FAMILY LAW-I/HINDU LAW 3 AND 5 YEARS LLB UNDER KARNATAKA STATE LAW UNIVERSITY AS PER NEW SYLLABUS MOST IMPORTANT PREVIOUS YEAR QUESTIONS UNIT WISE ALONG WITH ANSWERS EDITION-II (YEAR 2024) BY ANIL KUMAR KT, BA, MSW, LLB, LLM & (Ph.D.) Mob: 9584416446Karnataka State law University 3 and 5 Years LL! ANIL KUMAR K T LLB COACH Family Law-| Most important previous year questions Unit wise ‘L.What is custom? Briefly explain requirements of a valid custom. 2.Who are Hindus ? Persons to whom Hindu law does not apply ? 3. Distinguish between Mitakshara and Dayabhaga schools of Hindu law. 4.Write a note on modern and ancient sources of Hindu law. 5.Briefly explain the sources of Hindu law with special reference to the customs. 6.Explain the importance of customs. 7.Explain the salient features of Mitakshara school of Hindu law. 8.Distinguish between smrutis and shruthis. UNIT-I 9.Hindu marriage is a sacrament and also a contract discuss. 10.Write a note on void and voidable marriages. 11.£xplain the constitutionality of restitution of conjugal rights with the help of leading cases. 12.Customary practices and legislative provisions relating to dowry prohibition act. 13.£xplain the grounds on which a Hindu marriage can be dissolved by divorce. 14.Define and distinguish between judicial separation and divorce. 15.Write a note on divorce by mutual consent . 416.What is divorce ? on what ground divorce can be obtained? UNIT-IIL 17.Explain the features of a coparcenary and bring out the rights of a coparcenary? 18,What is partition ? under what circumstances partition can be reopened ?19,Write 2 note on reunjon? 20.Who is Karta ? Discuss his positions , duties and powers. 21.Explain partition? Explain the various modes of partition ? 22.Explain the Essential of endowments. 23.Distinguish between obstructed and unobstructed heritage. 24. write a note on Doctrine of pious obligation UNIT-IV 25.Discuss the changes brought out before out before and after passing the Hindu succession act 1956 in respect of the property rights of the female heirs. 26.Enumerate the important changes brought by Hindus succession act. 27.Write a note on will and Gift . 28.Discuss the types of property owned by a Hindu women state the changes brought to womens's estate. 29.Briefly explain the salient features of the Hindu Succession act 1956. 30. Write a note on Stridhana. 31.State the general rules of succession of Hindu male intestate. 32.Discuss the rules of succession of succession of a Female Hindu dying intestate. UNIT-V 33.Explain the requirements of valid adoption under the Hindu adoption and maintenance act . 34.Who is a guardian? Explain the powers of natural guardian? 35.What do you mean by adoption ? Discuss the changes brought about by legislation relating to adoption. 36.Enumerate the important changes brought by Hindus succession act. 37. How quantum of Maintenance determined by the court? 38. State the dependents under Hindu adoption and maintenance act 1956. 39,Define Adoption. Explain the requirements of valid adoption under the Hindu Adoption and Maintenance Act,195640. Who are dejure and defacto guardians? Explain the rights of dejure and defacto guardians under the Hindu Minority and guardianship act 1956. 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? 42.‘8’ a widow , sues her father and father-in-law for maintenance separately. Is she entitled for maintenance? 43.‘A’ Hindu female owns self-acquired property . She dies intestate leaving behind her mother, father, son, husband and an illegitimate daughter . Assign the shares. 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? 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. BY ANIL KUMAR K T LLB COACHUNIT-I 1.What is custom? Briefly explain requirements of a valid custo! Introduction: During the earlier ages the customs were the most important, and in some cases, the sole source of law. In every legal system at all stages of legal development there are some customs, but in advanced societies they are more rationalizes, and are certain and definite. Custom, as a supply of law, involves the study of a variety of its aspects: its origin, and nature, its importance, reasons for its recognition, its classification and the necessity of a valid custom. Definition given by John Salmond: Custom is the embodiment of those principles which have commended themselves to the national conscience as principles of justice and public utility. Origin of custom: Regarding the origin of customs there are different and divergent views. Historical jurists of Germany say that they originate from the common consciousness of people. Some say that man’s nature of imitation is the main cause of origin of customs. There is a series of reputed jurists who assert that judicial decisions are the basis of customs. Essentials of valid custom: Certain tests or essentials have been laid down by the jurists whom a custom must satisfy for its judicial recognition. The following are essentials of valid customs: 1) Antiquity — A custom to be recognized as law must be proved to be in existence from the time immemorial, time whereof the memory of man is not contrary. This is often the rule of the English Law. This legal memory presumes to be going back to a fixed time. English law fixed 1189 to test antiquity of a custom. But the presumption of law is that the customs which are old and whose time origin cannot be ascertained must have started before the year 1189, In ancient Hindu law additionally, the antiquity was one in all the necessity for the popularity of custom, Immemorial custom is transcendental law. The law in India at present is that antiquity is important for the recognition of a custom;however there is no such fixed for which it must have been existence it is within the English Law. 2) Continuance: The second essential of a custom is that it must have been practiced endlessly. In England, the custom during the period from 1189 must have been enjoyed continuously without any interruption. Continuity doesn’t mean that should not be operating all the time. There should always be available in terms of availability of custom to deal with rule of conduct. It means that if possession for a few times is disturbed, however the claim to enjoy the custom is not abandoned, the custom continues. 3) Peaceable enjoyment: The custom must have been enjoyed peaceably. If a custom is relevant for a long time in a law court, or otherwise, it negatives the presumption that it originated by consent as most of the customs naturally might need originated. 4) Obligatory force: The custom should have an obligatory force. It must have been supported by the general public opinion and enjoyed as a matter of right. 5) Certainty: A custom be certain. A custom that is obscure or indefinite cannot be recognized. It is more a rule of evidence than anything else. The court must be satisfied by a clear proof that custom exists as a matter of truth, or asa legal presumption of fact. 6) Consistency: The customs which ever are prevailed should not come in conflict with other established customs. They should maintain consistency among the other customs. Therefore, it is said that one custom cannot be set in opposition to other customs 7) Reasonableness: A custom must be reasonable. A custom must be should be in conformity with regard to basic morality. It should be prevailed as understanding of justice, health and public policy. If the custom is not reasonable, then it cannot be considered as a valid custom. Reasonability cannot be judged with every change of social conditions. It is however said that every custom must not be perfect in its ethic and morality, concerns, itis said that it should be reasonable and relevant and it should be capable of understanding. It said that they include public policy among the tests of custom, And the custom should not oppose the public policy. It should bereasonable during comprehensive times, which would be helpful to be laid on as an example. 8) Conformity with statute law: A custom has to be valid, and it should be in conformity with statute law. There should not be any contravention in relation to the existing laws. It is a positive rule in most of the legal systems that a statute can abrogate a custom. If any violation is found in relation with custom in an territory it cannot be treated as custom 9) Public Policy: Whatever the public policy is it should be of state and the custom must be in operating. The custom should not oppose to public policy. 10) General: The custom will be effect when it is universally accepted or nearly so. If there is an absence of unanimity of opinions then customs has no power left, or rather they don’t exist. Conclusion: Therefore, as we have seen that Customs are very essential source of law, this. has its roots emerging from historical schools, and the primitive societies, which are even relevant now. As a developing society it changes day to day and adopts different practices which would become usage or custom 2.Who are Hindus ? Persons to whom Hindu law does not apply ? Who is a Hindu? There are many theories which state how did the term “Hindu” originate but the most famous theory was given by Swami Vivekananda and Swami Harshananda. According to Swami Vivekananda, Hindus are those people who lived on the other side of river Indus (Sindhu: in Sanskrit). This was elaborated by Swami Harshananda who explained that Persians, some 3000 to 4000 years ago, used to refer the people who lived on the banks of river Indus as Sindhus. But they couldn’t pronounce the letter “S” correctly in their native tongue and mispronounced it as "H.” Thus, for the ancient Persians, the word “Sindhu” became “Hindu.” The ancient Persian Cuneiform inscriptions and the Zend Avesta refer to the word “Hindu” as a geographic name rather than a religious name. In the play “Parijat Haran” written by Sankar Dev it is said that one who eradicates his bodily sin and evil thoughts through Tapasya and his enemies by weapons are called “Hindu”.On 14" January 1996, in Sastri Yagnapurushadji and Ors vs Muldas Brudardas Vaishya and Anr [AIR 1966 SC 1119] Supreme Court of India elucidated the topic by putting the views of Bal Gangadhar Tilak in its judgement. It pronounces that there are three distinguishing features of Hindus. These are + Acceptance of absolute supremacy of Vedas. + Belief in Polytheism (many gods). « Recognition of the fact that ways or means of salvation are diverse. The Hindu Law does not apply. (i) To the illegitimate children of a Hindu father by a Christian mother and who are brought up as Christians, or to illegitimate children of a Hindu father by a Mohammedan mother, because these are not Hindus either by birth or by {ii) To the Hindu converts to Christianity. Succession to the estate of a Hindu convert to Christianity who dies a Christian intestate is governed by the Indian Succession Act, 1865 (now Indian Succession Act, 1925). A person ceasing to be a Hindu in religion cannot, since the passing of the Act of 1865, elect to continue to be bound by the Hindu Law in the matters of succession; (iii) To descendants of Hindus who have formed themselves into a distinct community or sect with a peculiar religion and usages so different from the principles of Shastras that the community cannot but be regarded as being outside Hinduism in the proper meaning of the words; (iv) To convert from Hindu to the Mohammedan faith. 3.Distinguish between Mitakshara and Dayabhaga schools of Hindu law. The term "Dayabhaga’” is derived from a similarly named text written by Jimutavahana, The term-, “Mitakshara” is derived from the name of a commentary written by Vijnaneswara, on the Yajnavalkya Smriti. The Dayabhaga and The Mitakshara are the two schools of lawthat govern the law of succession of the Hindu Undivided Family under Indian Law. The Dayabhaga School of law is observed in Bengal and Assam. In all other parts of India the Mitakshara School of law is observed. The Mitakshara School of law is subdivided into the Benares, the Mithila, the Maharashtra and the Dravida schools.Parameters Dayabhaga Mitakshara Joint famih Mal 1b f the famil oint Family Both the male and the female of the Seine ete ieanaieG system . are considered under the joint family are considered. ‘ family. Here, child don’t hi right Right to property paren onhave nenvover Here, son, grandson and great- ropert | randson acquire the right t property by birth and arise only after the death of | a cit, rignt to their fathers. | Praperny Oy. Biren: The Dayabhaga system considers a | physical The Mitakshara system does Partition _| separation of the property and giving | partition of property only partitions of property to their through shares. respective owners Here, stridhan to women is provided Rights of | along with equal rights in husbands’ | Women have no rights and woman property. can’t demand partition. 7 | | ‘con iti Features In comparison it is a Liberal system In comparison, itis Conservative system Dayabhaga : In simple words, itis an inheritance law that was popularly practised in West Bengal, Assam, Jharkhand and Odisha. This school of Hindu law is based on the principle of spiritual benefit.{t states that children do not have a right on ancestral property before the death of their father, Mitakshara : In simple terms it is a school of thought which is known as “Inheritance by birth”. Under this law, a son inherits his father’s property just as he is born. Mitakshara was practiced all over India except Assam and West Bengal. It talks about property rights, property distribution, and inheritance. 4.Write a note on modern and ancient sources of Hindu law.Introduction: India is a country that has ample Personal laws. Every community has its own law, Hindu have Hindu laws, Muslim have Muslim laws, Buddhist, Jains and Sikhs all comes under Hindu law. Those who are born in Hindu, Buddhist, Jain or Sikh parents. However, if only one parent is Hindu, Buddhist, Jain or Sikh, then he must be brought up as a Hindu. In this category both legitimate and illegitimate children are included. These laws are not applied for Muslims, Christians, Paris or Jews. If any person born in Hindu or converted into Hindu this would be enough, even though in actual blandishment he may be non- religious, agnostic or decry his faith. There are many acts which comes under Hindu law. Traditional sources refer to those ancient Hindu legal system which governed the conduct of Hindus in that particular time. The traditional sources of Hindu law is the guidelines of the law with modification. In ancient time Hindu law is use for religion, dharma and marriage purpose. There are Four main sources of traditional sources. + Shruti + Smrities + Customs + Digest and Commentaries Shruti ‘The word Shruti derives from word Shru which means hear and the word Shruti means heard. In Hindu law the word Shruti is the prime and supreme source of Hindu law. It is the language of Gods through saints Shadu-Saints is the most powerful personality in Hindu religion it believe that they have reached such a high divine were they informed about Vedas. There are four type of Vedas. Rigveda, Yajurveda, Samveda, Atharvaveda. Vedas has three Parts viz Sanhit, Brahmin and Upanishad. Sanhit consist of hymns, Brahmins consist duties and how to perform this duties and Upanishad consist essence of the duties. Veda period exist between 4000 to 1000 BC. Veda informs about right and duties. Smrities The word Smrities derives from word Smri which means to remember and the word smriti means the work created by virtue of memory. There are two types of Smrities Dharamustras and Dharamshastras. There is very little difference the difference is Dharamustras are written in form of Prose while Dharamshastras written in form if shlokas. CustomThe word custom defines the crystallized practices followed by a community or group of people for a sizeable period. Customs became a governing norms ina society. Custom is also a source of law. It is supreme to written law and it’s position is next to Shruti and Smriti. Hindu law is based on custom. There are four types of custom + Local Custom(local custom means the custom use in there locality or area like in Rajasthan there is a custom of child marriage) Caste and community custom (caste custom means the custom which follow by their particular caste of community. Like different caste has different process of marriage. In Sikh marriage is performed by Anand Karz) Family Custom (family custom means the custom followed by all the family members of the family) Guild Custom (guild custom means the custom followed by particular group) Digests and Commentaries Digest and commentaries comes in the period between 7th century to 1800 AD after smrities. In early stages commentaries works on smrities but after that it work like digests containing numerous smrities. The change of Hindu law is a result of digests and commentaries. The most important commentaries are Manunhashya, Manutika and Mitakshra and the most prominent digest is jimutvahan’s Dayabhaga that applied in Orissa and Bengal. Mitakshara is one of well known and supreme source of law in India. Mitaksara and Dayabhaga are two main sources of Hindu law in India. Modern Sources of Hindu law Modern sources of Hindu law refers to modern and new generation and evolved in the present form. There are three main source of modern Hindu law. + Equity justice + Legislation + Precedent Equity justice Equity means fairness in dealing. Justice means the modern judicial system delivered the true justice based on equity and good. in modern law the dispute comes in court which settled by the application of law and rule in any sources. The court cannot refuse the settlement of dispute while in the absence of law. When British Administration clear that the absence of rule terminology.Terminology means the principles of source. This principles enjoy the status of source of law in our country. Legislation Legislation is the Act of parliament which play a vital role in the formation of Hindu law. After the independence there are many Hindu law conflicted. After confliction any point conflict is final. No matter it violet customs or other. In modern time, the Only way to form new law is Parliament. First, it passes in Parliament, then it come in work. The acts in Hindu law is Hindu Marriage Act, 1955, Hindu Succession Act, 1956, Hindu Minority and Property Act, 1916. Precedent After the establishment of British rule the hierarchy of court was established. The doctrine of precedent based on the principles of treating like cases alike was established. Today, the decisions of council are binding on all the lower court except where they modified or altered by the Hon'ble Supreme Court whose decision are binding in all court except itself. Conclusion It has been seen that Hindu law needs evaluation of its conviction, patriarchal character and does not look modern. Hindu law needs upgrade in many areas of law. The main drawback of Hindu law is not any proper definition of Hindu law in any source. According to Historians there are many Smriti yet to be found. The Traditional/Ancient sources of Hindu law are written in sanskrit. And in present time the knowledge of proper sanskrit is very less and sanskrit scolars are also less in number. According to traditional/ancient sources, modern sources of Hindu law are well-defined and more cleared. S.Briefly explain the sources of Hindu law with special reference to the customs. ‘introductior Custom’. Custom can be considered as the principle source for the development of the Hindu Law. Custom in common parlance is an act or behaviour which is repetitive or is traditionally accepted or can also be defined as a habitual practice that a person is uniformly following for a long time. It can also be termed as ‘Rule of Conduct’. Section 3 of Hindu Marriage Act, 1955 defines custom as a rule which is followed for a long time and has obtained the force of law among people of the Hinducommunity. Italso stated that custom must be ancient, must be reasonable, and it should not be in derogation to the laws of the country. Sources of Custom that shaped Hindu Law Customs are mainly of four types. They are: Local Customs,General Custom, Family Customs, Class or Caste Custom. Local Custom These are the customs or practises that are binding on people belonging to the Hindu community of a particular geographical area, Thus the major part of that particular place culture. General custom These are the customs or practises that prevail in the country as @ whole. Example Indian customs and traditions are the major attraction for tourists. Some of them are the ‘Namaste’ which is used to greet people, ‘Tilak’ a ritual remark which is a sign of blessings or auspiciousness. Family Custom Family Custom can be defined as family tradition or family culture, which they are following from a long time which was given by their ancestors long back. It can also be stated as the environment in which a person is born and brought up by their parents and ancestors. Class or Caste Custom. These are the customs for a particular caste or sector or class of people such as traders, agriculture , businesses etc. Every caste or class has different traditions to be followed which they have been following for a long time which can be named as class or caste custom. Customs can be anything which explains the behavioural pattern of a certain group of people, it can be an act on the basis of which group of people can be classified. They are one of the earliest sources of law. It can alternatively be called as traditions, cultural ideology and cultural philosophy.There are various essentials for a custom to be a valid custom and to have the force of law Ancient The custom must be ancient, which should have been established much earlier and have existed for a long time uniformly. Antiquity of a custom is an essential and foremost element of a valid custom. Customs must belong to a very distant past. It must be followed by people from time immemorial. Though Hindu Law did not fix any particular period of time to judge the antiquity of the custom but English Law fixed year 1189 to test the antiquity of the custom. invariable and continuous Customs to be valid has to be practiced for a specific period of time and should be still in existence. It could be taken as evidence for having the force of law and for having custom accepted in the eyes of laws. It should be followed without any interruption. If a custom is not continued for a period of time or is discontinued it comes to an end and such tradition or practise is no longer considered to be a custom Clear and unambiguous evidence There should be clarity in giving the evidence of a custom. The group of people who are following it must prove it through their actions or acts or general instances for the existence of such custom. In collector of Madura v. Mootoo Ramalinga, the court held that if there is clear proof of custom, it will supersede the written text or laws. Reasonable The custom must be supported by the valid reasons for being followed. To consider it as a valid custom it is necessary that such custom has been derived from a series of reasons. It has some reasonableness for its existence. It should be based on the right to be enforceable. It should not be based on certain assumptions which are not acceptable. Not opposed to morality or public policy Customs should not be against the public policy which means it should aim at the well being of the people, good of the people. Customs should not be againstthe social rules. Customs should not be against the moral values or set of ethical standards that the society follows. Not opposed to any law, Customs to be valid and accepted in the eyes of law, it must not be in derogation with the laws of the country. The customs must not be opposed to dharmashastras. It must not be forbidden by any laws or enactment of the legislature. It is necessary that customs are collateral with the laws to be accepted as a valid custam. 6.Explain the importance of customs. Custom is an important means of controlling social behaviour. The importance of customs in society cannot be minimized. They are so powerful that no one can escape their range. They regulate social life especially among illiterate people to a great extent and are essential to the life of a society. McDougall writes: The first requisite of society, the prime condition of social life of man, was, in the words of Bagehot, “a hard crust or cake of custom. In the struggle for existence only those societies survive which were able to evolve such a hard crust of custom, binding men together, assimilating their actions to the accepted standards, compelling control of the purely egoistic impulses, and exterminating the individuals incapable of such control.” Custom is obeyed more spontaneously because it grows slowly. People follow similar behaviour patterns. Custom is the repository of social heritage: Custom in fact, is the repository of our social heritage. It preserves our culture and transmits it to the succeeding generations, bring people together and develops social relationships among them. Enemies are turned into friends by custom. It is needless to say that Hinduism is alive today because of customs. It would have died long ago had not the Hindus been forced to abide by customs. They would have been converted to Islam or Christianity if there had been no Hindu customs to check the conversion. Customs help in the process of learning. They have already laid out courses of action to meet particular problems. They are the savers of energy. They help in adjustment with many social problems. Customs provide stability and a feeling of security in humansociety. The language which the child learns, the occupations with which he becomes familiarized, the forms of worship that he follows, the games which he plays all are offered to him through custom Customs mould personality: Customs play an important part in personality building. From birth to death man is under the influence of customs. He is born out of marriage, a custom; he is brought up according to the customs and when he dies he is given last rites as laid down by customs. Customs mould his attitudes and ideas. Customs are universal: There is no country or community wherein customs are not found. In some communities they are regarded so sacred that their violation cannot be even thought of. The society wishes us to follow them. In primitive society adherence to custom was the general rule and so itis even today among the aboriginal tribes Malinowski writes about the Trobriand Islanders: “Whatever might be the case with any theoretical interpretation of this principle, in this place, we must simply emphasize that a strict adherence to custom, to that which is done by everyone else, is the main rule of conduct among our natives in the Trobriands.” In India with the spread of western education the observance of customs has loosened, still the old women folk of the country continue to observe them. They weep when they meet their relatives after a long absence and weep on various occasions during marriage ceremonies of their daughter. At the time of departure of the girl to the house of bridegroom tears roll down the cheeks without any sign of their being forced. The Maories of New Zealand rub noses with each other as an expression of their love and the women of Pulawat Caroline Islands walk in a stooped position in the presence of men. It is thus evident that customs play a major part in regulating our social behaviour. They determine our culture, preserve it and transmit it from generation to generation. They are essential to the life of a society and are held so sacred that any violation of them is regarded not only a challenge or a crime, but also a sacrilege calling upon the people the vengeance of the gods. Customs exercise such a powerful hold over men that they can be called the “king of men.” On account of its control potential the custom has been called “a tyrant” by Shakespeare, “a violent school mistress.” by Montaigne and “theprincipal magistrate of man’s life” by Bacon. The customs are followed with ess deviation than are laws. They are observed not simply because they are traditionally enforced by the society but because people's sentiments and feelings of personal obligation support them. Custom is both democratic and totalitarian at the same time. It is democratic because it is made by the group, everybody contributes to its growth. It is totalitarian because it affects every sphere of self-expression, private and public, it influences our thoughts, beliefs and manners. The authority of customs diminishes in complex society where impersonal relations largely replace personal contact and where individuals are removed from the direct control of the group as a whole. In modern society the force of customs has loosened. According to Mannheim, “Money economy disintegrates customs because they are too slow in their workings. The modern society requires legal rules that can be promptly and uniformly enforced.” 7.Explain the salient features of Mitakshara school of Hindu law. Salient features of Mitakshara School: The following are the features of this school :— 1. Ason [now daughter also after the commencement of Hindu Succession (Amendment) Act, 2005] has an interest in the ancestral property since birth and is a coparcener in such property along with his father. 2, Father has restricted power of alienation of the joint family property and the son (or daughter) can claim partition at any time. 3. Members of the Mitakshara coparcenary cannot dispose of their share while the coparcenary is not divided. 4, The rule of survivorship was applied for the devolution of interest in coparcenery property. It has been now abolished by Hindu Succession (Amendment) Act, 2005. 5. The principle of inheritance under the Mitakshara law is consanguinity. 6. According to school, ‘sapinda‘relationship is one arising between persons through their being connected by particles of one body. The following are the characteristic features of the Mitakshara coparcenary: Ee:1) Unity of Ownership The essential feature of a Mitakshara coparcenary property is unity of ownership, i.e., the ownership of property is not vested in a single coparcener. It is vested in whole body of coparcenary. According to the true notion of an undivided family governed by the Mitakshara law, no individual member of that family whilst it remains undivided, can predicate, of the joint and undivided property, that he has a definite share In Thammavenkat Subbamma v. Thamma Ratamma, the Supreme Court affirming the above view held that the essential feature of Mitakshara coparcenary is unity of ownership and community of interest. No coparcener has any definite share in the coparcenary property although his undivided share is existent there, which increases with the death and decreases with the birth of any coparcener. The coparcener acquires an interest in coparcenary property by birth, which is equal to that of his father. (2) indeterminability of Shares The interest of a coparcener in the coparcenary property is a fluctuating interest which is liable to diminish with the birth and bound in increase with the death of any coparcener in the family. So long the family remains united; no individual coparcener can predicate that he has a definite share in the property of the family. In Commissioner of Gift-tax v. N.S. Getty Chettiar, the Court upholding the above view held that so long the family remains undivided; no individual coparcener can claim any specific share in the joint family property. All the coparceners are the owners of entire joint family property. Their shares can be specified only after the partition is effected in the joint family. The share of any coparcener is thus unpredictable and unspecified before partition Recently, in Munni Lal Mahto and others v. Chandeshwar Malito and others, the Court upholding the above view held that if any coparcener of joint Hindu family transfer the coparcenary property by way of gift without consent of other coparceners, it is void, because all the coparceners are the owners of entire joint-family property and joint family continues, and the coparcenary interest is an indeterminate. It becomes determinate only when the states of jointness is broken. (3) Community of Interest: There is community of interest in the coparcenary property. The moment a person is born in the family, he acquires an interest in the coparcenaryproperty in the sense that he has a right of common enjoyment and common use of all the properties, because as soon as he is born as a son, he assumes the membership of the community. It also signifies that no coparcener is entitled to any special interest in the coparcenery property, nor is he entitled to exclusive possession of any part of the property. As it has been rightly observed by the Privy Council that “there is community of interest and unity of possession between all members of the family.” No coparcener can say with certainty that he is entitled to one half or one fourth as it is the essence of coparcenary property that there is community of interest and unity of possession. The shares of individual coparceners cannot be defined. All the coparceners have a right of common enjoyment or common use of the property. It signifies two implications: firstly, possession of one coparcener in the possession of all coparceners, and secondly, no coparcener has a right of exclusive possession of any portion of joint property. {4) Exclusion of Females: In Mitakshara coparcenary no female can be its members, though they are members of joint family. Even the wife who is entitled to maintenance enjoys only the right to maintenance but she can never become a coparcener. Thus a female does not have the right to demand partition. Since she is not a coparcener, she cannot become the Karta of the family. An alienation of the property of the joint family by her will not be binding on her sons and daughters. The alienation of her own share is not binding upon herself. It is worthwhile to mention that the Hindu Women’s Right to Property Act, 1937, conferred a special status on the widow and made them eligible to inherit the coparcenary interest along with her sons, although she took it as a limited estate. Thus she acquired the status like that of coparcener entitled to a share, equal to that of her sons. For example, A who constitutes a coparcenary with his two sons, namely, B and C, dies leaving behind his widow, W, two sons, B and C. Under the Hindu Woman’s Right to Property Act, 1937, W inherited the coparcenary property along with B and C and would get 1/3 share each, 5) Devolution by Survivorship: One of the distinctive features of coparcenary is that the coparcenary interest of a coparcener in coparcenary property on his death does not devolve on hisheirs by succession but on the other hand it passes by survivorship to the other coparceners. Thus right by birth and right of survivorhsip are necessary incidents of community of interest and unity of ownership, which signify joint possession not an exclusive possession, (6) Right of Maintenance: All the members of coparcenary are entitled to maintenance by birth out of joint family property. They continue to enjoy this right so long the coparcenary subsists. Where any member fails to get any share on the coparcenary property even after partition he retains the right of maintenance. Some special provisions have to be made for them at the time of partition. Female members and other male members who do not get a share on partition such as unmarried daughters, idiots or lunatics, are entitled to maintenance out of joint family property. Unmarried daughters have a right to be married out of joint family funds. 8.Distinguish between smrutis and shruthi The Vedic literature is divided into two sections, namely, Shruti and Smriti are two sisters. Shruti is the name given to the sacred texts that make up Hinduism's core corpus, i.e. Upanishads, Vedas, Brahmanas, and Aranyakas The entire body of post-Vedic Classical Sanskrit literature is called Smiriti, which literally means "that which is remembered". Vedanga, Shad darshana, Puranas, Itihasa, Upveda, Tantras, Agamas, and Upangs are all part of it. Epics are a post-Vedic category of Sanskrit literature that includes the Ramayana and Mahabharata Shruti Smi Shruti is a Sanskrit word that means Smriti is a Sanskrit word that means “what is said". “remembered.” Shruti is an eye-opener. Smriti is a Hindu ritual. Shruti is firsthand knowledge. The universal truths of faith were heard by Great Rishis, who recorded them for posterity's gain. Smriti is a reminiscence of the case. is timeless. Smriti was created by humans.The primary authority is Shrut} ‘The Smriti is an afterthought if a Smriti contains something that contradicts the Shruti, it must be refused. | The final authority is Shruti | | Shruti does not issue any orders. It just Smriti gives orders and punishments in the provides guidance form of prayachits if they are not followed. ‘Smriti can become obsolete, necessitating Shruti never goes out of style. 5 M modification or amendment. Smriti, when followed at a given time, makes Shruti is eternal because it never changes. | the requisite adjustments. As a result, Smriti’s essence is complex. UNIT-II 9.Hindu marriage is a sacrament and also a contract discus: Introduction According to Hindu marriage act,1955 marriage is considered to be a sacrament with solemn pledge and it is not a contract which is only entered by the execution of a marriage. R.N Sharma has defined that a Hindu marriage is a religious sacrament. ‘When a man and woman are into a permanent relationship for the social, spiritual purposes of dharma, physical, procreation and sexual pleasure’ India is the only country which follows religions in that Hinduism has its own culture, customs, traditions, laws. Accordingly there are 16 Samskaras, in that Marriage i.e.(Vivah)is the most important part which follows 7 steps and vows in presence of fire Sapta Padi. Why du marriage a sacrament? Sacrament is a symbolic religious ceremony. Marriages are considered as divine between Hindus. In the ancient period, there was no need for the girl's consent. Where the fathers had to decide the boy without asking for her advice or consent. It is religious bond between a man and woman, but not completely a contract. It is also believed that Hindu has its specified missions in life which is expressed by the ‘purusharthas’ which comprises Dharma, Artha, Kama, Moksha.+ Asper the ceremonies of Hindu marriage there must be performed for union to be finished, the fundamental customs are homa, offering of the hand of the lady of the hour and saptapadi, then the lady and spouse going seven steps together. In all the customs the Brahmin performs the rituals by telling the Mantras. Hindu marriage is additionally viewed as a ceremony where the male experiences the holy observances over a mind-blowing span and the female experiences the basic, since this is the main ceremony which will be remembered in their life. The three main aspects of the sacramental nature of marriage: Once it is tied cannot be untied, It is a religious and holy union of the bride and the groom which is necessary to be performed by religious ceremonies and rites. The bond between the husband and wife which is permanent and tied even after death and they will remain together after the death. As per the legal aspects of sacramental character of Hindu marriage In the case Shivonandh v. Bhagawanthumma, the court observed that marriage was binding for life because a marriage performed by saptapadi before the consecrated fire was a religious tie which could never be united. The three main characteristics: 1. It is a permanent union 2. Itis an eternal union. 3. Itwas @ holy or sacrosanct union. In the case Tikait v. Basant, the court held that marriage under Hindu Law was a sacrament, an indissoluble union of flesh with flesh, bone with a bone to be continued even in the next world. Or is it Contract In the modern era the current idea of marriage is legally binding. Where the western thoughts are combined. There should be an understanding between the couple with balance and freedom in life. Conditions valid for Hindu marriage act UNDER SECTION 5Avalid marriage shall be solemnized between two Hindus with the following conditions fulfilled. The groom shall attain the age of 21 and the bride should attain the age of 18. itis very much necessary at the time of marriage the person shall attain the specified age given in the act. The consent cannot be taken into consideration when there is a use of coercion or threat. In the modern world, a father can’t get the girl married to any without the girl's consent. If in case that happens the will be void The person shall not be suffering from any insanity or mental disorder at the time of marriage. During the time of marriage no person shall have a spouse living. According to the Hindu marriage Act, it is not permissible to have two living wives at the same point of time, which amounts to bigamy. Section 494 IPC gives punishment for the said offence. They don’t fall under the sapinda relationship, or within the decree of prohibited relationship unless it is allowed by the custom or tradition Conclusion Therefore, in the most Hindu marriage is a religious ceremony is followed. We can conclude that marriage has some elements of contract but it is not purely contract. Moreover it is a sacrament under Hindu marriage act. It is more of sacrament as Hindu marriage is a holy and eternal union of two bodies. 10.Write a note on void and voidable marriages. Introduction: The concept of marriage is to form a relationship between husband and wife. Marriage is a religious tie which cannot be broken. According to Section 5 of Hindu Marriage Act, 1955 it was accepted that a Hindu Marriage was a religious ceremony and also a Sanskara (performed as a purification rite). It was also established that every and any Hindu could marry. The exceptions to this are the ones prohibition which is on the basis of caste, gotra, religion and blood relationship. Such prohibition is based on some rules which are endogamy (where a man cannot marry a woman, who is of his relation) and exogamy (a man cannot marry a woman who belongs to another tribe). Endogamy and Exogamy are illegal in the view of Hindu Marriage Act, 1955. Provision of Void and Voidable Marriages under Hindu Marriage Act, 1955Void Marriages (Section 11] A marriage is considered void under the Hindu Marriage Act if it doesn’t fulfils the following conditions of Section 5 of the Hindu Marriage Act: igamy If any of the parties have another spouse living at the time of marriage. It shall be considered as null and void. Illustration: there are three parties ‘A’,’B’ and ‘C’ where ‘A’ has a living spouse “B’, but he again marries to ‘C’ then this will be called as bigamy and it will be void. Prol 1d Degree If the parties are within a prohibited relationship unless the customs allows it. illustration: there are two parties ‘A’ and ‘B’ where, ‘A’ is the husband and ‘B’ is his wife. They both went on a relationship which is prohibited by law. This marriage can also be called void marriage. Sapindas ‘A marriage between the parties who are sapindas or in other words a marriage between the parties who are of his or her relations or of the same family. Illustration: there are two parties ‘A’ and ‘B’ where ‘A’ is the husband and ‘8’ is the wife, who has blood relation or close relation to A which can also be termed as Sapinda. So, this process will be treated as void. Voidable Marriages (Section 12) ‘A marriage is voidable on either side of the party is known as voidable marriage It will be valid unless the petition for invalidating the marriage is made. This marriage is to be declared void by a competent court under the Hindu Marriage Act, 1955. The parties of such marriage have to decide whether they want to go with such marriage or make it invalid. The grounds where marriage can be termed as voidable: + The party to the marriage is not capable of giving consent due to the unsoundness of mind. Illustration: There are two parties ‘A’ and ‘8’,where ‘A’ is the husband and ‘8’ is his wife. ‘B’ gave the consent of the marriage when she was suffering from an unsound mind. After some years, ‘B’ gets cured and raised that her consent was invalid and this marriage is voidable because during the time of the consent of ‘8’, she was in an unsound mind. So, this a ground of voidable marriage. The party is suffering from mental disorder which makes her unfit for reproduction of children. Illustration: There are two parties ‘A’ and ‘8’, where ‘A’ is the husband and ‘B’ is his wife. If ‘B’ is suffering from mental disorder due to which she is unfit for reproduction of children. Then this can be a ground for voidable marriage. If the party has been suffering from repeated attacks of insanity. Illustration: There are two parties ‘A’ and ‘B’, where ‘A’ is the husband and ‘B’ is his wife. Anyone from ‘A’ or ‘B’ is suffering from repeated attacks of insanity, then this can also be a ground for voidable marriage. The consent of marriage by either of the parties is done by force or by fraud. Illustration: There are two parties ‘A’ and ‘B’ where A is the husband and B js his wife. If either party gave consent to the marriage by force or fraud, then it will be a voidable marriage. If either of the parties are under-aged, bridegroom under 21 years of age and bride under 18 years of age. Illustration: There are two parties ‘A’ and ‘B’, where ‘A’ is the husband and ‘8’ is his wife. If ‘8’ is under the age of 18 years then this marriage will be considered as voidable or if A is under the age of 21 years then it can also be considered as voidable marriage. If the respondent is pregnant with a child of someone other than the bridegroom while marrying. Illustration: There are two parties ‘A’ and ‘B’ where ‘A’ is the husband and ‘B’ is his wife. During the time of the marriage if ‘B’ is pregnant through another person. Then the marriage would be voidable. Void Marriage | Voidable Marriage Awife does not have the right to claim marriage.maintenance in the void marriage. Ina void marriage, the parties do not have the status of husband and wife Ina void marriage, no | decree of nullity is In avoidable marriage decree of nullity is required. required. Avoid marriage is none in the eyes of law Avoid marriage is to be declared void by a competent court. The children in a void | The children in a voidable marriage are treated as, marriage are treated as_| _ illegitimate but this distinction is deleted by the Supreme legitimate. Court and said a child cannot be said termed as illegitimate. Introduction Marriage is a holy bond where marriage is essential to ensure the coexistence of sides. Each wife has the right to the other’s consortium for convenience. It is a lifelong bond in which the parties commit themselves to live in unity for all time. Every party is entitled to receive from each other certain privileges. There is, therefore, a codification of certain legislation as a Hindu Marriage Act of 1955, in order to ensure that these rights are common. Thus, it is a remedy. Constitutionality of Restitution of Conjugal Rights The issue of the constitutional validity of Section 9 was first raised in T Sareeta v Venkatasubbiah,[3] in which the Andhra Pradesh High Court held Section 9 of the Hindu Marriage Act to be violative of the Constitution and the impugned section was unconstitutional. Justice Chaudhary held Section 9 to be “savageand barbarous remedy violating the right to privacy and human dignity guaranteed by Article 21 of the Constitution, hence void.” Justice Chaudhary traced the history and effectiveness of the remedy in providing the judgment and observed that: “Section 9 promotes no legitimate purpose based on any conception of the general good. It does not sub-serve any social good”. The dictum of Justice Chaudhary did not find favor with the Delhi High Court when it was questioned in Harvinder Kaur v Harminder Singh. Justice Rohtagi observed “Justice Chaudhary in the case of T. Sareetha has over-relied on sex is the basic fallacy in his opinion. As per J. Rohtagi, J. Chaudhary only seems to suggest that restitution of conjugal rights order has only a maiden purpose, that is, to force the disinclined wife to enter into sexual intercourse with her husband.” The matter then finally came before the Supreme Court in Saroj Rani v ‘Sudarshan Kumar Chadha where the Supreme Court overruled T Sareeta relying on the judgment of Justice Rotagi in Harvinder Kaur. Justice Sabyasachi Mukarji observed that “it cannot be viewed in the manner the learned single Judge bench of the Andhra Pradesh High Court has viewed it and we are unable to hold that 5.9 to be violative of Article 14 and Article 21 of the Constitution.” The judgment was held in favor of Section 9 of the Hindu Marriage Act of 1955, in the legal sphere as declared by the apex court and, most of all, the principle of restitution of conjugal rights stands constitutional in the indian legal system. With regard to the violation of Article 14 of the Constitution, the Court ruled that there is complete equality of both genders and equal safeguard of the laws so far as the relief is concerned, thus, Section 9 could not be held to be in violation of Article 14 of the Constitution because by the amending Act 44 of 1964 “either party to a marriage” is allowed to present a petition on the ground given in Section 13 (I-A). With regard to the violation of Article 21 of the Constitution, the Court observed that the only purpose of the remedy is ‘cohabitation’ and it is not enforcing sexual intercourse between the unwilling spouse, The court denounced the introduction of Constitutional Law into family law since it will prove a ruthless destructor of the institution of marriage. The aim of the Restitution Decree was only to encourage a united marriage and to prevent an unwilling woman from engaging in sexual intercourse with the husband. The only objective was to Roachieve ‘cohabitation’ between spouses, and therefore, ‘consortium’ was only concentrated. However, it was perhaps not realized by the Supreme Court and the Delhi High Court that marital rape was legal in India. The husband can very well force his wife to enter into sexual relationships without implications, except with a long- drawn-out petition for divorce based on cruelty or a petition for domestic violence based on sexual violence. In fact, the decree efficiently puts a wife under the pressure of forceful sex with her husband and in the course of this process also strips her of physical autonomy, dignity, and the basic freedom to make her own choices relating to her own life and body, by submitting an unwilled wife to “forced cohabitation” and “consortium.” A. Article 14 of the Constitution Both husband and wife can access a remedy for the Restitution of Conjugal Rights while considering the remedy from a socio-legal perspective, the inherent differences between a man and a woman cannot be ignored. A remedy is not enough available to be applied in society, we should not overlook the fact that most women still enjoy a comparatively low social and financial position in society as compared to men. Restitution of conjugal rights violates the right to equality and right to life. Equality implies equality of thought, actions, and self-realization. The continuation of the remedy leads to unwanted pregnancies and argues that it violates the feeling of respect for themselves, dignity and personal satisfaction of women. The remedy for the Restitution of Conjugal Rights violates the very nature of a person by dictating his choice as to who to live with. Both married couples are not always equivalent and the wife is mostly-socially and economically dependent on the husband in our extremely patriarchal Countries. In the man-dominated society, the advantages of different laws and remedies are usually reaped by men because of ignorance, economic dependence, and other factors. There is only an obvious quality because in the majority of instances the wife is put in an unfavourable situation, acy) of the ConstitutionThe right to privacy (Article 21 of the Constitution), is not expressly guaranteed in the Constitution. Privacy has no fixed definition. The first case of the right to privacy in Supreme Court was the case of Kharak Singh v State of UP Justice Subba Rao said: “any definition of the right to privacy must encompass and protect the personal intimacies of the home, family, marriage, motherhood, procreation, and child-rearing.” In Govind v State of MP,the Court established that right to privacy is a fundamental right, but like its American counterpart, it was included in the liberty clause. Justice Mathew observed that “any right to privacy must compass and protect the personal intimacies of the home, the family, marriage, motherhood, procreation, and child-rearing.” It is a natural necessity for a person to set individual limits and limit the entry of others into this sector. Privacy is very hard to describe as a right which is still undefined in contours. It is not a unity notion but it is more sensitive to enumeration than the definition in multi-dimensional terms. 12.Customary practices _and_legislative provisions relating _to dowry prohibition act. Dowry Prohibition Act, 1961 Penalty for giving and taking dowry (Section 3) ~ According to section 3, if any person after the commencement of the Act gives or takes, abets the giving or taking of dowry shall be punished with an imprisonment for a term not less than five years and with fine which shall not be less than fifteen thousand rupees or the amount of the value of dowry, whichever is more. Penalty for demanding dowry (section 4) - According to section 4, if any person directly or indirectly demands dowry from the parents, relatives or guardians of the bride or the bridegroom shall be punished with an imprisonment of not less than six months and which shall extend to two years and with fine which may extend to ten thousand rupees. The Supreme Court has held in Pandurang Shivram Kawathkar v. State of Maharashtra that the mere demand of dowry before marriage is an offence. In Bhoora Singh v. State of Uttar Pradesh, the court held that the deceased had before being set on fire by her in-laws written a letter to her father that she was 25being ill-treated, harassed and threatened with dire consequences for non satisfaction of demand of dowry. Thus an offence of demanding dowry under section 4 had been committed. Ban on advertisement (section 4-A) — According to section 4-A, the advertisement in any newspaper, journal or through any other medium or a share in the property, business, money, etc by any person in consideration for marriage shall be punished with an imprisonment which shall not be less than six months and which may extend to five years or with fine which may extend to fifteen thousand rupees. Cognizance of offence- According to section 7, a judge not below the rank of a Metropolitan Magistrate or Judicial Magistrate of First Class shall try an offence under this Act. The court shall take cognizance of the offence only on the report by the victim, the parents or relative of the victim, police report or on its own knowledge of the facts of the offence. According to section 8 certain offences under this Act shall be cognizable, non-bailable and non- compoundable. Indian Penal Code, 1860 + Dowry Death (section 304 B)- Section 304(B) reads as follows- 1. Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death” and such husband or relatives shall be deemed to have caused her death. Explanation ~ For the purposes of this sub section, “dowry” shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961. 2. Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life. In Vemuri Venkateshwara Rao v. State of Andhra Pradesh, the court has laid down the following guideline for establishing an offence under section 304(B) and they are-1. That there is a demand of dowry and harassment by the accused, 2. That the deceased had died, 3. That the death is under unnatural circumstances. Since there was demand for dowry and harassment and death within 7 years of marriage, the other things automatically follow and offence under section 304-B is proved. Husband or relative of husband subjecting women to cruelty (section 498-A) — Section 498- A reads as follows- . Husband or relative of husband of a woman subjecting her to cruelty- Whoever, being the husband or the relatives of the husband of a woman, subject such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation — For the purpose of this section “cruelty” means — 1. Any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman, or 2. Harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand In Bhoora Singh v. State, it was held that the husband and in-laws subjected the wife the cruelty for bringing insufficient dowry and finally burnt her down, thereby inviting a sentence of three years rigorous imprisonment and a fine of Rs.500/- for an offence committed under section 498-A of Indian Penal Code. Indian Evidence Act, 1872 + Presumption as to dowry death (Section 113 B) ~ Section 113 B reads as follows- When the question is whether a person has committed dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the court shall presume that such person had caused the dowry death. Explanation —For the purpose of this section “dowry death” shall have the same meaning as in section, 3048 of the Indian Penal Code (45 of 1860).13.£xplain the grounds on which a Hindu marriage can be dissolved by divorce. Grounds for divorce in india: The secular mindset of the Indian judicial system has initiated the proclamation of various personal laws based on different religious faiths. Hindus, Christians, and Muslims are governed under separate marriage acts and grounds for divorce in India. rounds for Divorce under the Hindu Marriage Act, 1955 The following are the grounds for divorce in India mentioned under the Hindu Marriage Act, 1955. Adultery - The act of indulging in any kind of sexual relationship including intercourse outside marriage is termed adultery. Adultery is counted as a criminal offense and substantial proof are required to establish it. An amendment to the law in 1976 states that one single act of adultery is enough for the petitioner to get a divorce. Cruelty — A spouse can file a divorce case when he/she is subjected to any kind of mental and physical injury that causes danger to life, limb and health. The intangible acts of cruelty through mental torture are not judged upon one single act but series of incidents. Certain instances like the food being denied, continuous ill-treatment and abuses to acquire dowry, perverse sexual act etc are included under cruelty. Desertion — If one of the spouses voluntarily abandons his/her partner for at least a period of two years, the abandoned spouse can file a divorce case on the ground of desertion. Conversion ~ In case either of the two converts himself/herself into another religion, the other spouse may file a divorce case based on this ground. Mental Disorder — Mental disorder can become a ground for filing a divorce if the spouse of the petitioner suffers from incurable mental disorder and insanity and therefore cannot be expected from the couple to stay together. Leprosy — In case of a ‘Virulent and incurable’ form of leprosy, a petition can be filed by the other spouse based on this ground Venereal Disease — If one of the spouses is suffering from a serious disease that is easily communicable, a divorce can be filed by the other spouse. Sexually transmitted diseases like AIDS are accounted to be venereal diseases.Renunciation — A spouse is entitled to file for a divorce if the other renounces all worldly affairs by embracing a religious order. Not Heard Alive ~ if a person is not seen or heard alive by those who are expected to be ‘naturally heard’ of the person for @ continuous period of seven years, the person is presumed to be dead. The other spouse should need to file a divorce if he/she is interested in remarriage. No Resumption of Co-habitation — It becomes a ground for divorce if the couple fails to resume their co-habitation after the court has passed a decree of separation. The following are the grounds for divorce in India on which a petition can be filed only by the wif 1) If the husband has indulged in rape, bestiality and sodomy. 2) If the marriage is solemnized before the Hindu Marriage Act and the husband has again married another woman in spite of the first wife being alive, the first wife can seek for a divorce. 3) A girl is entitled to file for a divorce if she was married before the age of fifteen and renounces the marriage before she attains eighteen years of age. 4) If there is no co-habitation for one year and the husband neglects the judgment of maintenance awarded to the wife by the court, the wife can contest for a divorce. Introduction: In Indian Society, marriage is considered as a sacrament. It is an irrevocable relationship between husband and wife established through rituals and customs. Before 1955, there was no relief available to either party in case of a failed marriage. They had to continue with the marriage and couldn’t break the marriage. After the passage of Hindu Marriage Act, 1955 things changed in favor of both parties to the marriage. Now, in case of a failed marriage, the parties do not need to suffer in the marriage and can easily break their matrimonial alliance through Judicial Separation or by a decree of Divorce. JUDICIAL SEPARATION DIVORCE «Can file a petition at any time Can file only after completion of | post marriage. one year of marriage. |Only one stage of judgement. If Judgement is a two-step process. grounds are satisfied, decree First reconciliation, then divorce. granted Brings marriage to an end. Temporary suspension of marriage. Can remarry once decree in favor of divorce is passed. Cannot remarry after the passage Living in an adulterous of decree. . relationship necessary. It is a ground for divorce. - No possibility of reconciliation. Asingle instance of adultery sufficient for Judicial Sep The possibility of reconciliation. Conclusion: Before 1955, there was no provision for separation or divorce. Reforms introduced in the Hindu Law by way of legislation and amendments is a welcome step by the government. The two relieves granted by the HMA,1955 have proven to be effective in resolving disputes between parties by giving them an opportunity to reconcile their difference or by releasing them from marital ties 15.Write a note on divorce by mutual consent . Introduction: Divorce by mutual consent ~ (Section 138} Ina case where none of the aforementioned grounds is available, but the parties decide they do not want to remain married to each other or can not live with one another they can seek divorce by mutual consent under Section 138 of the Hindu Marriage Act. Essentials of divorce by mutual consent Parties should be living separately Section 13(B) of the Act prescribes that in order to mutually dissolve a marriage, the spouses should be living separately for a period of at least 1 year before filing the petition. This period of one year where the parties have lived separatelymust be immediately before the filing of the petition. “Living Separat context of Section 13B does not necessarily mean physically living in different places. The parties could be living in the same house, sharing the same roof but there can still be a distance between the two. If that is the case then they are not considered to be living as husband and wife, which qualifies as living separately. , The same was held by the Hon’ble Supreme Court in the case of Sureshta Devi v. Om Prakash. Wherein it was made clear that living separately does not necessarily mean living in different places. The parties can be living together but not as spouses. Parties have not been able to live together It is said that relationships are made in heaven, however sometimes the holy relationships do not work for long on Earth. These days divorce is taken very lightly and people go for it as a first resort whereas the intention behind the law of divorce was to make it a last resort. Many times, in a marriage it so happens that the spouses can’t stand each other and can no longer live together happily. That is when they opt for divorce by mutual consent. Sadly enough, it often happens that the parties are not able to live together even after trying mediation and reconciliation and putting multiple efforts, before filing a divorce petition by mutual consent. In Pradeep Pant & anr v. Govt of NCT Delhi, the parties were married and had a daughter from their wedlock. However, due to temperamental differences between them, they were not able to live together and decided to live separately. Despite putting their best efforts they were unable to reconcile their marriage and could not see themselves living together as husband and wife ever again. A divorce petition was jointly filed and issues such as maintenance and custody of their child were decided and agreed upon by both. The wife would get custody of their daughter and the husband would reserve visitation rights, it was mutually agreed upon by both of them. Both parties gave their free consent without any undue influence. The court observed that there was no scope of reconciliation and granted a decree of divorce. After filing a petition for divorce by mutual consent, the parties are given a waiting period‘of 6 months, also known as a cooling period and it may extend up to 18 months. During this time the parties must introspect and think about their decision If the parties are still not able to live together after the cooling period, then the divorce petition shall be passed by the district judge. They have mutually agreed that marriage should be resolved In some situations — the parties may choose to give their marriage another chance and mutually resolve their marriage. During the waiting period, the parties may sometimes be able to reconcile and make their relationship work. After the first motion has been passed, the parties have a total of 18 months to file for second motion and if they fail to do so within those 18 months, both parties are deemed to have withdrawn their consent mutually. 16.What is divorce ? on what ground divorce can be obtained? A divorce is a legal action between married people to terminate their marriage relationship. It can be referred to as dissolution of marriage and is basically, the legal action that ends the marriage before the death of either spouse. Ground divorce can be obtained Refer Q.No.13 UNIT-HII 17.Explain the features of a coparcenary and bring out the rights of a coparcenary? Introduction. A Hindu joint family consists of lineal descendants of a common ancestor. In other words, a male head and his descendants, including their wives and unmarried daughters. A coparcenary is a smaller unit of the family that jointly owns property. A coparcenary consists of a ‘propositus’, that is, a person at the top of a line of descent, and his three lineal descendants — sons, grandsons and great-grandsons. Coparcenary property is named thus because the co- ownership is marked by “unity of possession, title and interest” Features of Coparcenary: 1.Community of interest and unity of possessior No coparcener is entitled to any special interest in the coparcenary property nor is he entitled to exclusive possession of any part of the party