationship. It is both an obligatory duty (dharma) and a

sanskara (sacrament). Unless a person renounces life and accepts the life of a renouncer (sanyasi),
he is expected to marry and lead a householder's life. It is an essential aspect of the four ashramas
(brahmacharya, grihastha, vanaprastha and sanyasa) and the four aims (purusharthas) of human
life, namely, dharma, artha (wealth), kama (sensuous pleasures) and moksha (salvation). For a
Hindu woman marriage marks the end of her life as a maiden. She has to leave her parent's home to
begin life anew in her husband's house, amidst new people and new surroundings. After marriage her
relationship with her parents remains formal and minimal. Marriage, therefore become a matter of
anxiety and stress for many women, till they become familiar with their new surroundings and the
new people in their lives. The early stages of marriage is a make or break situation in case of many.
it is also the period during which the bride either becomes popular in her new home or unpopular,
depending upon her behavior and her relationships with each member of her husband's family.

18
 Hindu marriage tradition recognizes seven different types of marriage, ranging from the
popularly known arranged marriages to the extremely rare and forced marriages through abduction.
Generally most of the marriages are arranged with the consent of the bride and the bridegroom and
the blessings of the elders. caste, natal charts, gotra (kinship or family lineage), family background,
financial status of the groom, appearance and character of the bride and the bridegroom, the
willingness of the parents are some important considerations in arranged marriages. In some parts of
southern India, marriages between cousins (children of brother and sister) are considered normal. In
ancient India, if a woman's husband died, she had the permission to marry her deceased husband's
brother, strictly for the purpose of progeny. Polygamy was an acceptable norm in ancient Hindu
society. But presently Hindus are expected to be strictly monogamous.

Hindu marriages in Modern Society

Love marriages are on the increase, but there is still a lot of skepticism about them. Love marriages
within the same caste and financial background are favored, compared to inter-caste and
inter-religious marriages. Couples who dare cross the social conventions have to cope with a lot of
social pressure within their families and outside. These problems are more acute in the rural areas
compared to the urban areas and metropolitan cities. Much depends upon the family background. If
parents are educated and enlightened on both sides, things would be easier for the children, who get
involved in unconventional relationships.

One of the evils of Hindu marriages is the ubiquitous dowry system. The amount of dowry
can be a very substantial amount, even in dollar terms, depending upon the financial status of the
parties involved. Sometimes greedy mother-in-laws and husbands subject the poor brides to
innumerable hardships for not meeting their expectations in respect of the dowry. Cases of bride
burning are not unknown. Indian Penal Code prescribes severe punishment for such acts. But the
cases take years and decades before the courts deliver justice. Hindu marriages are also very
expensive because of the status, dowry, expensive gifts, family prestige and other issues involved.
The bride's parents have to bear the brunt of most of the expenses and in many cases it leads to their
financial indebtedness.

Marriage rituals
In arranged marriages the marriage is consummated through elaborate ceremonies presided over by a
vedic priest well versed in vedic mantras. The marriage date is fixed after consulting the astrological
charts and then invitations are sent. Before the marriage date, both the parties spend a lot of time in
preparation and exchange of gifts. On the marriage day, the bride and the bridegroom and relations
on both sides assemble in a public auditorium or a temple premises, or in the house of the bride's
parents and participate in an elaborate ceremony conducted by a priest.

The marriage ceremony is generally a lengthy affair. A lot of vedic mantras are chanted
during the ceremony, while a band plays on in the back ground. All the guests are entertained with
food and beverages. Meat and alcohol are not generally served during such ceremonies, except in

19
some communities. In the last part of the ceremony the bridegroom ties a sacred thread
(mangalsutram) or a gold necklace around the bride's neck with three knots, accepts her hand in
marriage (panigrahanam) and then takes seven steps (saptapadi) together with her, uttering vows of
friendship, loyalty and righteousness. After this both of them play some traditional games between
themselves to lighten the atmosphere and provide entertainment to the guests. This is followed by a
gift ceremony during which the couple acknowledges the gifts brought by the guests for their
wedding. The marriage rituals usually vary from region to region and caste to caste.

However following are some of the most common and popular rituals

• Gifting the bride (kanya danam)- as the priest chants the mantras, the bride's father first
gives away his daughter to the gods and then, with gods as the witnesses to the bridegroom.
The bridegroom promises to look after the bride as his better half and protect her for the rest
of her life.
• Fire ceremony (homam) - the sacred fire is lit and the priests chant sacred mantras offering
oblations to various gods to make the marriage a success and bless the couple.
• Accepting the bride (pani grahanam) - the groom holds the left hand of the bride with his
right hand, as a symbolic gesture of accepting her as his bride, amidst vedic chants and some
accompanying rituals.
• Marriage vows (pratigya karan) - the bride and the groom take vows to remain loyal to each
other, performing their respective dharmas (duties).
• Walking around fire (agni parikrama) - the bride and the bride groom walk around fire
seven times, with fire as the witness, to sanctify the marriage. In some communities, the
groom ties a sacred thread (mangal sutra) around the neck of the bride as a mark of the
marriage bond.
• Taking seven steps together (seven steps) - the bride and the groom walk seven steps
together, each step calling for a particular auspicious situation in their lives: nourishment,
strength, prosperity, happiness, progeny, long life and harmony and understanding.

A few simple and straight facts about Hindu marriages

1. Hindu marriage is essentially an extension of the four aims (purusharthas) and the four
stages (ashramas) of human life. Unless a person has accepted the life of renunciation out of
his intense longing for liberation, marriage is sacred responsibility (dharma) of each and
every individual in society.
2. Hindus consider marriage as a sacred relationship, between two souls, not just two bodies.
Marriage is meant for the continuation of family and practice of dharma. In Hindu tradition,
there is no concept as divorce. Once married, a couple is wedded for life. Divorce is a
modern practice introduced into Hindu society through the Hindu Marriage Act in India.
3. Hindus believe that the marriage relationship extends beyond one's life.
4. In the traditional marriage, the bride and the bridegroom are considered as divinities. The
bride is first married to gods and then placed under the bridegroom's protection as a gift from
gods.
20
 5. At the time of marriage, the bridegroom ties a sacred thread around the bride's neck and
accepts her hand (panigrahanam.) in marriage. Then they both take seven steps (saptapadi)
together around the fire uttering vows of friendship and mutual loyalty.

6. Hindu marriage tradition recognizes the importance of a woman in the family. She is
expected to share the responsibilities of the household like a goddess (grihalakshmi) and
enjoy the love and care of her husband and children.

7. According to Hindu Marriage Act 1955 passed in India, the eligible age for marriage is 21
years in case of a boy and 18 years in case of a girl. This law has been passed mainly to ban
child marriages and such practices as polygamy, which is recognized as a punishable offence.

Q. What are the essential conditions of a Hindu marriage? What is the

consequence of non- fulfillment of conditions?
OR
What do you understand by ‘prohibited degree of relationship’? Who are
included within it and for what purpose? What is the effect of custom in this
regard? Explain with example.
OR
Which of the relations of a Hindu are within his or her ‘sapinda
relationship?’ are relatives by adoptions, illegitimate relationship or relation
by marriage also including in ‘sapindas’?

ANS. INTRODUCTION
Parties must be Hindus under section 2(3) of Hindu Marriage Act. According to this section both
the parties to the marriage under the Act must be Hindus. If one of them is a Hindu and the other a
non-Hindu or both are non Hindus, the marriage will not be a subject matter of this act but will relate
to some other law i.e. Special Marriage Act etc. the essential conditions of valid marriage are given
and discussed below.

Clause (1) Monogamy

This condition implies monogamy and prohibits bigamy or polygamy. The expression “neither party
has a spouse living” depicts that the spouse must not be alive at the time of marriage if the spouse is
alive at the time of marriage that could bar the remarriage of a person. However one must note that
the first marriage of a person should be a legally valid marriage. In spite of one’s valid marriage if
the person remarries in violation of section 5(i), the second marriage will be null and void and he
will be subjected to penal consequences. The scheduled tribes are exempted from the application of
the Act. But there must be a proved custom to this effect.
Sec. 5 (1) Bigamy
21
Section 5 (i) prohibits bigamy or polygamy. Section 11 makes a bigamous marriage void and
Section 17 makes it a penal offence for both Hindu males and females under Section 494 and 495 of
IPC. The offence of bigamy is committed only if the required ceremonies of marriage are
performed. The second marriage cannot be taken to be proved by the mere admission of the parties;
essential ceremonies and rites must be proved to have taken place. In the case of a bigamous
marriage, the “second wife” has no status of wife.

Clause (2)) – Mental Health and Capacity

Sub-clause (a) requires that at the time of marriage neither party is incapable of giving a valid
consent to marriage due to unsoundness of mind.

Sub-clause (b) – Mental disorder: According to sub-clause (b) at the time of marriage neither
party to marriage should be suffering from a mental disorder of such nature and to such a degree as
to be unfit for two purposes (i) marriage and (ii) procreation of child. In Tarlochan Singh v. Jit
Kaur, the court held the marriage void on the ground that wife was suffering from schizophrenia
within short period after marriage and the disease was not disclosed to the husband before marriage.

Sub-clause (c) – recurrent attacks of insanity: if a person has been subject to recurrent attacks of
insanity he is also not qualified for marriage under Hindu Marriage Act. He cannot marry even
during a lucid period.
Post marriage mental illness: if a party to a marriage is not suffering from any mental defect
described under section 5(ii) but fails ill mentally after the marriage, there is no violation of this
condition.

Clause (3) – Marriageable Age

According to this clause, at the time of marriage the bride must have completed the age of 18
years and the bridegroom of 21 years. Thus a child marriage is prohibited under Hindu Marriage
Act. However, violation of this condition does not make the marriage void or voidable. It means that
it is valid though it may attract penalties. But it can become a valid ground for repudiation of the
marriage. The Hindu Marriage Act and the child marriage restraint act provide for punishment for
such marriage.
According to section 18 of Hindu Marriage Act, anyone who procures a marriage for himself or
herself in contravention of section 5(iii) may be punished with up to 15 days imprisonment or with a
fine up to Rs. 1000 or with both. Under the Child Marriage Restraint Act, 1929, a male above the
age of 25 years marrying a girl below 15 years is punishable with up to 3 months imprisonment and
is also liable to fine. The Child Marriage Restraint (Amendment) Act 1978 has also raised the
age of marriage of girl to eighteen.

Clause (4) – Avoidance of Degrees of Prohibited Relationship

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Section 3, Cl. (g) and Sec.5 (iv) of the Hindu Marriage Act, 1955 deals with prohibited degrees of
relationship. Section 5, cl. (iv) prohibits marriage between persons who are within the prohibited
degrees of relationship with each other.
According to section 3(g), two persons are said to be within the degrees of prohibited relationship:

1. If one is a lineal ascendants of the other; or

2. If one was the wife or husband of a lineal ascendant or descendant of the other; or
3. If one was the wife of the brother or of the father’s or mother’s brother or of the
grandfather’s or grandmother’s brother or of the other; or
4. If the two are brother and sister, uncle and niece, aunt and nephew or children of brother
and sister or of two brothers or of two sisters;

But if the “custom” or “usage” governing each of the parties to the marriage allows the marriage
within the degrees of prohibited relationship, then such marriage will be valid and binding.

The degrees of prohibited relationship of a male and female –

1. A female ascendant in the line.

2. Wife of a descendant in the line.
3. Wife of the brother.
4. Wife of the father’s brother.
5. Wife of the mother’s brother.
6. Wife of the grandfather’s brother.
7. Wife of the grandmother’s brother.
8. Sister.
9. Brother’s daughter.
10. Sister’s daughter.
11. Father’s sister.
12. Mother’s sister.
13. Father’s sister’s daughter.
14. Father’s brother’s daughter.
15. Mother’s sister’s daughter.
16. Mother’s brother’s daughter.

A lineal descent is a descendant in the male line. There is no limit of degrees and all descendants in
the male line are lineal descendants counted down wards in unbroken line.

the Hindu texts went to the extent of prohibiting a man marrying a girl even of the same “gotra” or
“pravara” on the theory that his father and the girl’s father were both descendant of a common
ancestor in the male line and all such marriages were held invalid until the Hindu Marriage
Disabilities Removal Act, 1946 was passed. However the rule did not apply to sudras, the reason
given being that sudras had no gotra of their own.

23
Marriage between parties related with each other within the degrees of prohibited relationship is
forbidden to prevent:

1. Physical degeneracy of the race which the marriage between near relations would lead to; b)
moral degeneracy and consequent evil results which are apt to affect a society built on the
edifice of joint family system.
2. A “karewa” marriage between a father-in-law and daughter-in-law among the “Jats” (who
are presumed to be sudras) is invalid and cannot be validated by custom. Jagnahar Sngh v.
Sadhuram (1934)15 Lah. 688; 149 IC 94; AIR 1934 Lah. 283, a custom must not be
opposed to public policy or abhorrent to decency and morality.

Among the Jats of Punjab, marriage with brother’s widow and in south India, maternal uncle’s
daughter and paternal aunt’s daughter are treated as eligible for marriage. This is based upon local
custom or ‘Desa Achara’. In Andhra Pradesh, custom permits marriage with sister’s daughter. A
marriage between persons who are related to each other within prohibited degrees would become
void under Section 11 of the Hindu Marriage Act, 1955. The person procuring a marriage in
contravention of this provision would be punishable under section18 (b) of the Act.

Simple imprisonment which may extend to one month or with fine which may extend to 1000
Rupees or with both.

Clause (5) – Avoidance of Sapinda Relationship

In the Hindu texts, the word sapinda has been used in two senses; firstly, it means a relation
connected through the same body; and secondly, it mean relation connected through oblation of
food. The prohibition of sapinda marriage is also based on the rule of exogamy. The Dharmashastra
considered sex relationship with one’s mother or one’s sister or one’s daughter or even with one’s
son’s wife as ‘mahapataka’, the highest sin. According to Vishnu, for such a person, there was no
prayaschitta except that he should throw himself into the blazing fire.

Theories of sapinda relationship

In the ancient Hindu law, two theories of sapinda relationship were propounded:

1. Oblation Theory
This theory was propounded by Medhatithi and Kullukabhatt. According to this theory, when two
persons offer “pindas” to the common ancestor, they are sapindas of each other. Before
Vijnaneshwara, the sapinda relationship was linked with the oblations that one offered to his
departed ancestors. The Hindus believe in ancestor worship and offer pindadan to their departed
ancestors. Every year in the shradha ceremony, offerings are made to departed ancestors. These
offerings are mainly in the form of pinda. The pinda literally means a ball and is usually made from
rice.

24
The rule is that, one offers one full pinda each to his three paternal ancestors and one full panda to
his two maternal ancestors. One also offers one divided pinda each to his three next paternal
ancestors and one divided pinda each to his maternal ancestors. Thus, he is connected by ‘pindadan’
to the six ancestors on the paternal side and four ancestors on the maternal side and is sapinda to
them. When two persons offer pindas to the same ancestor, they are also sapindas to each other.

2. Particles of the Same Body Theory

This theory was propounded by Vijnaneswara. According to Vijnaneswara, “pinda” means
“body”. “sapinda” means “connected by particles of the same body”. He changed the meaning of
pinda from ball to particles of the same body. According to Vijnaneswara, the sapinda relationship
arises between two persons on account of their being connected by particles of one body. He
however limited this relationship up to 7th degree on the father’s side and up to 5th degree on the
mother’s side, counting upwards in ascending order from each. The “pindas” theory also regarded
two persons as sapindas of each other, because they offered pindas to 6 ancestors ascending on the
father’s side and 4 ancestors ascending on the mother’s side. if the persons offering “pinda” is
included as himself being of one generation, it means 7 degrees on the father’s side and 5 degrees on
the mother’s side.

The passage in the Mitakshara in relation to sapinda relationship runs as follows:

“He should marry a girl who is non-sapinda with himself. She is called his sapinda, who has
particles of the body of some ancestor in common with him. Non-sapinda means not his sapinda.
Such a one he should marry. sapinda relationship arises between two people through their being
connected by particles of one body. Thus the son stands in sapinda relationship to his father because
of particles of his father’s body having entered his. In like manner stands the grandson in sapinda
relationship to his paternal grandfather and the rest, because through his father, particles of his
grandfather’s body have entered into his own. Just so is the son a sapinda relation of his mother,
because particles of his mother’s body have entered into his.

Likewise, the grandson stands in sapinda relationship to his maternal grandfather and the rest
through his mother. So also is the nephew a sapinda relation of his maternal aunts and uncles, and
the rest, because particles of the same body have entered into his and theirs; likewise he stand in
sapinda relationship with paternal uncles and aunts, and the rest.

So also the wife and the husband are sapinda relations to each other, because they together beget one
body (the son). In like manner, brother’s wives are also sapinda relations to each other, because they
produce one body (the son) with those (severally) who have sprung from one body (i.e., because
they bring forth sons by their union with the offspring of one person, and thus their husband’s father
is the common bond which connects them). Therefore one ought to know that wherever the word
sapinda is used, there exists between the persons to whom it is applied a connection with one body,
either immediately or by descent.

1. Sama gotra or ‘sagotra’ sapindas

25
The sagotra sapindas are agnates within seven degrees of the common ancestor; the bhinnagotra
sapindas are cognates within five degrees of the common ancestor.
The reasons for limiting the ‘sagotra’ sapindas to seven degrees and ‘bhinnagotra’ sapindas to five
degrees are obvious: for, one is the giver of the pinda and three- father, grandfather and great
grandfather are recipients of pindas, and three-beginning with great grandfather are recipients of
divided pinds (lepas) or as Vijnaneswara himself puts it, the first pinda is efficacious up to the 4th
ancestor, the second pinda up to 5th and the third pinda up to the 6th.

2. Bhinna Gotra Sapindas or ‘Bandhus

As regards ‘bhinnagotra’ sapindas, the reason for the limitation of five degrees was that, as a
woman causes a change in the family, one had to offer oblations to mother’s father, grandfather and
great grandfather and counting also the mother and himself, it became five degrees.

Section 3 (f) of the Hindu Marriage Act, 1955 defines Sapinda relationship. According to clause
(f) of section 3;

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 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. Section 5 (v) of the Hindu Marriage Act, 1955
lays down that the parties to marriage should not be sapindas of each other. The Act of 1955
modified Vijnaneswara’s theory. It restricts the sapinda relationship to five degrees on the
father’s side and three degrees on the mother’s side. Thus the sapinda relationship extends up
to five degrees on the paternal side and three degrees on the maternal side.

It should be noted that, sapinda relationship shall be computed upwards either through the mother or
through the father or both and the person concerned shall always be counted as one degree. Thus the
Hindu Marriage Act, 1955 prohibits marriage between persons who are sapindas of each other.

A Hindu marriage in contravention of this rule is null and void. Such a marriage is also punishable
under section 18 (b) of the Act. However, where custom or usage governing each of the parties to
the marriage allows marriage between sapinda relations, such marriage is valid.

26
 4. MATRIMONIAL RELIEF: Concept and Grounds of Various Matrimonial
Reliefs viz.
• Restitution of Conjugal Rights.
• Judicial Separation
• Nullity of Marriage
• Divorce

Q. Define provision of Hindu Marriage Act 1956? Regarding Restitution of

Conjugal Rights with the help of case laws?

ANS. INTRODUCTION
Marriage is just not only a ceremony; it also includes various marital duties and legal rights
associated with it. One of the fundamental purposes of marriage is that the spouses live together and
one spouse is entitled to the society and comfort. A cause of action, therefore, arises when one party
to the marriage withdraws from the society of the other without reasonable and just cause and excuse
would be proceeded against by the other in the court of law praying for a decree of restitution of
conjugal rights. The expression ‘conjugal rights’ connotes two ideas:

1. Right of couple to have each other’s society, and

2. Right to marital intercourse

During the time of introducing the provision for restitution of conjugal rights in the Special
Marriage Act, 1954 and the Hindu Marriage Act, 1955, there were heated debates in the
parliament for and against it. In Shakila Banu v. Gulam Mustafa, the hon’ble High Court observed:
“the concept of restitution of conjugal rights is a relic of ancient times when slavery or quasi-slavery
was regarded as natural. this is particularly so after the constitution of India came into force, which
guarantees personal liberties and equality of status and opportunity to men and women alike and
further confers powers on the state to make special provisions for their protection and safeguard.”

This remedy of restitution of conjugal rights has been laid down under Section 9 of Hindu
Marriage Act, 1955. It runs as under:

“When either the husband or the wife has, without reasonable excuse, withdrawn from the
society of the other, the aggrieved party may apply, by petition to the district court, for
restitution of conjugal rights and the court on being satisfied with the truth of the
statements made in such petition and that there is no legal ground why the application
should not be granted may decree restitution of conjugal rights accordingly.”

27
The explanation attached to the section clarifies that when a question as to the existence of
reasonable excuse for withdrawal from the other person’s society arises, the burden of proof to prove
the same shall be on the person who has withdrawn from the society.

Therefore, for restitution the following three conditions must be satisfied:

1. Respondent has withdrawn from the society of petitioner without reasonable excuse
2. Court is satisfied with truth of statement made in such petition, and
3. There is no legal ground why the relief should not be granted

Withdrawal from the Society

The expression, “society” used in this section should be understood as marital cohabitation
that is to say that the husband is cherishing and supporting his wife as a husband should do and a
wife rendering duties as a housewife. Though they may not live under the same roof yet there would
be cohabitation in the wider sense of the term if they fulfill the mutual duties to each other as
husband and wife. The expression “withdrawal from the society of the other” involves a mental
process besides physical separation.

It means withdrawal from the totality of conjugal relationships, such as refusal to stay together,
refusal to give comfort to other, refusal to have marital intercourse and refusal to discharge
matrimonial obligations. Where the husband throws out or leaves a wife who is guilty of the
matrimonial offense (adultery, cruelty or apostasy), it cannot be said that she has withdrawn from the
society of the husband. The reason is that she has not left the husband on her own. Withdrawal by
the respondent takes place when the respondent does it voluntarily. In cases where husband
compelled his wife to leave the matrimonial home is not withdrawal by the wife from the husband’s
society.
Sareetha v. Venkata Subbaiah (1983) the case was decided by the Andhra Pradesh High Court
which observed that section 9 of the said Act was a savage and barbarous remedy violating the right
to privacy and human dignity and equality guaranteed by Articles 14 & 21 of the Constitution.
Hence, Sec. 9 was declared to be constitutionally void for abridging rights guaranteed under part iii
of the constitution. According to the learned judge, a decree for restitution of conjugal rights
deprived of her choice as and when and by whom the various parts of her body should be allowed to
be sensed. The court relied on the scar man commission’s report in England that resounded its
abolition.

Harvinder Kaur vs. Harmander Singh 1983, it was held that Sec. 9 was not violative of Articles 14
and 21 of the Constitution since the leading idea behind Sec. 9 was to preserve the marriage. The
remedy of restitution was aimed at cohabitation and consortium and not merely at sexual intercourse.

VERY SHORT QUESTION ANSWERS

28
Q. What is the overriding effect of Hindu Marriage Act 1955 under section 4
previous laws governing Hindu law.

ANS. Section 4 in the Hindu Marriage Act, 1955

Overriding Effect of Act —save as otherwise expressly provided in this act,—

a. any text rule or interpretation of Hindu law or any custom or usage as part of that law in
force immediately before the commencement of this Act shall cease to have effect with
respect to any matter for which provision is made in this Act;
b. any other law in force immediately before the commencement of this Act shall cease to have
effect in so far as it is inconsistent with any of the provisions contained in this act.

Q. What are the distinctions between void and voidable marriages?

ANS. DISTINCTIONS BETWEEN VOID AND VOIDABLE MARRIAGES

VOID MARRIAGE VOIDABLE MARRIAGE

1. Meaning: A void marriage is no
marriage at all. It does not exist from
the very beginning.
2. Section: Section 11 of the Hindu
Marriage Act, 1955 deals with void
marriage.
3. Marriage does not exist in the eye of
law.
4. The court simply passes the decree of
nullity since the marriage has no
existence at all.
5. Parties can remarry without decree of
nullity from the court.
6. Wife cannot claim maintenance under
Section 125 of Cr.P.C.
7. Void marriage is void ab initio.
8. Parties to a void marriage are
criminally liable.
9. In void marriages, not only first wife
29
1. Meaning: A voidable marriage is
one can be avoided at the option of
one of the parties to the marriage. It
remains valid for all practical
purposes until and unless its validity
is questioned.
2. Section: Section 12 of the Hindu
Marriage Act, 1955 deals with
voidable marriage.
3. Marriage exists and continuous to be
valid unless it is challenged.
4. The court passes the decree after
taking into account necessary
conditions.
5. Parties cannot do so.
6. Wife can claim maintenance.
7. A voidable marriage is regarded as
valid until the competent court annuls
it.
8. Parties to voidable marriage are not
laid down with penalty.
9. In voidable marriages, only the
 but a third party who is affected can parties have right to apply for
bring a suit in Civil Court for annulment of marriage.
declaring such marriage void.

Q. Discuss in detail the provisions of Hindu Marriage Act 1955 to decide the
legitimacy of children born out of a ‘void’ or ‘voidable’ marriage.
OR
If valid consent has not been obtained by any of the parties to a Hindu
Marriage will that marriage is void or voidable under the provision of Hindu
Marriage Act 1955.

ANS. Void Marriage

Section 11 of the Act had considered following marriage to be void

Any marriage solemnized after the commencement of this Act shall be null and void and
may, on a petition presented by either party thereto, against the other party is so declared
by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv)
and (v), section 5. It means...

1. Where at the time of marriage any party has a living husband or wife i.e., bigamous
marriage is void
2. Where parties to the marriage fall within sapinda relationship i.e., same blood. A
person cannot marry in the same family i.e., to a person from

A. five generation from the paternal side,

B. three generations from the maternal side,
C. the parties are within the prohibited degree of relationship. Section 3(g) of the
Hindu Marriage Act, 1955 talks about the degree of prohibited relationship
that is as follows:
3. Where parties to the marriage come with degrees of prohibited relationship.

According to Section 3(f) (i) "Sapinda relationship” with reference to any person extends as far as
the third generation (inclusive) in the line of ascent through the mother, and the fifth (inclusive) in
the line of ascent through the father, the line being traced upwards in each case from the person
concerned, who is to be counted as the first generation;

30
According to section 3(f) (ii) two persons are said to be "sapinda" 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;

According to sec 3(g) "degrees of prohibited relationship” - two persons are said to be within the
"degrees of prohibited relationship"-

(i) if one is a lineal ascendant of the other; or

(ii) if one was the wife or husband of a lineal ascendant or descendant of the other; or
(iii) if one was the wife of the brother or of the father's or mother's brother or of the
grandfather's or grandmother's brother or the other; or
(iv) if the two are brother and sister, uncle and niece, aunt and nephew, or children of
brother and sister or of two brothers or of two sisters.
Explanation.- for the purposes of clauses (f) and (g) relationship includes-

(i) Relationship by half or uterine blood as well as by full blood;

(ii) Illegitimate blood relationship as well as legitimate;
(iii) Relationship by adoption as well as by blood; and all terms of relationship in those
clauses shall be construed accordingly.

In the case of Rampyari v. Dharamdas 1984, it was said by Allahabad High Court that an
application for declaring a marriage void is not required to be presented by the victim only.
In another case of Leela v. Lakshmi 1968, it was held that void marriage does not require even the
decree of a court.

In M.M. Malhotra v. UOI, the Apex Court observed that the marriages covered by section 11 are
void ipso jure, that is, void from the very inception and have to be ignored as not existing in law at
all if and when such a question arises. Although the section permits a formal declaration to be made
on the presentation of the petition, it is not essential to obtain in advance such a formal declaration
from a court in a proceeding commenced for the purpose. If one withdraws from the society of the
other, the other party has no right to the restitution of conjugal rights. If one of them marries again,
he or she is not guilty of bigamy and the validity of later marriage is not affected because of the first
so called marriage.
“On a petition presented by either party thereto”, it is only the parties to marriage who can move a
petition for the declaration of nullity of marriage. The first wife, during the subsistence of whose
marriage the husband takes the second wife, has no right to move for a declaration of nullity of the
subsequent marriage under this section. However, there is nothing in the section or any other
provision of any law to debar a person affected by an illegal marriage from filing a regular suit in a
civil court for its declaration as void, if such party was affected by such marriage. There can be a
civil suit by a person for a declaration that the marriage of A with B was a nullity and for
consequential relief’s under the Specific Relief Act, 1963, if the plaintiff has any cause of action for
such relief.

31
In Uma Shanker v. Radha Devi, the Patna High Court ruled that the first wife could obtain a
perpetual injunction to prevent the second marriage of her husband under Section 9 of the Civil
Procedure Code and Section 54 of the Specific Relief Act.

Consequences of a void marriage:

• The parties have no status of wife and husband

• Children of a void marriage are illegitimate (this is subject to the provision of Section 16 of
Hindu Marriage Act 1955).
• A void marriage doesn’t give rise to mutual rights and obligations.

Voidable Marriage
A marriage which can be annulled or avoided at the option of one or both the parties is known as a
voidable marriage. Section 12 of Hindu Marriage Act contains relevant provisions of voidable
marriage.

Section 12 voidable marriages

Section 12 of the Act mention about voidable marriage according to it, in case of marriage being
voidable, the court may decaled it null under following conditions:-

1. Where marital cohabitation has not occurred due to impotency of the respondent.
2. Where at the time of marriage any party failed to give valid consent due to unsoundness or
has been effected by mental retardness to such extent that he is incapable to marriage and
giving birth to child, or suffers from frequent insanity or is insane.
3. Where the consent of guardian is necessary for the marriage and such consent has been
obtained by force or by fraud as to nature of rituals or any actual facts or circumstances as to
the respondents.
4. Where the respondent is pregnant at the time of marriage from a person other than the
applicant.

Here is important that if marriage is voidable on the ground of consent obtained by fraud as force,
then such marriage shall be declared null only when:-

(a) The applicant is presented within one year from the date of knowledge of fraud as
force used.
(b) The parties have not lived as husband and wife after the knowledge of force used or
fraud.

Similarly if the marriage is voidable due to the pregnancy of wife then such marriage shall be
declared null only when the court is satisfied that :-
32
 (a) The applicant was unaware of the pregnancy of the wife at the time of marriage.
(b) If the marriage has been solemnized before this act came into force, then the
application shall be presented within one year from the date of enforcement of the act
or if the marriage has been solemnized after the Act came into force then the
application shall be presented within one year from such marriage.
(c) The applicant has not voluntarily cohabitated after the knowledge of pregnancy of
wife.
(d) Wife had been pregnant from a person other than the applicant.
(e) She was pregnant before the marriage.

Impotency
Impotency means the incompetency of any party to cohabit due to any physical or mental
situation. A case Digvijay v/s Partap Kumari -1970 and Bibi v/s Nath 1970 it was held that nullity
of marriage requires the existence of impotency at the time of first cohabitation.

Unsoundness
A case of Ratneshwari v/s Bhagwati- 1950, it was said that unsoundness insanity or lunacy for the
purpose of marriage means: the incompetency of any party to marriage to understand the rituals of
marriage.

Fraud
Concealment of caste religion or misrepresenting a mother as a virgin or false praising or
concealing prior marriage etc., are good example of fraud.

Legitimacy of child born in void and voidable marriage:

Section l6 provides for the legitimacy of child born in void and voidable marriages. According to it,
it can be said that such children are considered legitimate. Section 16 says- “where any decree of
nullity has been passed regarding marriage under Section 11 & 12 then any child having born or
being in mother’s womb before the decree, if the marriage instead by decree of nullity to declare
null or void would have been breached shall have been the legitimate child of the parties to
marriage, shall be deemed to be legitimate even after passing of decree of nullity. such children
does not obtain any right in the property of persons other than his own parents i.e. such children shall
not inherit property from any other relative other than the parents. A case Bansidhar v/s Chabi
1967 it was held that the children from void and voidable marriage shall be deemed to be the
legitimate children of their parents.

It has categorically been held in Bharatha Mathaa vs. Vijaya Reganatham 2010 SC 2685, that
children born out of live- in- relationship cannot benefit of Sec. 16.

33
 • DIVORCE
Q. When was the provision for ‘divorce by mutual consent’ introduced in Hindu
Marriage Act 1955? What are its requirements if a couple wants to have
divorce?

ANS. Divorce by Mutual Consent

When husband and wife both agree to a divorce, the courts will consider a divorce with mutual
consent. For the petition to be accepted, however, the couple should be separated for over a year or
two years (as per the relevant Act) and be able to prove that they have not been able to live together.
Often, even when either husband or wife is reluctant, they still agree to such a divorce because it is
relatively inexpensive and not as traumatic as a contested divorce. Matters such as children’s
custody, maintenance and property rights could be agreed to mutually.

The ground of divorce by mutual consent was inserted in the Hindu Marriage Act 1955 by an
Amendment in 1976, by adding Section 13B. Section 13B of the Hindu marriage Act, 1955 runs:
• Subject to the provisions of this Act a petition for dissolution of marriage by a decree of
divorce may be presented to the district court by both the parties to a marriage together,
whether such marriage was solemnized before or after the commencement of the Marriage
Laws (Amendment) Act, 1976, on the ground that they have been living separately for a
period of one year or more, that they have not been able to live together and that they have
mutually agreed that the marriage should be dissolved.
• On the motion of both the parties made not earlier than six months after the date of the
presentation of the petition referred to in sub-section (1) and not later than eighteen months
after the said date, if the petition is not withdrawn in the meantime, the court shall, on being
satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a
marriage has been solemnized and that the averments in the petition are true, pass a decree of
divorce declaring the marriage to be dissolved with effect from the date of the decree.

Requirements of divorce by mutual consent

The first requirement is that the parties should be living separately for a period of at least one year
before filing the divorce petition. it is necessary to understand what does the term “living separately’
means.

Living separately
The Supreme Court of India in the case of Sureshta Devi vs. Om Prakash, has ruled out “that the
expression living separately connotes not living like husband and wife. It has no reference to the
place of living. The parties may live under same roof by way of circumstances, and yet they may not
be living as husband and wife. What seems to be important is that they have no desire to perform
34
marital obligations and with that they have been living separately for a period of one year
immediately preceding the presentation of the petition.” It has been ruled out by Supreme Court in
various cases that the expression “have been living separately’ does not necessarily means physical
separation or living separately and apart what is material is that no marital obligations are performed
between the spouses and they are not living together as husband and wife.

Parties have not been able to live together

After establishing the first requirement that the parties were living separately for one year or more,
the second point that has to be established is that the parties have not been able to live together.
In Sureshta Devi vs. Om Prakash, the Supreme Court observed that expression “have not been able
to live together” seems to indicate the concept of broken down marriage so much so that there is no
possibility of any reconciliation. The parties need not establish the fact that they have not been able
to live together. The very fact that they have presented a petition by mutual consent is indicative of
this fact that they have not been able to live together. However, it is very imperative to determine
whether consent given by both the parties is free and not obtained by any kind of force, fraud or
undue influence.
After satisfying the above two requirements and filing a joint petition for divorce by mutual consent,
the parties must wait for at least six months, usually termed as the “cooling period”. After the end of
this period, if the initial petition is not withdrawn by either of the parties or jointly, both the parties
may move court by way of joint motion within the stipulated period of 18 months from the initial
date of the filing of the joint petition. This period is given to parties to re-think their decision.
The following aspects of this provision have been subject to judicial interpretation-

Whether the waiting period of six months is mandatory or directory

There have been conflicting judgments on this regard that whether the courts should
mandatorily wait for a period of six months as given in the sub section(2) of Section 13B. In the
Grandhi Venkata Chitti Abbai case, the court observed that- “if section 13-B (2) is read as
mandatory, the very purpose of liberalizing the policy of decree of divorce by mutual consent will be
frustrated more so when the parties started living separately for a considerable time. Thus Sec. 13-B
(2) though is mandatory in form is directory in substance. Likewise, in the case of Dinesh Kumar
Shukla vs. Neeta, it was held that the waiting period is directory in nature and it can be brought
down from 6 months (provided the mandatory requirements of s 13-B (1) are fulfilled) when all
efforts at reconciliation failed.

But, in the case of Hitesh Narendra Doshi vs. Jesal Hitesh Joshi, it was held that “the provision
has a definite purpose and object, i.e. giving time to the parties for introspection and reconciliation.
That purpose and object stares at us so clearly by the language expressed in Sec. 13-B (2) of the Act
robbing away the right of the court from considering the petition earlier than six months.”

in the case of Ashok Hurra vs. Rupa Ashok, it was held that “in exercise of its extraordinary
powers under Article 142 of the Constitution, the Supreme Court can grant relief to the parties
without even waiting for the statutory period of six months stipulated in S. 13-B of the Act. This
35
doctrine of irretrievable break-down of marriage is not available even to the High Courts which do
not have powers similar to those exercised by the Supreme Court under Article 142 of the
Constitution.”

Whether consent can be unilaterally withdrawn

There have been contrasting judgments on this issue. The controversy is that since under this section
both parties have to file a joint petition for divorce how can one party unilaterally withdraw from it.
Also, one of the purposes of giving a time period of six months is to allow parties to re-think their
decision and if one of the party decides to withdraw from it, why should it not be allowed to do so.

In Jayashree Ramesh Londhe vs. Ramesh Bhikaji, the court held that once a joint petition by
mutual consent was filed, no party could withdraw from it without the consent of both the parties.
likewise, in Nachhattar Singh vs. Harcharan Kaur, it was held that- “if both the parties had
voluntarily consented to file the petition for dissolving the marriage by mutual consent and all other
conditions mentioned in sub-section (1) of section 13-B of the Act are fulfilled, it will not be open to
a party to withdraw the consent.”

Whether mere silence at the second stage would tantamount to withdrawal

If the parties who have filed for divorce under mutual consent and after the end of the 6 month
period what is to be done if either of them do not turn up. Will it amount to withdrawal of consent?
Rajasthan High Court in the case of Suman vs. Surendra Kumar has answered these issues. In this
case the husband after filing a joint consent petition for divorce did not appear for hearings. The
family court held that no decree could be passed in the absence of both the parties. On appeal it was
held by the court that- “when one party has himself left the matter for inference, the inference
ought to be drawn in favour of consent rather than for absence of consent.” it was held that
silence cannot be taken to amount to withdrawal of consent.

Q. What are the various grounds of divorce with the help of case laws?
OR
Defines the word ‘cruelty’ as one of the grounds of divorce given in Hindu
Marriage Act 1955. Is demand for dowry ‘cruelty’? Refer to SC. case on the
subject.
OR
Define the term ‘desertion’ as ground of divorce and essential elements in the
light of Supreme Court case Bipin Chandra vs. Prabhavati , AIR 1956 S.C.

36
ANS. Grounds of Divorce
The Hindu Marriage Act, 1955 originally, based divorce on the fault theory, and enshrined nine
fault grounds in section 13(1) on which either the husband or wife could sue for divorce, and two
fault grounds in section 13(2) on which wife alone could seek the divorce.

In 1964, by an amendment, certain clauses of section 13(1) were amended in the form of section
13(1a), thus recognizing two grounds of the breakdown of the marriage. The 1976 Amendment Act
inserted two additional fault grounds of divorce for wife & a new section 13B for divorce by mutual
consent.
The various grounds on which a decree of divorce can be obtained are as follows-

1. Adultery

Adultery is an extramarital sex. It is a consensual sexual intercourse between a married person and a
person of the opposite sex not being the other spouse, during the subsistence of the former’s
marriage.

While adultery may not have been recognized as a criminal offence in all countries, the matrimonial
offence of adultery or the fault ground of adultery is recognized in most. Even under the shastric
Hindu law, where divorce had not been recognized, adultery was condemned in the most
unequivocal terms.

Though initially a divorce could be granted only if such spouse was living in adultery, by the
Marriage Laws Amendment Act, 1976, the present position under the Hindu Marriage Act is that
it considers even the single act of adultery enough for the decree of divorce.

Since adultery is an offence against marriage, it is necessary to establish that at the time of the act of
adultery the marriage was subsisting. Also, it follows that unless one willingly consents to the act,
there can be no adultery. If the wife can establish that the co-respondent raped her, then the husband
would not be entitled to divorce.

In Swapna Ghose v. Sadanand Ghose the wife found her husband and the adulteress to be lying in
the same bed at night and further evidence of the neighbors that the husband was living with the
adulteress as husband and wife is sufficient evidence of adultery. The fact of the matter is that direct
proof of adultery is very rare.

In Sachindranath Chatterjee vs. Sm. Nilima Chatterjeein this case, the petitioner and the defendant
were married. After marriage, the husband leaves the wife in his home town so that she can complete
her studies and go to another city for work. He visited twice or thrice a month to meet her. Later he
found that his wife commits the adultery i.e. to involve in sexual intercourse with his own nephew,
watchman etc. the plaintiff approaches the court to demand divorce on the ground of adultery and his
petition was accepted and the marriage gets dissolved.

37
Essentials of Adultery
1. One of the spouses involved in the intercourse with another person, married or
unmarried, of the opposite sex.
2. Intercourse should be voluntary and consensual.
3. At the time of the act, the marriage was subsisting.
4. There must be sufficient circumstantial evidence to prove the liability of another
spouse.

2. Cruelty
It is an important ground for judicial separation and divorce. If any party to marriage behaves with
cruelty to the other party, then the other party can present an application for divorce against the first
party on this ground.

Definition of Cruelty
Cruelty has not been universally defined till now. it depends upon the circumstances of the case and
the country and time. Russel v/s Russel, 1897 cruelty has been described as such characterial
behavior or conduct which may put life and body under physical or mental form of danger or may
arise apprehension of such danger.

If the definition is understood in matrimonial context, it shall show that any party to marriage may
behave with other party in such manner that it shall be difficult for other party to live with him, this
shall be cruelty.

Vinod Biswal v/s Tikli urf Padmini Biswal, 2002 it has been held that husband along with his
parents use to regularly beat the wife. Father-in-law physically misconduct with her. Husband never
went to bring back wife nor made any attempt towards it. Court held this behavior of husband to be
cruelty because such circumstances arose that it became difficult for wife to live with the husband.
Similar case is Yadhister Singh v/s Smt. Sarita, 2002– wife used to live at ancestral home of
husband. Husband was working somewhere else. Husband never wanted to keep wife along with
him. He used to come at his ancestral home once a week. He did not used to say his wife that he did
not liked her, but he did say that she should live only with the other members of family at the
ancestral property. The court held it to cruelty.
There are several cases of cruelty. Actually the definition of cruelty depends upon the circumstances
of the case.

2. Types of cruelty

A. Physical cruelty.
B. Mental cruelty.

38
Kusum v/s Kamata, 1965, it was said that the definition of cruelty is so wide that it includes both
physical and mental type of cruelty.

Praveen Mehta v/s Indrajeet Mehta, 2002, the Supreme Court said that mental cruelty is a state of
mind and feelings. In this case, wife refused intercourse form the first day after marriage. She also
refused to undergo medical examination. She used to misbehave always with her husband. She also
left her matrimonial home. Court held it to be cruelty by wife towards husband.

Rakesh Sharma v/s Surbhi Sharma, 2002- wife left the matrimonial home without the permission
of the husband. She used to charge husband with adultery and making constant demand of dowry.
Court held it to be a conduct of mental cruelty towards husband.

Shobha Srinivas v/s Srinivas Veranna, 2002- Court did not considered such a single act of wife as
cruelty in which the illiterate wife emotional anger threw the mangal sutra.
In all, it means that cruelty is determined by the facts and circumstances of every matter.

Demand of Dowry
Demanding dowry is one of the worst evil that is present in the Indian society. Materialism,
influenced by greed seems to be the primary cause for consistent dowry related violence against
women. Gender insensitivity coupled with indifference patronized by patriarchy fuels this attitude
beyond imagination. This is the precise reason why cruel and inhuman acts in the form of dowry
death continue to take place unabated.

The demand of dowry from the wife or her parents and relations amounts to cruelty (Sobha vs.
Mdhukar, 1988, S.C. 1291.)

Gurbachan Singh vs. Satpal Singh, the relation between demand for dowry and cruelty has been
explained by the Supreme Court. As per the facts of the case it was held that the victim, a newlywed
woman, who had committed suicide within a year of her marriage, was subjected to utmost cruelty
(she was also insinuated to have an illegitimate child). The accused family demanded dowry and
when she failed to bring it, they tortured her. The court, comprising a two judge bench of said that,
that the worst part of the cruelty was that she was even taunted for carrying an illegitimate child. The
court also held that a respectable lady cannot bear this kind of false allegation leveled against her
and this must have mentally tortured her. Thus the persistent demands of the accused for more
money, their tortures and taunts amounted to instigation and abetment that compelled her to do away
with her life.

3. Desertion

It actually means when a party to the marriage permanently leaves the other party without any valid
reason and without the consent of another party. This may also include the ignorance of the one
party to the other party. Thus, it is not only the abandonment of place but it is also of the situation
39
and if this situation of desertion continues for more than two years, then it shall be the ground of
divorce.
In the case of Savitri Pandey vs. Premchand pandey, 2002 SC 591 the Supreme Court held that “the
desertion actually means the ignorance from matrimonial duties, by either party instead of leaving
any place. It also requires the existence of cohabitation between the parties earlier”.

In Bipinchandra v. Prabhavati, 1957 SC 176, The Supreme Court held that where the respondent
leaves the matrimonial home with an intention to desert, he will not be guilty of desertion if
subsequently he shows an inclination to return & is prevented from doing so by the petitioner.

Elements of Desertion

1. The fact of separation

2. The intention to desert
3. Desertion without any reasonable cause
4. Desertion without the consent of the applicant
5. Desertion continues for two years

Types

1. Actual Desertion
It mainly requires the intention of desertion without any reasonable cause and the situation when
one party leaves the matrimonial home permanently without the consent of the other partner. This
situation should be continued for two years and then it became the ground of the divorce. This is also
called as physical separation and animus desertion. In the case of Gur Bachan Kaur v. Preetam
Singh (1998), the court held that the desertion shall not be done by the consent as desertion requires
the guilt by one of the parties and desertion by the consent isn’t considered as desertion.

2. Constructive Desertion
Desertion is not always the abandonment of place, sometimes it is an abandonment of situation and
it is known as constructive desertion. It can also be said as that desertion means not abandoning the
place; rather it is ignoring the matrimonial obligations while living under the same roof.

3. Willful Neglect
Desertion includes willful neglect of the petitioner by the other party of the marriage. Subbarao j.
expressed the view that willful neglect is designed the cover constrictive desertion and thus it must
satisfy the ingredients of desertion.

4. Conversion
If one of the spouses converts his religion to any other religion without the consent of the other
spouse, then the other spouse can approach the court and seek the remedy of divorce.

40
Illustration

‘A’, a Hindu has a wife ‘B’ and two children. One day a went to church and converted to
Christianity without the consent of B, here B can approach the court and seek for divorce on
the ground of conversion.

In Suresh Babu vs. Leela in this case, the husband converts himself into Muslim and marries
another woman. Here the wife Leela filed a case and demanded the divorce on the ground of
conversion without her consent and cruelty.

5. Insanity
Insanity means when the person is of unsound mind. Insanity as a ground of divorce has the
following two requirements-

1. The respondent has been incurably of unsound mind.

2. The respondent has been suffering continuously or intermittently from mental
disorder of such a kind and to such an extent that the petitioner cannot reasonably be
expected to live with the respondent.

In Vinita Saxena vs. Pankaj Panditin this case, the petitioner filed a case to get the divorce from the
respondent on the ground that the respondent was suffering from paranoid schizophrenia which
means mental disorder. She came to know these after her marriage. here, the court grants the divorce
on the ground of insanity of husband.

6. Leprosy
Leprosy is an infectious disease of the skin, mucous membranes, nervous system etc. this disease is
transmitted from one person to another. Thus it is considered as the valid ground for divorce.

In Swarajya Lakshmi vs. G. G. Padma Rao, in this case, the husband filed the case for granting the
divorce on the ground of leprosy. He claimed that his wife is suffering from incurable leprosy with
the expert’s reports. Here he succeeds in getting the divorce on the ground of leprosy.

7. Venereal Disease
At present, it is a ground for divorce if it is communicable by nature- irrespective of the period
for which the respondent has suffered from it. The ground is made out if it is shown that the disease
is in communicable form & it is not necessary that it should have been communicated to the
petitioner (even if done innocently).

8. Renunciation
“Renunciation of the world” is a ground for divorce only under Hindu law, as renunciation of the
world is a typical Hindu notion. Modern codified Hindu law lays down that a spouse may seek
divorce if the other party has renounced the world and has entered a holy order. A person who does

41
this is considered as civilly dead. Such renunciation by entering into a religious order must be
unequivocal & absolute.

9. Presumption of Death
Under the Act, a person is presumed to be dead, if he/she has not been heard of as being alive for a
period of at least seven years. The burden of proof that the whereabouts of the respondent are not
known for the requisite period is on the petitioner under all the matrimonial laws. This is a
presumption of universal acceptance as it aids proof in cases where it would be extremely difficult if
not impossible to prove that fact. a decree of divorce granted under this clause is valid & effective
even if it subsequently transpires that the respondent was in fact alive at the time when the decree
was passed.

Wife’s Special Grounds for Divorce

Besides the grounds enumerated above, a wife has been provided four additional grounds of divorce
under section 13(2) of the Hindu Marriage Act, 1955. These are as follows-

1. Pre-Act Polygamous Marriage

This clause states the ground for divorce as, “that the husband has another wife from before the
commencement of the Act, alive at the time of the solemnization of the marriage of the petitioner. For
example, the case of Venkatame v. Patil, where a man had two wives, one of whom sued for
divorce, and while the petition was pending, he divorced the second wife. He then averred that since
he was left only with one wife, and the petition should be dismissed. The court rejected the plea.

Such a ground is available if both the marriages are valid marriages & the other wife (2nd wife)
should be present at the time of filing of the petition. However, today this ground is no more of
practical importance.

2. Rape, Sodomy or Bestiality

Under this clause, a divorce petition can be presented if the husband has, since the solemnization of
the marriage, been guilty of rape, sodomy or bestiality.

3. Non-resumption of cohabitation after a decree/order of maintenance

If a wife has obtained an order of maintenance in proceedings under section 125, Cr.P.C., 1973 or a
decree under section 18, Hindu Adoption & Maintenance Act, 1956 & cohabitation has not been
resumed between parties after one year or upwards, then this is a valid ground for suing for divorce.

4. Repudiation of Marriage

42
This provision provides a ground for divorce to the wife when the marriage was solemnized before
she attained the age of fifteen years, and she has repudiated the marriage, but before the age of
eighteen. Such repudiation may be express (written or spoken words) or may be implied from the
conduct of the wife (left husband & refused to come back). Moreover, this right (added by the 1976
amendment) has only a retrospective effect i.e. it can be invoked irrespective of the fact that the
marriage was solemnized before or after such amendment.

Beside these grounds, the divorce as a customary divorce can also be seeked through mutual consent
under section 13-B.

Q. What are the difference between judicial separation and divorce?

ANS. DIFFERENCE BETWEEN JUDICIAL SEPARATION AND

DIVORCE

Judicial Separation Divorce

1. Can file a petition at any time post
marriage.
2. Only one stage of judgment. If grounds
are satisfied, decree granted.
3. Temporary suspension of marriage.
4. Cannot remarry after the passage of
decree.
5. A single instance of adultery sufficient
for Judicial Separation.
6. The possibility of reconciliation.
1. Can file only completion of one year of
marriage.
2. Judgment is a two-step process. First
reconciliation, then divorce.
3. Brings marriage to an end.
4. Can remarry once decree in favour of
divorce is passed.
5. Living in an adulterous relationship
necessary.
6. No possibility of reconciliation.

6. ADOPTION

Q. Explain the concept of adopting a Child under Hindu Law.

ANS. Adopting a child is considered a good deed performed by humans. Generally,

ADOPTION means to willfully adopt a Child and treat him like one’s own Child. In Hindu law,
the different provisions with respect to Adoption are given but in other personal laws like Muslim
law, Christian Law, Parsis Law, no separate laws are given so they have to approach the court for
adoption under the Guardians and Wards Act, 1890.

43
What is Legal Adoption?
According to the Juvenile Justice (Care and Protection of Children) Amendment Act, 2006, once
a child is separated from his biological parents for good and becomes a legitimate child of his
adoptive parents he gets all the rights that are related to biological parents.

If a Foreigner wants to adopt an Indian Child then he has to approach the court under the Guardian
and Wards Act, 1890 and if they want to take the Indian Child out of the Country the adoption
should be done as per Foreign Laws.

While under the Hindu Minority and Guardianship Act, 1956, the Guardian should be Natural
Guardian or Guardian appointed by the Court. Natural Guardian for both the Boys and the
Unmarried Girls is first the father and then the mother. Under Muslim Law, the father has a
dominant position.

Adoption under Hindu Law

As per Hindu Shastra, it is believed that the adopted son is a reflection of the natural son of
Adoptive Parents. This helps in guaranteeing the protection and care of the adopted son. Once a
child for good is separated from his biological parents and becomes a legitimate child of his
adoptive parents, he has all the rights that are related to adoptive parents. This means the adoptive
child cannot marry the other adoptive child or real child of his adoptive parents.

Who is allowed to Adopt a Child?

A married or unmarried male, a married or unmarried female, NRI may adopt a child.

Under the Hindu Adoption and Maintenance Act, 1956

Any male Hindu, having a sound mind, a major, and is eligible for adopting a child can adopt a
child. If the male Hindu is married and wants to adopt a child he has to take the consent of his wife
as well before adoption, and the consent should be free.

Any Female Hindu, having a sound mind, a major, and is eligible for adopting a child can adopt a
child. If the Female Hindu is married and wants to adopt a child she has to take the consent of her
husband as well before adoption, and the consent should be free.

Conditions for adoption by Hindu couples or single parent

• When a Hindu male or a Female wants to adopt a son, they should not have a son living
whether legitimate or illegitimate, at the time of adoption.
• When a male or a Female Hindu wants to adopt a daughter, they should not have a daughter
or son’s daughter living at the time of adoption.
44
 • If a male wants to adopt a daughter, he should be at least 21 years older than the adoptive
daughter.
• If a Female wants to adopt a son, she should be at least 21 years older than the adoptive son.
• In personal laws like Muslim Law, Christian Law, Paris Law, the condition for a valid
Adoption are not at all given so if they have to adopt a child they can adopt as per the
Guardians and Wards Act.
• But according to the adoption under the Guardians and Wards Act, the person becomes a
guardian of the child and not the adoptive parent. And when a child becomes 21 he will be
treated as an individual entity.

In Mohammed Khan v. Muhammad Ismail

In this case, it was held that, if a Muslim person has a desire to adopt a child he can do so by
applying under the Guardians and Wards Act.

In Hindu law, the different provisions with respect to Adoption are given but in personal laws like
Muslim law, Christian Law, Parsis Law; no separate laws are given so they have to approach the
court for adoption under the Guardians and Wards Act, 1890.

Intercountry Adoption
In India, the adoption of an Indian Child by a foreign citizen or NRI has been covered under the
Guidelines i.e. Adoption of Children, 2015. These guidelines are made to stop the misuse or
illegal use of children through adoption. As per the Supreme Court, a foreigner can adopt an Indian
child before the age of 3 years. In the absence of any concrete act on inter-country adoption, the
provisions of Guardians and Wards Act, 1890 will be followed for adoption.

If a person wants to adopt an abused, surrendered child, that kind of inter-country adoption can be
done as per the Juvenile Justice (Care and Protection of Children) Act, 2015.

But the Guardians and Wards Act, 1890 does not have any provision regarding the adoption of
orphans, abandoned child. Section 58 of this Juvenile Justice (Care and Protection of Children)
Act defines that any Indian citizen of India, irrespective of their religion if someone is interested to
adopt an orphan or abandoned or surrendered child, he/she have to apply for the same to a
Specialized Adoption Agency (SAA).

Section 57 under the Juvenile Justice (Care and Protection of Children) Act tells about the
eligibility of prospective adoptive parents. As per Section 57 of Juvenile Justice (Care and
Protection of Children) Act, the adoptive parents should be physically fit, financially sound,
mentally alert and highly motivated to adopt a child for providing his/her a good upbringing and
both partners must consent for the adoption.

Who can be Adopted?

45
According to Hindu Law, any child can be adopted as per some conditions:

• The child should be Hindu.

• The child is not adopted before.
• The age of the child is below 15 years.
• The child should not be married.

As per the Guardians and Wards Act, 1890 any child can be adopted as per some conditions:

• The child is not Hindu

• The child should be minor
• An orphan or abandoned or surrendered child.

What is the necessary procedure to Adopt a Child?

As per the Hindu Adoption and Maintenance Act, 1956 if the party is willing to adopt a child
they have to make an application to a child welfare agency. The registration of adoptive parents and
child can be done by the agency certified by the Central Adoption Resource Authority in New
Delhi.

The next step is, the registered agent will conduct an interview of the Adoptive parents in order to
understand their intention behind the Adoption.
When the adoptive couple decides which child they want to adopt they have to file the petition
under the act and the court starts the hearings.

Last, the court will pass a decree and the adoption is finalized.
Under The Guardianship and Wards Act, 1890 if the party is willing to adopt a child they have to
file an application to the court and has to disclose their intention i.e. why they want to adopt a child.
The court will give a date and on that date, a hearing will be placed. The adoptive couple tells the
court about the child they want to adopt. Last, the court will pass a decree and the adoption is
finalized.

As per the Guardians and Wards Act, 1890 any child can be adopted as per the following
conditions:

• The child is not Hindu

• The child should be minor
• An orphan or abandoned or surrendered child.
• The child should be below 18 years of age

There is a directive that adoption proceedings have to be completed within two hearings, and the
petition has to be disposed of within two months of the filing of the petition. The certified copy of

46
the order has to be obtained by the agency within 10 days. The agency must also obtain the birth
certificate of the child, with the names of the adoptive parents.

Other Aspects of Adoption

How much time does the entire procedure take?

Adopting a child in India is a long process. Earlier, parents who wished to adopt would go to the
nearest agency and register. The agency would match the preferences of the couple with the
children available. The match may or may not happen, and would take months, even years. Now, all
adoption agencies have to upload details and the Central Adoption Resource Authority (CARA)
software will match preferences across the country. This has lessened the duration of an adoption.

What will be the age of the child a person can adopt?

As per the Hindu Adoption and Maintenance Act, the child who completes the age of years is not
entitled to be given under adoption unless the party i.e. the adoptive couple’s custom allows them to
do so. If the custom allows adopting a child who complete years of age then that adoption can be
valid.

But As per the Guardians and Wards Act, the child who is below 18 years of age can be adopted.
Can a person specify the gender of the child he/she wants to adopt?
An adoptive couple has a right to specify the gender of the child, and can also specify the colour of
the skin, the religion of the child and then decide which child they want to adopt.

Can a person adopt a child if he already has one?

The adoptive couple can adopt a child if they already have one. The condition is based on the
gender of the child. Under the Hindu Adoption and Maintenance Act, the Hindu can adopt a child
of different gender if they already have one child.

Illustration

Situation 1: If A and B already have a male child, and want to adopt a girl child then they can
adopt as per provision under the Hindu Adoption and Maintenance Act.

Situation 2: If A and B already have a male child, and want to adopt a male child then they cannot
adopt as per provision under the Hindu Adoption and Maintenance Act.

The Guardians and Ward Act (GWA), 1860

47
In Hindu law, the different provisions with respect to Adoption are given but in personal laws like
Muslim law, Christian Law, Parsis Law; no separate laws are given so they have to approach the
court for adoption under the Guardians and Wards Act, 1890.

Under The Guardianship and Wards Act, 1890 if the party is willing to adopt a child they have to
file an application to the court and has to disclose their intention i.e. why they want to adopt a child.
The court will give a date and on that date, a hearing will be placed. The adoptive couple decides
tells the court about the child they want to adopt. Last, the court will pass a decree and the adoption
is finalized.

As per the Guardians and Wards Act, 1890 any child can be adopted as per some conditions:

• The child is not Hindu

• The child should be minor
• An orphan or abandoned or surrendered child.
• The child should be below 18 years of age

There is a directive that adoption proceedings have to be completed within two hearings, and the
petition has to be disposed of within two months of the filing of the petition. The certified copy of
the order has to be obtained by the agency within 10 days. The agency must also obtain the birth
certificate of the child, with the names of the adoptive parents.

Conclusion
Adopting a child is considered a good deed performed by humans. Generally, Adoption means
willfully adopt a Child and treated like one’s own Child. In Hindu law, the different provisions with
respect to Adoption are given but in personal laws like Muslim law, Christian Law, Parsis Law; no
separate laws are given so they have to approach the court for adoption under the Guardians and
Wards Act, 1890.

Once a child for good is separated from his biological parents and become a legitimate child of his
adoptive parents and have all the rights that are related to adoptive parents. This means the adoptive
child cannot marry other the adoptive child or real child of his adoptive parents. In the modern
adoption laws, adopting a child is considered a good deed performed by humans. Generally,
Adoption means willfully adopt a Child and treated like one’s own Child.

But the Guardians and Wards Act, 1890 does not have any provision regarding the adoption of
orphans, abandoned child. Section 58 of this Juvenile Justice (Care and Protection of Children)
Act defines that any Indian citizen of India, irrespective of their religion, if interested to adopt an
orphan or abandoned or surrendered child, may apply for the same to a Specialised Adoption
Agency, in the manner as provided in the adoption regulations framed by the Authority.

48
Q. What do you understand the words “capacity” and right to adopt? Define
both and bring out the distinction between them.
OR
What is meant by ‘capacity’ and right to adopt under Hindu Adoption and
Maintenance Act 1956? Can an unmarried woman adopt under the Act?
OR
Discuss the essentials of a valid adoption as laid down in Hindu Adoption and
Maintenance Act 1956.

ANS. ADOPTION

According to Manu, adoption is the “taking of a son, as a substitute for the failure of a
male issue.” thus it is a transplantation of a son from one family in which he is born to another
family where he is given by the natural parents by way of gift. Adoption is a legally recognized
mode of affiliation as the son of a person, of one who in fact was not his son.

On adoption, ties of the son with his old family are severed and he is taken being born in the new
family, acquiring rights, duties and status in the new family.

Now, in the present scenario, the Hindu Adoption and Maintenance Act, 1956 has completely
codified the law of adoption and has materially modified it in correspondence to the needs of
dynamism of Hindu society. Therefore, every adoption shall be made in conformity with this act and
any contravention of the provisions of this act shall be void.

Section 6 of the Hindu Adoptions and Maintenance Act, 1956 provides the requisites of a valid
adoption. The person adopting has the capacity and also the right to take in adoption. The person
giving in adoption has the capacity to do so, the person adopted is capable of being taken in adoption
and the adoption made in compliance with the other conditions mentioned in chapter ii of the Hindu
Adoption and Maintenance Act, 1956.

No adoption shall be valid unless-

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: and
4. The adoption made in compliance with the other conditions mentioned in chapter ii of
the Hindu Adoption and Maintenance Act, 1956.

According Section 5 of the Act, an adoption made in contravention of the provisions of Chapter II
of the Hindu Adoptions and Maintenance Act, 1956 is void. In Jai Singh v/s Shakuntla, 2002, the
Supreme Court opined that section 16 of the Hindu Adoptions and Maintenance Act, 1956,

49
envisages a statutory presumption that in the event of there being a registered pertaining adoption,
adoption would be presumed to have been made according to law.

According Section 7 capacity of a male Hindu to take in adoption:

According to section 7 of Hindu Adoption and Maintenance Act, 1956, any male Hindu
who is of sound mind and is not a minor has the capacity to take a son or a daughter in adoption. But
if the male Hindu has a wife living at the time of adoption, he shall not adopt except on the consent
of his wife.

In the case of Sarabjeet Kabir v. Gurumal Kaur, AIR 2009 NOC 889 (P & H), the court upheld that
if adoption taken by the husband without the consent of the wife, that adoption will be illegal.

But the consent of the wife of a male Hindu is not necessary in the following three conditions:-

• The wife has completely and finally renounced the world, or

• The wife has ceased to be Hindu, or
• The wife has been declared by a court of competent jurisdiction to be unsound mind.

In Krishna Chandra Sahu v. Pradeep Das, AIR 1982 Orissa 114, the court held that where the
above three disabilities of wife have not been established the consent of such wife would be
mandatory for a valid adoption. If the consent of wife is not established, the court will declare the
adoption null and void.

If a man has more than one wife living at the time of adoption, the consent of all the wives must be
obtained. The Act has given two qualifications for a male Hindu to be capable to take a child in
adoption i.e. the person must be of sound mind and he must not be a minor. The man is required to
take consent of the wives or wife, before adoption. Without the consent of wife or wives the
adoption will be void.

According to Section 8 capacity of a female Hindu to take in adoption

A female has also the capacity to adopt any child. Section 8 of the Act provides that any female
Hindu who is of sound mind, who is not minor and who is not married or if married, whose marriage
has been dissolved or whose husband is dead or her husband has renounced the world finally and
conclusively or her husband has become a convert or her husband has been declared to be of
unsound mind by a court of competent jurisdiction has the capacity to take a son or daughter in
adoption.
A woman who is of sound mind and is not a minor can take child in adoption. The woman has no
right to adopt, during the subsistence of the marriage, if the husband not suffering with any of the
disabilities mentioned in section 8 of the Act. The unmarried and widow woman has also the right to
take in adoption any child.

50
In the case of Narinderjit Kaur v. Union of India and another, AIR 1997 P&H 280, it was held that
the adoption of a child under the authority of parents is valid. Where a child was given in adoption
willingly by natural parents and was taken in adoption by the adoptive mother through her attorney,
it was held to be a valid adoption. It was also held that subsequent marriage of adoptive mother does
not invalidate the adoption.

However the 2010 Amendment of the section 8 of the Hindu Adoption and Maintenance Act,
1956 has brought a radical change in the Hindu law.

The newly enacted section 8 reads as under:

“Any female Hindu who is of sound mind and is not a minor has the capacity can take a
son or daughter in adoption.

Provided that, if she has a husband living, she shall not adopt a son or daughter except with
the consent of her husband unless the husband has completely and finally renounced the
world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction
to be of unsound mind.”

According to section 9 person capable of giving in adoption

Section 9 of the Act lays down the capacity of person, who may give the child in adoption to
another. No persons except the father or mother or the guardian of the child shall have the capacity
to give in adoption.

• Capacity of the father to give in adoption– if the father is alive, he shall alone have the
right to give in adoption but such right shall not be exercise save with the consent of the
mother.
• Capacity of the mother to give in adoption -the mother may give the child in adoption if
the father is dead or had completely and finally renounced the world or has ceased to be a
Hindu or has been declared by a court jurisdiction to be unsound mind.
• Capacity of the guardian to give in adoption – where both the father and mother are dead
or to be unsound mind or had finally renounced the world, is declare by the court then the
guardian of a child may give the child in adoption with the following conditions laid down by
the courts:-

1. That the adoption will be for welfare of the child.

2. That the applicant for permission has not received any payment in consideration of
the adoption.
3. That no person has given any payment to the applicant for consideration of the
adoption of child.

51
The father has preferential right to give the child in adoption. If he is unsound mind or suffering
from chronic disease has the right to give a child in adoption. The guardian may give the child in
adoption with the prior permission of the court.

According to Section 10 person who can be adopted:

Section 10 of the Hindu Adoption and Maintenance Act, 1956 the following person who fulfill
the conditions are capable for adoption:-

a) He should be Hindu.
b) He or she not already be adopted any child adopted.
c) He or she has not been married unless there is a custom applicable which permits
being can adopt.
d) He or she has not completed the age of fifteen years which is to be considered being
taken for adoption.

Other conditions for a valid adoption:

According to section 11, in every adoption, the following conditions must be complied with:
1. If the adoption is of a son , the adoptive father or mother by whom the adoption is made
must not have a Hindu son, son’s son or son’s son’s son (whether by legitimate blood
relationship or by adoption) living at the time of adoption;
2. If the adoption is of a daughter, the adoptive father or mother by whom the adoption is
made must not have a Hindu daughter or son’s daughter (whether by 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 years 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 twenty-one years older than the person to be adopted;
5. The same child may not be adopted simultaneously by two or more persons (does not
refer to if both persons are adoptive mother and father);
6. The child to be adopted must be actually given and taken in adoption by the parents or
guardian concerned or under their authority with intent to transfer the child from the
family of its birth or in the case of an abandoned child or child whose parentage is not
known, from the place or family where it has been brought up to the family of its
adoption:

52
Q. What are the consequences of a valid adoption? Can an adoptive child
deprive his adoptive parents to dispose of their property? Discuss the relevant
provisions of the Hindu Adoption and Maintenance Act 1956.

ANS. SEC. 12 EFFECTS OF ADOPTION

Sec. 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-

1. In the Natural Family

Under Hindu law the adoption if the child means that the child is totally uprooted from the natural
family and transplanted in the new family.

A. Relationship with the members of the natural family

For secular, religious and civil purpose, the adopted child ceases to be the child of natural family.
His father and mother cease to be his parents all relations on the father’s side and mother’s side
ceases to be his relation. After adoption he is not entailed to any share in property of his natural
parents Rangappa vs. Channamma, 2008 Kar. 47 (D.B). Only tie that he retains with his natural
family is that he cannot marry any person in his natural family whom he could not have married
before his adoption.

The natural parent right of guardianship ceases with effect from the date of adoption whatever be the
age of child.

B. Divesting of property
Provision(b) to sec 12 of the Act provides that “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 person subject to the obligations, if any attaching to him family of his her
birth. Thus, any property that the child inherited from any relation before adoption will continue to
be his property even after adoption Muthurishan vs. Sri Palani 1969(1 MLJ129).

2. in the adoptive family

The adopted child is deemed to be the child of the adopter for all purposes. His position for
all intents and purposes is that of natural born son- he has same rights, privileges and the same
obligations in the adoptive family. (Kesharpal vs. State of Mah, 1981 Bom. 115).

a. Relationship with the members of the adoptive family:

53
The adoption of Hindu law means complete transplantation of the child in the adoptive family. this
means that he is not merely the child of the adoptive parents but he is also related to all relations on
the mother’s side as well as the father’s side as if he is the natural born child of the family, thus
father’s and mother’s parents re his grand – parents. His adoptive parent’s daughter is he sister and
so on. In Prafulla Balla Mukharji vs. Satish Chandra Mukharji 1998 Cal 86, it was held under the
facts there was no proof of adoption. But under the modern law as well under the old Hindu law if an
unmarried person a bachelor or virgin, adopts a child the child will have only one parent adoptive
father or adoptive mother and he will have only one line parental or maternal as the case may be. for
example if a virgin adopts a son the child will have only maternal side, i.e., his adoptive mother
parents will be his maternal grandparents but he will not have any paternal side as the child has no
father.

In Sawan Ram vs. Kalawati 1967 SC 1761 the Supreme Court has taken a view that even now the
deceased husband of widow is the adoptive father of the child.

b. Guardianship, Inheritance and Maintenance

the adoptive parents are the natural guardian of their adopted minor child, first the father, then the
mother if the adopted child is less than five years, then the adoptive mother will have preferential
claim to the custody of the child.

The position of an adopted child in respect of inheritance and maintenance is the same as that of the
natural born child. If there is an adopted child and a natural child both will inherit equality. The
adopted child right has the right of collateral succession both on his adoptive mother’s side and
adoptive father’s side.

He claims the maintenance against his adoptive parents or against any person against whom as a
natural child be could have claimed maintenance. He is liable to maintain all those parsons whom a
natural child has an obligation to maintain. The adopted child’s right of maintenance ceases on his
attaining majority Nanda Kishor vs. Bhupendra 1966, Cal. 181.

c. Divesting of Property
Section 12(c) specifically lays down that the adopted child shall not divest any person of any
estate which vested in him or her before the adoption Chandrani vs. Pradeep, 1991 M.P. 286, the
Hindu law of divesting of property on adoption was very complicated and a sources of constant
litigation Krishnamurthy vs. Krishnamurthy 1927 PC 139. Under the modern Hindu law this
sources of litigation has been done away with by laying down that the adopted child cannot divest
ant person of the properties vested in him or her before adoption.

Anti-adoption Agreements

54
Section 13 lays down that subject to any agreement to contrary an adoption does not deprive the
adoptive father or mother of power to dispose of his or her property by transfer inter vivos or by will
Ugre Gowda vs. Nagegowada 2004 SC, 3974, it was held that second adoption did not divest her
estate. If there is no ante–adoption agreement referring the power of adoptive parents has full power
of alienating their property.

Q. Who can give child in adoption?

OR
Who can give and take in adoption?

ANS. Section 7, 8, 9 and 10 of Hindu Adoption and Maintenance Act 1956 provides the
following terms for adoption:-

1. Competency if Hindu male to adopt.

2. Competency of Hindu female to adopt.
3. Person competent to give adoption.
4. Person who can be adopted.

All these above can be studied under the following heads:-

1. WHO CAN ADOPT - Section 7 and 8 mention that person who can adopt. These sections
have two types of methods of adoption by male and adoption by female.

Adoption by Male
Section 7 provides that an adoption by male requires the following three conditions-

(i) Such male shall be of sound mind.

(ii) He is major.
(iii) Must have the consent of his wife.

Thus such Hindu male can adopt a child who is major, sound mind and has obtained the consent of
his wife. If the adoption is performed without the consent of wife then such adoption shall be void.
refer a case of Bhola v/s. Ram Lal -1989, it has been held that if any male has more than one wife
then the consent of all wives are required. If any wife attends the adoption ceremony it shall be
deemed to have given the consent refer a case of Praful Kumar v/s. Shashi Bewa -1990.
It is pertinent to mention that the consent of wife is not necessary in all circumstances i.e. the
consent of wife is not necessary in the following conditions:-

1. When wife had renounced the world.

2. When she is no more Hindu.
55
 3. When she has been declared unsound by the competent court.

Adoption by female

Section 8 provides that any female can also adopt a child only when such female fulfill the
following conditions-

1. is unmarried or widow.
2. is a major
3. is of sound mind.

It is clear that a female cannot adopt until the husband is living. Female can adopt a child even when
the husband living only when:

i) The husband had renounced the world.

ii) The husband is not more a Hindu.
iii) The husband has been declared unsound mind by a court.

Here are some important things that if male wants to adopt a female or vice-versa then the age
difference between the two shall be at-least 21 years.

Who can give adoption?

Section 9 mentions those persons who can give a child in adoption. The followings are eligible for
giving a child in adoption:-

1. Father
2. Mother
3. Guardian appointed by the court.

If a father gives a child in adoption the consent of mother shall be required. The consent of mother
shall not be required in following situations-

1. When the mother is renounced the world.

2. When the mother is no more Hindu.
3. When the mother has been declared unsound mind by a court.

Generally a mother cannot give a child in adoption till the father is living. A mother can give a child
in adoption only when the following occur:-

1. The father had already died.

2. Father is renounced the world.
3. The father is no more Hindu.
56
 4. The father has been declared unsound mind by a competent court.

Mother means only the natural mother not the step mother. Step mother cannot give a child in
adoption. Refer a case of Dharamraj Jain v/s. Suraj Bai-1973.

A guardian appointed by the permission of court can give a child in the following
conditions:
1. When both father and mother had died.
2. When they have renounced the world.
3. When they do not remain Hindu.
4. When they have been declared unsound mind by a competent court.

It is further to submit that the court will consider the following points while permission for the
adoption:-

1. The age of child.

2. Knowledge of the child.
3. Intention of the child.
4. Interest and welfare of the child.
5. No consideration by the guardian etc.

Who may be adopted?

Section 10 mentions that those persons who may be adopted. According to the provisions such
person may be adopted or may be given in adoption:-

1. Who is Hindu?
2. Who has not already been adopted?
3. Who is not married where it has been permitted by the custom or traditions.
4. Who is not above the age of 15 years where it has not been permitted by the custom
or traditions?

The case of Balakrishna v/s. Sadashive-1977, another case of Mayaram vs. Jai Naraian -1989 and
Kodippa Rama Papal urf Shirke v/s. Kannappam -1990, it was held that where customs or
traditions allow there a person above 15 years of age or married can be adopted.

Section 14 describes the position of mothers in certain situations

1. When a male adopts with the consent of the wife, the wife becomes the adoptive
mother.
2. If a single adoptive father later marries, the wife of the adoptive father becomes the
step mother.
57
 3. If a single adoptive mother later marries, the husband of the adoptive mother becomes
the step farther.
4. If an adoptive father has multiple wives, the senior most by marriage, not by age, wife
becomes the adoptive mother and other wives become the step mothers.

Valid adoption not to be cancelled

Section 15 says that a valid adoption cannot be canceled either by the adoptive father or mother.
Neither can the adopted child renounce the adoptive parents and go back to the family of his birth.

7. HINDU MINORITY AND GUARDIANSHIP ACT, 1956

Q. Who are the natural guardians of a Hindu minor? When do they lose the
right of guardian? Can they appoint testamentary guardian if so when? State
the relevant law referring the provisions given in Hindu Minority and
Guardianship Act 1956.

ANS. Hindu Minority and Guardianship Act

The Hindu Minority and Guardianship Act were established in the year 1956 as part of the
Hindu Code Bills. This Act extends to the whole of India except the State of Jammu & Kashmir and
applies to Hindus domiciled in our country. This Act was launched to enhance the rules under
Guardians and Wards Act, 1890. Hindu Minority and Guardianship Act was introduced to
modernize the Hindu legal tradition and to codify certain parts of the laws relating to minority and
guardianship among Hindus. This Act serves explicitly to define guardianship relationships between
minors and adults, as well as between the people of all ages and their respective property.

Natural Guardians:
In Hindu law only three persons are recognized as natural guardians: father, mother and husband,
Father. “Father is the natural guardian of his minor legitimate children, sons and daughters."
Section 19 of the Guardians and Wards Act, 1890, lays down that a father cannot be deprived of
the natural guardianship of his minor children unless he has been found unfit.

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Section 13 of the Hindu Minority and Guardianship Act which lays down that welfare of the
minor is of paramount consideration and father's right of guardianship is subordinate to the welfare
of the child.

The Act does not recognize the principle of joint guardians.

The position of adopted children is at par with natural-born children. The mother is the natural
guardian of the minor illegitimate children even if the father is alive. However, she is the natural
guardian of her minor legitimate children only if the father is dead or otherwise is incapable of
acting as guardian.

As provided in this Hindu Minority and Guardianship Act, 1956, the following are
entitled to be the natural guardians in respect of the minor’s person as well as in respect of the
minor’s property excluding the undivided interest in the joint family:

Section 6 of HMG Act 1956 defines only three natural guardians:

• In case of a Hindu boy or an unmarried girl, the natural guardians will be the father and
after him the mother
• According to this Act, the custody of a minor who has not completed the age of five years
will ordinarily be with the mother (the guardian will be a mother)
• If an illegitimate boy or an illegitimate unmarried girl, the natural guardians will be the father
and after her the father
• In the case of a Hindu married girl, the husband will be the guardian

Provided that no person shall be entitled to act as the natural guardian of a minor under the
provisions of this section-
- if he has ceased to be a Hindu, or
- if he has completely and finally renounced the world by becoming a hermit (vanaprastha)
or an ascetic (yati or sanyasi).
Explanation: - In this section the expression “father” and “mother” do not include a step-father and
a step-mother.

Proviso to clause (a) of Section 6, Hindu Minority and Guardianship Act lays down that the
custody of a minor who has not completed the age of five years shall ordinarily be with the mother.
Thus, mother is entitled to the custody of the child below five years, unless the welfare of the minor
requires otherwise.

Section 7: Natural guardianship of adopted son -

The natural guardianship of an adopted son who is a minor passes, on adoption, to the adoptive
father and after him to the adoptive mother.

The guardianship can be terminated in the following situations:-

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 (i) When such guardian is no more Hindu.
(ii) When he has renounced the world.

In case of E.M. Nadar v. Shri Haran, 1992, it was held by the court that the father is guardian of
minor even if living separately.

In case of Vijaylakshmi v. Police Inspector, 1991, it was held that when father converts to be
non-Hindu then mother shall be natural guardian.

In case of Chandra v. Prem Nath, 1969, it was held that the guardian below the age of 5 years is
mother.

But in several decisions, it has been considered that if the father is unable and do not have sufficient
fund then the natural guardian shall be mother as described by the court in the following cases:-

(i) R. Venkat Subaiya v. M. Kamalamma, 1992

(ii) Smt. Geeta Hariharan v. Reserve Bank of India, 1999.

Testamentary Guardians
A Testamentary Guardian is one who is appointed by a will of the natural guardians of the minor.
The Testamentary Guardian becomes entitled to act as the guardian of the minor after the death of
the natural guardian. He can exercise all the rights and powers of a natural guardian to such extent
and subject to such restrictions as are specified in the Act and in the will. it is necessary for the
testamentary guardian to accept ‘the guardianship’.

Acceptance may be express or implied. A testamentary guardian may refuse to accept the
appointment or may disclaim it, but once he accepts, he cannot refuse to act or resign except with the
permission of the court.

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 Section- 9: The Hindu Minority and Guardianship Act,
1956:
Testamentary guardians and their powers,-
(1) A Hindu father entitled to act as the natural guardian of his
minor legitimate children may, by will appoint a guardian for
any of them in respect of the minor’s person or in respect of the
minor’s property (other than the undivided interest referred to
in section 12) or in respect of both.
(2) An appointment made under sub-section (1) shall have no
effect if the father predeceases the mother, but shall revive if
the mother dies without appointing by will, any person as
guardian.
(3) A Hindu widow entitled to act as the natural guardian of her
minor legitimate children, and a Hindu mother entitled to act as
the natural guardian of her minor legitimate children by reason
of the fact that the father has become disentitled to act as such,
may, by will, appoint a guardian for any of them in respect of
the minor’s person or in respect of the minor’s property (other
than the undivided interest referred to in section 12) or in
respect of both.
(4) A Hindu mother entitled to act as the natural guardian of her
minor illegitimate children may; by will, appoint a guardian for
any of them in respect of the minor’s person or in respect of the
minor’s property or in respect of both.
(5) The guardian so appointed by will has the right to act as the
minor’s guardian after the death of the minor’s father or
mother, as the case may be, and to exercise all the rights of a
natural guardian under this Act to such extent and subject to
such restrictions, if any, as are specified in this Act and in the
will.
(6) The right of a guardian so appointed by will shall, where the
minor is a girl, cease on her marriage.

Under Section 9, of the Hindu Minority and Guardianship Act, a testamentary guardian can be
appointed only by a will. Under the Hindu Minority and Guardianship Act, 1956, testamentary
power of appointing a guardian for the natural or adoptive minor has now been conferred on both
parents. There is nothing in the Act which limits the choice of natural guardian to appoint any person
as the guardian under a validly executed will. But the person so appointed must be one who is not
suffering from any disqualifications like a minority, renunciation of the world or being a non-Hindu
or insanity.

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In Case of Legitimate Child:
Under old Hindu Law, a testamentary guardian appointed by father could function even though
when the mother was alive. But according to Section 9 sub-sections (1), (2), and (3), father can
appoint guardian of his minor child, but even though the father has appointed a guardian if the
mother is alive, she would be minor’s guardian, and she also can appoint under her will a guardian of
her own choice. If mother appoints testamentary guardian, her appointee will become the
testamentary guardian and father’s appointment will continue to be ineffective. If the mother does
not appoint, father’s appointee will become the guardian. Thus where the father dies during the
lifetime of his wife (minor’s mother) after appointing a guardian by will, the appointment of the
guardian by the father will not become effective and the mother by virtue of the provisions in
Section 6 of the Act will become the natural guardian of the minor. But where the widowed wife,
i.e., minor’s mother dies without appointing any person as guardian by the will of the minor, the
appointment made by the father will revive.

In Case of Illegitimate Child:

As per Section 9 Sub-section (4) where the child is illegitimate, the biological mother of the child
being a natural guardian can appoint a guardian by will even during the lifetime of her husband. In
such case, the father has no right to appoint any person as the guardian.

In Case of Married Minor Girl:

Under Section 9 Sub-section (6) the guardian of a minor girl will cease to be the guardian of her
person on her marriage, and the guardianship cannot revive even if she becomes a widow while a
minor.

Under Section 9 Sub-section (5) the testamentary guardian becomes entitled to act as the guardian
of the minor after the death of the natural guardian. He can exercise all the rights and powers of a
natural guardian to such extent and subject to such restrictions as are specified in the Act and in the
will.

Q. What do you understand by the term ‘testamentary guardians’ in Hindu

Minority Guardianship Act 1956? Who has the right to appoint testamentary
guardian for a minor Hindu.

ANS. Section 9 Testamentary Guardian

A testamentary guardian is one who is appointed by a will of the natural guardians of the minor.
Father who is the natural guardian of his minor children can appoint guardian for them who are

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known as testamentary guardians. Section 9 of the Hindu Minority and Guardianship Act, 1956,
relates to the testamentary guardians and their powers.

Under old Hindu law a testamentary guardian appointed by father could function even though when
the mother was alive. But according to section 9, even though the father has appointed a guardian if
the mother is alive, she would be his guardian, and she also can appoint under her will a guardian of
her own choice.

But if the mother does not appoint any guardian, the appointment of the guardian under “father’s
will” will come into operation. Such a testamentary guardian becomes functional only after the death
of natural guardians, as a will comes into effect only on the death of its executor. Section 9 of the
Act runs as follows-

“(1) A Hindu father entitled to act as a natural guardian of his minor legitimate children may,
by will, appoint a guardian tor any of them in respect of the minor’s person or in respect of
the minor’s property (other than the-undivided interest ratted to in section 12) or in respect of
both,

(2) An appointment made under sub-section (1) shall have no effect if the father predeceases
the mother, but shall revive, if the mother dies without appointing by will, any person as
guardian.

(3) A Hindu widow, entitled to act as the natural guardian of her minor legitimate children,
and a Hindu mother entitled to act as the natural guardian of her minor illegitimate children
by reasons 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 minor’s person or in respect of minor’s
property (other than the undivided interest referred to in sub-section (2) 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 persons or in
respect of the minor’s property or in respect of 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 guardian so appointed by will shall, where the minor is a girl, cease on her
marriage.”

Who can appoint testamentary guardian?

Thus according to the above section the following persons can exercise the right to appoint a
testamentary guardian in respect of minor’s person or property or both:
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 (1) Father, natural on adoptive
(2) Mother, natural or adoptive
(3) The widowed mother, natural or adoptive.
Father
A Hindu father, who is entitled to act as a natural guardian and has not become disqualified to act as
such, may by will appoint a guardian in respect of minor’s person or his property or both, but not of
undivided interest of the minor in the joint-family property.

The undivided interest of minor in a joint Hindu family remains in the hands of karta. Hence no
testamentary guardian can be appointed in respect of that. The father cannot supersede the power of
the mother to act as a natural guardian by appointing a testamentary guardian in case he predeceases
her but if the mother died without appointing any guardian, the appointment made by the father shall
revive.

Thus where the father dies during the life time of his wife (minor’s mother) after appointing a
guardian by will, the appointment will not become effective and the mother by virtue of the
provisions in section 6 of the Act will become the natural guardian of the minor. but where the
widowed wife, i.e., minor’s mother dies without appointing any person as guardian by will of the
minor, the appointment made by the father will revive.

Widowed mother:
A Hindu widowed mother entitled to act as the natural guardian of her legitimate children may by
will appoint a guardian for any of them in respect of the minor’s person or separate property or both.
Any appointment made by her husband will be of no effect on the face of the appointment made by
the widow.

Where the child is illegitimate, the mother being a natural guardian can appoint a guardian by will
even during the life time of her husband. In such ease the father has not right to appoint any person
as guardian.
A Hindu mother entitled to act as the natural guardian of minor legitimate children could appoint a
guardian by will during the life time of her husband provided he has ceased to be a Hindu or has
become a sanyasi by renouncing the world. Similarly where the mother entitled to act as a natural
guardian of her illegitimate children, may appoint a guardian by will either with respect of minor’s
person or property or both.

In such cases the presence of her husband is no bar nor is it necessary that he is disqualified to act as
such because the father is not competent to act as a natural guardian of the minor children during the
lifetime of their mother, who alone could exercise the right of appointing a guardian by will.

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There is nothing in the act which limits the choice of natural guardian to appoint any person as the
guardian under a validly executed will. But the person so appointed must be one who is not suffering
from any disqualifications like minority, renunciation of the world or being a non-Hindu or insanity.

Powers of Testamentary Guardian

The testamentary guardian becomes entitled to act as the guardian of the minor after the death of the
natural guardian. He can exercise all the rights and powers of a natural guardian to such extent and
subject to such restrictions as are specified in the act and in the will. Thus the powers of
testamentary guardian and the natural guardian arc the same except that the power of a testamentary
guardian to deal with property belonging to the minor is also subject to the restrictions imposed by
the will.

Since the powers of the testamentary guardian are similar as that of natural guardian, it is relevant to
know that section 8 of the Hindu Minority and Guardianship Act, 1956 deals with the powers of
the natural guardian. Section 8 lays down that the natural guardian has every power to do any act
subject to the provisions of the law if necessary or found to be beneficial to the estate of the minor.

However, it should be noted that a natural guardian has no power to sell, make a gift or exchange
any property of the minor without the permission of the court. In the same way natural guardian
can’t lease the property of the minor for more than five years or more than one year beyond the date
on which the minor attains majority.

Removal of a Testamentary Guardian

Section 39 of the Guardian and Wards Act lays down certain grounds on which a testamentary
guardian could be removed. It may be noted here that the above section has not been abrogated by
the present Act of 1956 hence it stands a good law even today. Thus a testamentary guardian could
be removed on the following grounds as mentioned in section 39 in the Guardian and Wards
Act:—

1) Abuse of his trust.

2) Continuous failure to perform the duties.
3) Incapacity to perform the duty.
4) Ill-treatment or neglect to take proper care of his ward.
5) Continuous disregard to any of the provisions of the act.
6) Conviction in case of an offence relating to lapses in the character.
7) Keeping an adverse interest.
8) Ceasing to reside within the local limits of the jurisdiction of the court, and
9) Insolvency or bankruptcy.

In addition to the above, the Hindu Minority and Guardianship Act, 1956 mentions the
following grounds:

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 (i) If he ceases to be Hindu, or
(ii) Has completely and finally renounced the world by becoming a hermit or an ascetic.

Guardians Declared or Appointed by the Court

Where the court is satisfied that it is for the welfare of a minor that a guardian should be appointed
with respect to his person or property or both, it may pass an order to that effect under the Guardian
and Wards Act, 1890. In appointing or declaring a person as the guardian of a minor, his welfare
shall be the paramount consideration. This has been specifically provided in section 13 of the Hindu
Minority and Guardianship Act, 1956, which runs as under:

“Section 13(1)—in appointing or declaring any person as a guardian of a Hindu minor by a

court, the welfare of the minor shall be the paramount consideration.

Who can apply for the appointment as guardian?

The court can consider the appointment of a guardian on the application of:

(1) The person desiring to be appointed 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, then the collector, having authority with respect to that
class.
The powers of the guardian, thus appointed by the court and the limitations on his power are the
same as that of a natural or testamentary guardian.

Q. What is the law regarding appointment of guardian for minor’s interest in

undivided joint family property under the management of an adult family
member?

ANS. Section 12 guardian not to be appointed for minor's undivided interest

in joint family property -
Where a minor has an undivided interest in joint family property and the property is under
the management of an adult member of the family, no guardian shall be appointed for the
minor in respect of such undivided interest-

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 Provided that nothing in this section shall be deemed to affect the jurisdiction of a High
Court to appoint a guardian in respect of such interest-

Where a Hindu father dies leaving behind his sons who are coparceners and also daughters and the
widow, by applying the fiction of partition on the date of death of the father, the female heirs along
with the sons have the right to an equal share in the father's share of the property. Having such an
individual share in the joint family property there is a chance for an adult female member of the
family to be in management of the joint family property. According to the present provision, it can
be said in such cases also that no guardian can be appointed for the undivided interest of the minor in
the joint family property as it applies to a case where the property is under the management of any
adult member and not necessarily an adult male member. There may be a case where there is an
adult member of the family but he or she may not be in management of the joint family property for
some reason. In such a case, this provision is not applicable. This provision does not indicate that the
adult member in management of the joint family property should be the senior adult member.
according to the notions of Hindu law, in the absence of the father, the eldest male member is to be
the manager of the joint family property, though it is permissible for a junior member to become the
manager with the consent of the other members of the family.-Ramakrishna v. Manikka 1937 (1)
MLJ 587. But under S.12 of the Act, it is sufficient if any adult member is in management of the
joint family property in order to attract the prohibition contained in this section.

Section 12(1) of the said Act, the court is empowered to make an interlocutory order so as to protect
the person or property of the minor as it thinks fit. while considering an application for appointment
of guardian, if it is found at an interlocutory stage that the welfare of the minor requires an amount
be made available for being paid to the minor with a view to protect the person of the minor and
his/her interests, such power would be available with the court. Provisions of section 12(1) of the
said Act will have to be construed in a manner that would protect the person of the minor and if for
such purpose grant of interim maintenance is warranted, the court would be empowered in that
regard. The Allahabad High Court in Khurshid Grover case (supra) has rightly observed that
provisions of section 12(1) of the said Act are of wide amplitude and no restrictive meaning should
be given to said provisions. the welfare of the minor being the paramount consideration, the power to
grant interim maintenance will have to be read in aforesaid provisions. Moreover, during pendency
of proceedings when it is brought to the notice of the court that the welfare of the minor requires to
be taken care of by directing one party to pay an amount of interim maintenance, such power can
surely be exercised in the facts of the case. Bombay High Court Sree Nivasa Gopalan vs.
Meenakshi Tripurari on 31 July, 2015.

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SHORT QUESTION ANSWERS

Q. Define the terms ‘minor’ and ‘guardian’ with to the provisions of Hindu
Minority and Guardianship Act 1956.

ANS. Minor
Under the Hindu Minority and Guardianship Act, 1956, S. 4(b), minor means a person who has
not completed the age of eighteen years. A minor is considered to be a person who is physically and
intellectually imperfect and immature and hence needs someone's protection. In the modern law of
most countries the childhood is accorded protection in multifarious ways. Guardian is "a person
having the care of the person of the minor or of his property or both person and property." it may
be emphasized that in the modern law guardians exist essentially for the protection and care of the
child and to look after its welfare. This is expressed by saying that welfare of the child is paramount
consideration. Welfare includes both physical and moral well-being.

Definition- (Section 4)- Guardian means a person having the care of a person of a minor or of
his property or of both the person and his property. This includes:

• Natural guardian
• Guardian appointed by the will of a natural guardian (testamentary guardian)
• A guardian appointed or declared by court
• A person empowered to act as such by the order of court of wards.

This list of 4 types of guardians is not exhaustive. A person, who is taking care of a minor without
authority of law, can also be a guardian under the above definition and is called a de facto guardian.
De facto guardians include self appointed guardians and guardians by affinity, such as guardians
for a minor widow. However, a person does not have right to sell or deal with minor's property if he
is merely a de factor guardian as per section 11.

Q. What are the duties and liabilities of guardian appointed by court? Explain
the removal of guardian.

ANS. Custody of a Minor

Custody of a minor is also subordinate to section 13, which declares the welfare of the child to be of
paramount interest. Regarding a child, who is at the age of discretion, his wishes are also to be
considered, though his wishes may be disregarded in his best interest.

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That a mother is preferred to father for custody is not right. Better economic condition of the father
than maternal grandfather is considered to be in favour of the father. In Kumar v. Chethana AIR
2004, SC has held that mother’s remarriage is not a sufficient cause in itself to lose custody of a
minor. It was further held that convenience of the parents is irrelevant.

To ensure the welfare of the child, the custody may even be given to the third person as was given to
the mother and grandfather by SC in case of Poonam vs. Krishanlal AIR 1989.

In the case of re Madhab Chandra Saha 1997, a father was never active in the interest a minor and
after a long time demanded the guardianship. His claim was rejected.

in the case of Chakki v. Ayyapan 1989, a mother who says she will keep living with friends and may
beget children from others, was not considered appropriate for custody in the minor’s interest.

Power over minor’s property

In general, a guardian may do all acts that are in the interest of the minor. A third party may deal
safely with the guardian in this respect. However, this excludes fraudulent, speculative, and
unnecessary deals. Before this act, a natural and testamentary guardian had the power to alienate the
minor’s property if it is necessary as determined by SC in Hanuman Prasad v. Babooee Mukharjee
1856. However, this rule has been restricted through Sec 8, which mandates courts permission
before alienating the minor’s interest in the minor’s property. Also, a guardian does not have any
right over the joint family interest of a minor.

In the case of Vishambhar v. Laxminarayana, 2001, SC, has held that a sale of minor’s immovable
property without courts permission is voidable and not void ab-initio. It further held that sec. 60 of
Limitations Act would be applicable when the minor repudiates the transaction.

In case, a minor repudiates an improper alienation made by the guardian, he is liable to return the
consideration.

Liabilities of a Guardian

• Since the legal position of a guardian is fiduciary, he is personally liable for breach of trust.
• He is not entitled to any compensation unless explicitly specified in a will.
• A guardian cannot take possession of minor’s properties adversely.
• Must manage the affairs prudently.
• Liable to render all accounts.

If the minor, after attaining majority, discharges the guardian or reaches a settlement of account, the
guardian’s liability comes to an end.

Rights of a Guardian
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A guardian has a right to:-

• Represent the minor in litigations.

• Get compensation for legal expenses from minor’s property.
• Sue the minor after he attains majority to recover expenses.
• Refer matters to arbitration if it is in the best interest of the minor.
• Have exclusive possession of minor’s property.

Removal of a Guardian
Court has the power to remove any guardian in accordance to section 13.

• Ceases to be a Hindu.
• Becomes hermit or ascetic.
• Court can remove if it finds that it is not in the best interest of the child.

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

• While appointing or declaring a guardian for a minor, the count shall take into account the
welfare of the minor.
• No person shall have the right to guardianship by virtue of the provisions of this act or any
law relating to the guardianship in marriage if the court believes that it is not in the interest of
the minor.

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

Q. What do you understand by the term ‘De facto guardian? Can he alienate
with a minor’s property under the provisions of Minority and Guardianship
Act 1956.

ANS. De facto guardian: Section 11 of the Hindu Minority and Guardianship Act, 1956
deals with de facto guardian - Section 11 of the said Act prohibits a de facto guardian to deal
with minor’s property. According to section 11 of the Act, no person shall be entitled to dispose of,
or deal with, the property of Hindu minor merely on the ground of his or her being the de facto
guardian of the minor. In other words, a de facto guardian is a person who is not a legal guardian,
who has no authority in law to act as such but nonetheless he himself has assumed, the management
of the property of the child as though he were a guardian. De facto guardianship is a concept where
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past acts result in present status. The term literally means 'from that which has been done. 'The de
facto guardian was recognized in Hindu law as early as 1856. The Privy Council in Hanuman
Prasad Singh and Ors. v. Bhaguati Prasad Singh and Ors. 3(1897) ILR 19 All 357, said that 'under
Hindu law, the right of a bona fide encumbrance, who has taken a de facto guardian a charge of land,
created honestly, for the purpose of saving the estate, or for the benefit of the estate, is not affected
by the want of union of the de facto with the de jure title. Section 11 says that a de facto guardian is
not entitled to dispose or deal with the property of the minor merely on the ground of his being the
de facto guardian. There is controversy regarding the status of a de facto guardian. It is now well
settled that de facto guardian does not have the right to assume debt, or to gift a minor’s property, or
to make reference to arbitration

Q. What do you understand by ‘Ad hoc Guardian?

ANS. AD HOC GUARDIAN

When a person acts as guardian of the minor for certain particular purposes, he would be known as
ad hoc guardian. An ad hoc guardian does not find any place in the Act and any alienation of
minor’s property by him would be void.

The Madras High Court in Sri Aurobindo Society Pondicherry v. Ramadosa Naidu, clearly
observed that “the position in law of ad hoc guardians is that their acts are null and void and cannot
bind the minor, although they arc purported to be effected in the minor’s interest, for ad hoc
guardians are neither de jure nor de facto guardians.”

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 8. LAW OF MAINTENANCE: Hindu Adoption and
Maintenance Act, 1956

Q. Maintenance is the right of woman, critically examine under HAMA, HMA

and Cr.PC?
OR
Can a wife demand separate residence from her husband? If also so state the
conditions in which under Hindu Adoption and Maintenance Act 1956.

ANS. Maintenance of wife under Hindu law

Maintenance is the amount which a husband is under an obligation to make to a wife either during
the subsistence of the marriage or upon separation or divorce, under certain circumstances. at this
point of time i would also like to mention that according to my understanding maintenance not only
includes basic necessities like food, clothing and residence but it also includes the things necessary
for comfort and status in which the person entitled is reasonably expected to live.

The most important aspect of maintenance is that the party which relies on maintenance has no
independent source of income to support himself/herself. The main point we have to focus on in
independent income. Should the spouse who is claiming maintenance have movable or immovable
property, the spouse can still claim maintenance if the property does not yield any income.

The persons who are entitled to maintenance under the Hindu Adoptions and Maintenance Act
(HAMA), 1956 are wife, widowed daughter-in-law, children, aged parents and dependants as
enumerated in section 21 of the Act.

Types of Maintenance
There are two types of maintenances:-

(1) Interim maintenance and maintenance pendente lite

(2) Permanent maintenance
1. THE INTERIM MAINTENANCE is payable from the date of presentation of the petition
till the date of dismissal of the suit or passing of the decree. Interim maintenance is supposed to meet
the immediate needs of the petitioner. And MAINTENANCE PENDENTE LITE is for providing
the litigation expenses to the claimant.

Section 24 provides of Hindu Marriage Act, 1955 (HMA) provides for maintenance. It talks
about how either the wife or the husband can claim for interim maintenance. The interim
maintenance is payable from the date of presentation of the petition till the date of dismissal of the

72
suit or passing of the decree. Interim maintenance is supposed to meet the immediate needs of the
petitioner. And maintenance pendente lite is for providing the litigation expenses to the
claimant.

2. PERMANENT MAINTENANCE, on the other hand, is the maintenance that is paid by one
spouse to the other after the judicial proceedings have resulted in either the dissolution of the
marriage or a judicial separation. section 25 of the Act talks about permanent maintenance it states
that how the court can order the respondent to pay the applicant for her or his maintenance a gross
sum or a monthly or periodical sum for a term not exceeding the life of the applicant unless there are
changes in circumstances under which the court can change its order.

Maintenance of wife under section 18, the Hindu Adoptions and Maintenance Act,
1956
Under Section 18(1) of the HAMA, 1956 wife is entitled to maintenance by her husband for
lifetime i.e. she will be given maintenance until she dies or her husband dies. Under Section 18 of
this Act a Hindu wife is entitled to live separately from her husband without canceling her right to
claim maintenance. The grounds under which she can live separately are:-

(1) Husband is guilty of desertion

(2) The husband has treated her with cruelty
(3) The husband is suffering from a virulent form of leprosy
(4) The husband has any other wife living.
(5) The husband keeps a concubine elsewhere
(6) The husband has ceased to be a Hindu by conversion to another religion and
(7) If there is any other cause justifying living separately

But there are two bars which will prevent a wife from claiming maintenance from her husband i.e.

(i) if she is unchaste or

(ii) if she ceases to be a Hindu by conversion to another religion.

The wife is entitled to live separately without forfeiting her right to maintenance, if her husband is
guilty of desertion, if he subjects the women to cruelty, if he is suffering from a leprosy, if he has
any other wife living, keeps a concubine in the house where his wife resides, if he has ceased to be a
Hindu, or if there is any other cause justifying her to live separately under section 18(2) of the
HAMA. According to me the exception given in this section according to which a wife cannot claim
maintenance if she is converted from some other religion into a Hindu is not right. Now as the wife
is related to a Hindu family and if she has married according to the Hindu religion and she is
governed by Hindu law than she should not be separated from the rights which other women get as a
Hindu lady.

Maintenance of Wife Under Section 125 of Cr.P.C.

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 Under Section 125 of Cr.P.C. only wife (a woman who has been divorced by or has
obtained divorce from her husband & hasn’t remarried) can claim for maintenance. a wife who
refuses to stay with her husband due to legal grounds such as (bigamy, cruelty & adultery) has the
right to special allowance under this act. But a wife does not possess right to claim maintenance if
she’s living in adultery or she’s living separately by mutual consent. The various sections of Cr.P.C.
are criminal in nature and are used for the criminal charges. The section 125 of the Cr.P.C. states
the provisions as follows:

“125 order for Maintenance of wives, children and parents.

(1) If any person leaving sufficient means neglects or refuses to maintain

(a) His wife, unable to maintain herself, or
(b) His legitimate or illegitimate minor child, whether married or not, unable to maintain
itself, or
(c) His legitimate or illegitimate child (not being a married daughter) who has attained
majority, where such child is, by reason of any physical or mental abnormality or
injury unable to maintain itself,
(d) His father or mother, unable to maintain himself or herself.”

SHORT QUESTIONS ANSWERS

Q. Who is bound to Maintain according to Hindu Adoptions and Maintenance

Act 1956? Is a married daughter also liable to maintain her old parents?
Refer to a decided Supreme Court case on the subject.

ANS. Section 22 (1) says that heirs of a Hindu are bound to maintain the dependents of the
deceased out of the estate inherited by them from the deceased. Thus, this obligation is to be fulfilled
only from the inherited property and so it is not a personal obligation. 22(2) says that where a
dependent has not received any share, by testamentary or intestate succession, he shall be entitled to
maintenance from those who take the estate. 22(3) says that the liability of each heir is in proportion
to the estate obtained by him. 22(4) says that a person who himself is a dependent cannot be forced
to pay any amount of maintenance if the amount causes his share to reduce below what is required to
maintain himself.

There can be no doubt that it is the moral obligation of a son or a daughter to maintain his or her
parents. The parents will be entitled to claim maintenance against their daughter provided the above
mentioned conditions are fulfilled. However, before passing an order in favour of parents against
their married daughter, the court must be satisfied that the daughter has sufficient means of her own
which should be independent from that of her husband.

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Daughter is entitled to maintenance under Cr.P.C. when read with Hindu Adoption and Maintenance
Act, 1956 even after attaining majority but till her marriage, Jagdish Jugtawat vs. Manju Lata,
(2002) 5 SCC 422.

Q. Point out the important changes brought about by the Hindu Adoption and
Maintenance Act 1956.

ANS. Under the provisions of Hindu Adoption and Maintenance Act, 1956, the giving of child
in adoption to another person is not the sole and absolute privilege of the father. His absolute power
to give his child in adoption is now qualified to the extent that he cannot do so without the consent of
the child's mother. The Act has affected the following important changes-

(1) It has considerably enlarged the powers of Hindu female to adopt a child. A Hindu
woman need not take prior permission of the husband to adopt a child. A widow and
an unmarried Hindu female have full right to adopt a child.
(2) Now the Act provides the adoption not only of son, but also that of a daughter.
(3) The performance of Dattaa Homan, a religious ceremony is no longer necessary.
(4) The simple ceremony of giving and taking is only necessary. [Ranjit Kumar Jain vs.
Kamal Kumar Chowdhury and another (AIR 1982 Cal. 493)].
(5) The upper age limit of the child who is adopted has been fixed at fifteen years unless
the custom permits such adoption.
(6) The law has been given uniformity and all differences between various schools and
sub-schools have been removed.
(7) The father, without the consent of the mother, cannot give a child in adoption except
in certain circumstances.
(8) The adoptee must be below 15 years of age and unmarried unless the custom permits
such adoption.
(9) Adoptive father or mother shall not be deprived of their power to transfer the property
merely by reason of adoption of a child.
(10) Provisions relating to registration and presumption therefore have been made.
(11) Specific provisions regarding the maintenance of wife have been incorporated.
(12) The list of the persons entitled to maintenance has been clearly provided. Their rights
to get it and the amount to which they will be entitled have been clearly laid down by
the Act.

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Q. What are the rights of widowed daughter-in–law to claim maintenance under
Hindu Adoption and Maintenance Act?

ANS. Rights of widowed daughter-in-law to claim maintenance under Hindu law

According to ancient texts the father-in-law was neither under any legal obligation nor any personal
obligation to provide maintenance to widowed daughter-in-law. It was merely a moral obligation. If
the father-in-law received some property by survivorship on the death of his son, who died leaving
behind his widow, he would be under legal obligations to maintain the widow of such a son.

Section 19 of the Act does not lay down a personal obligation upon the father-in-law to maintain his
son’s widow. It lays down only a moral obligation upon the father-in-law to maintain his
daughter-in-law, but after the death of the father-in-law, whosoever inherits his self acquired
property, is legally bound to maintain the daughter-in-law of such deceased person.

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

(a) She is unable to maintain herself out of her own earnings or other property; or
(b) She is unable to obtain maintenance from the estate of her husband; or
(c) She is unable to obtain maintenance from the estate of her father; or
(d) She is unable to obtain maintenance from the estate of her mother; or
(e) She is unable to obtain maintenance from the estate of her son; or
(f) She is unable to obtain maintenance from the estate of her daughters; or
(g) She is unable to obtain maintenance from the estate of her son or daughter;
(h) If the father-in-law has no coparcenary property in his possession out of which she
has not obtained a share, and
(i) She has remained unmarried. Where the father-in-law has coparcenary as well as
self-acquired property to his credit and the amount of earning from self-acquired
property is sufficient enough to enable him and his wife to maintain themselves, the
widowed daughter-in-law acquires a right to get herself maintained out of the
earnings of the coparcenary property. In such a case there would be not any
obligation upon the earnings of coparcenary property with respect to the maintenance
of father-in-law and wife.

In Smt. Balbir Baur v. Harinder Kour, the Punjab and Haryana High Court held that Section 19 of
the Hindu Adoptions and Maintenance Act, 1956 deals with the right of maintenance of a
widowed daughter-in-law.

Whether married before or after the commencement of the act, she can claim maintenance only if
she is unable to maintain herself from her own sources or out of the estate of her husband or her
father or mother or from her son or daughter, if any or his or her estate.
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The right to claim maintenance from the father-in-law, in the circumstances stated above, is however
conditional upon the father-in-law having in possession of coparcenary property out of which
widowed daughter-in-law has not obtained any share. though under the Act, the right to claim
maintenance by widowed daughter-in-law against her father-in-law is limited to the extent of
coparcenary property in the hand of father-in-law, out of which widowed daughter-in-law has not
taken any share but under the old Hindu law, prevailing before the enactment of the Act, this right of
maintenance to the widowed daughter-in-law against the self-acquired property of her father-in-law,
was available.

This right is still available to the widowed daughter-in-law of the pre-deceased son against the
self-acquired property of her father-in-law as this right shall not cease to be in force because the
same is not inconsistent with any provision contained in the act. Thus the widowed daughter-in-law
of a pre-deceased son is entitled to claim right of maintenance against the self-acquired property of
her father-in-law, whether it is in his hand or iii the hand of his heir or done.

Section 19 (2) lays down those conditions in which the liability to maintain the daughter-in-law
comes to an end. These conditions are as follows:—

(1) Where the father-in-law does not have any means for maintenance out of coparcenary
property which was owned by her deceased husband;
(2) Where the widowed daughter-in-law received any share in the coparcenary property;
(3) Where she has remarried;
(4) Where she has converted into other religion.

The widowed daughter-in-law could claim maintenance in the property notwithstanding the fact that
she does not live in her father-in-law’s home.

In Kanailal vs. Pushparani Pramanik, the Calcutta High Court held that sub-section (2) of Section
19 applies only to parties governed by Mitakshara law. There is no question of a widow inheriting
the share of her husband in any coparcenary property under the Dayabhag School of Hindu law. The
provision of sub-section (2) of section 19 cannot, therefore, apply when the parties belong to the
Dayabhag School of Hindu law.

But sub-section (1) of section 19 confers a right on a widowed daughter in-law to claim
maintenance from her father-in-law irrespective of whether they are governed by Mitakshara or the
Dayabhag School of Hindu law.

Recently in S.V. Parthasaratliy Battachariar and others vs. S. Rajeswari and others, Madras High
Court observed that father-in-law is liable to pay maintenance to widowed daughter-in-law if
husband of widow is not known for more than seven years and deemed to have been died.

However, there is no provision for maintenance of grandson by the paternal grandfather. But where
considering the commitment of a widow to maintain her children and minors being sharers in joint

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family properties not deriving any income, paternal grandparents being in possession of joint family
property are liable for maintenance of minor grandsons with widowed daughter-in-law.

VERY SHORT QUESTIONS ANSWERS

Q. Define “Maintenance” according to the provision of Hindu Adoption and

Maintenance Act 1956.

ANS. MAINTENANCE
Maintenance means the right of dependents to obtain food, clothing, shelter, medical care,
education, and reasonable marriage expenses for marriage of a girl, from the provider of the family
or the inheritor of an estate. The basic concept of maintenance originated from the existence of joint
families where every member of the family including legal relations as well as concubines,
illegitimate children, and even slaves were taken care of by the family. However, maintenance does
not mean unreasonable expectations or demands.

9. LAW OF SUCCESSION UNDER THE ‘THE HINDU

SUCCESSION ACT, 1956’ – Devolution of Interest of
Coparcenary Property (Section 6), General Rule of
Succession in the Case of Male Hindus (Section -8),
General Rules of Succession in the Case of Female Hindus
(Section-15), Testamentary Succession (section-30).

Q. Examine the legal status of a karta of a Hindu Joint family. Can a female be
a karta of a joint family?

ANS. The term ‘Hindu Undivided Family’ (“HUF”) or ‘Joint Hindu Family’ is not
mentioned or defined in the Acts: Hindu Minority and Guardianship Act (1956), Hindu Marriage
Act (1955), Hindu Succession Act (HSA) (1956) and Hindu Adoptions and Maintenance Act
(1956), however, the Income Tax Act, 1961 makes a HUF a taxable entity under Section 2(31).

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Under Section 2(4) of the Kerala Joint Hindu Family System (Abolition) Act, 1975, the expression
‘Joint Hindu Family’ is defined as an undivided Hindu family governed by the Mitakshara Law.

In Surjit Lal Chhabda v. Commissioner of Income Tax, 1976 AIR 109 the Supreme Court said that,
(i) the expressions ‘Hindu Undivided Family’ (HUF) and ‘Joint Hindu Family’ (JHF) are
synonymous terms; (ii) the terms being not independently defined in any act, is evidence enough of
the underlying connotation that the terms must be understood as they are understood in Hindu Law;
(iii) a joint Hindu family consists of persons lineally descended from a common ancestor and
includes their wives and unmarried daughters. The daughter, on marriage, ceases to be a member of
her father's family and becomes a member of her husband's family. The joint Hindu family is thus a
larger body consisting of a group of persons who are united by the tie of Sapindaship arising by
birth, marriage or adoption; and (iv) HUF is a creature of law.

Thus, as per the above judgment, HUF is the undivided and un-partitioned group of direct
descendants of a common ancestor including their wives (if any) and unmarried daughters (if any)
and excluding married daughters.

Who is a Karta?
Karta is that adult male coparcener of a HUF who has the responsibility and authority to manage
the affairs and assets of the HUF. Traditionally, Karta has been the eldest surviving male member of
the HUF. However, in case the only surviving members of a HUF are a woman and her minor son
and daughter or daughters (if any), the son would have been the Karta acting through his natural
guardian i.e. minor’s mother. Thus, the woman would be the de facto Karta of the HUF.

According to Article 236 of the Mulla Hindu Law, “Karta” can be defined as: “Manager -
Property belonging to a joint family is ordinarily managed by the father or other senior member
for the time being of the family: The Manager of a joint family is called Karta.”

A Karta holds very distinctive position in the HUF. This unique nature of the karta is in reference to
the diverse powers he holds whilst performing his tasks as the decision maker in a range of respects
of the family. Karta is not accountable to any member of the family until it is a matter of
misappropriation or fraud, in event of either; he is to give an answer.

Who can be a Karta?

Prior to 2016, following persons could be a Karta of the family:

1. Senior most male member:

The senior most male member will be a Karta by virtue of the fact that he is the senior most male
member. He does not owe his position to agreement or consent of other coparceners. So long as he is
alive, may be aged, infirm, or ailing, he will continue to be a Karta. However, in case of any
79
disqualifications as mentioned in law, the next senior most male member takes over the Kartaship.
Once this is done, the former karta will cease to be a karta.

2. Junior male member:

In the presence of a senior male member, a junior male member cannot be the Karta. However, with
the consent of all the coparceners, a junior male member can be appointed as a Karta. Coparceners
may withdraw their consent at any time in regard to this.

"So long as the members of a family remain undivided, the senior member is entitled to manage the
family properties including even charitable property and is presumed to be the manager until the
contrary is shown. But the senior most member may give up his right of management and a junior
member may be appointed as manager." [Narendrakumar J Modi v. CIT 1976 S.C. 1953]

3. Female member as Karta:

The following passage from Mayne's "Hindu Law and Usage" [9th Ed.,S. 271] deals with
coparceners, “The question in each case will be, who are the persons who have taken an interest in
the property by birth. The answer will be, that they are the persons who offer the funeral cakes to the
owner of the property, that is to say, the three generations next to the owner in unbroken male
descent.”

It clearly states that the male members, who traditionally have offered the funeral cakes to their
ancestors, would by birth have rights in the coparcenary property i.e. right of survivorship. Thus,
according to the passage, female members of the family are barred from possessing the right of
survivorship. Females though have the right to maintenance.

On the other hand, Courts in India have given diverse views regarding this:
C.P. Berai v. Laxmi Narayan, AIR 1949 Nag 128 - It was held that a widow could be a karta in the
absence of adult male members in the family. It was said that the true test is not who transferred the
liability of being the karta, but whether the transaction was justified by necessity.

Sushila Devi Rampura v. Income tax Officer, AIR 1959 Cal. - It was held that where the male
members are minors, their expected guardian is their mother, who can represent the HUF for the
purposes of assessment and recovery of income tax.

CIT v. Seth Laxmi Narayan Raghunathdas, [1948] 16 ITR 313 (Nag.) - While considering an issue
as to whether a widow can be Karta of her husband's HUF, the court held that a widow was capable
of becoming the Karta of the Hindu Undivided Family, which consists of herself along with her two
minor sons. It is notable that the High Court observed that there was no legal prevention/ embargo
against the mother being the de facto manager of the HUF. The court reasoned that since in
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Dayabhaga Law a widow may be a coparcener then she may even be the Karta of the family
particularly if she is the only member sui juris left in the family. For Mitakshara Law, where along
with male coparcener a female may not be a coparcener because she does not possess the right of
survivorship, the court observed that this right or the status of a coparcener is not a requisite for
being the Karta of a joint Hindu family to which she has been admitted to.
CIT v. Seth Govindram Sugar Mills, [1965] 57 ITR 510 (SC) - The Supreme Court held that a
widow cannot be Karta of the HUF, though she can be a manager/ karta of an HUF for the
Income-tax assessment.

Change in Law
In 2000, the 174th report of the 15th Law Commission recommended many amendments to
correct the discrimination against women, which was the key issue before the commission, and this
was the foundation for the Hindu Succession (Amendment) Act, 2005.

Hindu Succession (Amendment) Act, 2005 turned the daughters of a family, who are governed by
Mitakshara Law, coparceners in the HUF property and further gave them the right of survivorship
via amended Section 6 (1) (a) and (b) of Hindu Succession Act, 1956. This amendment gave them
equal rights as the sons.

Although the 2005 amendment provides equal rights to daughters in the coparcenary as compared
to the sons, an important question was still left unanswered - Can women or daughters be allowed to
become managers or karta of the Hindu Undivided Family?

The landmark Delhi High Court judgment in Mrs. Sujata Sharma v Shri Manu Gupta, CS (OS) No.
2011/2006, has, after the 2005 amendment to Hindu Succession Act, 1956 (the “HSA”), brought the
next step to realising equality of women in the Hindu Undivided Family. The court found that while
females have equal rights to HUF property (post HSA), they also have the right to manage the same
property as Karta. Also, the court found no restrictions regarding a female Karta in Section 6, HSA.

Thus, after demise of the father in a HUF, if the eldest is a daughter then she becomes the Karta
of that same HUF, with the mother and siblings (if any) as members of the HUF.

Hence, married or unmarried daughters may not only claim coparcenary in HUF property but may
also claim rights to manage the same HUF property as Karta, provided they are the eldest.

This means that just as a son can be a Karta, by virtue of being born the eldest, a daughter can also
be a Karta given that she was born eldest. Also, even after being married a daughter retains her right
to coparcenary and also the right to be Karta.

In fact, a woman may even be a de facto Karta in the family where she marries and a de jure Karta in
her family of origin, provided that she is a widow and is the only major in the family she married
into and is the eldest in her family of origin.

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With this judgment the equal rights of daughters in their HUF have been fully realised. Daughters
would have the same rights and liabilities as sons regarding the HUF property for all means and
purposes.

Inheritance and Succession in case of a Female Karta

Although the following questions have not been answered by any court so far, the answers are based
on existing law, judicial precedents and the rationale behind them.

On the intestate death of a female Karta, will her widower acquire a share just as a widow did in the
case of a male Karta? - No, he will not. This is because unlike the widow, the widower of a female
Karta is not a member of the HUF. Although the question on the matter of maintenance remains
open. Traditionally, maintenance is granted to a widow because she is not an earning member of the
family. If similarly, the widower were not an earning member, could he claim for maintenance out of
his deceased wife’s HUF’s property.

Will the children of a married female Karta inherit a share in the HUF property of which she is a
Karta? - In the case of a partition, they will not. This is because the children of the Female Karta are
born in a family other than the one she is a Karta in. Children of a female Karta will be coparceners
in the family of their origin, and thus will have only a birth right in the HUF property of their family
of origin. But whatever property as a share in the partition the female Karta acquires, it will devolve
upon her children or the children of her pre-deceased children, before it reverts back to her father’s
heirs. [Section 15(2) of HSA]. But, in the case where the female Karta dies intestate, the HUF
property shall devolve among the HUF members, which does not include the children of female
Karta.

How will the self acquired property and HUF property of a deceased intestate Female Karta
devolve? - The self acquired property would devolve according to the Hindu Succession Act [S.15,
16], and the HUF property would devolve according to the rules of Hindu Law and would go to the
members of the HUF, i.e. mother of female Karta, brothers and sisters of female Karta, children of
such brothers.

Conclusion
After the 2005 amendment, this landmark judgment was a much awaited relief for the female
coparceners and a step towards realising equality between the genders. However, more complex
questions will arise regarding the inheritance and succession in case of a female Karta. The answers
to such intricate questions can only be speculated at best as there are no precedents, considering the
judgment is very recent. However, much is based on the rationale behind it as well as the
circumstances of each case. A female as a Karta has opened up a wide array of possibilities which
need to be addressed as soon as possible.

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Q. Define the ‘agnates’ and cognates’ given in Hindu Succession Act 1956.
What is their importance in matter related to succession?
OR
What is the Order of succession among agnates and cognates as per Indian
Law ?

ANS. As per the Hindu Succession Act, 1956, where a Hindu male dies intestate his
property devolves upon his heirs of Class I mentioned in the schedule to the Act. If there is no Class
I successor, then the property devolves upon the Class II heirs of the deceased. If there is no Class II
heir, then the property devolves upon the agnates and cognates among whom agnates are preferred
over the cognates.

AGNATES:
When two persons are related to each other by blood or adoption but wholly through males, they
are said to be agnates of each other. For example, a person is an agnate of his father’s brother’s
son. It has been held that being related by blood does not mean being related by birth. Hence
‘agnate’ also includes relations by marriage. Therefore a father’s brother’s widow is an agnate of the
deceased and entitled to his property. Similarly a father’s brother’s daughter would be an agnate.

COGNATES:
When two persons are related to each other by blood or adoption but not wholly through manes,
they are said to be cognates of each other. For example, A’s father’s sister’s son would be a
cognate of A. Similarly, A’s brother’s daughter’s son would be A’s cognate. It has been held that
whenever a relationship of a person with another female (or more than one female) intervenes
anywhere in the line, one is a cognate to another. Thus the daughter’s son and daughter and son’s
daughter’s son and daughter are cognates.

ORDER OF SUCCESSION AMONG AGNATES AND COGNATES:

In case of non-availability of Class I and Class II heirs, the property of the deceased devolves upon
his agnates and if there are no agnates, upon his cognates. Therefore when agnates are present,
cognates would not get any share in the property of the deceased. However, if more than one agnates
or cognates are present, then the order of succession among them is governed by the provisions of
section 12 of The Hindu Succession Act, 1956. Sections 12 provides as under:

Section 12: 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:-

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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.

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

This rule says that of two heirs, the one who has fewer or no degrees of ascent is preferred means
that an heir who claims as the descendant of the Hindu male who has died intestate or one who is in
the nearer line to him is to be preferred to one who claims in a remoter line. Thus a son’s son’s son
being a descendant in the line of the deceased is to be preferred to brother’s son’s son who comes in
father’s line which is remoter than one’s own line. Again brother’s son’s son being in the father’s
line is to be preferred to father’s brother’s son’s son who is in a remoter line namely the line of
grandfather. The rule lays down merely that a relation who traces his relationship to the deceased
either in the deceased’s own line or in the line of a nearer ancestor is to be preferred to one who
traces his relationship in the line of a remoter ancestor in the male line.

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.

This rule lays down that in the case of agnates or cognates, where the number of degrees of ascent is
the same or none, that heir is preferred who has fewer or no degrees of descent. This means the same
thing as that where a person in the same line is nearer to the common ancestor than another relation
of the same line, the former is preferred to the latter. Thus a father’s brother’s son being nearer than
father’s brother’s grandson is preferred to the latter though both of them are in the same line, namely
the line starting from father’s father. So also the brother’s son’s son is to be preferred to the brother’s
son’s son’s son for though both the claimants are in the same collateral line beginning from father,
brother’s son’s son is nearer or has fewer degrees of descent than the brother’s son’s son’s son. In
the same way a son’s son’s son’s son is to be preferred to a son’s son’s son’s son’s son for though
the claimants are in the same line namely the line of the deceased, the former is a nearer degree than
the latter.

Rule 3:
Where neither heir is entitled to be preferred to the other under Rule 1 or Rule 2 they take
simultaneously.

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Where the heirs are equal in the descent in the same line they take simultaneously. Father’s father’s
father and father’s father’s mother take equally being in the same line; so also son’s son’s son’s
daughter and son’s son’s son’s son take equally both being in the line of the deceased and neither
being nearer in descent. In the application of these rules, there is no discrimination on the ground of
sex. It should however not be forgotten that a relation who is an agnate though in a remote degree of
ascent or descent or of both is to be preferred to a cognate who may be in a nearer degree or nearer
line or both.

Computation of degrees:
Another question that arises is that of computation of degrees. This is answered by section 13 which
provides as under:

13. Computation of degrees.

(1) For the purposes of determining then order of succession among agnates or cognates,
relationship shall be reckoned from the intestate to the heir in terms of degrees of ascent or degrees
of descent or both, as the case may be.

(2) Degrees of ascent and degrees of descent shall be computed inclusive of the intestate.

(3) Every generation constitutes a degree either ascending or descending.

This section lays down that for the purpose of determining the order of succession among agnates
and cognates, the relationship shall be reckoned from the intestate to the heir in terms of degrees of
ascent or degrees of descent or both as the case may be. Degrees of ascent and degrees of descent
shall be computed inclusive of the intestate. Every generation constitutes a degree either ascending
or descending.

Q. What are the general rules of succession in the case of a female dying
intestate? Will there be any difference in the order of succession if the
property of the female dying intestate is inherited by her from father?
Discuss.

ANS. Introduction
In India, people of different religions are governed by their own personal laws in matters of
inheritance, marriage, succession etc. In case of Hindus, intestate succession was governed by Hindu
customs and usages before enactment of the Hindu Succession Act, 1956 (hereinafter referred as

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the “Act”). The Act prescribes the law for intestate succession in case of Hindus. If the person has
died intestate i.e. without making a will, the succession of his/her property shall take effect in
accordance with the provisions of the Act. The Act clarifies that all Hindu customs or usages
governing the subject of intestate succession, before the commencement of the Act, would cease to
have effect after coming into force of the Act.

1. General Rules and Order of Succession

Section 3(g) of the Act defines the term “INTESTATE” to mean that a person has died without
making any testamentary disposition i.e. a will, in respect of their property, which is capable of
taking effect. Section 3(f) defines “HEIR” as any person entitled to succeed to the property of an
intestate as per provisions of the Act.

Sections 14 to 16 of the Act provides the general rules for succession among Hindu females who
have died intestate and the order of succession.

Section 14 (1) states that any property held by a female Hindu, which had been acquired either
before or after commencement of the Act, would be deemed to be held by her as an absolute/full
owner and not a limited owner. The explanation to section 14(1) clarifies that the word “property”,
used in section 14(1), would include both movable and immovable property acquired by inheritance,
partition, in lieu of maintenance, by gift, by own skill or exertion, by purchase or by prescription and
would also include Stridhan held by the female. Stridhan denotes the property given to a woman by
her family, friends or well-wishers at the time of her marriage as gifts or as a token of love and
affection.

Section 15(1) of the Act states that the property of a female Hindu dying intestate would devolve as
per the provisions of section 16 in the following order of preference-

• firstly, upon her sons, daughters and husband including the children of any pre-deceased son
or daughter;
• secondly, upon her husband’s heirs;
• thirdly, upon her mother and father;
• fourthly, upon her father’s heirs; and,
• lastly, upon her mother’s heirs.

In Bhagwan Dass vs. Prabhati Ram and Others, AIR 2004 Del 137, the Delhi High Court held that
a step-son of a deceased Hindu female cannot succeed to her estate in preference to the deceased’s
husband who would have the right to inherit the entire property if no child (who is not a step child)
of the deceased was alive.

While section 15(1) specifies the general order of succession of property without considering the
source from which it had been acquired, section 15(2) of the Act makes a specific provision for
succession of such property which has been inherited by a female Hindu from her
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mother/father/husband/father-in-law and who has died intestate without leaving any child. It states
that if a Hindu female has died intestate without leaving any child, including child of a predeceased
son or daughter, in that case -

• Property inherited by her from her father or mother would devolve upon her father’s heirs
and not the other heirs specified under section 15(1) (Section 15(2)(a));
• property inherited by her from her husband or father-in-law would devolve upon her
husband’s heirs and not the other heirs specified under section 15(1) (Section 15(2)(b)).

Thus, section 15(2) acts as an exception to the general order of succession specified under section
15(1) and comes into play only if the female Hindu has died without leaving any children. The
source of the property becomes immaterial if the deceased is succeeded by her children.

Section 16 of the Act specifies the order of succession and manner of distribution of property among
the heirs specified under section 15(1). It provides the following 3 rules of succession-

Rule 1- among the heirs specified in section 15(1), heirs specified in one entry would be preferred
over heirs specified in any succeeding entry and the heirs specified in one entry would take
simultaneously.

For instance, the first entry of section 15(1) specifies children and husband of the deceased Hindu
female while the second entry specifies her husband’s heirs. Thus, under rule 1, if the children of the
deceased are alive at time of death, the deceased’s property would not devolve upon the husband’s
heirs. Taking simultaneously means getting an equal share so if there is one son, one daughter and
the husband living at the time of the intestate’s death, they shall each take 1/3rd share of the
property.

Rule 2- If any child of the deceased Hindu female had pre-deceased the intestate leaving behind his
or her children at the time of the intestate’s death, the children of such child would be entitled to get
the share which their parent/the deceased child would have gotten if he/she had been living at the
time of the intestate’s death. In other words, the grandchild is entitled to the share which his/her dead
parent would have gotten.

Rule 3- devolution of the property on the heirs referred to in clauses (b), (d) and (e) of section
15(1) and in section 15(2) would be in the same order and according to the same rules which would
have applied had the property belonged to the deceased’s father or mother or husband and such
person had died intestate, in respect of such property, immediately after the intestate’s death.

III. Other provisions for Succession

While sections 15 and 16 of the Act specify the fundamental rules and order of succession among
Hindu female intestates, the other key provisions of the Act which regulate succession are as
follows:

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Section 18 states that heirs related by full blood would be preferred over heirs related to the intestate
by half blood provided the relationship is same in every other respect.

Section 19 states that two or more heirs succeeding to a particular property would take it on per
capita basis and not per stripes. They would inherit it as tenants in common and not as joint tenants.

Section 20 states that a child, who was in the womb, at the time of the intestate’s death would inherit
as if he/she had been born before the intestate’s death and the inheritance would be deemed to take
effect on the date of death of the intestate.

Section 21 states that for the purpose of succession, a younger person would be deemed to have
survived an elder person if both died in such circumstances which make it difficult to ascertain as to
who survived whom.

In Re: Mahabir Singh, AIR 1963 Punj 66, the Punjab High Court applied section 21 of the Act
even to a case of testamentary succession. It held that the testator’s wife, who was younger to him,
would be deemed to have outlived the testator by virtue of the presumption given under section 21.

Section 22 deals with preferential right to acquire property. Section 22(1) states that if an heir,
specified in class I of the Schedule to the Act, who acquired some interest in any immovable
property or business carried on by an intestate, later proposes to transfer such interest in the
concerned property or business, the other heirs of the intestate, which are specified in class I of the
Schedule, would have a preferential right to acquire the interest proposed to be transferred.

The consideration for the proposed transfer is to be decided by the court within whose jurisdiction
the concerned immovable property is located or the concerned business is being carried on, as the
case maybe (Section 22(2)).

In case two or more heirs are willing to acquire the transferred interest, the heir offering the highest
consideration for the transfer has to be preferred over other heirs (Section 22(3)).

Section 25 states that a murderer stands disqualified from inheriting the property of any person
whom he/she murdered or whose murder he/she abetted and the murderer shall also not inherit any
property in furtherance of such succession to which the murder relates.

Section 26 states that children born to a Hindu, who got converted to other religion, after the date of
such conversion and the descendants of such children would be disentitled to inherit property of their
Hindu relatives unless such children or descendants are Hindus (by re-conversion to Hindu) at the
time when the succession opens.

Section 27 states that in a case where a person has been disqualified from inheriting property under
the Act, the property would devolve as if such person died before the intestate’s death.

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Section 28 states that no person would stand disqualified from inheriting any property under the Act
by virtue of any disease, defect or deformity unless prohibited from inheriting by some other
provision of the Act.

Section 29 states that if a Hindu intestate has left no heir entitled to succeed to their property, the
property would devolve on the government which would inherit it subject to the same rights and
obligations which would have applied on a succeeding heir.

The aforesaid provisions contained under sections 18 to 29 of the Act uniformly apply to
succession in case of both Hindu males and females dying intestate and not only to the case of Hindu
females.

Q. Discuss the general rules of Succession in the case of a male Hindu dying
intestate.

ANS. Succession of Hindu Male Dying Intestate

Section 8 to 13 lay, generally, the order of succession when a Hindu Male dyes intestate. Section 8
lays the general rule of succession in case of males. This section propounds a new and definite
scheme of succession and lays down certain rules of succession of property of a male Hindu who
dies intestate after the commencement of the Act. The rule herein laid under the section are pivotal
and have to be read along with the Schedule. They also have to be read with other sections (9 to 13)
in the chapter which contain supplementary and only merely explanatory provisions, which lay down
the substantive rules involving legal principles.

GENERAL RULES OF SUCCESSION IN THE CASE OF MALES

The Hindu Succession Act, 1956 deals with the inheritance to:
(a) The separate properties of a Mitakshara male,
(b) The separate and coparceners properties of a Dayabhaga male, in the joint family and
(c) The undivided interest in the joint family property of a Mitakshara coparcener.

The Act does not apply to the property of a Hindu who is married under the Special Marriage Act to
a non-Hindu.

Heirs of a Hindu Male

The heirs of a Hindu male fall under the following categories:

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 1) Class I heirs,
2) Class II heirs,
3) Agnates,
4) Cognates, and
5) Government.

The property of a male Hindu dying intestate shall devolve according to the provisions of –

(a) Firstly, upon the heirs, being the relatives specified in Class I of the Schedule;
(b) Secondly, if there is no heir of Class II then upon the heirs, being the relatives specified in
class II of the Schedule;
(c) Thirdly, if there is no heir of an of the two Classes, then upon the agitates of the deceased;
and
(d) Lastly, there is no agnate, then upon the cognates of the deceased.

Section 8 groups the heirs of a male intestate into four categories and lays down that his heritable
property devolves firstly upon the heirs specified in class I of the Schedule. They are son, daughter,
widow, mother, son of predeceased son, daughter of a predeceased son, son of predeceased daughter
of a predeceased daughter, widow of a Predeceased son, son of a predeceased son of a predeceased
son, daughter of a predeceased son of a predeceased son and widow of a predeceased son of a
predeceased son. All these heirs inherit simultaneously. On failure of any such heir as specified in
Class I, the property devolves upon the enumerated heirs specified in Class II, wherein an heir in the
first entry is preferred over an heir in second category in the Class II and similarly, any heir in a
higher entry shall be preferred over an heir in a lower category.

If there is no heir in either Class I or Class II, the property devolves upon the agnates of the deceased
and even in absence; the property devolves upon the cognates of the intestate. Here, a person is said
to be an agnate of another if the two are related by blood or adoption wholly through the males and
cognate if the two are related by blood or adoption but not wholly through males i.e., there is
intervention of a female ancestor somewhere in the line of descent or ascent.

Herein it is important to note that the term property used in the section means and includes all the
property of the deceased intestate, which is heritable under the Act. It includes his separate or
self-acquired property and also his interest in the Mitakshara coparcenary property in case he is
survived by any of the female heirs or daughter’s son mentioned in Class I of the schedule. It also
includes property which he might have inherited from his grandfather or father after the Act came
into force.

HEIRS IN CLASS I
We have following enumeration of heirs.
(i) Mother;
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 (ii) Widow;
(iii) Daughter;
(iv) Son;
(v) Widow of a predeceased son;
(vi) Son of a predeceased son;
(vii) Daughter of a predeceased son;
(viii) Widow of a predeceased son of a predeceased son;
(ix) Daughter of a predeceased son of a predeceased son;
(x) Son of a predeceased son of a predeceased son;
(xi) Daughter of a predeceased daughter;
(xii) Son of predeceased daughter;

Some new heirs are added by Hindu Succession (Amendment) Act, 2005. They are:

(i) Son of predeceased daughter of a predeceased daughter;

(ii) Daughter of a predeceased daughter of a predeceased daughter;
(iii) Daughter of a predeceased son of a predeceased daughter; and
(iv) Daughter of a predeceased daughter of a predeceased son;

A. The adopted children (son or daughter) are also to be counted as heirs when succession is
done.
B. The children born of void or voidable marriage (by effect of section 16) are deemed to be
legitimate children and are thus entitled to participate as sharers in the succession to the
intestate.
C. The widow inherits simultaneously with the other heirs and in case there are more than
one widow, together they are entitled to one share which is to be divided equally amongst
them.
D. The widow is entitled to a share from the property of the intestate even is she remarries
after his death.
E. The widow of a predeceased son inherits with the other heirs. However her right (along
with the children of the predeceased son) is dependent upon the share that the
predeceased son would have been entitled to had he been alive. Also, she is excluded
from the share if she has remarried before the death of the intestate.
F. The daughter inherits simultaneously with the other heirs and gets the share as that of a
son. She takes the property in her individual capacity and not in the capacity of a
woman’s estate. Also, she is entitled to the property of the intestate even if she is married.
G. The mother inherits simultaneously with other heirs. She takes her share absolutely
(because of section 14) and not with any limited interest. Also it has been held that
unchastity of mother is no bar to her succeeding as heir to her son. She is entitled to
inherit even if she is divorced or is remarried. Here the term mother includes adoptive
mother also. However, if there is an adoptive mother, the natural mother has right to
inherit the share of the intestate. A mother is also entitled to inherit the property of her
illegitimate son.

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HEIRS IN CLASS II
If there are no heirs in Class I, the property will given to the heirs within Class II. They are
divided into nine categories. The rule is that an heir in an earlier category excludes heirs in later
category. Further all heirs in one category take simultaneously per capita share. They are as follows:

[1] Category I-

a) Father.

[2] Category II-

a) Son’s daughter’s son.

b) Son’s daughter’s daughter.
c) Brother.
d) Sister.

[3] Category III-

a) Daughter’s son’s son.
b) Daughter’s son’s daughter.
c) Daughter’s daughter’s daughter.

[4] Category IV-

a) Brother’s son.
b) Brother’s daughter.
c) Sister’s son.
d) Sister’s daughter.

[5] Category V-
a) Father’s father.
b) Father’s mother.

[6] Category VI-

a) Father’s widow. [Step mother].
b) Brother’s widow.

[7] Category VII-

a) Father’s brother.
b) Father’s sister.

[8] Category VIII-

a) Mother’s father.
b) Mother’s mother.

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[9] Category IX-
a) Mother’s brother.
b) Mother’s sister.

The rule of share in Class-II heirs is that each will take per capita including widow.

All heirs in Class II take cumulatively and not simultaneously i.e., they succeed only in the
order of the Entries I to IX. An heir in the higher entry excludes all heirs in the lower entries.

The father in entry I includes an adoptive father. However, a father is not entitled to any interest in
the property of his illegitimate son as opposed to the mother. Nevertheless, a father is entitled to
inherit from his son born of a void or voidable marriage under section 16. Also, a step father is not
entitled from his step son.
All heirs in one entry of Class II share the property simultaneously and equally and also to the
exclusion of all heirs under subsequent entries.

All brothers and sisters inherit simultaneously with the sister and other heirs in the Entry. Here the
term brother includes both full and half brother. However when-
There is a full brother, he is always preferred to a half brother where, half brother means son of the
same father but different mother. Uterine brother is not entitled to share the intestate’s property.
However when the intestate and his brother are illegitimate sons of their mother, they are related to
each other as brothers under this Entry.

AGNATES
A person is said to be agnate of another if the two are related by blood or by adoption entirely or
wholly through males. It is important to note that agnates of the intestate do not include the widows
of lineal descendants of the widows of those who may be related to the intestate as lineal male
descendants because the definition of agnates does not extend to relatives by marriage but is
confined to relatives by blood or adoption. Here since these widows are not relatives by blood but
relatives by marriage, they are not covered in agnates.

Also, there is no degree of relationship beyond which kinship is not recognized so that an agnate
howsoever remotely related to the intestate is entitled to succeed as an heir. The relation by agnates
also does not distinguish between male or female heirs. So long as the two are related on lineal male
lines, they are covered under the definition of agnates. Also, there is no distinction between those
related by half or full blood.

COGNATES
A person is said to be cognate of another if the two are related by blood or adoption but not wholly
through males. In a cognate relationship, it does not matter as to whether there is intervention of one
or more females. So long as one female exists in the, it becomes a cognate relationship.
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Similar to that in agnates, persons related to the intestate by marriage are not included in the cognate
relationship and thus widow or widowers of those related on cognate lines are not included in the
cognate relationship and the relationship is formed only if the two are related by blood or adoption.

ORDERS OF SUCCESSION AMONG HEIRS IN THE SCHEDULE:

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.

This section makes important rules which are supplementary to the primary and pivotal rules
laid down in section 8 and the explicitly declare the order of succession among the class I and class
II heirs and also Class II heirs interse.

In accordance with the terms of the section, Class I heirs may be termed as preferential heirs
of the intestate for the property first devolves upon them upon the death of the intestate. They
succeed simultaneously and there is no question of any precedence or priority among them. They
constitute a category specific and distinct and succeed in preference to the other heirs. When,
however, there are no heirs in Class I i.e., there is no preferential heir of the intestate, his property
devolves upon the heirs specified in the second category of heirs enumerated in the nine entries in
Class II of the Schedule to the Act.

However, there is one basic distinction between Class I and Class II. While all heirs in Class I inherit
the property simultaneously, each of the entries in Class II constitute distinct and separate groups of
heirs and heirs in higher entries inherit in priority and to the exclusion of other heirs whereas there is
no such concept of priority or precedence among the Class I heirs. For illustration, a Hindu Male
(A) dies intestate leaving behind his widow, two sons, son of a predeceased son, widow of another
predeceased son, two daughters and a son of a predeceased daughter. Now, since all these heirs are
heirs within Class I of the Schedule, they will all inherit simultaneously. However, in a case where, a
Hindu Male (A) dies intestate leaving behind his sister and his brother’s son, the sister being an heir
in Entry II of Class II shall get all the property as she will be preferred over the brother’s son who is
an heir under Entry IV of Class II.

GOVERNMENT:
If a Hindu Male leaves behind neither class I, nor Class II, nor any agnates, nor any cognates upon
his death, then, his entire property lapses to the Government. This is called “Escheat”. When
government takes his property as heir, it takes with subject to all the obligations and liabilities of
porosities.

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Q. Explain the general rules of succession under the Hindu Succession Act,
1956.

ANS. General Provision in Relation to Succession

Introduction
There are certain general provisions relating to the succession, as laid down from section 18 to 28 of
the Hindu Succession Act. These provisions apply to all the properties irrespective of the fact
whether it is left by a male or a female Hindu dying intestate. These provisions are supplementary to
the provisions in section 5 to 17 of the Act. Moreover, the provisions are not only explanatory but
some of them lay down substantive rules involving legal principles.

Section 18 sets out a lead of general applicability to male and female heirs alike yet the applicability
is liable to the words, "if the way of the relationship is the same in each other regard. “From the
arrangements of the section obviously a full-blood relation is wanted to half-blood relation. Be that
as it may, the run can't be invoked when a specific beneficiary is wanted to another by operation of
any manage influencing the order of succession.

Full blood preferred to half blood-

Section 18 states that, “heirs related to an intestate by full- blood shall be preferred to heirs related
by half-blood, if the nature of the relationship is same in every other respect.”

Section 18 sets out a lead of general applicability to male and female heirs alike yet the
applicability is liable to the words, "if the way of the relationship is the same in each other regard.”
from the arrangements of the section obviously a full-blood relation is liked to half-blood relation.

Be that as it may, the lead can't be invoked when a specific beneficiary is wanted to another by
operation of any manage influencing the order of succession. The words 'full-blood' and
'half-blood' have been explained in section 2 (e) of the Act. Two people are said to be identified
with each other by full blood when they are plummeted from a common ancestor by a similar wife
and by half-blood when they are slid from a common ancestor yet by various wives. Section 18
makes it clear that the heirs related by full-blood might be wanted to heir’s related by half-blood,
gave the way of relationship is same in each other regard.

Thus, the full sister’s daughter shall be preferred to half- brother’s son. Similarly, a full sister
excludes a half -sister.

Mode of succession to two or more heirs

Section 19 of the Act provides that, “if two or more heirs succeed together to the property of an
intestate they shall take the property

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 (a) Save as otherwise expressly provided in this Act, per capita and not per
stripes; and
(b). As tenants-in-common and not as joint tenants.

The section sets out a general rule of distribution of the property. It says that when at least two heirs
succeed to the property of an intestate, they take the property per capita and as inhabitants in like
manner unless there is an express arrangement actually. Occurrences of special cases to the general
rule about distribution per capita are set down under rules 1, 3 and 4 of section 10 and rule 2 of
section 16, and so forth.

Right of Child in Womb:

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

Presumption in the Case of Simultaneous Death:

Section 21 provides that, “where two persons have died in circumstances rendering it uncertain
whether either of them, and if so which, survived the order, then, for all purposes affecting
succession to property, it shall be presumed, until the contrary is proved, that the younger survived
the elder”.

Preferential Right to Acquire Property in Certain Case:

Section 22 provides preferential rights to other heirs or heirs to acquire property when one of them
desires to transfer his or her interest in the property inherited. Section 22 runs as follow:

(1) Where, after the commencement of this act, an interest in any immovable property of
an intestate, or in any business carried on by him or her, whether solely or in
conjunction with others, devolves upon to or more heirs specified in Class I of the
schedule, and any one of such heirs proposes to transfer his or her interest in the
property or business, the other heirs shall have a preferential rights to acquire the
interest proposed to be transferred.
(2) The consideration for which any interest in the property of the deceased may be
transferred under this section shall, in the absence of any agreement between the
parties, be determine by the court on the application being made to it in this behalf,
and if any person proposing to acquire the interest is not willing to acquire it for
consideration so determined, such person shall be liable to pay all costs of or
incidental to the application.

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 (3) If there are two or more heirs specified in Class I of the Schedule proposing to
acquire any interest under this section, that heir who offers the highest consideration
for the transfer shall be preferred.

Disqualification for Heirs

The Act mentions certain disqualifications which debar certain heirs who are under such
disqualifications, in succeeding to the property of intestate. These disqualifications are:

(1) Disqualification Arising from Murder

Section 25: A person who commits murder or abets the commission of murder shall be disqualified
from inheriting the property of the person murdered, or any other property in furtherance of the
succession to which he or she committed or abetted the commission of the murder.

(2) Disqualification Arising from Conversion

Section 26: Where, before or after the commencement of this Act a Hindu has ceased or ceases to
be a Hindu by conversion to another religion, children born to him or her after such conversion and
their descendants shall be disqualified from inheriting the property of any their Hindu relative,
unless such children or descendants are Hindu at the time when the succession opens.

Disease, defect, etc. not to disqualify:

Section 28 “No person shall be disqualified from succeeding to any property on the ground of any
disease, defect or deformity, or save as provided in this act, on any other ground whatsoever”.

Effects of Disqualifications:
Section 27 if any person is disqualified from inheriting any property under this Act, it h person had
died before the intestate”.
This section is prospective and not retrospective.

Testamentary Succession
Section 30 “Any Hindu may dispose of by will or other testamentary disposition any property,
which is capable of being so (disposed of by him, or her), in accordance with the provisions of the
Indian Succession Act, 1925, or any other law for time being force and applicable to Hindus.

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SHORT QUESTIONS ANSWERS
Q. Is it possible for Hindu to write a will regarding his separate and joint
property both? What is the law provision in Hindu Succession Act in this
matter?

ANS. Joint Family Property and Separate Property

The term property is derived from the Latin term 'propertietat' and the French equivalent
'proprious' which means ‘a thing owned’. There are two kinds of property i.e. joint family property
and self-acquired property. Property acquired by joint funds of the family is known as joint family
property. All the needs of the family are fulfilled from it. Self-acquired property is acquired by
self-exertion or labour. Thus, it includes property by one's own learning. Gains of Learning Act,
1930 defines “learning” as education whether elementary, technical, scientific, and special or
general. It defines training as every kind of training, which is usually intended to enable a person to
pursue any trade, industry, profession or vocation in life. A person can make a will only of his/her
separate property. It is known as testamentary succession and is governed by the Indian Succession
Act, 1925. The joint family property passes on to the heirs (a person who inherits the property of
another following the latter's death). Inheritance means the right of an heir (to succeed to property on
the death of an ancestor) by way of succession. If a Hindu dies intestate i.e. without making a will,
then, both separate property as well as joint family property passes on to his heirs in accordance with
the Hindu Succession Act, 1956.

Q. Write the short notes on ‘women’s estate.’

ANS. Women’s Estate

Section 14 has abolished women’s estate by converting it into stridhan and woman’s estate and has
converted existing woman’s estates into full estates. It has introduced fundamental changes in the
traditional Hindu law of property of woman.

The objects of this section are:

• To remove all disability of Hindu woman to acquire and deal with property, that is, all the
property that she acquires will be her absolute property.
• To convert existing woman’s estate into full estate. It incorporates the following
propositions.
(a) Any property acquired by a Hindu female after the commencement of the act will be
held by her as her absolute property.
• Any property held by a Hindu female as woman’s estate and is in her possession will also
become her property.
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 • But, if any property is covered by the provision of subsection (2) neither (a) nor (b) above
will apply. in other words, if any property is acquired by a Hindu female by way of gift or
under a will or any other instrument under a decree or order of a civil court or under an
award, and the terms of the gift, will or other instrument or the decree order or award
prescribe a restricted estate in such property, she will take it accordingly.
(b) The requirement of being possessed in subsection (1) applies only to the woman’s estate
existing at the time of the commencement of the Act; this obviously cannot apply to the
properties acquired by her after the commencement of the Act.
(c) The definition of the term property contained in the explanation applies to both types
covered under (a) and (b) of (a).
(d) This section has qualified retrospective application. It applies retrospectively to those
woman’s estates which were in the possession of the Hindu female when the Act came into
force. It does not apply to those women’s estate over which she had no possession when the
Act came into force. To such estates old Hindu law continues to apply.

Stridhan and Woman’s Estate:

1. Gifts and Bequests from Relations

Such gifts may be made to woman during maidenhood, covertures or widowhood by her parents and
their relations or by the husband and his relation. Such gifts may be inter vivos or by will. The
Dayabhaga School doesn’t recognize gifts of immovable property by husband as stridhan.

2. Gifts and Bequests from Non-relations-

Property received by way of gift inter vivos or under a will of strangers that is, other than relations,
to a woman, during maidenhood or widowhood constitutes her stridhan. The same is the position of
gifts given to a woman by strangers before the nuptial fire or at the bridal procession.

3. Property Acquired by Self-exertion, Science and Arts:

A woman may acquire property at any stage of her life by her own self exertion such as by manual
labour, by employment, by singing, dancing etc., or by any mechanical art. According to all schools
of Hindu law, the property thus acquired during widowhood or maidenhood is her stridhan.

Property purchased with the income of stridhan:

In all Schools of Hindu law it is a well settled law that the properties purchased with stridhan or with
the savings of stridhan as well as all accumulations and savings of the income of stridhan, constitute
stridhan.

Property purchased under a compromise:

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When a person acquires property under a compromise; what estate he will take in it, depends upon
the compromise deed. In Hindu law there is no presumption that a woman who obtains property
under a compromise takes it as a limited estate. Property obtained by a woman under a compromise
where under she gives up her rights, will be her stridhan. When she obtains some property under a
family arrangement, whether she gets a stridhan or woman’s estate will depend upon the terms of
the family arrangement.

Property obtained by adverse possession-

Any property acquired by a woman at any stage of her life by adverse possession is her stridhan.

Property obtained in lieu of maintenance;

Under all the schools of Hindu law payments made to a Hindu female in lump sum or periodically
for her maintenance and all the arrears of such maintenance constitute stridhan. Similarly, all
movable or immovable properties transferred to her by way of an absolute gift in lieu of maintenance
constitute her stridhan.

Property received in inheritance:

A Hindu female may inherit property from a male or a female; from her parent’s side or from
husband’s side.

Property obtained on partition:

When a partition takes place except in madras, father’s wife mother and grandmother take a share in
the joint family property.
stridhan has all the characteristics of absolute ownership of property. The stridhan being her
absolute property, the female has full rights of its alienation. This means that she can sell, gift,
mortgage, lease, and exchange her property. This is entirely true when she is a maiden or a widow.
Some restrictions were recognized on her power of alienation, if she were a married woman. For a
married woman stridhan falls under two heads:

• The sauadayika (gifts of love and affection) - gifts received by a woman from relations on both
sides (parents and husband).
• The non-saudayika- all other types of stridhan such as gifts from stranger, property acquired by
self-exertion or mechanical art.
In Janki v. Narayansami,(1906)43 IA 87, the Privy Council aptly observed, “her right is of the
nature of right of property, her position is that of the owner, her powers in that character are,
however limited… so long as she is alive, no one has vested interest in the succession.”

Powers of a Hindu female over her woman’s estate

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 • Power of management.
• Power of alienation.
• Surrender-.
• Reversionary.
• Right of reversion

Sources of woman’s property

Property received in lieu of portion:

The Karta can grant some property to a member of the family for his or her maintenance. A Hindu
female can also be granted property for her maintenance under a family arrangement or a partition.
In Chinnappa Govinda v. Valliammal, AIR 1969 Mad 187, the court held that she need not
surrender the properties held by her under the maintenance deed.

Property Given under an Award or Decree

In Badri Prasad v. Kanso Devi, AIR 1970 SC 1963, where, the Supreme Court was of the view that
a share obtained by a Hindu female in a partition under section 14(1) even though her share is
described as a limited estate in the decree or award.

Property under an Agreement or Compromise:

The test that if the decree or award is the recognition of pre-existing right then sub-section (1) will
apply and if property is given to the Hindu female for the first time under an award or decree
subsection (2) will apply. It has been applied to the acquisition of property under an agreement or
compromise. This distinction has been clearly brought out by Mahadeo v. Bansraji AIR 1971 All.
515, and LakshmiChand v. Sukhdevi.AIR 1970 Raj. 285.

Property Received in Inheritance:

Any property that a Hindu female inherited from a male or female relation was taken by her as
limited estate except in the Bombay School. Section 14 lay down that any property that a Hindu
female inherits from any relation after the commencement of the act will be her absolute property.
On her death it will devolve on her heirs under the provisions of section 15 and 16. If any property
has been inherited by her before the commencement of the act and if it is in her possession then that
property also became her absolute property.

Property Received in Gift:

Under the Act, there is no distinction between the gifts received by her from relatives or strangers
and at any stage of her life, and all gifts that she receives will be her absolute property. Ornaments
received by her at the time of her marriage are ordinarily her stridhan property. A full bench in
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Vinod Kumar Sethi v. State of Punjab, AIR 1982 P& H 372, held that dowry and traditional
presents made to a wife at the time of the marriage constitute her stridhan. In Gopal Singh v. Dile
Ram, AIR 1987 SC 2394, a widow having a life estate purported to make a gift of the property
before the Hindu Succession Act 1956 came into force.

Property Received under a will

In Karmi v. Amru AIR 1971 SC 74, it was held that where only life estate is conferred under a will,
section 14(2) will apply, and the estate will not become full estate .but if a will confers on her full
estate, she will take absolutely. Properties given under a settlement to the widow which were to
revert to the settler on his brother on her death do not get enlarged into full estate.

VERY SHORT QUESTIONS ANSWERS

Q. What do you understand by ‘Notional Partition?’ when is required.

ANS. Notional Partition

Under the provisions of section 6 of the Hindu Succession Act, 1956, where a Hindu male dies
intestate on or after 17th June 1956, having at the time of his death an interest in a Mitakshara
coparcenary property leaving behind a female heir of the Class I category, then his interest in the
coparcenary property shall devolve by succession under that Act and not by survivorship. The
interest of the deceased will be carved out for devolution as if a notional partition had taken place
before the death of the deceased. This is the concept of notional partition.

Notional Partition and Destruction of the Family

The notional partition only crystallises the share due to the female heir and does not disrupt the joint
family.
A direct authority can be found in the decision of the Supreme Court in the case of State of
Maharashtra vs. Narayan Rao Sham Rao Deshmukh, which is reported in [1987] 163 ITR 31
{SC}, wherein it was held that the purpose of section 6 is only for ascertainment of the share of the
female heir and unless the share is given away, the same cannot be excluded from the assets of the
HUF.
The Gujarat High Court in the case of CWT vs. Chandrasinhrao D. Gaikwad [1999] 237 ITR 875
came to the same conclusion without referring to the above decision of the Supreme Court.
In fact, the widow of a deceased coparcener is entitled to the share of the deceased in a Hindu
individual family governed by Mitakshara law according to section 6 of Hindu Succession Act,
1956 continues to be member of HUF until she files suit for partition.
[Gurupad Khandappa Magdum vs. Hirabhai Khandappa Magdum [1981] 129 ITR 440 y (S.C.)
followed in Kishandas vs. CWT [2000] 243 ITR 307 (A. P.)]
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Q. If Hindus die in circumstances where is difficult to decide who died earlier
and died later, then which provision of law under Hindu succession?

ANS. Section 21 provides that, “where two persons have died in circumstances rendering it
uncertain whether either of them, and if so which, survived the other, then, for all purposes affecting
succession to property, it shall be presumed, until the contrary is proved, that the younger survived
the elder.”
Sometimes it may happen when two persons die in an accident and then it is impossible to ascertain
which of them died first. In such situations it may be presumed that both died simultaneously or one
died earlier. Controversy regarding inheritance in such a situation can be arises as who will succeed
whose property. Before the enactment of the said section there was no answer to such situation. the
burden of proof falls on the party who asserted affirmative.

If the evidence in the court are proved then the probabilities of decision is in the favor of the
younger.
In this section the presumption of survivorship applies, by which the younger is presumed to
survive the older.
In this section, ‘younger’ means younger in status not in age and only when the status is the same,
younger in age. thus if an uncle aged thirty years and a nephew aged thirty-five years, die in a plane
crash or a ship wreck, it will be presumed that the nephew died later, even though he is older in
terms of actual age. On the other hand, if two brothers die simultaneously in any accident or
calamity, the brother younger in age is presumed to have died later. This is a peculiar feature of this
Act, as it was altogether not provided for at all in the classical law or the previous legislations
regarding Hindu succession

Q. What do you understand by the term ‘Full blood’, ‘Half-blood’ and ‘Uterine
blood?’

ANS. Full Blood

When the father and mother of two persons are the same, they are related to each other by full blood.
according to clause to Sec.3 (1) (e) (1) Hindu Succession Act, “two person are said to be related to
each other by full blood when they are descended from common ancestor by the same wife.” thus,
children of the same parents are children by full blood, e.g., brother or sisters or a bother and a sister.
In the common parlance, they are known as the ‘real’ brothers the ‘real’ sisters or the ‘real’ brother
and sister.

Half blood

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When two persons have the same father but different mother, they are related to each other by half
blood. According to clause (e) (1) of sec. 3(1) Hindu Succession Act, two persons are said to be
related to each other by half-blood “when they are descended from a common ancestor but by
different wives. For instance, A marriage Q and a son B is born to him from Q; Q dies and A marries
S. A son D is born to him from S, B, C, and D are related to each other as brother and sisters by half
blood.

Uterine Blood
When two persons have the same mother but different fathers, they are said to be related to each
other by uterine blood. According to clause (e) (ii) of sec. 3(1) of the Act-“two persons are said to
be related to each other by uterine blood when they are descended from a common ancestress but by
different husband.” For instance, P takes a husband S and from him she gets a son A. S dies and P
marries Y and gets a son B. subsequently, she divorces him and takes another husband Z, and C are
related to each other as brother and sister by uterine blood.

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