(6) The Act does not apply to properties of a person who married under the provisions of the Special Marriage Act, 1954 (7) The Act does not apply to Mitakshara coparcenary property. But when coparcener dies leaving female heirs mentioned in class | of the Act or male relative of the claim claiming through such female relative, the property of the ancestor is subjected to rules of inheritance under the Act and the coparcenership is abolished. (8) The Act abolished the difference between male and female heirs. (9) The Act entitles a male Hindu to dispose of heir’s interest in Mitakshara coparcenary property by will. 27.Write a note on will and Gift . Introduction Gifts and wills both are certain documents that are used while transferring some property from one person to another. Although both these documents are used for similar purposes, they are different from each other. A gift is more or less an immediate process that does not take much time to prepare whereas a will is more of a thoughtful process that takes a longer time. Concept of gift A gift in its general sense means a form of reward or a token of appreciation given at weddings, birthday parties, etc. In terms of law, however, a gift is considered as a transfer of ownership of property from one person to another. Essentials of a valid gift In the case of P. Kunheema Umma v. P. Ayissa Umma (1981), the Court held that the valid essentials for an immovable property are, a declaration by the donor, acceptance by the donee, and the transfer of possession from donor to the donee. A declaration by the donor There should be an intention from the donor to enter into a gift. The gift can be of any means oral or written. The declaration should not be taken by coercion, threat, etc.Acceptance by the donee Under Muslim Law, the non-acceptance of a gift by the donee makes the gift void. If the donee is a minor, then the gift is valid but it should be accepted by @ person who is a guardian of the minor. The guardians mentioned under the provisions of the Muslim Law are: Father Father’s executor Paternal grandfather Paternal grandfather's executor. Transfer of possession from donor to the donee The transfer of Hiba should be from donor to donee. Under Muslim law, as soon as the gift is transferred to the donee and is accepted by the donee, the transfer becomes valid. The delivery of possession can be actual and constructive. The gift will be valid from the date of transfer to the date of acceptance of possession. Registration of transfer under Muslim Law is not necessary Concept of wil Awill is a legal document in which a person mentions how he/she is going to distribute the property after death. The Indian Succession Act, 1925, mentions the provisions regarding a valid will. Essentials of a valid will Legal Declaration Awillis a legal declaration of the person intending to distribute his/her property. It is not a contract or a settlement. The intention of the testatorAtestator is a person making the will. The will is a declaration of the desires or intention of the person to make the will. The will should be legal. The person making the will should not be threatened or coerced into making a will. This will make the will void and illegal. With respect to the property The testator can make a will of his or her own property. The person cannot make a will out of something which he doesn’t have. Signature and details of beneficiaries The will should be signed by the testator and the date of the will should also be mentioned. Further, the details of the beneficiaries of the will should also be mentioned. Property of minor In case, a minor is a beneficiary, then he/she should appoint a guardian to take care of the property till the minor attains turns 18. In the case of Gnanambal Ammal v. T. Raju Ayyar (1950), it was held by the Court that the main point of observation while making a will should be, the intention of the testator. 28.Discuss the types of property owned by a Hindu women state the changes brought to womens’s estate. Before the Hindu Succession Act of 1956 came into force, women’s property was broadly categorized under two heads, namely: 1. Stridhan (or women’s property); and 2. Women’s estate. It was the Hindu Women’s Right to Property Act, 1937 that conferred a set of new rights of inheritance on Hindu females which had the effect of increasing the weightage of women's estate. The Hindu Succession Act, 1956 introduced key changes in women’s property as have been expressly mentioned under Section 14 of the Act. This provision has erased the concept of “women’s estate” and has introduced Vijnaneshwara’s interpretation ofStridhan. The difference between Stridhan and women’s estate mostly depends on the source from which either of them is obtained. The Hindu Succession (Amendment) Act, 2005 (39 of 2005) was passed to amend the Hindu Succession Act, 1956, to eliminate gender discriminating elements According to the amendment, a coparcener’s daughter, like his son, becomes a coparcener in her own right upon birth. In this article, the subject matter of women’s property under Hindu law will be discussed through the lenses of case laws and judicial viewpoints. Stridhan The Smritikars perceived the concept of “Stridhan” as those properties which a female received by way of gifts from her relatives which majorly comprises movable property. Stridhan is said to also include those gifts that are provided by her wedding guests at the time of both the bridal procession and during the marriage ceremony. The Privy Council had observed in the case of Bhagwandeen Doobey v. Maya Baee (1869) that the properties that a Hindu female inherits from males will not be falling within the ambit of Stridhan. Instead, those properties will be categorized under “women’s estate”. ‘The Supreme Court of India had observed in the case of Pratibha Rani v. Suraj Kumar & Anr (1985) that according to Mitakshara and Dayabhaga Schools, Stridhan consists of the following items in the hands of a woman (maiden, married, or widow): 1. Gifts given before the nuptial fire. 2. Gifts given at the time of the bridal procession. 3. Gifts given as a gesture of love by her mother-in-law or father-in-law at the occasion of her marriage. 4. Gifts created by the women’s mothers, fathers, and brothers. Stridhan vis a vis dowry Despite the fact that ‘Stridhan’ and ‘Dowry’ are completely different words, they are sometimes confused to mean the same thing. Dowry is defined as any property or valued security given or agreed to be given by the bride’s family tothe bridegroom’s family before, after, or during the time of marriage under domestic law. The most significant distinction between ‘dowry’ and ‘Stridhan’ is the presence of “demand, undue influence, or compulsion” in the former but not in the latter. Stridhan is a present given to women voluntarily, rather than as a result of pressure, undue influence, or force. The Indian courts have established a distinction between Stridhan and dowry. The fundamental reason behind such distinction is that if any marriage breaks down in the future, the woman will be able to recover the goods she received as Stridhan, which will not be the case with the dowry gifts. In the case of Pratibha Rani v. Suraj Kumar (1985), the Apex Court had laid down the difference between dowry and Stridhan after witnessing the anguish of an alienated wife. It was decided that the lady would be the sole owner of her Stridhan and that she was free to utilize it however she wished. It was also decided that while the husband had no right or interest in the Stridhan in usual circumstances, he could utilize it in times of acute suffering and must restore it when he would be able to. Women’s estate The following are the two categories which are considered as woman's estate: 1. Property obtained by inheritance — A property inherited by a female from another female falls under the ambit of Stridhan under the Bombay School, As a result, whatever is deliberately given to a female will be her Stridhan, according to this notion. Share obtained on partition — On partition, a female is entitled to obtain her fair share in the property but she undertakes it only as a limited owner as her rights are subject to two limitations: 1. She cannot alienate the corpus (things or shares obtained in partition) in an ordinary manner, and 2. After her death, her property will be entrusted to the next heir of the last full owner. Women’s power over her estate There are majorly four powers that are vested over a female in relation to her estate namely:Power of Management ~ The power of a woman over her estate is significantly greater than that of a Karta, because the Karta is just a co-owner of the joint family property due to the existence of other coparceners, whilst the woman is the only owner of her land. Power of Alienation — A woman’s rights to alienate her property are limited, and she can only do so in rare situations. Surrender - Surrender means renunciation of the estate by the female owner. Surrender may be done voluntarily by the woman during her lifetime or automatically by her death. Conclusion, The judicial view of women’s rights has also changed since the Act of 1956 was enacted, as previously, the Privy Council held in Bhugwandee Doobey v. Myna Baee (1869) that a property acquired by a woman from her husband is not her Stridhan, and that such property will devolve upon the heirs of her husband, not her heirs, upon her death. Further, in Debi Sahai vs Sheo Shanker Lal And Anr (1900), the Privy Council held that a property obtained by a daughter from her mother is the Stridhan of the mother, not the Stridhan of the daughter and that such property will devolve upon the heirs of the mother, not the heirs of the daughter, upon the death of the mother. 29.Briefly explain the salient features of the Hindu Succession act 1956. Features of the Act The importance of the Act lies in the fact that it provides uniform rules for succession and reduces the conflict that arose due to confusion over different rules based on the ideas of two schools. Other features of the Act are: It makes a uniform system of inheritance and devolution of property that is equally applicable to areas of Mitakshara and Dayabhaga school. The applicability of the Act is explained thoroughly under Section 2 of the Act. However, it does not apply to people governed by the Special Marriage Act, 1954. Another important feature of the Act is its overriding effect given under Section 4, It abrogates all the earlier laws, customs, rules, ete that were applicable to Hindus with respect to succession. Any Act or law that is inconsistent with the provisions of this Act will be ineffective.It has also abolished the concept of impartible estate and its succession by special mode. Earlier, the rule of survivorship in coparcenary property was only applicable to male heirs. Female heirs were not recognised and given the right to inherit by survivorship. But after the enactment of the Act, there has been a change in this concept. Now, if a male dies intestate, leaving behind a female heir, the property would devolve according to the provisions of this Act and not the rule of survivorship. The Act provides order of succession based on the doctrine of propinquity, i.e., nearness or closeness of blood, and gives four different categories that are: o Class | heirs © Class Il heirs Agnates (people related to each other either by blood or adoption only through males) Cognates (people related to each other either by blood or adoption but not through males) The rules of succession are different for the property of males and females. In the case of a male who dies intestate, Class | heirs are usually given preference over Class II heirs, and Class !! heirs are further preferred over any other heirs. The Act further abolished the limited estate of women, and she is now the absolute owner of her property, irrespective of its source. Earlier, she was a limited owner, and the rights to her property were exercised by her husband, but now all the rights are exercised by her, and she can even dispose of her property and take decisions. The Act also recognises the right of a child in the property who is in the mother’s womb. (Section 20) It states that an unborn child in a woman’s womb would have the right to inherit the property, assuming that he has been born before a person dies intestate. The Act also clarifies that full-blood relations are preferred over half- blood relations under Section 18. It further explains the concept of shares that are to be divided per capita or per stirpes (division of shares in which share is given to a branch of heirs as a whole) and such heirs inherit property as tenants in common. (Section 19)+ It gives a list of people that are excluded from inheriting a property on different grounds. However, it abolished all the grounds that excluded a person due to his physical deformity or capability under Section 28 It also provides that the right of an illegitimate child to inherit property is confined to the mother’s property and not the father’s property, 30. Write a note on Stridhana. Introductior The word ‘Stridhana’ has been derived from ‘Stri’ (woman) and ‘dhana’ (property). In this way, stridhana etymologically means a woman’s property. The concept of stridhana has come down all the centuries from the Hindu Smritis but today, it has engulfed all forms of marriages in all visible castes and regions. A text from Yajnavalkya Smriti runs as under: “What was given to a woman by the father, mother, her husband or her brother, or received by her at the nuptial fire or presented to her on her supersession and the like is denominated woman’s property.” Stridhana is any valuable property including land, ornaments, etc, which is exclusively owned by the woman. Stridhana is a woman’s property over which she has got absolute power of disposal. Stridhana is different from other kinds of property held by a woman known as a woman's estate. Before the Hindu Succession Act, 1956 was passed, property owned by a woman could be classified into two categories- stridhana and the woman’s estate. + Dayabhaga According to Dayabhaga, there are two kinds of stridhana: 1.Yautaka Etymologically it means whatever is given at the time of marriage when the bride and bridegroom are sitting upon the same seat. Thus, Yautaka means all gifts given to the bride during the marriage ceremonies while she and her husband are sitting together.2. Ayautaka All the gifts which are not Yautaka fall in this category. It includes not only gifts and bequests made by father and other relations before the marriage, but it also includes gifts and bequests made to a woman by relations other than the father after marriage. Test of Stridhana Whether @ particular property is Stridhana or not would depend on the following factors: . The status of the woman at the time of acquisition of property, |. whether she was unmarried, married or a widow; . The source from which the property was acquired; and The school of Hindu law to which the woman belonged. 31.State the general rules of succession of du male intestate. The two main systems for inheritance under Hindu law are Dayabhaga and Mitakshara. Both had different rules for inheritance of the property. While Dayabhaga was prevalent in Bengal and its adjoining areas Mitakshara was prevalent in the rest of the country. To bring uniformity in the application of general rules The Hindu Succession Act was applied on June 17, 1956. The main aim was to bring the changes in the rules of succession that were long demanded due to a change in social and economic perspectives of the people. Meaning: Succession in general means the act of following or passing the objects, places etcina particular series, As per the Indian law, succession means the succeeding or passing of rights over property and other things from one person to another. When a person is alive he is the master of the property vested in him but after his demise, it has to be passed to someone else. However, this passage or redistribution of property among the other family members is subject to many rules under The Hindu Succession Act,1956. Types: Generally, there are two types of succession mentioned below:Testamentary Succession: Whenever a person dies leaving behind his will he is free to choose the 2. Intestate Succession: It is the opposite situation i.e. when the person dies without making a will the property will be distributed among the members as per the law of inheritance. As per Section 3(g) of HSA, “a person is deemed to die intestate in respect of property of which he or she has not made a testamentary deposition capable to taking effect”. The law related to intestate succession deals with matters like who is entitled to property i.e. who are the heirs, if there is more than one heir then how will the property be distributed. Heir has been defined in Section 3(f) as a person who is entitled to succeed to the property intestate under the act. Section 8 to Section 13 lay down the general laws of succession to the property of a Hindu male dying intestate. Section 8 talks about the rules of succession that are applicable when a Hindu male dies intestate after this act came into force. Rules of Succession: Section 8 says that the dissolution of the property of person dying intestate must be as per the series laid down below. It is to be noted that property under HSA could be the separate or coparcenary property of the person, joint family property. 1. Firstly, it will pass upon the person who is mentioned in the list of Class 1 heirs of the act, 2. Secondly, if no person from class 1 is present it will pass onto persons mentioned in Class 2, 3. Thirdly, if no one from any of the class is there to succeed the property it will be distributed to the agnates as mentioned in Section 12, 4. Fourthly, if none of the people mentioned in the above three lists is present then it will devolve to cognates as mentioned in Section 13. Class | Heirs: In simple words, if Hindu male dies intestate, the property entrusted in him is distributed among the members mentioned in class 1 equally and there is no preference order. The members mentioned in class 1 schedule are deceased person's son, daughter, widow, mother, son of a predeceased son, daughter ofpredeceased son, son of @ predeceased daughter, daughter of a predeceased daughter, widow of a predeceased son, son of predeceased son of a predeceased son, daughter of predeceased son of a predeceased son, widow of predeceased son of a predeceased son. Under this, the adopted child is also deemed as a natural child and the children born are out of the void or voidable marriage are also considered as legitimate children. Since the widows are also class 1 heirs but if there are more than 1 heir then the widows will inherit the property jointly, Married daughters are also eligible to inherit. Mother is always entitled to inherit the property, she can be divorced or remarried also as mentioned in Jayalaxmi v Ganesh lyer. Class I Heit If at the time of distribution none of these people is there in the family then the members of class 2 are looked upon. But there is preference order among these and the people in ane order are given property equally. As held in Karumaswami v Nanjappa the class 2 heirs are divided into 9 entries and all of them inherit cumulatively. If there are more than 1 brother or sister they inherit simultaneously. However full blood is preferred over half-blood whereas uterine blood is not counted. Agnates: If none of the heirs under class 1 and class 2 are available then the property moves towards agnates. Agnates are the person who by blood or adoption are wholly related through males. Hence it is clear that the people are related by blood or adoption and not by marriage as mentioned in Section 3(g). There is. no degree of the relationship under agnates and both male and female can be agnates. Also, there is no difference between full or half-blood. Cognates: If none of the heirs under class 1 and class 2 are available then the property moves towards agnates. Agnates are the person who by blood or adoption are wholly related through males. Hence itis clear that the people are related by blood or adoption and not by marriage as mentioned in Section 3(g). There is, no degree of the relationship under agnates and both male and female can be agnates. Also, there is no difference between full or half-blood.Section 12 lays down some rules for distribution of property among agnates and cognate: Rule 1. Whenever there are more than 1 agnate or cognate the one who has less or few ascent degrees is preferred i.e. among descendants, ascendants and collaterals the descendants are preferred and so on. Rule 2. When there are people with same degree of ascent the one with less degree of descent is preferred over the other. Rule 3. If none of the heirs matches above rules then both will inherit the property equally. Conclusior Hence it is clear from the above information that the order of succession of Hindu male dying intestate is class 1 heir, class 2 heir, agnates and cognates. However, among these categories, there are different rules according to which the property is distributed among them. Whenever there is no will made by the deceased he is said to dying intestate and in such case, the Hindu Succession Act comes in place and court checks the heirs as per the act and distributes the share to the heirs as per the rules. 32.Discuss the rules of succession of succession of a Female Hindu dying intestate. RULE 1: Itis the general rule. It states that those in the first entry shall be preferred to those in any succeeding entries, and those included in the same entry shall take simultaneously. For example, (1) Suppose a female Hindu has two daughters, one son. Now, if she died, her property shall devolve equally among her two daughters each, one son and husband separately. {2) Now, if she is a widow and has no children and if she dies, her property will devolve according to entry 2 given under section 15(1)(b), that is, the property will devolve in the heirs of the husband.RULE 2: If any son or daughter of the female intestate had pre-deceased the intestate leaving his or her children alive at the time of the intestate’s death, the children of such son or daughter shall take between them the share which such son or daughter would have taken if living at the intestate’s death. Example: Suppose a female Hindu (say Z) has 2 daughters (A & 8) and 2 sons (C & D). Now suppose B died in the lifetime of her mother (2), leaving her 1 daughter (E) and 1 son (F). Now, when Z dies, her property will devolve among A, C, D and her husband. And the share of B (which she could have if she were alive) will devolve between her children, that is, E and F equally. Now, this is a bit confusing rule so let us understand it more by a mathematical example: Suppose Z (mother) has § properties. When she dies, her living children, ie. A, C, Dand the husband will get one property each, whereas the rest of one property that B could have if she were alive will devolve equally among her children (E and F). Then the share of E and F will be % each. RULE It is a specific rule that applies only in the case of devolution of property referred under: Section 15(1)(b) that is Heirs of Husband, Section 15(1)(d) that is Heirs of Father, and Section 15(1)(e) that is Heirs of Mother. According to this rule: Under section 15(1)(b), the property of the deceased female Hindu shall be deemed to be the property of her husband and shall devolve in the heirs of the husband according to section 8.Under section 15(1}(d), the property of the deceased female Hindu shall be deemed to be the property of the father and shall devolve in the heirs of the father according to section 8. Under section 15(1)(e), the property of the deceased female Hindu shall be deemed to be the property of the mother and shall devolve in the heirs of the mother according to sections 15 and 16, respectively. UNIT-V 33.Explain the requirements of valid adoption under the Hindu adoption and maintenance act . Requisites of a Valid Adoption Under the Hindu Adoptions and Maintenance Act (HAMA), only Hindus can adopt subject to their fulfilment of specific criteria. As per the provision of this act, no adoption will be valid unless fulfilling the following conditions: The person adopting should have the capacity and also the right, to take in adoption The person giving in adoption should have the capacity to do The person adopted should be capable of being taken in adoption The adoption should be made in compliance with the conditions of the Hindu Adoptions and Maintenance Act (HAMA) indu to Take Adoption Under HAMA, any male Hindu who is of sound mind and not a minor can take a son or a daughter in adoption. If he has a wife living, he cannot adopt a child except with the consent of his wife unless the wife has completely renounced the world or has ceased to be @ Hindu or has been declared by a court of competent jurisdiction to be of unsound mind, Note: In case the person has more than one wife living at the time of adoption, the consent of all the wives is mandatory unless the consent of any one of them is unnecessary for any of the reasons specified in the preceding clause. The senior wife will be classified as the legal mother of the adopted child.The eligibility criteria for female Hindu to take 2 son or daughter in adoption are given here The female Hindu should be of sound mind The female Hindu should not a minor The female Hindu who is not married can adopt a child In case of a married female, whose marriage has been dissolved whose husband is dead or has completely 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, Conditions for a Valid Adoption In every adoption under Hindu Adoptions and Maintenance Act (HAMA), the following conditions must be complied with: Adoption of a Son In case the adoption is of a son, the adoptive mother or father by whom the adoption is made should not have a Hindu son, son’s son or son’s son’s son living at the time of adoption. They must not have a son whether by legitimate blood relationship or by adoption. Adoption of a Daughter If any adoption is of a daughter, the adoptive father or mother by whom the adoption is made should not have a Hindu daughter, daughter ‘s daughter or daughter ‘s daughter ‘s son living at the time of adoption. They must not have a son whether by legitimate blood relationship or by adoption. Adoption of a Female Child by a Male If the adoption is to be taken by a male and the person to be adopted is a female, the adoptive father should at least twenty-one years older than the person to be adopted. Adoption of a Male Child by a Female If the adoption is to be taken by a female and the person to be adopted is a male, the adoptive mother should at least twenty-one years older than the person to be adopted.Other Conditions The same child cannot be adopted simultaneously by two or more persons The child to be adopted must be provided and taken in the adoption by the parents or guardian concerned or under their authority with the intent to transfer the child from the family of its birth. In case of an abandoned child or a child whose parentage is not known, from the place or family where it has been brought up to the family of its adoption 34.Who is a guardian? Explain the powers of natural guardian? Introduction: A guardian is a person who takes care of the child until he is capable of making the decisions on his own. In the Act of 1956, a guardian is a person who takes care of the person of minor or of his property or of both his person and property. It includes different types of guardians such as natural guardian, guardian appointed by the will of the minor's father or mother or appointed or declared by the court. Under the Act there are three types of guardians, they are: 1. Natural Guardians, 2. Testamentary guardians and 3. Guardians appointed or declared by the court. WHO IS A NATURAL GUARDIAN? Anatural guardian is a type of guardianship, where the father and the mother or adopted parents are the guardians. They become so because of their natural relationship with the minor. The natural guardian of a minor boy or an unmarried girl is a father. After the death of the father, the mother is the next in line to become a natural guardian. Sec. 6 of the Act defines who is a natural guardian. The natural guardians of a Hindu minor child and his/her property. POWERS OF NATURAL GUARDIAN A natural guardian has the following powers in respect of a minor child — 1. Right to custody, 2. Right to determine the religion of children,3. Right to education, 4, Right to control movement, and 5. Right to reasonable chastisement These powers are given to the guardians to take care of the interests of the minor. Hence these powers are to be used for the welfare and to maintain the interests of the minor and their property. As per sec. 8 of the Act, the powers of the natural guardian to impose on the child are as follows: 1. A natural guardian of a Hindu minor has to perform all the work which is mandatory and valuable for the minor interests and its protection. 2. Anatural guardian must take prior permission from the court to mortgage or transfer any sale, gift or any other immovable property of the minor and before leasing any of the minor's property for a term of more than five years or for aterm more than one year from the date when the minor turns into a major. 3. The disposal of any immovable property by the natural guardian shall be held as voidable at the instance of the minor itself or any other person claiming on its behalf. 4. A court shall not permit the natural guardian to do any act stated above until and unless it is proved that in is for the best interest of the minor. 5. For the application for getting the permission of the court, sec. 29 of the Guardians and Wards Act, 1890 shall be applied and the applications should be submitted to the Court within the local limits of whose jurisdiction the property of minor is situated. CONCLUSION Previously in Hindu law, there existed no guardianship rules as people used to live in joint families. Therefore, to have proper guardianship laws in the country The Hindu Minority and Guardianship Act, 1956 was introduced.35.What do you mean by adoption ? Discuss the changes brought about by legislation relating to adoption. What is Adoption? The Act has no description of the word “Adoption” per se, but it is a Hindu law derived from uncodified Hindu laws of Dharamsastra, specifically Manusmriti. Adoption has been described in Manusmriti as ‘taking someone else's son and raising him as one’s own’. Hindu Adoption and Maintenance Act has made the definition of ‘adoption’ much wider by using the word ‘child’ instead of ‘son’. Child includes both a girl and a boy child, and not merely a son. With the change in society over time a codified and uniform legislation was required to serve the democracy, so, no adoption can be made without the procedure mentioned in this act. If any adoption is made neglecting this act, the adoption shall be rendered to be void The Hindu Adoption and Maintenance Act prescribes a set of rules for a valid adoption, which must be complied with. Such as: Adoption of a son Section 11(i) of the act states that if a Hindu male or female desires to adopt a son, they must not have a living son, grandson, or even a great-grandson at the time of adoption. It is irrelevant whether the son is legitimate, illegitimate, or adoptive. They should not already have a son who is living. Adoption of a daughter Similar to the conditions of adopting a son —Section 11(ii) states that one wishing to adopt a daughter must not have a living daughter or a granddaughter from their son at the time of the adoption. It is immaterial whether the daughter or granddaughter is legitimate, illegitimate, or adoptive.Adoption of a female child by a male ‘A Hindu male willing to adopt a gir! child must have the capacity to adopt a child as prescribed in Section 7 of the act, and Section 11 (iil) states that he must be at least 21 years older than the gir! child that is to be adopted. Adoption of a male child by a female If a Hindu female wants to adopt a male child she must first meet the requirements prescribed in Section 8 of the act and have the capacity to adopt a child. Also, she has to be at least 21 years older than the child she wishes to adopt. The Changes brought about by Legislation in the Law of Adoption and Maintenance Act, 1956 are as follows: ‘As to who May Adopt Under the shastric law a widow could adopt only to her husband. She could not adopt exclusively to herself. This was because the objection of an adoption was purely religious and was meant for the offering of Pindas to the deceased husband and to his manes. Thus a widow could not adopt. Only a son is under a religious duty to his ancestors. This debt to the Pitrus (ancestors) could be discharged by begetting a son. So adoption was meant to discharge this religious duty and a male could adopt though he was unmarried. A spinster could not do so as there was no similar religious duty. The present law has authorised a female to adopt to herself and even a maiden can do so. The law of adoption has thus been secularised. ii) As to who May be Taken in Adoption: Under the shastric law only a son could be adopted. That was because the religious duty to the Pitras could be discharged only by begetting a son. The adoption of a daughter could have no such religious significance. Under the Act of 1956 a daughter may also be adopted. This is also a trend towards secularisation. (iii) As to Ceremonies of Adoption:Among Brahmins, Kshaytrias and Vaisyas the regenerate (twice-born) classes a Datta Homam had to be performed at the time of adoption. Under the present law this religious ceremony has been dispensed with so as to secularise the institution of adoption. The only ceremony required is that the actual giving and taking a child in adoption by both the parties. ‘As to who May Gi Adoption: Under the Shastric law only the father or mother could give a child in adoption. According to the Smrities this power was derived from their having begotten the child. The new law allows the adoption of an orphan also and confers upon the guardian of an orphan the power to give the orphan in adoption. The safeguard provided is that the guardian should obtain the permission of the court for giving the child in adoption. This is also a change indicative of the secularisation of adoption. (v) As to the Conditions of Adoption: Under the Shastric law the adopted child had to be of the same caste as the adopter. Now this restriction is gone. A Brahmin may adopt a Sudra and vice versa. Under the old law a male could adopt even if his wife was opposed to adoption. Now the husband cannot adopt without the wife's consent. Formerly, the husband could prohibit adoption by his widow. The present law does provide for this as she can now adopt to herself. This also shows the present secular trend. 36.Enumerate the important changes brought by Hindus succession act, Introduction: The Act lays down a uniform and comprehensive system of inheritance, and applies to persons governed by both the Mitakshara and the Dayabhaga schools, as also to persons in certain parts of Southern India, who were previously governed by the Marumakkatayam, Aliyasantana and Nambudri systems of Hindu Law. Hindu succession amendment Act 2005 has brought about following important changes: 1) Equal rights for daughters- After 2005 amendment daughter of a coparcener becomes by birth, a coparcener in her own right and has same rights and liabilities as a son. 2) Doctrine of pious obligation abolished;3) Rights of a female in a joint family dwelling place- The earlier provision of Act under which a female heir could not demand a partition of a dwelling house wholly occupied by a joint family has now been deleted. 4) Restriction on Hindu widows in the matter of inheritance- Earlier S$ 24 of Act barred certain widows who had remarried from inheriting. Now S 24 has been deleted and this bar has been removed. 5) Addition of heirs in Class 1~ After 2005 amendment , for more categories of heirs have been added in class 1 of schedule to the Act. Whether daughter can claim share in joint family property prior to death of father? Section 6 of the Act has been amended on 09.09.2005 effacing devolution by survivorship through insertion of intestate succession in Mitakshara Coparcenary by substituting the concept of intestate succession for giving equal shares to daughter at par with sons by virtue of their birth. As evident in Section 6(3), the provisions of amended Section 6 can only be invoked in case of property being ancestral. However, it is significant to note that the phrase "devolution of coparcenary property" only takes place when succession opens and not before. It is well settled that succession opens on death of Karta i.e. Tulsiram in this case. As a necessary corollary, Tulsiram being alive, the suit in issue was not maintainable. 37. How quantum of Maintenance determined by the court? Criteria for determining the quantum of maintenance The bench listed out the following criteria for determining the quantum of maintenance- Age and employment of parties in a marriage of long duration, where parties have endured the relationship for several years, it would be a relevant factor to be taken into consideration. On termination of the relationship, if the wife is educated and professionally qualified, but had to give up her employment opportunities to look after theneeds of the family being the primary caregiver to the minor children, and elder members of the family, this factor would be required to be given due importance. “This is of particular relevance in contemporary society, given the highly competitive industry standards, the separated wife would be required to. undergo fresh training to acquire marketable skills and re-train herself to secure a job in the paid workforce to rehabilitate herself. With advancement of age, it would be difficult for a dependant wife to get an easy entry into the work-force after a break of several years”, the Court said. Right to residence The Court said the living of the aggrieved woman in the shared household must have a degree of permanence. A fleeting or casual living at different places would not constitute a “shared household”. Itis important, the Court said, to consider the intentions of the parties, nature of living, and nature of the household, to determine whether the premises is a “shared household”. Referring to Section 2(s) read with Sections 17 and 19 of the Domestic Violence Act, 2005, the Court said this entitles a woman to the right of residence in a shared household, irrespective of her having any legal interest in the same. “There is no requirement of law that the husband should be a member of the joint family, or that the household must belong to the joint family, in which he or the aggrieved woman has any right, title or interest. The shared household may not necessarily be owned or tenanted by the husband singly or jointly”, the Court held. Where wife is earning some income The bench said an earning wife cannot operate as a bar from being awarded maintenance by the husband. The onus is on the husband to establish with necessary material that there are sufficient grounds to show that he is unable to maintain the family, and discharge his legal obligations for reasons beyond his control. If the husband does not disclose the exact amount of his income, an adverse inference may be drawn by the Court. Maintenance of minor childrenThe Court said the living expenses of the child would include expenses for food, clothing, residence, medical expenses, education of children. Extra coaching classes or any other vocational training courses to complement the basic education must be factored in, while awarding child support. Albeit, it should be a reasonable amount to be awarded for extra-curricular/coaching classes and not an overly extravagant amount which may be claimed. The education expenses of the children must be normally borne by the father. If the wife is working and earning sufficiently, the expenses may be shared proportionately between the parties, the Court said. Serious disability or ill health Serious disability or ill health of a spouse, child/children from the marriage/dependant relative who requires constant care and recurrent expenditure, would also be a relevant consideration while quantifying maintenance The Court made it clear that these are not the exhaustive criterion, and the concerned Court may exercise its discretion to consider any other factor/s which may be necessary or of relevance in the facts and circumstances of a case. 38. State the dependents under Hindu adoption and maintenance act 1956. For the purposes of this Chapter "dependants" means the following relatives of the deceased: (i) his o her father; (ii) his or her mother; (iii) his widow, so long as she does not re-marry; (iv) his or her son or the son of his predeceased son or the son of predeceased son of his predeceased son, so long as he is a minor: PROVIDED and to the extent that he is unable to obtain maintenance, in the case of a grandson from his father's or mother's estate, and in the case of a great grand-son, from the estate of his father or mother or father's father or father's mother;(v) his or her unmarried daughter, or the unmarried daughter of his predeceased son or the unmarried daughter of a predeceased son of his predeceased son, so long as she remains unmarried: PROVIDED and to the extent that she is unable to obtain maintenance, in the case of a grand-daughter from her father's or mother's estate and in the case of a great-grand-daughter from the estate of her father or mother or father's father or father's mother; {vi) his widowed daughter: PROVIDED and to the extent that she is unable to obtain maintenance- {a) from the estate of her husband, or {b) from her son or daughter if any, or his or her estate; or {c) from her father-in-law or his father or the estate of either of them; vii) any widow of his son or of a son of his predeceased son, so long as she does not remarry: PROVIDED and to the extent that she is unable to obtain maintenance from her husband's estate, or from her son or daughter, if any, or his or her estate; or in the case of a grandson's widow, also from her father-in-law's estate (viii) his or her minor illegitimate son, so long as he remains a minor; (ix) his or her illegitimate daughter, so long as she remains unmarried. 39.Define Adoption. Explain the requirements of valid adoption under the Hindu Adoption and Maintenance Act,1956, Refer Q.No.35 Adoption - Hindus: Adoption in the Hindus is covered by The Hindu Adoptions Act and after the coming of this Act all adoptions can be made in accordance with this Act. It came into effect from 21st December, 1956. Prior to this Act only a male could be adopted, but the Act makes a provision that a female may also be adopted. This Act extends to the whole of India except the state of Jammu and Kashmir.It applies to Hindus, Buddhists, Jains and Sikhs and to any otherperson who is not a Muslim, Christian, Parsi or Jew by religion Requirements for a valid adoption No adoption is valid unless The person adopting is lawfully capable of taking in adoption ‘The person giving in adoption is lawfully capable of giving in adoption The person adopted is lawfully capable of being taken in adoption The adoption is completed by an actual giving and taking and The ceremony called data homan (oblation to the fire) has been performed. However this may not be essential in all cases as to the validity of adoption 40. Who are dejure and defacto guardians? Explain the rights of dejure and defacto guardians under the Hindu Minority and guardianship act 1956. + In law and government, de facto describes practices that exist in reality, even though they are not officially recognized by laws. De Facto Factual Recognition is known as De Facto De Facto is temporary. It is not permanent like De Jure, It is a temporary and provisional recognition which can be withdrawn. The recognition that is conferred by De Facto is based on a factual situation and is not a process of law. Diplomatic representatives are not exchanged. De Jure Legal Recognition is known as De Jure De Jure which is a legal recognition is a permanent recognition and it cannot be withdrawn, De Jure is a recognition given after following due procedure of law Diplomatic representatives are exchangedState Succession rules do not apply in de facto Under De Jure, rules of state succession are applied De Facto Government cannot recover a state Only a de jure government can recover asset or public debt state assets or public debt Membership to the United Nations is not A state can get United Nations possible even if there is a de facto recognition _ membership if the majority of nations by the majority of states. bestows de jure recognition. The State which receives De facto recognition — The State which receives De Jure will have 2 rival governments recognition has only 1 Government. Rights of De Facto Guardian are as follows: The Hindu Minority and Guardianship Act, 1956 does not recognise a de facto guardian. Section 11 of the Act expressly negates the power of de facto guardian to alienate or deal with the property of a Hindu minor. Section 11 provides as under: “After the commencement 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.” After the enforcement of the Act of 1956, a de facto guardian, thus, cannot, deal with the property of a minor. Such property may be his separate or undivided interest in joint family. It is not correct to restrict the application of this section only to separate property merely because Section 11 of the Act does not mention “undivided interest in joint family” as the expression occurs in Section 8 and Section 9 of the Act. Thus Section 11 in effect has abrogated the class of de facto guardian. Any alienation by such guardian after the commencement of the Act would be void ab initio and the alienee would acquire no title to the property. In law the class of de facto guardian is not recognised. Any one claiming himself to be the de facto guardian would be incompetent to make alienation of the minor's property. This view was reiterated by Madras High Court which held that a person, having the care of properties of a minor but who is neither a naturalguardian, or testamentary guardian nor a guardian appointed by the court is only a de facto guardian and the restrictions under Section 11 will apply to his acts. Where the father is alive and is not disqualified, it is incompetent for the mother to interpose herself as the guardian (de facto) of the minor. Any alienation or disposal of the property by the mother acting as the guardian of the minor is unauthorised and is totally devoid of any effect. As such, where the mother of the minor sons acting as their guardian disposed of their shares ina property held by the minors and their father jointly during the lifetime of the father, the alienation would be held void. Problems related Question: 41. ‘H’ husband got ‘Restitution of conjugal rights’ order against wife. Order was not obeyed. Subsequently ‘H’ husband wants to get a divorce on that ground. Can he succeed? Answer: Yes He can succeed Explanation: ‘A legal notice under section 9 of the Hindu Marriage Act asks a spouse who has left the other without any logical excuse, to return. Restitution of conjugal rights is a process through which either party can gain certain specific legal rights against the other party. The main right is the right to live with the guilty party. If you don’t get the legal notice about the marriage issues under section 9, then the aggrieved party can request the court for restitution of conjugal rights. Following are the valid points on which the court passes the order of restitution of conjugal rights (RCR): If the petitioner can convince the judge that the respondent (spouse) withdrew from society without citing a valid cause, the petition will succeed. The petitioner's (the aggrieved spouse's) claims made in the petition are valid, and the court did not discover any legal justifications as to why the aggrieved party should not be granted the restoration of conjugal rights. 42.4 widow , sues her father and father-in-law for maintenance separately. Is she entitled for maintenance? Answer:Yes She is entitled for maintenance Section 19 of Hindu Marriage act Explanati The petitioner being the widowed daughter-in-law having no sufficient earnings of her own or other property, is entitled to be maintained as a dependent from the estate of her deceased husband which was in custody and possession of the father-in-law. As such, she is entitled to claim maintenance." Maintenance of widowed daughter-in-law.— (1) A Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained after the death of her husband by her father-in law: Provided and to the extent that she is unable to maintain herself out of her own earnings or other property or, where she has no property of her own, is unable to obtain maintenance— (a) from the estate of her husband or her father or mother, or (b) from her son or daughter, if any, or his or her estate. (2) Any obligation under sub-section (1) shall not be enforceable if the father-in-law has not the means to do so from any co parcenary property in his possession out of which the daughter-in-law has not obtained any share, and any such obligation shall cease on the re-marriage of the daughter-in-law. 4 jindu female owns self-acquired property . She dies intestate leaving behind her mother, father, son, husband and an illegitimate daughter . Assign the shares. If a Hindu female had inherited property from ‘father or mother’ not from the father’s or mother’s side the heirs fall under the two categories: Category (1): Sons, daughters, sons and daughters of predeceased son or daughter In the time of non-existence of any of the preferential heirs like sons, daughters, etc, the property passes upon the heirs of the next category intestate’s father. In other words, the property inherited by a female from her parents, in the absence of her children, will revert to her father’s heirs. The ‘husband’ is excluded here. Thus, where a Hindu female died leaving behind her daughter from a previous marriage and the second husband and property that she had inherited from her father, it was held that since the deceased had inherited the property fromher parent, her daughter alone will be entitled to succeed and the husband here cannot succeed as said in case Radhika v. Anguram (1994) 5 SCC 761. A ‘step-son’ is not an issue and cannot inherit the property of a woman that she inherited from her parents as held in case Lachman Singh v. Kirpa Singh AIR 1987 SC 1616. Category (2): Heirs of the father Thus, the father shall be deemed to have died immediately after the female Hindu died under Section 16. Here it seems to be a defect in the drafting of the Act. Even if a father is still alive, his property will not go to him but to his heirs. The clause should be read, ‘upon the father and in default of the father, upon his heirs’. 44.Nagaraj and Rani both Hindu got married in July 2018.Within three months they realised that they can not live together happily. They want to dissolve their marriage immediately .Can they do so? Answ They can not to do so as per section 14 of Hindu marriage act. Explanation: Section 14 states that no petition of divorce could be filed within the first year of marriage. Thus it could be interpreted that one year is the time gap given by the law itself in order to solve, sort, understand and communicate problems with each other. Thus no court shall be competent to entertain a petition for divorce unless the time gap of one year had elapsed. However, upon receiving an application in accordance with the rules made by the High Court, the Court may allow the petition to be presented in case of one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent. But if it appears to the court upon hearing the petition that there is a misrepresentation of facts or concealment of the nature of the case the court may as it deems fit may also dismiss the petition without any prejudice In discarding any application under this section for leave to present a request for divorce before the [expiration of one year] from the date of the marriage, the court will have to respect the interests of any offspring from the marriage and to the inquiry, whether there is a sensible likelihood of a compromise between the parties before the termination of the said one year.45.The immovable property of a Hindu minor is sold by the father for the benefit of the minor, without the permission of the court. Is the sale valid ? Give reasons. Answer: Sale is not Valid As per the provisions of the Hindu Minority and Guardianship Act, 1956 Explanation: As per the provisions of the Hindu Minority and Guardianship Act, 1956, any property or share in property owned by a minor, cannot be sold or disposed of by the natural guardian of the minor, without taking permission from the court. For obtaining the permission, the guardian of the minor has to make an application before the district court. Any sale of a property owned by the minor by the guardian, without the permission of the court is voidable at the option of the minor on becoming a major. The fact that the sale of the property was made for the benefit and meeting the cost of maintenance of the minor, will not make the sale ipso facto legally valid. BY ANIL KUMAR KT LLB COACH