Introduction of the Hindu Law

Concept of Dharma
Hindu Law is a body of principles or rules called ‘Dharma’. Dharma according to Hindu texts
embraces everything in life. According to the Hindus, ‘Dharma’ includes not only what is known as
law in the modern sense of the term but all rules of good and proper human conduct. Dharma is
used to mean justice what is right in a given circumstance, moral, religious, pious or righteous
conduct, being helpful to living beings and things, duty, law and usage or custom having in the force
of law and also a valid Rajashasana
Origin of Hindu law
The Hindu system as modified through centuries has been in existence for over five thousand years
and has continued to govern the social and moral patterns of Hindu life with harmonizing the diverse
elements of Hindu cultural life. Magne says, “Hindu law has the oldest pedigree of any known system
of Jurisprudence and even now it shows no signs of decrepitude“.
Nature and scope of Hindu Law
Hindu law, though believed to be of divine origin, is based essentially on immemorial custom and
many of the acts of the people which were purely of a secular nature. But the secular nature of the
acts have been modified to suit the religious preferences of a Brahmin community. With a desire to
promote the special objects of religion or policy, they have used their intellectual superiority and
religious influence to mold the customs of the people.
Who are Hindus
The term ‘Hindus’ denotes all those persons who profess Hindu religion either by birth from Hindu
parents or by conversion to Hindu faith. In Yagnapurus dasji v. Muldas [AIR 1966 SC 1119], the
Supreme Court accepted the working formula evolved by Tilak regarding Hindu religion that
‘acceptance of vedas’ with reverence, recognition of the fact that the number of Gods to
be worshiped at large, that indeed is the distinguishing feature of Hindu religion.

In Shastri v Muldas SC AIR 1961, SC has held that various sub sects of Hindus such as Swaminarayan,
Satsangis, Arya Samajis are also Hindus by religion because they follow the same basic concept of
Hindu Philosophy. Converts and Reconverts are also Hindus.
If only one parent is a Hindu, the person can be a Hindu if he/she has been raised as a Hindu.
In Sapna vs State of kerala, Kerala HC,  the son of Hindu father and Christian mother was held to be a
Christian
To whom Hindu Law apply
Hindus by birth
Off shoots of Hinduism
Persons who are not Muslims, Christians, Parsis or Jews
Converts to Hinduism
Reconverts to Hinduism
Harijans
Aboriginal Tribes
To whom Hindu law does not apply
to converts from the Hindu to the Mohammedan faith
to the Hindu converts to Christianity
to the illegitimate children of a Hindu father by Christian mother and who are brought up as
Christians
Constitution of India and the Enactments under the Hindu Law
Presently, Hindu Law is applied through the Hindu Marriage Act, 1955; the Hindu Succession Act,
1956; the Hindu Minority and Guardianship Act, 1956; and the Hindu Adoptions and Maintenance
Act, 1956
Constitutional enactments are:
Hindu Women’s Rights to Property Act, 1937
Hindu Succession Act, 1956
Impact of Hindu Law Enactments in Fundamental Rights
Several principles of Hindu Law have been held invalid on the ground that they infringe the
Fundamental Rights. For example, the rule of Damdupat is hit by Article 15(1) of the Constitution
and as such would be void under Article 13(1).
Sources of Hindu Law
Ancient Sources
Before the codification of Hindu Law, the ancient literature was the only source of the law. These
sources can be divided into four categories:
01. SHRUTI (VEDAS)
Shruti means “what is heard”. It is believed that the rishis and munis had reached the height of
spirituality where they were revealed the knowledge of Vedas. Thus, shrutis include the four vedas –
rig, yajur, sam, and athrava along with their brahmanas. The brahmanas are like the apendices to the
Vedas. Vedas primarily contain theories about sacrifices, rituals, and customs.
02. SMRITIS
Smriti means “what is remembered”.  With Smritis, a systematic study and teaching of Vedas
started. Many sages, from time to time, have written down the concepts given in Vedas. So it can be
said that Smritis are a written memoir of the knowledge of the sages. Immediately after the Vedic
period, a need for the regulation of the society arose.
Dharmasutras: The Dharmansutras were written during 800 to 200 BC. They were mostly written in
prose form but also contain verses. It is clear that they were meant to be training manuals of sages
for teaching students.
Dharmashastras: Dharmashastras were mostly in metrical verses and were based of Dharmasutras.
However, they were a lot more systematic and clear.
Manusmriti: This is the earliest and most important of all. It is not only defined the way of life in
India but is also well know in Java, Bali, and Sumatra. The name of the real author is not known
because the author has written it under the mythical name of Manu, who is considered to the the
first human.
Yajnavalkya Smriti: Though written after Manusmriti, this is a very important smriti. Its language is
very direct and clear. It is also a lot more logical. He also gives a lot of importance to customs but
hold the king to be below the law.
Narada Smriti: Narada was from Nepal and this smriti is well preserved and its complete text is
available. This is the only smriti that does not deal with religion and morality at all but concentrates
only on civil law.
03. COMMENATRIES AND DIGESTS
After 200 AD, most the of work was done only on the existing material given in Smrutis. The work
done to explain a particular smriti is called a commentary. Commentaries were composed in the
period immediately after 200 AD. Digests were mainly written after that and incorporated and
explained material from all the smruitis. As noted ealier, some of the commentaries were,
manubhashya, manutika, and mitakshara. While the most important digest is Jimutvahan’s
Dayabhag that is applicable in the Bengal and Orissa area. Mitakshara literally means ‘New Word’
and is paramount source of law in all of India.
04. CUSTOMS
Most of the Hindu law is based on customs and practices followed by the people all across the
country. Even smrutis have given importance to customs. They have held customs as transcendent
law and have advised the Kings to give decisions based on customs after due religious consideration.
Customs are of four types:
Local Custom: These are the customs that are followed in a given geographical area.
Family Custom: These are the customs that are followed by a family from a long time.  These are
applicable to families where ever they live.
Class or Caste Custom: These are the customs that are followed by a particular cast or community. It
is binding on the members of that community or caste. By far, this is one of the most important
source of laws.
Guild Custom: These are the customs that are followed by traders.
REQUIREMENTS FOR A VALID CUSTOM
Ancient
Continuous
Certain
Reasonable
Not against morality
Not against public policy
Not against any law
PROOF OF CUSTOM
The burden of proving a custom is on the person who alleges it. Usually, customs are proved by
instances. In the case of Prakash vs Parmeshwari, it was held that one instance does not prove a
custom. However, in the case of Ujagar vs Jeo, it was held that if a custom has been brought to
notice of the court repeated, no further proof is required.
USAGE AND CUSTOM
The term custom and usage is commonly used in commercial law, but “custom” and “usage” can be
distinguished. A usage is a repetition of acts whereas custom is the law or general rule that arises
from such repetition. A usage may exist without a custom, but a custom cannot arise without a
usage accompanying it or preceding it. Usage derives its authority from the assent of the parties to a
transaction and is applicable only to consensual arrangements. Custom derives its authority from its
adoption into the law and is binding regardless of any acts of assent by the parties. In modern law,
however, the two principles are often merged into one by the courts.
Modern Sources
JUDICIAL DECISIONS (PRECEDENTS)
The doctrine of stare decisis started in India from the British rule. All cases are now recorded and
new cases are decided based on existing case laws.Today, the judgment of SC is binding on all courts
across India and the judgment of HC is binding on all courts in that state.
LEGISLATURES / STATUTES (CODIFICATION OF HINDU LAW)
In modern society, this is the only way to bring in new laws. The parliament, in accordance with the
needs society, constitutes new laws. For example, a new way of performing Hindu marriages in Tamil
Nadu that got rid of rituals and priests was rejected by the SC on the basis that new customs cannot
be invented. However, TN later passed an act that recognized these marriages.
JUSTICE, EQUITY AND GOOD CONSCIENCE
Equity means fairness in dealing. Modern judicial systems greatly rely on being impartial. True justice
can only be delivered through equity and good conscience.  In a situation where no rule is given, a
sense of ‘reasonableness’ must prevail. According to Gautama, in such situation, the decision should
be given that is acceptable to at least ten people who are knowledgeable in shastras. Yagyavalkya
has said that where ever there are conflicting rules, the decision must be based on ‘Nyaya’.
Schools of Hindu Law
Due to the emergence of various commentaries on SMIRITI and SRUTI, different schools of thoughts
arose.  The commentary in one part of the country varied from the commentary in the other parts of
the country.
The Mitakshara School
The Mitakshara School exists throughout India except in the State of Bengal and Assam. The Yagna
Valkya Smriti was commented on by Vigneshwara under the title Mitakshara. The followers of
Mitakshara are grouped together under the Mitakshara School.
Mitakshara school is based on the code of yagnavalkya commented by vigneshwara, a great thinker
and a law maker from Gulbarga, Karnataka. The Inheritance is based on the principle or propinquity
i.e. the nearest in blood relationship will get the property.
The school is followed throughout India except Bengal state. Sapinda relationship is of blood. The
right to Hindu joint family property is by birth. So, a son immediately after birth gets a right to the
property.
Dravidian School Of Thought (Madras School)
Maharashtra School (Bombay School Of Thought)
Banaras School Of Thought
Mithila School Of Thought
The Dayabhaga School
It exists in Bengal and Assam only. The Yagna Valkya smriti is commented on by Jimootavagana
under the title Dayabhaga. It has no sub-school. it differs from Mistakshara School in many respects.
Dayabhaga School is based on the code of yagnavalkya commented by Jimutuvahana, Inheritance is
based on the principle of spiritual benefit. It arises by pinda offering i.e. rice ball offering to deceased
ancestors.
This school is followed in Bengal state only. Sapinda relation is by pinda offerings.
The right to Hindu joint family property is not by birth but only on the death of the father.
The system of devolution of property is by inheritance. The legal heirs (sons) have definite shares
after the death of the father.
UNIT – II
Marriage and Kinship
Evolution of the Institution of Marriage and Family
Definition and Forms of Hindu Marriage
Definitions of Marriage: Marriage is a civil and religious contract whereby a man is joined and united
to a woman for the purpose of civilized society. In law ‘marriage’ may mean either the acts,
agreements, or ceremony by which two persons enter into wedlock, or their subsequent relation
created thereby. Marriage is the civil status or personal relation of one man and one woman joined
together in a matrimonial union which was lawfully entered into.
Characteristics of Marriage: Marriage is universal, It is for the formation of family, It forges a new
social link, It fixes the responsibility of bringing up children on the parents, It is a result of civil or
religious ceremony, Legitimization of children born out of such union which is a social need, In
marriage, the male and female get the right of mutual relationship in economic, social and biological
spheres.
Origin of Marriage: The Institute of Marriage evolved in an evolutionary manner. In the earliest form
of groupings of people, sex was absolutely unregulated and the children were considered to be the
children of the group. According to Morgan, marriage institution started with group marriage, then
polygamy and lastly monogamy.
Importance of the Institution of Marriage: The institute of marriage regulates and socially validates
relatively long-term legitimate sexual relation between males and females, Marriage serves to start
reproductive process, Marriage is also a way to acquire new Kinsmen, It is only after marriage a
family comes into being
Hindu Marriage:
Matrimonial Rights and Obligations
Duties of a Husband are: to protect his wife, to give her a home, to maintain her by providing her
with comforts and necessities of life within his means, to treat her kindly with affection and
courtesy, to honour the wife, not to assault or commit battery against his wife’s person
Rights of a Husband are: he is entitled to the custody and the conjugal society of his wife, he is
entitled to succeed to her if she predeceases him without issue, and can utilise her Sridhana
property to relieve himself in circumstances of extreme distress
Duties of a Wife are: to attend to the needs of her husband both in religious and household
activities, to show obedience and veneration for the husband, to live with him wherever he may
choose to reside unless he is guilty of cruelty or misconduct
Rights of a Wife are: right for maintenance throughout her life, right of equality in the house of her
husband, right to bring suit for the restitution of conjugal rights, right to get divorce for the cruelty,
insults, etc
Different Forms of Hindu Marriage
THE FOUR OBSOLETE APPROVED FORMS
Brahma (to a man learned in vedas)
Daiva (to a preist)
Arsha (father’s taking gift from groom: a cow and a bull)
Prajapatya (similar to Brahma, gift of a daughter by father, but bridegroom need not be a bachelor)
THE FOUR UNAPPROVED FORMS
Asura (When groom buys bride through money)
Gandharva (When voluntary union against parent’s wishes)
Rakshasa (When forcible abduction / kidnapping)
Paishacha (when intoxicated)
Salient Features of Hindu Marriage Act, 1955
Ancient Hindu Law of Marriage
During Muslim period
During early british rule
Enactments in the British Rule
Enactments in Independent India
The Special Marriage Act, 1954
Salient Features of the Hindu Marriage Act, 1955
Main changes introduced in the Hindu Marriage, 1955 by the Marriage Laws (Amendment) Act, 1976
Application of Hindu Marriage Act, 1955
Definitions
Custom and Usages
Full Blood, Half Blood and Uterine Blood
Sapinda Relationship
Degree of Prohibited Relationship
Overriding Effect of the Hindu Marriage Act, 1955
Conditions of Hindu Marriage
Section 5 of the Hindu Marriage Act, 1955 lists out the following conditions to be fulfilled for the
solemnization between any two Hindus:-
Monogamy: The first essential condition for a valid marriage is that neither party should have a
spouse living at the time of marriage. Monogamy is the voluntary union for life of one man with one
woman to the exclusion of all others. In the case of Varadrajan v. State, it was held that a party to be
bigamous marriage could be punished only upon the proof of the prior marriage having been
solemnized according to religious ceremonies and customs.
Mental Capacity: A marriage is bliss. A sound mind is a key to a happy married life. Clause (ii) of
Section 5 of the Act lays down as one of the conditions for a Hindu Marriage that neither party must
be suffering from unsoundness of mind, mental disorder, and insanity.
Age of Parties: The Hindu Marriage Act, 1955 lays down the condition that at the time of the
marriage, the bridegroom must have completed the age of 21 and the bride the age of 18 years. In
the case of Rabindra Prasad v. Sita Devi, the court held that a child marriage is not void and observed
that “the marriage solemnized in violation of Section 5 (iii) remains unaffected.
Degrees of Prohibited Relationship: Clause 10 of Section 5 of the Hindu Marriage Act, 1955 lays
down that no marriage is valid if it is made between persons related to each other within the
prohibited degrees unless such marriage is sanctioned by custom or usage governing both the
parties.
Beyond Sapinda Relationship: According to Mitakshara, Sapinda means a person connected by the
same blood relation. Clause (v) of Section 5 of the Hindu Marriage Act, 1955 itself provides that the
parties to marriage should not be sapindas of each other, unless the custom or usage governing each
of them permits of a marriage between two.
The question of virginity of the bride: The Hindu bride is expected to be a virgin. If the bride had
been made pregnant by another, the husband can have the marriage set-aside by a decree of nullity,
provided (a) he was ignorant of this fact at the time of marriage; (b) he did not have marital
intercourse after discovering the fact; (c) petition is brought within one year from the date of
marriage
Impotency and other physical infirmities: If the bridegroom is found impotent after the marriage, the
marriage can be set-aside under section 12 of the Act. Such marriage is voidable.
Inter-caste Marriage: The Government of India enacted ‘Hindu Marriages Validating Act, 1949, which
validates intercaste marriages and also marriages between Hindus, Jains and Sikhs. In the case of Bai
Gulab v. Jiwan Lal, the Bombay High Court upheld the validity of Anuloma marriages.
Doctrine of Factum Valet: It is a doctrine of Hindu law, which was originally enunciated by the author
of the Dayabhaga, and also recognized by the followers of the Mitakshara, that ‘a fact cannot be
altered by a hundred texts’. The text 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.This doctrine came from Roman maxim
‘factum valet quod fieri non debuit’ which literally means that ‘what ought not to be done become
valid when done’.In the case of Venkatrama v. State, the court has applied the doctrine of factum
valet to child marriage and held that the marriage itself is valid though penal consequences are
attracted. The child marriages are neither void nor voidable. They continue to be valid even though
punishable.
Ceremonies of Hindu Marriage
No particular form of marriage
Necessary religious ceremonies
Vagdan
Formalities including the recitation of holy texts before the sacred fire
Saptapadi
State amendments
Registration of Hindu Marriages
Types of Marriage: Monogamy, Polygamy, Polyandry
Matrimonial Remedies
Restitution of Conjugal Rights
The meaning of Restitution of Conjugal Rights: Either husband or wife has without reasonable excuse
withdrawn from the society of other, the aggrieved party, may approach the court for ‘Restitution of
Conjugal Rights’ and the court on being satisfied on the truth of the statement in such petition may
grant decree for ‘Restitution of Conjugal Rights’.

-> In case, husband or wife lives separately, then they can avail Conjugal Rights.
-> In case, if there was any valid reason to live separately, then they cannot avail Conjugal Rights
Case Laws:
T. Sareetha v. Venkata Subbaiah
Matrimonial remedies
Restitution of conjugal rights – Section 9
Constitutionality of Section 9
Remedies available
Subsistance
Withdrawal from the society
Validity of agreement of separation
Reasonable excuse
Defence available to restitution petition
Can a husband compel his wife to resign her job and stay with him?
Petition for restitution
Void and Voidable Marriages
Void Marriages
Section 11. Void marriages :- Any marriage solemnized after the commencement of this Act shall be
null and void and may, on a petition presented by either party thereto, against the other party be so
declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv)
and (v), Section 5.”

A marriage is void in three circumstances:

– at the time of marriage, a party is having living spouse
– two persons come under prohibited degrees of relationship
– two persons com under sapinda relationships
Constitutionality of Section 11 of the Act
Applicability of Section 11 of the Act
Delay
Death of a spouse
Bigamous marriage
Injunction
Third Person
Effects of void marriage
Legitimacy of children
Position of Women
Voidable Marriages
Grounds for the remedy
Impotency
Unsoundness of Mind
Consent obtained by force or fraud
Pregnancy of the bride
Petition for annulment
Decree for annulment
Distinction between void and voidable marriages
Legitimacy of children of void and voidable marriages
Judicial Separation – Section 10 of the Hindu Marriage Act, 1955
A petition can be filed on any of the grounds specified in sub-section (1) and (2) of Section 13.
Judicial or legal separation means living apart by the parties to the marriage. If a decree for judicial
separation is passed by a competent Court, it is no longer obligatory for either party to cohabit with
the other. Such a decree does not sever or dissolve the marriage. Yet it is equally true that certain
mutual rights and obligations arising from the marriage are suspended when such a decree is
passed.
In Hiranand S Managaonkar v. Sunanda, the Supreme Court has observed that a decree of judicial
separation does not dissolve the bond of marriage but rather provides an opportunity to the spouses
for reconciliation and readjustment.
Grounds
Adultery: Extra-marital voluntary sexual intercourse. In order to establish extra-marital, one has to
depend on ancillary facts which may be:- circumstantial evidence, birth of a child to the wife when
there is no evidence of contact with her, contracting of a venereal disease, admission on the part of
the respondent, discovery of letters which might contain such contents which suggest sexual
relationship between the two
Cruelty: There is mental as well as physical cruelty. To establish legal cruelty, it is not necessary that
physical violence should be used. Continuous ill-treatment, cessation of marital intercourse, verbal
abuse and insult, refusal to speak, ill-treatment of children, refusal to have children, etc
Desertion: Desertion is the act of forsaking or abandoning or the act of quitting without leave with
an intention not to return. Desertion has been defined in the Indian Divorce Act as “implying an
abandonment against the wish of the person changing it”.  In the case Shanti Devi v. Govind Singh, it
has been observed that for constituting ‘desertion’ two essential conditions must be fulfilled namely
(i) the factum of separation; and (ii) the intention to bring cohabitation permanently to an end
Conversion: Ceasing to be a Hindu by conversion on the part of the either party to the marriage,
forms a ground for a decree of judicial separation.
Unsoundness of Mind: The petitioner has to establish that the respondent has been incurably of
unsound mind or has been suffering continuously or intermittently from mental disorder of such a
kind and to such an extent that the petitioner cannot be expected to live with the respondent.
Leprosy: If either of the party has been suffering from venereal disease in communicable form, then
the other party can present a petition for decree of judicial separation. The leprosy which is
maligned or venomous can be termed as virulent. Lepromatous leprosy is virulent and incurable.
Venereal Disease: It requires to establish for judicial separation that the respondent has been
suffering from venereal disease in a communicable form.
Renunciation of the world: The renunciation implies a religious order which operates as a civil death
and, therefore, the other party has been given right to obtain a decree of judicial separation or
divorce.
Presumption of death: That the other party has not been heard of as alive for a period of seven years
or more by those persons who would naturally have heard of him, had that party been alive.
Additional Grounds
Bigamy: Marrying again during lifetime of husband or wife: Whoever, having a husband or wife
living, marries in any case in which such marriage is void by reason of its taking place during the life
of such husband or wife, shall be punished with imprisonment and fine.
Rape or sodomy or bestiality: The husband has, since the solemnization of the marriage, been guilty
of rape or sodomy or bestiality.
In maintenance case:  Either in a suit under Section 18 of the Hindu Adoption and Maintenance Act,
1956, or in a proceeding under Section 125 of the Code of Criminal Procedure, 1973, a decree or
order has been passed against the husband awarding maintenance to wife and that since the passing
of such decree or order cohabitation between the parties had not been resumed for one year or
upwards.
In child marriage case: That, her marriage was solemnized before she attained the age of 15 years,
and she has repudiated the marriage after attaining that age but before attaining the age of 18
years.
POWER OF COURT TO RESCIND THE DECREE OF JUDICIAL SEPARATION
Section 10(2) of the Act empowers the Court to rescind the decree of the judicial separation if it
considers it just and reasonable to do so.
the decree has been obtained by showing reasonable excuse for his or her absence
the parties cohabited with each other after the decree was passed or they have resumed living
together
the opposite party has condoned the offence
EFFECTS OF JUDICIAL SEPARATION
permits the parties to live separately
does not dissolve the marriage
husband and wife continue to have the same status
not be obligatory for them to cohabit with each other
does not prevent the parties from resuming cohabitation and living together as husband and wife
Divorce – Section 13 of the Hindu Marriage Act, 1955
Divorce in Ancient Hindu Law
Under Hindu Custom, Marriage is considered as sacred and they have this relation by the blessings
of the God. They believed the concept of “marriages are made in heaven”. Hindus considered the
separation of couple as a sin and hence the question of living separately did not arise in olden days.
Once married, the tie lasts till the end of life.
Divorce means putting an end to the marriage by dissolution of marital relations. The parties can no
longer be husband and wife. Divorce was unknown to the old textual Hindu law of marriage. Manu
declared that a wife cannot be separated from her husband either by sale or by abandonment
because marital tie could not be severed under any circumstances whatsoever. Manu did not
approve of the dissolution of marriage in any condition.
Dissolution of Marriage
Grounds available for both
Adultery:
Cruelty:
Desertion:
Conversion:
Unsoundness of mind:
Venereal disease:
Renunciation of the world:
Presumption of death:
Non-resumption of cohabitation after the decree of judicial separation:
Non-compliance with the decree of restitution of conjugal rights:
Grounds available for wife
Bigamy:
Rape, Sodomy and bestiality:
Maintenance decreed to Wife:
Repudiation of Marriage by Wife:
Alternate Relief
Section 13A of the Hindu Marriage Act, 1955 states “In any proceeding under this Act, on a petition
for dissolution of marriage by a decree of divorce, except in so far as the petition is founded on the
grounds mentioned in clauses (ii), (vi) and (vii) of sub-section (1) of Section 13, the court may, if
considers it just to do having regard to the circumstances of the case, pass instead a decree for
judicial separation”.
Divorce by mutual consent
Since Divorce is the last remedy available to put an end to the marital tie, the parties can decide to
separate amicably, divorce petition may be submitted by any one of the spouses to the District Court
on any one of the grounds given in Section 13 of the Act to take divorce on mutual consent. Divorce
by mutual consent was not incorporated in the original Act of 1955. It has been inserted in
the Section 13-B by the Hindu Marriage (Amendment) Act, 1976.
parties living separately for a period of one year or more
not able to live together
mutual agreement in dissolving the marriage
consent of the parties has been obtained
Distinction between judicial separation and divorce
The relationship of husband and wife stands suppressed, while in Divorce the relationship of
husband and wife ceases to exist
Temporarily suspends the marital rights and duties of parties to marriage for some time by Court,
while Divorce puts an end to the marital relationship between the parties
The object is the hope of adjustment, reconciliation and reunion of the spouses, while in Divorce,
the object is to give the last resort
The parties to the marriage cannot remarry, while in Divorce, the parties are entitled to get another
marriage of his/her choice
Original marital relationship can be restored, while in Divorce, the original marital status cannot be
restored
After obtaining the judicial separation, the wife can file and succeed for the maintenance, while in
Divorce, the divorced woman cannot file for the maintenance under Hindu Adoption and
Maintenance Act
It is a lesser remedy than divorce, but in Divorce, it is stronger, drastic and last remedy than judicial
separation
Presentment of petition for divorce
Under Section 14 of the Hindu Marriage Act, 1955, no Court shall entertain a petition for divorce
before expiration of a period of one year from the date of marriage, however this section also
provides that the Court may entertain petition for divorce before one year on the ground of
exceptional hardship to the petitioner or exceptional depravity of the respondent.
In the case of Meghanatha Nayyar v. Smt. Susheela, the Madras High Court had observed that
“Section 14 provides restrictions presumably designed to prevent party from taking recourse to legal
proceedings before the parties have made real effort to save their marriage from disaster. It is
founded on public policy because marriage is the foundation of civil society and no part of the laws
and constitution of a country can be of more vital importance to the subject than those which
regulated the manner and conditions of forming and if necessary, of dissolving marriage contract.”
Divorced persons when may marry again
Section 15 of the Hindu Marriage Act, 1955 provides: “When a marriage has been dissolved by a
decree of divorce and either there is no right of appeal against the decree or, if there is such a right
of appeal, the time for appealing has expired without an appeal have been presented, or an appeal
has been presented but has been dismissed, it shall be lawful for either party to the marriage to
marry again.”
Punishment of Bigamy and other matrimonial offences
Section 17 of the Hindu Marriage Act, 1955 states: “Any marriage between two Hindus solemnized
after the commencement of this Act is void if on the date of such marriage either party had a
husband or wife living; and the provisions of Sections 494 and 495 of the Indian Penal Code, 18600,
shall apply accordingly.”
In Gopal Lal V. State of Rajasthan, it has been observed that where a spouse contracts a second
marriage while the first marriage is still subsisting, the spouse would be of guilty of bigamy under
Section 17 of the Act and also under Section 494 IPC if it is proved that the second marriage was a
valid one in the sense that the necessary ceremonies required by law or by custom have been
actually performed.
Maintenance and Alimony
Section 24 – Maintenance Pendente Lite
Difference between Section 24 of Hindu Marriage Act, 1955 and Section 18 of Hindu Adoptions and
Maintenance Act, 1956
Section 25 – Permanent Alimony and Maintenance
Difference between Maintenance pendente lite under Section 24 and the permanent alimony under
Section 25
Section 27 – Disposal of Property
CASE LAWS:
Amar Kanta Sen v. Sovana Sen, AIR 1960 Cal. 438 159
Padmja Sharma v. Ratan Lal Sharma, AIR 2000 SC 1398
Customary Provisions and Legislative Provisions Relating to Dowry Prohibition
THE DOWRY PROHIBITION ACT, 1961
Other Laws
Code Of Criminal Procedure, 1973
Indian Evidence Act, 1872
Indian Penal Code, 1860
23 AMOUNT OF MAINTENANCE
24 CLAIMANT TO MAINTENANCE SHOULD BE A HINDU
25 AMOUNT OF MAINTENANCE MAY BE ALTERED ON CHANGE OF CIRCUMSTANCES
26 DEBTS TO HAVE PRIORITY
27 MAINTENANCE WHEN TO BE A CHARGE
28 EFFECT OF TRANSFER OF PROPERTY ON RIGHT TO MAINTENANCE
29 REPEALS
30 SAVINGS
CASE LAWS:
Brijendra v. State of M.P., AIR 2008 SC 1058
UNIT III
Hindu undivided family
Mitakshara Joint Family
Formation and Incidents
Property under both Schools
Kartha: His Position, Powers, Privileges and Obligations
Debts
Doctrine of Pious Obligation
Partition and Reunion
Religious and Charitable Endowment
Study Notes on Hindu Law – UNIT IV
Inheritance and Succession
Historical perspective of traditional
Hindu Law relating to Inheritance
A detailed study of Hindu
Succession Act, 1956.
Stridhana- Woman’s Property
Recent State and Central
Amendments to Hindu Succession Act; Gifts and Testamentary
Succession – Wills
Study Notes on Hindu Law – UNIT V
Law relating to Hindu Minority and Guardianship: Kinds of Guardians;
MINORITY AND GUARDIANSHIP
The Hindu Minority and Guardianship Act, 1956
2 Act to be supplemental to Act 8 of 1890
3 Application of Act
4 Definitions
5 Over-riding effect of Act
6 Natural guardians of a Hindu minor
7 Natural guardianship of adopted son
8 Powers of natural guardian
9 Testamentary guardians and their powers
10 Incapacity of minor to act as guardian of property
11 De facto guardian not to deal with minors property
12 Guardian not to be appointed for minors undivided interest in joint family property
13 Welfare
Duties & Powers of Guardians; A detailed study of Hindu Adoption and Maintenance Act, 1956;
CASE LAWS:
Githa Hariharan v. Reserve Bank of India (1999) 2 SCC 228
Maintenance: Traditional Rights and Rights under Hindu Adoption & Maintenance Act 1956.
ADOPTION AND MAINTENANCE
The Hindu Adoption and Maintenance Act, 1956
2 Application of Act
3 Definitions
4 Overriding effect of Act
5 Adoption to be regulated by this Chapter
6 REQUISITES OF A VALID ADOPTION. – NO ADOPTION SHALL BE VALID UNLESS –
(i) the person adopting has the capacity, and also the right, to take in adoption;
(ii) the person giving in adoption has the capacity to do so;
(iii) the person adopted is capable of being taken in adoption; and
(iv) the adoption is made in compliance with the other conditions mentioned in this Chapter.
Kumar Sursen v. State of Bihar – Under section 6 the law does not recognize an adoption by a Hindu
of any person other than a Hindu;
M. Gurudas v. Rasaranjan – To prove valid adoption, it would be necessary to bring on records that
there had been an actual giving and taking ceremony;
Suma Bewa v. Kunja Bihari Nayak – Law is well settled that adoption displaces the natural line of
succession and therefore, a person who seeks to displace the natural succession to the property
alleging an adoption must prove the factum of adoption and its validity by placing sufficient
materials on record.
Devgonda Raygonda Patil v. Shamgonda Raygonda Patil – Section 6 does not bar a lunatic person
from being adopted.
7 CAPACITY OF MALE HINDU TO TAKE IN ADOPTION
Any male Hindu who is of sound mind and is not a minor has the capacity to take a son or a daughter
in adoption: Provided that, if he has a wife living, he shall not adopt except with the consent of his
wife unless the wife 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.
Explanation. – If a person has more than one wife living at the time of adoption, the consent of all
the wives is necessary unless the consent of any one of them is unnecessary for any of the reasons
specified in the preceding proviso.
Ram Sundar v Kali Narain – it was observed that mere weakness of mind is not sufficient, what is
necessary to be proved is that infirmity of mind has been such as to disable him from understanding
what he was doing.
In Ambarish Kumar v Hatu Prasad, it was held that a person who is deaf and dumb but is in a position
to express himself to signs and gestures though not clearly, cannot be called a person of unsound
mind.
8 CAPACITY OF A FEMALE HINDU TO TAKE IN ADOPTION. – 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 has been 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.
If she is not married
Earlier, an unmarried female as well as a widow had no power to adopt except under the authority
Post amendment of the act, an unmarried woman who completes the age of eighteen can adopt a
child.
Now possible for a unmarried woman to have a legitimiate adopted son
If she be married
A married woman whose husband is living has no capacity to adopt even with the consent of her
husband
A woman can take adoption if
marriage is dissolved
dead of the husband
A married woman can adopt –
husband has ceased to be a Hindu
completely renounced the world
husband has been declared by a court as an unsound mind
9 PERSONS CAPABLE OF GIVING IN ADOPTION –
No person except the father or mother or the guardian of a child shall have the capacity to give the
child in adoption.
Subject to the provisions of 1[ sub- section (3) and sub- section (4)], the father, if alive, shall alone
have the right to give in adoption, but such right shall not be exercised save with the consent of the
mother unless the mother 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.
The mother may give the child in adoption if the father 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.
Where both the father and mother are dead or have completely and finally renounced the world or
have abandoned the child or have been declared by a court of competent jurisdiction to be of
unsound mind or where the parentage of the child is not known, the guardian of the child may give
the child in adoption with the previous permission of the court to any person including the guardian
himself.
Before granting, permission to a guardian under sub- section (4), the court shall be satisfied that the
adoption will be for the welfare of the child, due consideration being for this purpose given to the
wishes of the child having regard to the age and understanding of the child and that the applicant for
permission has not received Or agreed to receive and that no person has made or given or agreed to
make or give to the applicant any payment or reward in consideration of the adoption except such
as the court may sanction.
Explanation. For the purposes of this section-
(i) the expressions” father” and” mother” do not include an adoptive father and an adoptive mother;
(ia) ” guardian” means a person having the care of the person of a child or of both his person and
property and includes-
(a) a guardian appointed by the will of the child’ s father or mother, and
(b) a guardian appointed or declared by a court; and
(ii) ” court” means the city civil court or a district court within the local limits of whose jurisdiction
the child to be adopted ordinarily resides.
Dhanraj v Suraj Bai, it was held that adoption of a ‘step-son’ given in adoption by the step-mother
who has no capacity to do so is invalid by virtue of Section 5(i) read with Section 6(ii) of the Act.
A mother can give her child by her previous husband in adoption if she remarries; Mother of an
illegitimate child can give the child in adoption without the consent of her paramour to whom the
child was born
10 PERSONS WHO MAY BE ADOPTED – CONDITIONS
He or she is a Hindu
He or she has not already been adopted
He or she has not been married unless there is a custom or usage applicable to the parties which
permits persons who are married being taken in adoption
He or she has not completed the age of fifteen years, unless there is a custom or usage applicable to
the parties which permits persons who have completed the age of fifteen years being taken in
adoption
In Rakhi v. 1st Addl. District Judge, it was observed that a person aged about 28 years can never be
adopted. Sec. 10 (iv) of the Act prescribed the age at 15 years. Such adoption is to follow the
prescribed procedure for the adoption namely, actual giving and taking in adoption as prescribed in
Sec. 11(vi) of the Act.
In Maya Ram v. Jainarian, it was held that the adoption of a married Jat boy who was above 15 years
of age, as valid on the force of customs prevailing in that community.
In Khazan Singh v. Union of India, where the adopted child originally belonged to the higher caste,
but on adoption was to one beloging to the Scheduled Tribe and Scheduled Tribe Certificate was
granted to him on the basis of adoption and it was held that the certificate could not be cancelled
without giving opportunity to the adoptee to prove that adoption was valid in spite of the bar of age.
11 OTHER CONDITIONS FOR A VALID ADOPTION
12 EFFECTS OF ADOPTION
the child cannot marry any person whom he or she could not have married if he or she had
continued in the family of his or her birth
any property which vested in the adopted child before the adoption shall continue to vest in such
person subject to the obligations if any attaching to the ownership of such property, including the
obligation to maintain relatives in the family of his or her birth
the adopted child shall not divest any person or any estate which vested in him or her before the
adoption
13 RIGHT TO ADOPTIVE PARENTS TO DISPOSE OF THEIR PROPERTIES
14 DETERMINATION OF ADOPTIVE MOTHER IN CERTAIN CASES
15 VALID ADOPTION NOT TO BE CANCELLED
16 PRESUMPTION AS TO REGISTERED DOCUMENTS RELATING TO ADOPTION
17 PROHIBITION OF CERTAIN PAYMENTS
18 MAINTENANCE OF WIFE
19 MAINTENANCE OF WIDOWED DAUGHTER-IN-LAW
20 MAINTENANCE OF CHILDREN AND AGED PARENTS
21 DEPENDANTS DEFINED
22 MAINTENANCE OF DEPENDANTS
23 AMOUNT OF MAINTENANCE
24 CLAIMANT TO MAINTENANCE SHOULD BE A HINDU
25 AMOUNT OF MAINTENANCE MAY BE ALTERED ON CHANGE OF CIRCUMSTANCES
26 DEBTS TO HAVE PRIORITY
27 MAINTENANCE WHEN TO BE A CHARGE
28 EFFECT OF TRANSFER OF PROPERTY ON RIGHT TO MAINTENANCE
29 REPEALS
30 SAVINGS
CASE LAWS:
Brijendra v. State of M.P., AIR 2008 SC 1058