1. Incapacity to consummate the marriage within the meaning of Sec.

12 of the Hindu Marriage Act,

1955
a) Can be physical
b) Can be mental
c) Either physical or mental
d) Only physical but not mental
2. A decree of nullity of marriage in cases of voidable marriages, annuls the marriage
a) From the date of the decree
b) From the date of the petition
c) From the date as directed by the court
d) From the date of the marriage
3. “Desertion” in the meaning of Sec.13(1) (ib) of the Hindu Marriage Act, 1955, is constituted
when
a) There is a factum of separation
b) There is animus deserendi
c) Either (a) or (b) exists
d) Both (a ) and (b) co-exist
4. Conversion to another religion, under the Hindu Marriage Act, 1955
a) automatically dissolves the marriage
b) doesnot automatically dissolve the marriage
c) may or may not automatically dissolve the marriage depending on the facts and
circumstances of the case
d) Discretionary to the court to take the marriage automatically dissolved or not
5. . Bar to entertain a petition for divorce is contained in
a) Sec.14 Of the Hindu Marriage Act, 1955
b) Sec.15 Of the Hindu Marriage Act, 1955
c) Sec.19 Of the Hindu Marriage Act, 1955
d) Sec.23 Of the Hindu Marriage Act, 1955

6. Under the Hindu Law, in relation to illegitimate children

a) A court declaration is necessary to confer a status of legitimacy

b) Court declaration is not necessary to confer a status of legitimacy
c) Such a child becomes legitimate after reaching the age of 18 years
d) He cannot become legitimate

7. An order under Sec.24 of the Hindu Marriage Act, 1955 is an

a) An interlocutory order and no appeal lies against it.

b) It is an appealable order generally
c) It is an appealable order, but with the leave of the court only
d) Either (b) or (c)
8. Fine Prescribed under Sec.18 of the Hindu Marriage Act, 1955 for child marriage has been
enhanced by the Hindu Marriage (Amendment) Act, 2007 from one thousand rupees to

a) Rs.10,000 b) Rs.15,000 C) Rs. 50,000 d) Rs.1,00,000

9. Sec.26 of the Hindu Marriage Act, 1955 provides for

a) Custody of minor children

b) maintenance of minor children
c) education of minor children
d) (a) (b) and (c)

10. Sec.7 of the Hindu Adoptions and Maintenance Act, 1956, provides for

a) Requisites of a valid adoption

b) Capacity of a male Hindu to take in adoption
c) Persons capable of giving in adoption
d) Capacity of a female Hindu to take in adoption

11 Order of Permanent alimony under sec.25 of the Hindu Marrriage Act, 1955 can be varied ,
modified or rescinded

a) If the party in whose favour the order has been passed re-marries
b) If the party in whose favour the order has been passed is the wife, she has not remained
chaste
c) If the party in whose favour the order has been passed is the husband, he has had sexual
inter course with any other woman
d) All the above

12. A Hindu wife is not entitled to separate residence and maintenance from her husband if she is

a) Unchaste b) ceases to be a Hindu by conversion C) Both (a) and (b) d) either (a) or ( B)

13. Apostacy from Islam, before the Dissolution of Muslim Marriage Act, 1939, operated as a
complete and immediate dissolution of the marriage, if apostasy is committed by

a) husband b ) wife c) both husband and wife simultaneously d) either the husband or wife

14. In India, in Ithna Ashari law, the mother is entitled to the custody of her male child till the age of

a) 2 years b) 5 years C) 7 years d) puberty

15. In muta marriage, the wife

a) Has a right to leave the Husband before the expiry of the term only with the
permission of the Quazi
b) Has a right to leave the husband before the expiry of the term only with the
permission of the court
 c) Has no right to leave the husband
d) Has a right to leave the husband before the expiry of the term

16. A muslim widow’s right of retention means

A ) a widow has a right to obtain possession of her husband’s estate if her dower remains unpaid

B) a widow lawfully in possession of her deceased husband’s estate is entitled to retain such
possession until her dower debt is satisfied

c) a widow has a right to create a specific charge on the deceased husband’s estate until her dower
debt is satisfied

d) a widow having been possession of her deceased husband’s estate by force or fraud, has a right to
retain such possession until her dower debt is satisfied.

17. Which of the following is not a revocable form of talaq

a) Talaq-ul-biddat B) Talak-ul-sannat c) Talak ahasan d) Talaq hasan

18. If the Husband or the wife dies during the period of iddat following upon the pronouncement of
an irrevocable divorce

a) each is entitled to inherit from the other

b) neither of them can inherit from the other

C) only the husband can inherit from the wife but not vice-versa

d) only the wife can inherit from the husband but not vice versa

19. . A marriage with a woman before completion of her Iddat is

(a) Irregular
(b) Void
(c) Voidable
(d) Neither (b) nor (c)

20. . Failing the mother, the custody of a boy under the age of seven years belongs to:
(a) Father
(b) Paternal uncle
(c) Brother’s wife

21. Under the constitution of India, all aspects of family law are under

a) Union List b) State List c) Concurrent List d) both (b) and (c)

22. Two persons are said to be related to each other by Uterine blood

a) When they are descended from a common ancestress by the same husbands
b) When they are descended from a common ancestress but by different husbands
 c) When they are descended from a common ancestor, by same wife
d) When they are descended from a common ancestor, but by different wives

23. “A” marries “B”, the widow of his elder brother. The marriage is

a) Void b) Valiid c) Voidable (d) None of the above

24. A marriage under the Hindu Marriage Act, 1955 must be solemnized in accordance with the
customary rites and ceremonies of

a) The Bride
b) The bridegroom
c) both the bride and the bride-groom
d) Either the bride and the bride-groom

25. G, a Hindu girl, aged 14 years, marries, B, a Hindu boy by exchanging garlands in a temple. Later
G, finds that B is impotent. G leaves the matrimonial Home and marries A. In the following situation

a) G cannot be punished for bigamy because her first marriage was not valid on account
of improper solemnization of marriage
b) G cannot be punished for bigamy
c) G cannot be punished for bigamy, because he r first marriage was not valid on
account of impotency by B
d) G can be punished for Bigamy

26. Children of annulled voidable marriages and of void marriages are

a) Heirs to their parents as well as to others in the family of their parents

b) Heirs to their parents and to none else
c) Neither the heirs of their parents nor to any one else
d) Either (b) or (c)

27. “ Onus” to prove reasonable excuse for withdrawal from society under Sec.9 of the Hindu
Marriage Act, 1955 is on the

a) Respondent b) Petitioner C) Either (b) or (c) d) varies with the circumstances of each case

28. Restitution of Conjugal rights can be claimed

a) When there is a withdrawal from the society of the other with an excuse
b) When there is a withdrawal from the society of the other without any absolute cause
c) When there is a withdrawal from the society of the other without any reasonable excuse
d) Both (b) and (c)

29. Sec.14 of the Hindu Marriage Act, 1955, enacts a “fair trial”rule according to which

a) A couple can get divorce with in 6 months of their marriage

b) A couple can get divorce within 6 months of their marriage only in exceptional cases
c) A couple can get divorce within one year of their marriage
d) A couple can get divorce only after one year of their marriage except in exceptional cases
30. According to the decision in Rita Mago Vs. V. P. Mago, AIR 1977, Del.176, an order for interim
maintenance and expenses under sec.24 of the Hindu Marriage Act, 1955 can be passed

a) During the pendency of the proceedings only

b) After the conclusion of trial and passing of the decree
c) both (a ) and (b) are correct
d) Either (a ) or (b)

31. The liability of heirs who take the property of the deceased to provide maintenance to dependant
is

a) Joint liability
b) Individual liability and is unlimited

c) individual liability of each heir in proportion of the value of the share of the estate taken by
him

c) either (a) or (B)

32. Supreme Court In Chandrashekhar Vs. Kulaindaivelu, AIR 1963 S C 185, has laid down that
the validity of an adoption is to be determined

a) By the temporal & devolution of property considerations

b) By the temporal consideration
c) By the spiritual rather than temporal consideration
d) By the devolution of property consideration

33. In an adoption made by a Hindu male, the consent of the wife can be dispensed with, if

a) The wife has ceased to be a Hindu

b) The wife has finally and completely renounced the world
c) The wife has been declared to be of unsoundmind by a court of competent jurisdiction
d) Either (a) or (b) or (c)

34. Where a Hindu has more than one wife and adoption has been made with their consent

a) The senior most in marriage shall be called the adoptive mother and the others shall be step
mothers of the child
b) All of them shall be called the adoptive mothers of the child
c) All of them shall be called the step mothers of the child
d) All of them shall be called the natural mothers of the child

35. Under the Hindu Adoptions and Maintenance Act, 1956, an illegitimate daughter can claim
maintenance from her

a) Putative father b) Natural mother c) only (b) but not (a) d) both (a) and (b)

36. Where the dower amount is not fixed, the customary or proper dower of a woman is to be fixed
 a) With reference to the social position of the husband and his means
b) With reference to the social position of her father’s family and her own personal
qualifications
c) Either (a) or (b)
d) Both (a ) and (b)

37. Talak-a-t afweez operates in law as

A) Divorce inpursuance of power delegated by the Husband to the wife

B) a talak of the husband by the wife
C) a talak by mutual consent
D) a talak by lla

38. Offsprings of “Zina” are

a) Illegitimate and can be legitimated by acknowledgment

b) Illegitimates and cannot be legitimated by acknowledgment
c) Legitimate
d) Either (a ) or (b)

39. Dower ranks as

a) An ordinary unsecured debt along with other creditors

b) A preferential debt

c) An ordinary debt having priority over other contractual debts

e) A secured debt

40. According to Shafi or Maliki law, a child born after the termination of marriage, is legitimate, if
born

a) with in 6 lunar months

b) With in 10 lunar months]
c) With in 2 lunar years
d) With in 4 lunar months

Q. A executed a will appointing B as the executor. A authorized his widow to adopt a son and she
adopts accordingly. The property of the deceased consists of a money-lending business. B orrowed
money from a bank for the conduct of money-lending business, which was necessary for the estate.
Later the adopted son repudiates the debt to the bank.. Decide with relevant case law on the point

Q. . “ We have not lost sight of the fact that the conduct of the husband is blame worthy in that he
married a second time and got a child during the pendency of the proceedings but that factor cannot be
blown out of proportion or viewed in isolation nor can deter this court to take a total and broad view of
the realities of the situation when we deal with adjustment of human relationships” In the light of the
above statement critically examine the case of Ashok Hurra Vs Rupa Bipin Zaveri , AIR 1997 SC 1266.
 Q. Under the Shastric Hindu Law there is no limit of time within which a widow can make a valid
adoption to her deceased husband. The Privy council, however on grounds of public policy imposed a
limit upon the widow’s power of adoption. The limit is not a durational limit measured in years. It is a
contingent limit. Mention the contingencies in which the widow’s power of adoption comes to an
end.”. In the light of the above statement mention the law involved in the law of adoption with the
decided cases

Q. On what grounds the constitutional validity of Muslim women ( Protection of Rights on

Divorce) Act, 1986 was challenged and what are the principles laid down by the Supreme Court in
Danial Laiff Vs. Union of India AIR 2001, S. C. 3958

Q. A sole surviving coparcener executed a will under which he authorized his wife to adopt a boy to
him. Under the same will he gave certain property to his wife and also to his daughter. After his
death his widow adopted a boy. Can he challenge the bequests:

(i) If the property bequeathed was the testator’s separate property;

(ii) If it was his ancestral property. Would it make any difference if the testator himself made
the adoption during his life time

Q. In Shamim Ara Vs. State of Uttar Pradesh, A.I.R,2002 S.C.3551, Supreme Court observed
that “ A mere plea taken in the written statement of a divorce having been pronounced
sometimes in the past cannot, by itself, be treated as effecting talaq on the date of the delivery of
the copy of the written statement”. In the light of the above observation critically examine the above
said case

Q. Discuss briefly the grounds for judicial separation under the Hindu Marriage Act, 1955. How does
a decree of judicial separation affect the marital status of the parties ?

Q. Whether a muslim woman can divorce her husband under muslim law? What is the effect of
divorce upon the wife and husband after divorce ? Elucidate the grounds available to a muslim
married woman under the provisions of the Dissolution of Muslim Marriages Act, 1939

Short questions

a) Difference between Mitakshara and Dayabhaga

b) Ante-ado0ption Agreement
c) Ceremonies incidental to a Christian marriage
d) Doctrine of Factum Valet
e) Difference between Khula and Mubarat
f) Powers of the Testamentary guardian
g) Muta marriage
h) Dower Under MulimLaw
i) De facto guardian
j) Changes made in the law of guardianship by Hindu Minority ad Guardianship Act, 1956
 1. A executed a will appointing B as the executor. A authorized his widow to adopt a son
and she adopts accordingly. The property of the deceased consists of a money-lending
business. B borrowed money from a bank for the conduct of money-lending business,
which was necessary for the estate. Later the adopted son repudiates the debt to the
bank. Decide with relevant case law on the point.
The given problem, resembles the facts in the case of “Ramanathan vs palaniappa”.

Facts of the case: executed a will appointing B as executor of the will and authorising
his (A's) widow to adopt a son. Till the son became a major the executor was to manage
the property which consisted of an ancestral money lending business. The widow later on
adopted a son. In the course of the business B appointed an agent for conducting the
business borrowed from a Bank executing a promissory note along with C, each taking a
half of the money. C had to pay the whole amount to the Bank. After paying the whole
amount to the Bank, C sued the minor for contribution.

Issues: whether the minor is liable to pay the debt to the bank, which was made by the
testamentary guardian?

Legal principle: the legal principle involved in this case is “Section 9 of Hindu Minority
and Guardianship Act, 1956.”

Powers of the testamentary guardian:

Section 9. Testamentary guardians and their powers.

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

The father is the natural guardian of his minor children. By his Will he can point a guardian to
look after the property and person of his minor children. Such a guardian is called a testamentary
guardian. Under Sec. 9 he cannot function if the testator is survived by his widow (i.e. mother of
the children for whom the testamentary guardian is appointed). As natural guardian the mother
has a superior right to guardianship. In fact she can herself by her will appoint another
testamentary guardian who will look after her children and their property during their minority
on her death. But if she dies without leaving such a will, the appointment of testamentary
guardian by the father revives and such testamentary guardian can function.

The powers of the testamentary guardian are defined by the will of the testator. He has the
powers of a natural guardian subject to any restrictions that may have been imposed upon them
by the will appointing him as testamentary guardian.

Judgement: the minor's plea was that B or his agent could not borrow so as to bind his estate. It
was held that B was a testamentary guardian and had the powers of a natural guardian as defined
in Hanuman Prasad's case. The appointment of an agent for a business of the kind was held to be
within the powers of a natural guardian under Hindu law. The continuation of the business was
also within his powers "even apart from the directions contained in will". The borrowing was for
the benefit of the minor's estate and so the suit for contribution was decreed.

Conclusion: So, in the given problem, minor is liable to pay the debt to the bank, which was
made by the testamentary guardian. Because, B was a testamentary guardian and had the powers
of a natural guardian as defined in Hanuman Prasad's case. The appointment of an agent for a
business of the kind was held to be within the powers of a natural guardian under Hindu law. The
continuation of the business was also within his powers "even apart from the directions
contained in will". The borrowing was for the benefit of the minor's estate.
 2. “ We have not lost sight of the fact that the conduct of the husband is blame worthy in
that he married a second time and got a child during the pendency of the proceedings
but that factor cannot be blown out of proportion or viewed in isolation nor can deter
this court to take a total and broad view of the realities of the situation when we deal
with adjustment of human relationships” In the light of the above statement critically
examine the case of Ashok Hurra Vs Rupa Bipin Zaveri , AIR 1997 SC 1266.
A)

CASE: ASHOK HURRA VS RUPA BIPIN ZAVERI.

CITATION: AIR 1997 SC 1266.

PETITIONER: Ashok Hurra.

RESPONDENT: Rupa Bipin Zaveri.

BENCH: JUSTICE M.M. PUNCHHI, JUSTICE K.S. PARIPOORNAN

ACTS AND PROVISIONS:

SECTION 13(B) OF HINDU MARRIAGE ACT, 1955.

SECTION 13(B)(1) OF HINDU MARRIAGE ACT, 1955.

SECTION 13(B)(2) OF HINDU MARRIAGE ACT, 1955.

ARTICLE 142 OF INDIAN CONSTITUTION, 1950.

FACTS:

In this case, Ashok Hurra is a renowned medical expert and husband of the respondent i.e. Rupa Bipin
Zaveri. Their marriage was solemnised in the year 1970 as per the Customs and under Hindu Marriage
Act, 1955. There were certain alleged disputes between the wife and the husband i.e. appellant and the
respondent. In the year 1983, both of them filed a case for dissolution of Marriage via mutual consent
under Section 13(B) OF HMA, 1955.

Under Section 13B(2) of the Hindu Marriage Act (hereinafter referred to as `the Act'), on a motion by
both the parties, six months after the date of presentation of the petition under sub-section (1) of the Act,
and not later than eighteen months, the Court, shall, after enquiry, pass a decree of divorce by mutual
consent. On 4.4.1985, the husband alone moved an application praying for passing a decree of divorce.
On this motion, the Court issued notice to the wife. It is seen than the hearing of the petition commenced
on 15.4.1985. On that day, on the joint application of the advocates of both the parties, the case was
adjourned. There were several adjournments.

In the year 1986, the respondent withdrew her consent for divorce. After that, there were several cases
filed against each other by both the parties. It includes several allegations like adultery, harassment,
bigamy etc. when the case was pendente lite, the petitioner remarried and had a son. The respondent filed
a separate case claiming the declaration of second marriage as invalid and the declaration of their son as
illegitimate.

Pertaining to the divorce by mutual consent, the lower court held that the divorce by mutual consent
cannot be granted. In the High Court, a single judge bench held that the divorce by mutual consent be
granted and the same was reversed by division bench of the said High Court. On that, the present appeal
lies near the Hon’ble Supreme court.

QUESTIONS OF LAW:

1. whether a party to a petition for divorce by mutual consent under Section 13B of the Act, can
unilaterally withdraw the consent?
2. Whether divorce by mutual consent be granted to the appellant on the ground that the marriage was
irretrievably broken down?
PETITIONER’S CONTENTIONS:

1. The Trial Court erred in dismissing the joint application filed by the parties under Section 13B of
the Act. The respondent/wife has no locus or competency to withdraw her consent after the period
of 18 months specified in Section 13B(2) of the Act.
2. Section 13B(1) of the Act. All the three ingredients were satisfied when the joint petition was
filed by the parties, namely, (a) that they have separated for a period of one year or more; (b) that
they have not been able to live together and (c) that they have mutually agreed to dissolve the
marriage. The motion for passing a decree was made after six months of the date of presentation
of the petition by the husband for which the wife had notice and this is sufficient compliance of
Section 13B(2) of the Act.
3. the strained relationship between the parties for over 13 years, and the "Kilkenny fight"
between the parties, who are educated persons, it is evident, that the marriage has
irretrievably broken down with no chance of re-union and so this Court by taking into
account, the totality of the facts and circumstances in this exceptional case, should pass a
decree of divorce, with appropriate directions, in order to do complete justice in the
matter.

RESPONDENT’S CONTENTIONS:
1. It is true, that a joint petition for dissolution of marriage by the decree of divorce was made by
both the parties together and the requirements of Section 13B(1) are satisfied. Under Section
13B(2) of the Act, in order to pass a decree after the period of six months, a motion should be
made by both the parties. It is not so in this case. The motion was made only by the husband. It is
incompetent.
(2) The respondent/wife had withdrawn the consent before the enquiry, at any rate, before the
decree under Section 13B(2) could be passed. Consent for dissolution should be present at the
time of filing the joint application as also on the date when the decree has to be passed. The
expiry of 18 months from the date of filing of the petition is irrelevant.
3. the conduct of the appellant/husband disentitles him to any relief. Indeed, when the
proceedings were still pending in the trial court the appellant married a second time and got a
male child. Thereby, he committed a wrong. He cannot take advantage of his own wrong, and
cannot invoke the jurisdiction of this Court by urging it as a ground for passing a decree of
divorce in order to do complete justice in the matter.
4. Sureshta Devi v. Om Prakash [1991(1) SCR 274 = AIR 1992 SC 1904] and contended that
it is open to one of the parties at any time till the decree of divorce is passed to withdraw the
consent given to the petition, and mutual consent to the divorce is a sine qua non for passing a
decree for divorce under Section 13B of the Act. Mutual consent should continue till the divorce
decree is passed. It is positive requirement for the Court to pass a decree of divorce. Since this
crucial or vital aspect is absent in this case, counsel argued that the matter is concluded and that
it is unnecessary to consider the other aspects.

JUDGMENT
The petition for divorce by mutual consent was granted subject to payment of 10 lakhs to the respondent.

RATIO DECIDENDI

1. after considering the facts and circumstances of this case, it can be reasonably fathomed that the
marriage was dissolved and it was broken down. The catena of cases filed by both the parties, the
desertion, the futile and dangerous allegations, portray the fact that the marriage was irretrievably
broken down.
2. In Romesh Chander v. Smt. Savitri (JT 1995 (1) SC 362) when the Court come to the
conclusion that the marriage is irretrievably broken and that there was no possibility of reunion or
reconciliation between the parties and that ingredient of Sec.23(1)(bb) were non-existent; i.e.
there was free consent to a joint petition for divorce by mutual consent by both the parties, the
Court can and shall have to pass a decree for dissolution of marriage by mutual consent as the
very legislative intent behind enacting such a provision would be rendered meaningless if it
would render the provision to lead to position of perpetuation or procrastination of agonies and
miseries of the separated spouses despite the realisation that no reconciliation was possible.
3. In this case, after due consideration of facts and circumstances, it is implied that the marriage
cannot be reconciled. It is irretrievably broken down.
4. It is irrelevant to consider whether the consent can be taken away unilaterally as the question
pertaining to divorce was solved.
5. Since already the husband got married and has a child, the court awarded 10 lakhs along with
50,000 rupees for litigation expenses.
3. Under the Shastric Hindu Law there is no limit of time within which a widow can make a
valid adoption to her deceased husband. The Privy council, however on grounds of public
policy imposed a limit upon the widow’s power of adoption. The limit is not a durational limit
measured in years. It is a contingent limit. Mention the contingencies in which the widow’s
power of adoption comes to an end.”. In the light of the above statement mention the law
involved in the law of adoption with the decided cases
Under the Shastric Hindu Law there is no limit of time within which a widow can make a valid
adoption to her deceased husband. The Privy council, however on grounds of public policy
imposed a limit upon the widow’s power of adoption. The limit is not a durational limit
measured in years. It is a contingent limit. Mention the contingencies in which the widow’s
power of adoption comes to an end.”. In the light of the above statement mention the law
involved in the law of adoption with the decided cases.
A) Under the Shastric Hindu Law there is no limit of time within which a widow can make a
valid adoption to her deceased husband. The Privy council, however on grounds of public
policy imposed a limit upon the widow’s power of adoption. The limit is not a durational
limit measured in years. It is a contingent limit.
B) Sec 8 of Hindu Adoptions and maintenance Act, 1956 deals with the capacity of a
female Hindu to take in adoption. It states that any female hindu:-

a) Who is of sound mind

b) Who is not a minor, and

c) Who is not married, or if married, whose marriage is dissolved or whose husband is dead or
has completely and finally renounced the world or has ceased to be a hindu or has been declared
by a court of competent jurisdiction to be of unsound mind, has the capacity to take a son or
daughter in adoption.

This section clearly states that a hindu widow can take a son or daughter in adoption.

According to the sastric hindu law there were various schools and various interpretations
regarding the adoption by a widow. Mithila school says that a widow cannot make any adoption.
Maharasthra school says that a widow can adopt and no permission is required. Bengal school
and benarus school says that with the prior permission of her husband during his lifetime she
may adopt. Madras school says that either her husband or the authority from the husband’s
nearest sapindas is required for adoption.

In the light of the decided case laws a widow can adopt any person. But there is a limitation for a
widow on the adoption i.e A widow cannot adopt a son or daughter when she has a daughter-in-
law who is competent to adopt. If an adoption made by a hindu widow if her son and husband
died without leaving and legal heir but if the daughter-in-law is present, she (daughter in law)
has the power of adoption but not mother-in-law. In another circumstance, if a widow had a
grand son and her son and daughter in law was dead in that case her power of adoption comes to
an end.

Thus the power of a widow to adopt comes to an end by the interposition of a grandson or
the son's widow competent to adopt.
There is a related case law to the concept of widow adoption which are decided by the privy
council:-

Bhoobun moyee vs Ram Kishore:-

Facts :- Gour Kishore had an authorised wife named Chundrabullee. They had a son named
Bhowani Kishore and his wife bhoobun moyee. Bhowani Kishore died and his wife adopted
Rajendra Kishore. Later after the death of Gour Kishore and as he authorised her to adopt a son,
she adopted Ram Kishore. Now Ram Kishore sued for possession of bhowani Kishore’s
property.

Issues :-

1) whether the adoption made by the widow mother-in-law is vaid?

2) whether Ram Kishore is entitled to the property share?

Reasoning :-

1) Suppose Bhoowani Kishore had left a son who subsequently died. Gour Kishore would then
have received ous offering from his son and grandson. The spiritual purposes sonship would
have been fully satisfied. On the death of the son leaving a grandson Chundrabullee's power of
adoption would come to an end and would not be revived by the subsequent death of the son.
The Privy Council thought that the result would be the same even if Bhowani Kishore died
leaving a widow instead of a son for the widow could be the means of continuing the line.

(2) If Ram kishore's adoption is to be treated as valid, he should be able to recover his adoptive
father's property. But that property had vested in Bhoobun Moyee as widow of Bhowani Kishore
and she could not be divested because ram Kishore would only be bhowani kishore’s brother and
so a remoter heir than bhoobun moyee, wife of the last male holder bhowani Kishore.

Judgement :- The adoption made by Chundrabullee is invalid. Chundrabullee’s power of

adoption came to an end as soon as Bhowani Kishore died leaving his widow to continue the
line. In another case Padma Kumari v. court of wards. In that case grandmother, succeeded to her
grandson who died unmarried. The subsequent adoption by her was held to be invalid. The law
was stated thus: "Where a Hindu dies leaving a widow and a son, and that son dies leaving a
natural born or adopted son or leaving no son but his widow to continue the line by means of
adoption, the power of the former widow is extinguished and can never after wards be revived".

The Supreme Court also and has set its seal of approval upon the rule in Bhoobun Moyee's case
in Guru Nath v. Kamalabai,' the question was whether the mother could adopt on the death of the
Son leaving his own son who also died without leaving a widow or son. It was held that the
moment the son died leaving his own son the mother's power came to an end. The subsequent
death of the grandson does not revive that power. It is extinguished as soon as the son leaves his
own son or widow. Mahajan, J, held that it is now well established by judicial decisions ranging
over three quarters of a century that "the power of a widow to adopt comes to an end by the
interposition of a grandson or the son's widow competent to adopt". The learned Judge conceded
that there is no Sastric foundation for this rule but it has been made part of the Hindu Law by
Judicial decisions.

4. On what grounds the Constitutional validity of Muslim women ( Protection of Rights on

Divorce) Act, 1986 was challenged and what are the principles laid down by the Supreme
Court in Danial Laiff Vs. Union of India AIR 2001, S. C. 3958

a)CASE: DANIAL LATIFI V. UNION OF INDIA.

CITATION: (2001) 7 SCC 740

PETITIONER: Danial Latifi

RESPONDENT: Union of India

BENCH: Justice G.B. Pattanaik, Justice S. Rajendra Babu, Justice D.P. Mohapatra, Justice Doraiswamy
Raju, Justice Shivaraj V. Patil

ACTS AND PROVISIONS:

SECTION 125 OF Cr.P.C, 1973.

SECTION 127(3)(b) Cr.P.C, 1973.

SECTION 3(1)(a) OF the Muslim Woman (Protection of Rights on Divorce) Act,1986

SECTION 4 OF the Muslim Woman (Protection of Rights on Divorce) Act,1986.

FACTS:

In this case, a judgment delivered by the Hon’ble Supreme Court in the case of Mohd. Ahmed Khan v.
Shah Bano Begum((1985) SCC 556) was made in effective via The Muslim Woman (Protection of
Rights on Divorce) Act of 1986. In Shah Bano’s case, the relationship between the wife and the husband
existed for 40 years. She served him and the entire family for the entire 40 years. As per the customs of
Muslim law, husband paid Mahr during the period of Iddat. After that, he stopped paying maintenance.
This was challenged in the court of law as under Section 125 of Cr.P.C, she is entitled to maintenance if
she isn’t able to maintain herself. Supreme Court held that a Muslim divorced woman, contrary to the
Muslim customs, can claim the maintenance even after the period of Iddat. In this case, it was held that if
any Muslim divorced woman remains unmarried and if she is unable to maintain herself then the duty
casts upon the husband to provide maintenance to her. According to the practices and customs of
Muslims, which was in vogue until the judgment delivered in that case, was that the Muslim divorced
woman cannot claim maintenance after the period of Iddat.

To the contrary, the judgment was given stating that the divorced Muslim woman is entitled for
maintenance even after the period of Iddat. In order to revoke and safeguard the customary practices of
Muslims, the The Muslim Woman (Protection of Rights on Divorce) Act of 1986 was enacted. As per this
Act, if any Muslim divorced woman remains unmarried and if she is unable to maintain herself then the
duty will lie on the part of the relatives of the divorced wife but not on the husband. Any relative, who
will inherit her property, is liable for paying maintenance to her after the period of iddat. If no relatives
exist then she can claim from the Wakf Board. This Act was challenged as its violative of verdict
delivered in Shah Bano’s case.

QUESTION OF LAW:

 Whether the Muslim women can claim maintenance even after the period of iddat?
 Whether the Muslim Woman (Protection of Rights on Divorce) Act of 1986 is constitutionally
valid?

PETITIONER’S CONTENTIONS:

1. the Muslim Husband is liable to pay maintenance to the wife in cases where she is in a stage
where she cannot maintain herself. Until remarriage, it becomes the onus on the part of the
husband to take care of the estranged wife who isn’t taken care. One cannot leave the divorced
wife alone and in a destitute manner.
2. Under Section 125 of Cr.P.C., husband is liable to maintain his wife, parents and children. Here,
in pertinence to the maintenance of wife, he’s liable to pay maintenance until she gets remarried.
3. it was further contended that irrespective of one’s religion, husband is liable to pay maintenance
until the divorced woman gets remarried. It is a criminal procedural law and it shall be binding on
all parties irrespective of the religion.
4. In the case of Mohd. Ahmed Khan v. Shah Bano Begum((1985) SCC 556), it was held that the
muslim husband is liable to pay maintenance even after the period of iddat if she is unable to
maintain herself.
5. the Muslim Woman (Protection of Rights on Divorce) Act,1986 is constitutionally invalid as it
violates Articles 14, 15 and 21 of Indian constitution. If Muslim women are discriminated from
the other divorced women then it amounts to violation of equality under Article 14. They form no
distinct class. Under Article 15, Muslim divorced women are being discriminated based on
religion. If they aren’t eligible for maintenance then their right to live with human dignity is being
violated under Article 21.
RESPONDENT’S CONTENTIONS:

1. Petitioner claims that Section 125 of Cr.P.C. was enacted so as to reduce vagrancy. If this is the
intended purpose then Section 3(1)(a) and Section 4 of the Muslim Woman (Protection of Rights
on Divorce) Act,1986 reduce the vagrancy existing there. It not only reduces the vagrancy but
also respects the customs of the Muslims.
2. It doesn’t violate Articles 14; 15 and 21 as reasonable and fair compensation will be provided by
the husband. Hence, it not only includes the present expenses but also includes future expenses as
well. Hence, it’s termed as reasonable and fair compensation.
PRINCIPLES

1. A Muslim husband is liable to make reasonable and fair provision for the future of the divorced
wife which obviously includes her maintenance as well. Such a reasonable and fair provision
extending beyond the iddat period must be made by the husband within the iddat period in terms
of section 3(i)(a) of the Act.
2. Liability of the Muslim husband to his divorced wife arising under Section 3(i)(a) of the Act to
pay maintenance is not confined to the iddat period.
3. A divorced Muslim woman who is not remarried and wo is not able to maintain herself after the
iddat period can proceed as provided under Section 4 of the Act against her relative who are
liable to maintain her in proportion to the properties which they inherit on her death according to
 Muslim law for such divorced woman including her children and parents. If any of her relative
being unable to pay maintenance the Magistrate may direct the State Waqf Board established
under the Act to pay maintenance.
4. The provisions of the Act do not offend Articles 14, 15 and 21 of Indian Constitution.
JUDGMENT:

It was held that the Muslim Women (Protection of Rights on Divorce) Act, enacted in the year 1986
is constitutionally valid and the husband is not liable to pay maintenance after the period of iddat
 5. A sole surviving coparcener executed a will under which he authorized his wife to adopt a
boy to him. Under the same will he gave certain property to his wife and also to his
daughter. After his death his widow adopted a boy. Can he challenge the bequests?
(i) If the property bequeathed was the testator’s separate property;
(ii) If it was his ancestral property. Would it make any difference if the testator himself
made the adoption during his life-time?

SOLE SURVIVING COPARCENER

A coparcener outliving all other coparcener is known as the sole surviving coparcener. He may be alone
in the family or there may be other female member along with him in the family. The nature of property
in the hands of such sole surviving coparcener is that of HUF property.

PRE-ACT LAW

If the Testator makes the adoption :

(i) Self-acquired property: In the first Pittapur case, Sri Raja Rao Venkata Suryamahaipathi
Ramakrishnarao. v. Court of Wards, 1899 22 Mad. 383 (PC), it was held that adoption does not
deprive the adopter of his rights to dispose of property when in respect of that property the adoptive son
does not become a coparcener. In that case the property disposed of by will was an impartible raj and so
the adopted son did not become a coparcener with reference to it. The will was held to be valid. The same
principle is applicable to self-acquired property.

(ii) Ancestral Property: It was held in Krishnamurthi v. Krishnamurthi, 50 Mad. 508 (PC), that the
adopted son becomes a coparcener and so the will of the adoptive father does not bind him.

If the widow makes the adoption: In this case the will as to separate property had already come into
effect and a valid bequest had been made thereunder. So the son adopted by the widow is bound by it. A
will as to coparcenary property also when the testator is the sole surviving coparcener has the same effect
and the adopted son is bound by it and this was stated in the case of Basant Kumar V. Ram Shankar.

Under New Act: Adoption does not effect the testamentary Power of the adoptive father or divest any
vested estate the adapted Son cannot challenge the bequests.
 6. In Shamim Ara Vs. State of Uttar Pradesh, A.I.R 2002 S.C. 3551, Supreme Court
observed that “ A mere plea taken in the written statement of a divorce having been
pronounced sometimes in the past cannot, by itself, be treated as effecting talaq on the date
of the delivery of the copy of the written statement”. In the light of the above observation
critically examine the above said case?

Case Name: Shamim Ara Vs. State of Uttar Pradesh

Citation: A.I.R 2002 S.C. 3551

Court: Supreme Court of India

Bench: R.C. Lahoti, P.Venkatarama Reddi.

Acts Covered: 1. Section 125 Code of Criminal Procedure, 1973

2. the Muslim Women (Protection of Rights on Divorce) Act, 1986.

3. Articles 15(3), 37, 38 and 39 of the Constitution of India, 1950.

4. Article 104 of The Limitation Act, 1908.

Facts of the Case :

Shamim Ara, the Appellant was married to Abrar Ahmed, Respondent no. 2 sometime in 1968. They had
four children. In the year 1979, the Appellant filed a case of desertion and cruelty and claimed
maintenance under Section 125 of Crpc for her and her two minor children. The presiding judge of the
Family Court in Allahabad in the year 1993 had refused to grant maintenance on the ground that the
Appellant had already been divorced. During the course of the proceedings one of the minor child had
become a minor and the court allowed maintenance for the lone minor child at Rs. 150/- per month. The
Husband in the written statement had denied the allegations of cruelty and submitted that he had divorced
her and gave a house to her in lieu of Mehr. Consequently, even claimed protection under the Muslim
Women (Protection of Rights on Divorce) Act, 1986. The Appellant on the other hand, declined that she
had been divorced in the witness-box. The Husband on the other hand, contended that he had divorced her
on 11.7.1987 at 11am by triple talaq. In presence of 4-5 members of the neighborhood. The Family Court
Judge upheld the Husband’s (Respondent no.2) contentions. In its order, the Family Court Judge had
delved into the Affidavit dt. 31.8.1987 wherein he had stated that he had divorced his wife 15months
before and from such affidavit found that the Husband had divorced her already. In that view, the Judge
held that, as she is already divorced, she is not entitled to maintenance. In a revision petition filed by the
Appellant in the High Court. The High Court held that, the alleged divorce which was given by the
Respondent was not given in the presence of the Appellant. But the communication would stand complete
on 5.12.1990 as that was the date wherein the reply affidavit was filed. The High Court held that the
Appellant is entitled to a maintenance of Rs. 200/- per month from 1.1.1988 to 5.12.1990. The Appellant
filed an appeal by Special Leave in the Supreme Court.

Question of Law:

Whether the appellant can be said to have been divorced and the said divorce communicated to the
appellant so as to become effective from 5.12.1990, the date of filing of the written statement by the
respondent no.2 in these proceedings.

The contentions of the Appellants:

1. None of the ancient texts or scriptures has accepted these kinds of divorce which has been
accepted by the Family Court and the High Court.
2. In the case of A. Yousuf Rawther Vs. Sowramma, AIR 1971 Kerala 261, Justice Krishna Iyer
held that while interpreting a legislation, it must be done so to protect the weaker sections, in this
case women. Within the grammatical flexibility of that Statute. To that effect, even the Islamic
ethos was considered.
3. In Mohammed Haneefa Vs. Pathummal Beevi, 1972 K.L.T. 512, Justice V. Khlid of the Kerala
High Court felt dutybound to alert the sorry state that the husband has unbridled power in
granting divorce to his wife.
4. (Quaran IV:34) Islamic Law forbids a man from divorcing his wife as long as she is faithful,
obedient and of good character to him

The contentions of the Respondent:

1. The Respondent brought in the word Talaq which says, that even oral talaq is valid if it is without
any ambiguity even the intention need not be proved. Talaq can be given even in the absence of
the Wife if the Wife’s name is uttered.
2. Rashid Ahmad v. Anisa Khatun (1932) 59 I.A. 21, they clearly indicate an intention to dissolve
the marriage and no proof of intention is necessary. The intention of the husband is
inconsequential .In the case of Ghansi Bibi v. Ghulam Dastagir (1968) 1 Mys. L.J. 566. If a man
says to his wife that she has been divorced yesterday or earlier, it leads to a divorce between
them, even if there be no proof of a divorce on the previous day or earlier.
3. The decision of A.P. High Court in (1975) 1 APLJ 20 has also been cited by Mulla in support of
the proposition that the statement by husband in pleadings filed in answer to petition for
maintenance by wife that he had already divorced the petitioner (wife) long ago operates as
divorce.
Held: Neither of the marriage stands dissolved on 5.12.1990 nor does the liability of Respondent
no.2 to pay maintenance come to an end on 5.12.1990.

Reasoning:
"Law is dynamic and its meaning cannot be pedantic but purposeful." The cases cited were
decided 20-30 years ago and the country had progressed in many walks of life and there should
be progressive interpretation of Laws and this cannot be lost with regressive trends. For Talaq to
be effective it has to be pronounced rhetorically and articulately. The respondent 2 ought to have
substantiated his claim with evidence and cannot plea talaq with mere written statement filed.
 7. Discuss briefly the grounds for judicial separation under the Hindu marriage Act 1955.
How does a decree of judicial separation affect the martial status of the parties ?
Ans.

Judicial separation :

Either party to a marriage, whether solemnized before or after the commencement of this act may present
a petition praying for a decree for judicial separation on any of the grounds specified in sub section (1) of
section 13 and in the case of a wife also on any of the grounds specified in sub section (2) there of as
grounds on which a petition for divorce might have been presented.

Where a decree for judicial separation has been passed, it shall no longer be obligatory for the petitioner
to cohabit with the respondent, but the Court may, on the application by petition of either party and on
being satisfied of the truth of the statements made in such petition, rescind the decree if it considers it just
and reasonable to do so.

Scope of amendment :

Before the amendment the grounds available for the judicial separation were different from the divorce
thus the cruelty on the part of the respondent was a ground for the judicial separation but not for the
divorce. Now the grounds for the judicial separation and the divorce are identical. The only difference is
that for the relief of divorce the petitioner case come to Court only after one year from the date of the
marriage and not earlier. There is no such requirement in the case of the relief of judicial separation.

judicial separation is still only a lesser remedy than divorce it keeps intact the marital tie whereas divorce
puts an end to the relationship of husband and wife. That is why divorce is an more drastic remedy.

Grounds for judicial separation:

1. Desertion by the respondent lot two years immediately preceeding the presentation of the petition

2. Legal cruelty of respondent.

3. Respondent suffering from leprosy for not less than year

4. Respondent suffering from venereal diseases for not than three years.

disease not having been contracted from the Petitioner

5. Respondent suffering from unsoundness of mind for not less than two years

If the husband contracted VD. from the wife, the wife as Petitioner can only ask for Divorce and not
judicial separation. But the husband as petitioner can claim divorce or judicial separation. Conversely, if
the husband communicated V.D to his wife, he can only ask for divorce. judicial

6. Respondent having sexual intercourse outside wedlock. Even a single isolated act of martial
faithlessness is sufficient for judicial separation, but living in adultery should be proved before the
aggrieved party can claim divorce
7. It is clear from the table Ground given above that judicial separation is a lesser remedy. In fact a decree
for judicial separation complied with for one year may be made the foundation for a petition for divorce.
When not compiled within one year may be made the foundation for a petition for divorce.

Effect of Amendment :-

After the Amendment of 1976, Sec. 10 has been completely recast. The various grounds for judicial
separation mentioned in the old Section have been omitted. It is provided that the petitioner may apply for
judicial separation on precisely the same grounds that can support a petition for divorce Under See: 14 no
petition for divorce can be presented within one year of marriage. For the lesser remedy of judicial
separation, however, there is no such restriction.

DEFENCES TO PETITION FOR JUDICIAL SEPARATION

The defenses open to a respondent in a petition for judicial separation are-

(1) Statutory time limits as to disability have not been fulfilled.

(2) Alleged acts of cruelty do not amount to legal cruelty

(3) Alleged desertion does not constitute legal desertion

When a decree for judicial separation has been granted and there is no resumption of cohabitation for one
year from the dated the original decree, a petition for divorce can be filed. The decree may have been
appealed against but it is not the termination of the proceedings finally that matters. The one year is to be
reckoned only from the date of the original order of the trial Court.
 8. whether a Muslim women can divorce her husband under Muslim law? What is the effect
of divorce upon the wife and husband after divorce ? Elucidate the grounds available to a
Muslim married woman under the provisions of the Dissolution of Muslim Marriages
Act, 1939
Yes WIFE'S SUIT FOR DIVORCE ON THE GROUND THE HUSBAND HAS CHARGED
HER WITH ADULTERY (1) WHERE THE CHARGE IS WELL FOUNDED (2) WHERE THE
HUSBAND WITHDRAWS THE CHARGE
Under the Mahomedan Law, a false charge of adultery furnished the wife a ground for divorce.
She had to take on oath before the Kazi calling upon herself the wrath of God if the accusation
was true. Then the Kazi would give an opportunity to the husband to retract his charge. If he
refused, the Kazi would dissolve the marriage. This was called the Procedure of Li 'an
(Imprecation or calling upon oneself the curse of God).Mahomedan Law
The modern procedure is different. The wife files the suit and the burden is upon the husband to
prove the truth of his charge. If he fails, the decree for dissolution would follow. The court is not
bound to provide an opportunity to the husband to retract his accusation But if he voluntarily
retracted at an early stage of the suit (is before close of evidence) the court had discretion to
dismiss the wife's suit for divorce. But under the Dissolution of Marriage Act, 1939 there is no
such discretion and the retraction will be ignored.
When wife is seeking divorce:- Till the Hindu Law was amended in 1976, the Mahomedan
wife's position was more advantageous as the conditions for divorce were less stiff than in the
case of the Hindu wife. The wife under the Mahomedan Law can secure divorce under the
Dissolution of Muslim Marriage Act of 1939.

Effect of divorce
A divorce becomes complete as soon as it becomes irrevocable .Then it will have the following
effects upon the parties to the marriage

Effect upon wife

(1) Wife can claim her dower. If the divorce was effected before consummation, she can claim
only half the dower

(2) She can claim maintenance during iddat or until Talak is communicated to her, whichever is
later.
(3) Wife loses her right of inheritance to her husband
(4) Wife can marry another after waiting for period of iddat. She can marry without such waiting
if her marriage was not consummated.

Effect upon Husband

(1)He has to pay the dower
(2) He loses his right of inheritance to the wife
 (3) He can marry another if as a result of the divorce he has less than 4 wives, He can do this
after the period of iddat of the divorced wife where there had been consummation. In the absence
of consummation there is no iddat of divorce.
(4) If he wants to remarry the divorced wife, he may do so even during iddat. However, where
he had divorced by a triple Talak Le. irrevocably with immediate effect, there is a condition
precedent to remarriage, namely, marriage of the divorced wife to another, consummation of that
marriage and its dissolution. The stringent condition is intended to discourage such hasty divorce
(5) Cohabitation with the divorced wife without remarriage is unlawful and the issue would be
treated as illegitimate
Grounds for decree for dissolution of marriage-
A woman married under Muslim law shall be entitled to obtain a decree for the dissolution of
her marriage on any one or more of the following grounds, namely
1. that the whereabouts of the husband have not been known for a period of four years
2. that the husband has neglected or has failed to provide for her maintenance for a period of
two years;
3. that the husband has been sentenced to imprisonment for a period of seven years or upwards;
4. that the husband has failed to perform, without reasonable cause, his marital obligations for
a period of three years
5. that the husband was impotent at the time of the marriage continues to be so:
6. that the husband has been insane for a period two years or is suffering from leprosy or a
virulent venereal disease
7. that she, having been given in marriage by her father or other guardian before she attained
the age fifteen years repudiated the marriage before attaining, the age of eighteen years
Provided that the marriage has not been consummated
8. that the husband treats her with cruelty, that is to say
a) habitually assaults her or makes her life miserable by cruelty of conduct even if such
conduct does net amount to physical ill-treatment; or
b) associates with women of evil repute or leads an infamous life; or
c) attempts to force her to lead an immoral life or
d) disposes of her property or prevents her exercising her legal rights over it; or
e) obstructs her in the observance of her religious profession or practice; or
f) if he has more wives than one, does not treat her equitably in accordance with the
injunctions of the Quran;
9. on any other ground which is recognized as valid for the dissolution of marriages under
Muslim law
Provided that-
a) no decree shall be passed on ground (3) until the sentence has become final
b) a decree passed on ground (1) shall not take effect for a period of six months from the
date of such decree, and if the husband appears either an authorized agent within that
period and satisfies that he is prepared to perform his conjugal duties the Court shall said
decree; and
c) before passing a decree on ground (5) the Court shall, on application by the husband,
make an order requiring the husband to satisfy the court within a period of one year from
the date of such order that he has ceased to be impotent, and if the husband so satisfies
the Court within such period, no decree shall be passed on the said ground
1. Difference between Mitakshara and Dayabhaga
There are two main Schools of Hindu Law: Mitakshara School and Dayabhaga School. The
Dayabhaga School is confined to Bengal and it takes its name after the work entitled the
Dayabhaga written by Jimutavahana. The Dayabhaga is, in fact, only a chapter of a larger
work of that author, but this chapter alone is now extant. The rest of India follows the
Mitakshara School which is called after the work entitled Mitakshara written by
Vijnaneswara as a commentary on the Smriti of Yajnavalkya. The Mitakshara (which means
measured words) is regarded as authority even in Bengal in regard to all matters on which
there is no contradictory opinion expressed in the Dayabhaga. The Mitakshara School is
usually subdivided into four Schools, namely, the Benaras School, the Mithila School, the
Maharashtra School and the Dravida School.

The essential differences between Mitakshara and Dayabhaga relate to the following

1. Joint Family

According to the Mitakshara a son, grandson and great-grandson acquire by birth a right in
the ancestral property. This doctrine is the basis of the Mitakshara joint family. According to
the Dayabhaga the ownership of the son can arise only after the death of the father. There is
no right by birth. The father has un-controlled power of alienation over the family property
under the Dayabhaga. Under the Mitakshara the father's power are qualified by the son's
equal right by birth.

2. Survivorship: - Brothers who have inherited property from their father have a right of
survivorship in the Mitakshara joint family The Dayabhaga does not recognize any right of
survivorship and the brothers hold in quasi-severalty with full power of alienation.

3. Widow's rights -When one of the brother's dies, his widow can succeed to his share under
the Dayabhaga but under the Mitakshara her rights are excluded by the right of survivorship
and the brothers The widow can then have only a right to maintenance.

4. Sapinda : Heirship :-The relationship of Sapinda arises according to Mitakshara by

propinquity or community of blood. Under the Dayabhaga it arises by means of Pinda
offerings to deceased ancestors. Spiritual benefit is the criterion for heirship under the
dayabhaga while consanguinity (blood relationship) is the guiding under the Mitakshara
B) ANTE-ADO0PTION AGREEMENT
An ante-adoption agreement is an agreement entered into by the person giving a minor
in adoption with the boy’s adoptive parent before the adoption in regard to the rights of
the minor in the property of the adoptive.

Under s. 12 of Hindu adoptions and maintainence act 1956, the adoptive child from the
date of adoption becomes transplanted from the natural family into the adoptive family.
He is deemed to be the child of his adoptive father for all purposes. In Sawan Ram v.
Kalawanti, AIR 1967 SC 1761, the Supreme Court explained that while the adopted
child loses his rights in the natural family, he secures rights in the adoptive family. So if
the adopter X is a member of a Mitakshara joint family, the adoptee becomes just like
an aurasa son, a member of that coparcenary.

The adoptive father may be the sole surviving coparcener. Then he can alienate the
property by will or by a transfer inter vivos, prior to the adoption. If he has alienated the
property by a transfer inter vivos, and then made the adoption, of course, the adopted
son cannot question the alienation, Kalyansundaram v. Karuppa Moopanar, 50 Mad.
103 (PC).

If the alienation is sought to be made after the adoption there is a difficult for the
adoptee would have become a coparcener. In this situation, the adoptive father might
seek to protect his interests by entering into an agreement with the natural father or
mother of the adoptive child before taking the child in adoption. Such an agreement is
an ante-adoption agreement designed to protect the interest of the adoptive father.

Similarly, the adoptive father may be having self-acquired property which he can
dispose of as he pleases even after adoption. The natural parent giving the child in
adoption in such a case may seek to protect the interests of the child by curtailing the
rights of the adoptive father by means of an ante-adoption agreement. The question
arises as to what extent such agreements are valid.

Section 13 makes it clear that the adoptive father continues to have his power of
disposal over his property in spite of the adoption. Whatever powers of disposal he
would have before the adoption, he would continue to have even after adoption. This is
however, made subject to “an agreement to the contrary”. This shows that an ante-
adoption agreement may operate as a fetter upon the adoptive father’s power of
disposition over his property.

Prior to this Act the validity of ante-adoption agreement was governed by the decision
of the Privy Council in Krishnamurthi v. Krishnamurthi, 50 Mad. 508 (PC). There the
adoptive father was the sole surviving coparcener who could will away the property. He
executed a will and then made the adoption.
The natural father by an ante-adoption agreement agreed to the execution of the will by
the adoptive father. It was held by the Privy Council that the adopted son was not bound
by that agreement which curtailed his rights.So he could claim to have become a
coparcener and thereby disable the adoptive father from executing the will, which gave
away part of the property to the testator’s relations and for charity. Under the present
law the power of disposal, which the adoptive father had prior to the adoption, he would
continue to have even after the adoption. So there would be no need now to have an
ante-adoption agreement of this kind to protect the interests of the adoptive father. There
would be need now to protect the interests of the adopted son by curtailing that power of
disposal of the adoptive father. Such an agreement would be perfectly valid since s. 13
is expressly made subject to “a contract to the contrary”. They were valid under the pre-
Act Law also. Surendra Keshav v. Durgasundari, 19 Cal. 513 (PC).

The Privy Council pointed out in the above mentioned case 50 Mad. 508 (PC), that on
the basis of the custom one kind of ante-adoption agreement may be upheld though it
curtails the rights of the adopted son. That type of agreement is one, which confers upon
the adoptive mother an interest in the adoptive father’s property only for her life­time
reverting to the adopted son on her death.

The Andhra Pradesh High Court has gone a step further and held that an ante-adoption
agreement empowering the widow to hold absolutely a small portion of the property
inherited from her husband is also valid provided it is fair and reasonable.

Under the present law the adopted son cannot divest any estate vested in anyone else. So
the adoptive mother’s estate in her deceased husband’s property cannot be divested in
consequence of the adoption. Hence there would be no need now for an ante- adoption
agreement of this kind to protect the adoptive mother.

On the other hand, there would be need now by means of an ante-adoption agreement to
protect the adopted child against the adoptive mother’s power to dispose of the property
even after adoption. Section 13 shows that such an agreement would be valid.

Effect of Adoption on Testamentary Power of Adoptive Parent:

A sole surviving coparcener executed a will under which he authorized his wife to adopt
a boy to him. Under the same will he gave certain property to his wife and also to his
daughter. After his death his widow adopted a boy. Can he challenge the bequests (i) if
the property bequeathed was the testator’s separate property; (ii) if it was his ancestral
property? Would it make any difference if the testator himself made the adoption during
his life-time?
 C) CEREMONIES INCIDENTAL TO A CHRISTIAN MARRIAGE

The law relating to solemnization of marriages of Christians is contained in the Indian Christian
Marriage Act, 1872. The Act has not been is force in the State of Jammu and Kashmir and the
State of Manipur. Neither has it been in force in the territories of the former State of Cochin and
nor in the territories of the former State of Travancore which from a part of the present State of
Kerala. However, the Cochin Christian Civil Marriage Act, 1095 (Malayalam Era) has been in
force with effect from 17th January, 1920 in the territories which comprised the former State of
Cochin.

It is evident from the preambles of the Acts that the Indian Christian Marriage Act, 1872 which
reads as "the law relating to the solemnization in India of the marriages of persons professing the
Christian Religion". Whereas the Cochin Christian Civil Marriage Act, 1095 is a "provision for
legalising civil marriages between persons professing the Christian Religion" in the territories of
the former State of Cochin.

There has been no statutory law relating to solemnization of marriages of Christians in the State
of Manipur and in the territories which comprised the former State of Travancore. As far as the
territories which comprised the former State of Travancore are concerned, the solemnization of
marriages of Roman Catholics are governed by the Canon Law of the Roman Catholic Church,
the solemnization of the marriages of Syrian Christians by their Customary Law, the
solemnization of the marriages of persons belonging to former Church of England by the Canon
Law of England and the solemnization of the marriages of the rest of the Christians by the
Common Law of England.

"Christian” means a person who professes the Christian Religion. It is not necessary that the
person intending to be married under the Indian Christian Marriage Act, 1872 should have been
baptised.

"Church" spelt with capital letter "C" means organization such as the Roman Catholic Church
and "Church" spelt with small letter "C" means a building generally used for public Christian
worship.

The Indian Christian Marriage Act, 1872, provides that State

Government nay appoint one of more Marriage Registrars for any District. If there is one
Marriage Registrar in a District, he is called the Marriage Registrar of the District, If two or more
Marriage Registrars are appointed for a District, one of them should be appointed as the Senior
Marriage Registrar, vide fec. 7, The Marriage Registrars solemnise marriages and the Marriage
Registrar of the District or the Senior Marriage Registrar, as the case may be, discharges certain
functions under the Act.

The Indian Christian Marriage Act, 1872 authorizes six Categories of persons to solemnize
marriages under the Act, vide Sec 5 They are : the persons who received Episcopal ordination,
the Clergymen of the Church of Scotland, the Ministers of Religion licensed under this Act lo
solemnize marriages, the Marriage Registrars appointed under this Act and the person licensed
under the Act to gran t certificates of marriages between Christians
The expression "Episcopal ordination" means ordination (anointing) by a Bishop Though there
are many Churches which have Bishops, the provision is applicable only to the Church of
england and the Church of Rome. The person who have received Episcopal ordination are
referred to in the Act as the Clergymen the Church of england and the Clergymen of the Church
of Rome are also known as the priests of the roman catholic church.

The Act provides that State Government may grant license to "any Christian" authorizing him to
grant certificates of marriage, vide Sec. 9. He administers the oath of marriage to the parties to
the marriage which is regarded as the solemnization of marriage and issues certificate of
marriage, vide Secs. 60 and 61. Such license can be granted to pastors of the non-Catholic
Churches also. As a matter of fact license under Sec. 9 was granted to many pastors of non-
Catholic Churches and some of them have licenses both under Sec.6 and Sec. 9.

Thus, the persons who are authorized to solemnize marriages under the Indian Christian
Marriage Act, 1872 are :-

1. the priests of the Roman Catholic Church;

2. the pastors of non-Catholic Churches licensed under Sec 6

3. Pastor of non-catholic church or any Christian licensed under sec. 9

4. the marriage Registrars appointed under sec.7

The Act requires that every marriage between persons one or both of whom is or are Christian or
Christians should be solemnize under this Act, vide Sec. 4. So the Act provides for solemnization
of two types of marriages, namely, marriage between Christians a marriage between a Christian
and a non-Christian.
D) DOCTRINE OF FACTUM VALET

It is a doctrine of Hindu Law, which was originally enunciated by the author of the
Dayabhaga, and also recognised by the followers of the Mitakshara, that a fact cannot be
altered by a hundred texts. The texts referred to are directory texts, as opposed to mandatory
texts.

The maxim, therefore, means that if a fact is accomplished, i.e., if an act is done and finally
completed, although it may contravene a hundred directory texts, the fact will nevertheless
stand, and the act done will be deemed to be legal and binding. Thus, the mere fact that a
transaction is condemned in the Smrities would not necessarily prove that it is void. The
further question to be answered would be whether it is a legal condemnation or merely one
which is moral.

The doctrine of factum valet was applied by the British Courts in India, whilst
administering Hindu Law, on grounds of equity, justice and good conscience. Thus, this
principle has been applied to validate the marriage of a girl who was given away in
marriage by her mother, in violation of the text of Yajnavalkya, which confers a preferential
right of giving away the bride to the father, on the ground that the text laid down only a
moral precept.

However, the doctrine applies only to directory, and not mandatory, texts. Thus, the
principle of factum valet is ineffectual to cure an act done in contravention of a mandatory
text. Thus, before the passing of the Hindu Marriage Act, the law regulating Hindu
marriages was uncodified and governed mainly by the ancient texts.

In those circumstances, it was held that the texts which prescribe rules for the guardian’s
consent to the marriage are merely directory, and if a marriage was once performed and
solemnized, it would be valid, although it may have taken place without the guardian’s
consent.

On the other hand, it has also been held that the non-observance of essential ceremonies of a
marriage cannot be overlooked or cured by applying the doctrine of factum valet, as this is
in contravention of the mandatory text of Hindu Law. (Deivanai v. Chidambaram, A.I.R.
1954 Mad. 657)

Before the passing of the Hindu Adoptions and Maintenance Act, the doctrine of factum
valet was also applied to cases of adoption. Thus, it was held that the texts which prohibit
the adoption of an only son are merely directory; so also are those which enjoin the
adoption of a relative in preference to a stranger.

Hence, the adoption of an only son or of a stranger in preference to a relative, if otherwise

complete, was not invalid. In such cases, the doctrine of factum valet would apply, and the
act done (i.e. the adoption) would be valid and binding. (Wooma Davee v. Gokoolanund,
A.I.R. 1878 3 Cal. 587)
However, the ancient texts relating to the capacity to give and take in adoption and the capacity
to be adopted are mandatory. Hence, an adoption in violation of these mandatory texts would be
invalid and the doctrine of factum valet could not be invoked to validate such an adoption.
(Lakshmappa v. Ramaya, 1875 12 Bom. H.C. 364)

The doctrine of factum valet is involved in the law of adoption. In sri Balasu vs sri Balasu, the
question arose whether an only son could be given in adoption. The mitakshara forbids the
giving of an only son in adoption. In that case an only son was given in adoption. It was urged
that though there is a Hindu Law text forbidding such an adoption, the infirmity was cured by the
application of the doctrine of Factum valet. The Latin Maxim means that what ought not be
done, is valet when done. According to Hindu Jurists "a fact is not changed by a hundred texts".
The Privy Council considered this doctrine to be applicable only to directory texts. It is
inapplicable to mandatory texts. If the text in question is only recommendatory, then this maxim
may be applied and the adoption can be upheld. It was held that the text was only directory and
so the adoption of an only son was held to be valid notwithstanding the prohibitory text of the
Mitakshara. {G.C.V subba rao}

The doctrine has no application to mandatory texts. The texts regulating capacity to give, the
capacity to could in adoption are mandatory. Their infraction cannot be validated by the
application of the doctrine of Factum Valet. Similarly, the formality of giving and taking is
essential for adoption. The doctrine of factum valet cannot be applied to cure an infirmity in this
this regard.

The actual ceremony of giving their son in adoption by the natural parents and receiving the son
in adoption by the adoptive parents took place which it was attended by many respectable
persons of the village. The parties provided evidence of the adoption by oral as well as by the
adoption deed written by sarpanch, and signed by the natural and the adoptive parents and
witnesses. In such circumstances, rejection of claim of adoption is improper merely on the
ground of the adoption deed being not registered; omission of inconsequential as an adoption
does not require registration.
 E) DIFFERENCE BETWEEN KHULA AND MUBARAT

Khula ( To put off): The wife being dissatisfied with her husband may offer to compensate the
husband for releasing her from the marriage contract. If the husband accept this offer there is an
immediate irrevocable divorce. The consideration consists in giving up the claim to dower. This
is presumed but the presumption is rebuttable. Consideration may also consists in paying some
amount to the husband. The fact that this consideration is not paid does not invalidate the divorce
and only gives rise to an ordinary legally enforeceable claim to that amount by means of a suit.
This kind of divorce is called divore by khula.

Mubaraat divorce: - In Mubara'at divorce also there is mutual agreement for divorce. But here
the dissatisfaction is mutual while in Khula it is felt only by the wife. Further, the offer to
dissolve the marriage may emanate either from the wife or from the husband whereas in Khula it
emanates only from the wife. In Mubara'at also it will be presumed that the wife has given up her
claim to dower.

Difference

In Mubara'at as well as Khula divorce, the divorced wife has to observe iddat and during iddat
the husband is bound to maintain her.

There is difference between khull a and Mubarat and the main distinction between a khulla and
Mubarat is that in the Khulla the aversion is on the side of the wife and she desires a separation
but in the Mubarrat the aversion is mutual and both sides desire separation.

Secondly in a divorce by khulla some consideration must be given by the wife to the husband for
her release from the marital tie. It is in effect and offers from the wife for her release on payment
of compensation and therefore in the circumstances the divorce ultimately agreed upon the
parties is only a Mubarat and not khulla, then the wife is entitled for the half of the benefits and
divorce takes place.

Other difference is that for khulla, the wife have to approach to the family court who is
competent to hear and decide the Khulla while in Mubarrat it is not mandatory when both the
parties are agreed then they can separate from each other by executing the Mubar’at .

Either it is khulla or Mubar’at the confirmation under section 7 will be confirmed by the
competent authority who is chairman Arbitration council. In khulla reconciliation is held and
after 90 days the divorce is confirmed but in Mubarat there is no need for reconciliation and at
the same time the divorce is confirmed.
 F) POWERS OF THE TESTAMENTARY GUARDIAN

A Hindu father entitled to act as the natural guardian of his minor legitimate children, may, by
will, appoint a guardian for any of them. In respect of the minor's person or in respect of the
minor's properly (other than the undivided interest referred to in Section 12) or in respect of both.

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

(3) A Hindu widow entitled to act as the natural guardian of her minor legitimate children, and a
Hindu mother entitled to act as the natural guardian of her minor legitimate child by reason of
the fact that the father has become disentitled to act as such, may, by will, appoint a guardian for
any of them in respect the minor's person or in respect of the minor's property (other an the
undivided interest referred to in Section 12) or in respect of both.

(4) A Hindu mother entitled to act as the natural guardian of her minor illegitimate children may,
by will, appoint a guardian, for any of them in respect of the minor's person or in respect of the
minor's property or in respect of both.

5) The guardian so appointed by will has the right to act the minor's guardian after the death of
the minor's father or mother, as the case may be, and to exercise all the rights of a natural
guardian under this Act to such extent and subject to such restrictions, if any, as are specified in
this Act and in the will.

(6) The right of the guardian so appointed by will s where the minor is a girl, cease on her
marriage

The father is the natural guardian of his minor children. By his will he can point a guardian to
look after the property and person of his minor children. Such a guardian is called a testamentary
guardian.

Under Sec. 9 he cannot function if the testator is survived by his widow (i.e. mother of the
children for whom the testamentary guardian is appointed). As natural guardian the mother has a
superior right to guardianship. In fact she can herself by her will appoint another testamentary
guardian who will look after her children and their property during their minority on her death.
But if she dies without leaving such a will, the appointment of testamentary guardian by the
father revives and such testamentary guardian can function.

The powers of the testamentary guardian are defined by the will of the testator. He has the
powers of a natural guardian subject to any restrictions that may have been imposed upon them
by the will appointing him as testamentary guardian. In Ramanathan v. Palantappa, A executed a
will appointing B as executor of the will and authorising his (A's) widow to adopt a son. Till the
son became a major the executor was to manage the property which consisted of an ancestral
money lending business. The widow later on adopted a Son. In the course of the business B
appointed an agent for conducting a business borrowed from a Bank executing a promissory note
along with C, each taking a half of the money. C had to pay the whole amount to the Bank. After
paying the whole amount to the Bank, C Sued the minor for contribution. The minor's plea was
that B or his agent could not borrow so as to bind his estate. It was held that B was a
testamentary guardian and had the powers of a natural guardian of a business of the kind was
held to be within the powers of natural guardian as in defined in Hanuman Prasad's case The
appointment of an agent for a business of the kind was held to be within the powers of natural
guardian.

The continuation of the business was also within his powers "even apart from the directions
contained in will”. The borrowing was for the benefit of the minor's estate so the suit for
contribution was decreed.

Under Sec. 8 the powers of the natural guardians have becurtailed in regard to the making of
alienations. In other respects the powers are still those recognised by the doctrine of "necessity
benefit" as laid down in Hanuman Prasad's case. So testamenta guardians can exercise the
powers of natural guardians (1) subject the restrictions thereon under Sec. 8 and (ii) further,
subject to directions in the will itself. Such are the powers of testamentary guardians
G) MUTA MARRIAGE
 H) DOWER UNDER MUSLIM LAW

Dower is defined as a sum of money or property which he wife receives from the husband or his
relative in consideration of the marriage It is not strictly speaking “consideration “in the sense of
a quid pro quo contemplated by the Indian Contract Act, 1872. In fact it can be fixed even after
the marriage. If it is unspecified at the time of marriage, the marriage would not be considered as
void but an agreement to pay a "proper" dower would be implied. Dower agreed by both the
parties at the time of marriage which is called "specified dower". Even if the marriage contract
provides that no dower is to be paid, proper dower would still be payable.

Dower is intended to be a mark of respect in which the wife is held by the husband. It is of two
kinds

Prompt Dower

Deferred Dower.

Prompt Dower This is payable on demand. Unless otherwise stated at the time of the marriage,
the entire dower is presumed to be prompt dower. This is so under the Shia Law. But under the
Sunni Law it is usual to regard half as prompt dower and half as deferred dower but there is no
hard and fast rule and courts may treat a reasonable part of the entire dower as Prompt dower.

The full Bench of the Madras High Court has held that in the Madras Vresidency evern among
Sunnis the entire amount is to be treated a

Prompt Dower the wife may refuse to consummate the marriage until prompt dower is paid.
Even after consummation, if prompt dower is ned paid on demand, the wife may refuse further
sexual intercourse. A suit by the husband for restitution of conjugal rights in such a case would
be decreed conditionally, ie. subject to the payment of the prompt dower within a time fixed by
the court.

When the wife makes a demand for prompt dower, it becomes and if net paid, she has to enforce
the claim through court within three years of the demand. Otherwise, it will become barred. If
demand is made, it still becomes due when the marriage is dissolved
 I) DE FACTO GUARDIANS :-

The old law recognised a de facto guardian. In regard to alienations of property his powers were
those of natural guardians. Under the new law the concept of de facto guardian has been
abolished.

Section 11 of Hindu Minority and Guardianship Act, 1956 says that the de facto guardian is not
entitled to neither dispose nor deal with the property of Hindu Minor.

POSITION OF DEFACTO GUARDIANS UNDER OF HINDU MINORITY AND

GUARDIANSHIP ACT, 1956.

De facto Guardian, as the name suggests, is not a guardian de jure. When there exists no legal
guardian to a minor usually some near relative or kin will take care of the property. He’s the de
facto guardian. He is neither the legal guardian nor a natural guardian. Strictly speaking, the
word “de facto guardian” is incorrect. It’s primarily “de facto guardian”. “In order to be called as
de facto guardian he has to be in management of the property and there should be a course of
conduct in regard to that property. A mere intermeddler is not a de facto Guardian.”(Sriramulu v.
Pundarikakshayya).

POWERS OF A DEFACTO GUARDIAN: HOW THEY DIFFER FROM NATURAL

GUARDIAN

1. IN REGARD TO ALIENATION: pertinent to alienation, prior to the enactment of

Hindu Minority and Guardianship Act, 1956 the powers of de facto guardian was that of
natural guardian (Hanuman Prasad case). Later via section 11 of said act, the power has
been completely altered. Now there can be no alienation of property by a de facto
guardian.
2. IN REGARD TO EXECUTION OF NEGOTIABLY INSTRUMENTS: negotiable
instruments mean an unconditional promise to pay money. A manager of the minor’s
estate can incur liabilities on behalf of the minor only conditional the condition being that
the transaction is for the necessity or benefit of minor’s estate. The guardian can incur
personal liability and if he excluded his liability the payee has no remedy. Certainly, he
cannot enforce against the estate of minor. .”(Sriramulu v. Pundarikakshayya).
3. ACKNOWLEDGMENT OF DEBT BY DE FACTO GUARDIAN: earlier, the de facto
guardian was bearing powers as that of natural guardian. But via Sriramulu v.
Pundarikakshayya, it was held that a de facto guardian cannot acknowledge and keep a
debt live and binding. The sole power rests with the natural guardian.
4. GUARDIAN AD HOC:- HOW HE DIFFERS FROM DE FACTO GUARDIAN earlier,
ad hoc guardian is appointed only for a sole transaction. He does not enter upon the
management of the minor’s estate but intermeddles in a particular transaction. He has not
status of guardian. Earlier, i.e before section 11 de facto guardian was having higher
status when compared to that of ad hoc guardian. After section 11, the de facto guardian
was assimilated to the position of ad hoc guardian. Now neither of them cannot claim
under the rules of guardianship.
 J) CHANGES MADE IN THE LAW OF GUARDIANSHIP BY HINDU MINORITY
AD GUARDIANSHIP ACT, 1956

NATURAL GUARDIANS:-

The natural guardian of minor boy or minor unmarried girl is the father. On the death of the
father the mother becomes the natural guardian. Under the old law a natural guardian did not
cease to be such by cease to be a Hindu and becoming a convert to some other religion. Under
Sec. 6 of the Hindu Minority and Guardianship Act, 1956 the natural guardian forfeits his
position as a result of conversion. Further, under the Act of 1956 renunciation of the world by
becoming Vanaprastha or Sanyasin also results in loss of natural guardianship.

Under the old law the father as natural guardian could claim the custody of his children
irrespective of their age. Under the Act of 1956 the custody of children under five years of age
should be with the mother ordinarily. Under the old law the husband was the guardian of his
minor wife. This could be so even if the husband himself was a minor. Under Sec. 10 of the Act
of 1956 no minor can himself be a guardian of the property of another minor. So a minor
husband cannot now claim guardianship over the property of his minor wife. Both the bride and
bridegroom should be majors under the present law.

The powers of the natural guardians were governed by the rule in Hanuman Prasad 's case They
could alienate the property of the minor in cases of legal necessity and in cases of benefit to the
estate of the minor. These powers have now been drastically curtailed.

Section 8 of the Act requires the consent of the Court to be obtained before any such alienation is
made. The only exception is a lease for a term of less than 5 years and in any case not extending
beyond one year from the date of the minor attaining the age of majority. Leases for a longer
term now require the proper sanction of the Court.

Testamentary guardians- Under the old law only the father by his will could appoint a
testamentary guardian. Under the Act of 1956 even the mother can do so. Under the old law the
testamentary guardian appointed by the father could function on the death of the testator even if
the minor's mother was still alive. Now under the Act if the mother of the minor survives the
father, it is she and not the testamentary guardian appointed by the father that can function as
guardian. Further she can herself appoint a testamentary guardian for her children even if the
father had himself left his will appointing a testamentary guardian. Her will has preference in
such a case and it is only if she has not appointed a testamentary guardian for the child that the
appointment made by the father would revive on her death. Further, so far as illegitimate
children are concerned it is only the mother that can appoint a testamentary guardian. Under the
old law no testamentary guardian could be appointed for illegitimate children

The powers of the testamentary guardians are not higher than those of a natural guardian. They
are subject to the limitations imposed by the will. This was so under the old law also. But under
the new law the testamentary guardian's powers are statutorily curtailed just like the power of the
natural guardians. That is, the prior permission of the Court is required for alienations as in the
case of natural guardians
DE FACTO GUARDIANS :-

The old law recognised a de facto guardian. In regard to alienations of property his powers were
those of natural guardians. Under the new law the concept of de facto guardian has been
abolished.

Section 11 of Hindu Minority and Guardianship Act, 1956 says that the de facto guardian is not
entitled to neither dispose nor deal with the property of Hindu Minor.

POSITION OF DEFACTO GUARDIANS UNDER OF HINDU MINORITY AND

GUARDIANSHIP ACT, 1956.

De facto Guardian, as the name suggests, is not a guardian de jure. When there exists no legal
guardian to a minor usually some near relative or kin will take care of the property. He’s the de
facto guardian. He is neither the legal guardian nor a natural guardian. Strictly speaking, the
word “de facto guardian” is incorrect. It’s primarily “de facto guardian”. “In order to be called as
de facto guardian he has to be in management of the property and there should be a course of
conduct in regard to that property. A mere intermeddler is not a de facto Guardian.”(Sriramulu v.
Pundarikakshayya).

POWERS OF A DEFACTO GUARDIAN: HOW THEY DIFFER FROM NATURAL

GUARDIAN

5. IN REGARD TO ALIENATION: pertinent to alienation, prior to the enactment of

Hindu Minority and Guardianship Act, 1956 the powers of de facto guardian was that of
natural guardian (Hanuman Prasad case). Later via section 11 of said act, the power has
been completely altered. Now there can be no alienation of property by a de facto
guardian.
6. IN REGARD TO EXECUTION OF NEGOTIABLY INSTRUMENTS: negotiable
instruments mean an unconditional promise to pay money. A manager of the minor’s
estate can incur liabilities on behalf of the minor only conditional the condition being that
the transaction is for the necessity or benefit of minor’s estate. The guardian can incur
personal liability and if he excluded his liability the payee has no remedy. Certainly, he
cannot enforce against the estate of minor. .”(Sriramulu v. Pundarikakshayya).
7. ACKNOWLEDGMENT OF DEBT BY DE FACTO GUARDIAN: earlier, the de facto
guardian was bearing powers as that of natural guardian. But via Sriramulu v.
Pundarikakshayya, it was held that a de facto guardian cannot acknowledge and keep a
debt live and binding. The sole power rests with the natural guardian.
8. GUARDIAN AD HOC:- HOW HE DIFFERS FROM DE FACTO GUARDIAN earlier,
ad hoc guardian is appointed only for a sole transaction. He does not enter upon the
management of the minor’s estate but intermeddles in a particular transaction. He has not
status of guardian. Earlier, i.e before section 11 de facto guardian was having higher
status when compared to that of ad hoc guardian. After section 11, the de facto guardian
was assimilated to the position of ad hoc guardian. Now neither of them cannot claim
under the rules of guardianship.