AL-AMEEN COLLEGE OF LAW

MODEL ANSWER DECEMBER 2018

FAMILY LAW-1:- HINDU LAW
I SEM, 3 YEARS LL.B

Q.NO.1. a. Trace the history of the different schools of Hindu Law, pointing
out their distinguishing features.

Answer:-

INTRODUCTION

The Schools of Hindu Law came into being when different commentaries
appeared to interpret smritis with reference to different local customs in vogue in
different parts of India.

SCHOOL OF HINDU LAW

There are 2 schools of Hindu Law

1. Mitakshara School
2. Dayabhaga School

1. Mitakshara School:-

This school prevails in all parts of India. It is a running commentary on code of

Yajnavalkaya & was written by Vijanneshwara in 11 th century. It is of supreme
authority throughout India except Bengal.

2. Dayabhaga School :-

This School prevail in Bengal. It is not a commentary on any one code, but
purports to be a digest of all the codes. It was written by Jimutavahana. It was
written 2 centuries after mitakshara. It is supreme authority in Bengal. Here also
Mitakshara is supreme but if there is no conflict between this schools.

The Mitakshara school is sub-divided into 4 main schools

I. Banaras School
 II. Mithila School
III. Bombay School
IV. Madras School
V. Punjab school also recognizes the authority of mitakshara.

Mitakshara School

It is divided into 5 Schools, they materially differed on the law of adoption and
inheritance. All these Schools acknowledge the supreme authority of the
Mitakshara, but give preference to certain treaties and to commentaries which
contain certain passages of the Miitakshara.

I. Benaras School:-

Except in Mithila and Punjab this school prevails in the whole of Northern India
including Orissa.

The following commentaries are also held in high esteem in this school.

1.Mitakshara.
2. Viramitrodaya
3. Dattaka Mimansa
4. Nirnayasindu
5. Vivada Tandava
6. Subodhini &
7. Balam Bhatti

II. Mithila School

It prevails in Tirhoot & Bihar. The following are the commentaries treated as
authoritative in this school.

1.Mitakshara.
2. Vivada Ratnakar
3. Vivada Chintamani
4.Smriti sara &
5. Madana Parijata

III. Bombay School or Maharastra School

 It prevails in almost the whole of the state of Bombay including Gujarat,
Kanara and the parts where the Marathi language is spoken as the local language.

The following works are treated as authoriatative in this school

1.Mitakshara.
2.Vyavhar Mayukha
3. Viramitrodaya
4. Nirnayasindu
5. Vivada Tandava
6. Parasara Madhaviya

IV. Madras School:-

The whole Madras state is governed by the madras School of Hindu Law

This school was once sub-divided into Tamil, Karnataka and Andra school, but
there is no justification

The authorities accepted in this school are the following

1.Mitakshara.
2.Smriti Chandrika
3. Parasara Madhaviya
4.Saraswati Madhaviya
5. Viramitrodaya
6. Vyavhar Mayukha
7. Dattaka Chandrika
8.Daya Vibhaga
9. Vaiyayanti
10. Madhabi
11. Nirnay Sindu
12. Narada Rajya
13. Vivada Tandava

V. Punjab School

It prevails in East Punjab.

The following are authorities in this school

1.Mitakshara.
2. Viramitrodaya &
3. Punjab customs.

2. DAYABHAGA:-

It prevails in west Bengal, Assam with some variances. Dayabhaga is

written by Jimutvahana. The accepted authorities

1. Dayabhaga
2. Dayatatva
3. Daya-sangraha
4. Viramitrodaya
5. Dattaka Chandrika

Difference between Mitakshara & Dayabhaga

Mitakshara Dayabhaga
As regards to joint property

1 Right to property arises by birth, Right to property by death (of the

hence the son is a co-owner with last owner). Hence son has no right
the father in ancestral property, to ancestral property during father’s
now even daughter lifetime
2 Father has a restricted power of Father has absolute power of
alienation and son can claim alienation and son cannot claim
partition even against the father partition or even maintenance
3 The interest of a member of the The interest of every person would
joint family would on his death on his death, pas by inheritance to
passed to the other member by his heirs, like widow or daughters.
survivorship (now it is abolished)
As regards Alienation
5 Members of joint family cannot Any member of joint family may sell
 dispose of their shares while or give away his share even when
undivided undivided.
Inheritance
6 The principle of inheritance is The principle of inheritance is
consanguinity (blood spiritual efficacy (offering pindas)
relationship)
7 Doctrine of Factum Valet It is fully recognized.
The fact cannot be altered by
hundred texts . It is recognized to
a very limited extent

Conclusion :

On the migration the family continues to be governed by the law of locality of

origin. The family carries with it the customs regulating succession and family
relation prevailing in the state from where it came. But the family has option of
adopting the law and usages of the state to which it has migrated.

OR

Explain the sources of Hindu Law

Answer

Introduction :-

1. SOURCES OF HINDU LAW

The main sources of Hindu law are as follows.

1. Srutis
2. Smritis
3. Commentaries and Digests
4. Judicial decisions
5. Legislation
6. Justice, equity and good conscience, and
 7. Customs

1.The srutis:- the name (sruti) is derived from the root “sru” (to hear) and signifies
“ ‘what is heard’.
● By sruti or what was heard from above, it meant the veda.
● It is believed to contain the very words of the diety revealed to inspired
sages.
● Srutis are considered to be the primary and paramount sources of Hindu law.
● This is a supreme authority as it is considered to be divine source.
● But practically the srutis is of no legal significance.
● The srutis consists of the four Vedas and the Upanishads dealing chiefly
with religious rites and the means of attaining true knowledge and Moksha or
salvation.
The four vedas are as follows

1. Rig veda
2. Yajur veda
3. Sam veda
4. Atharva veda

1. The Rig Veda: it is the oldest text. It contains the eulogies of gods and laws of
sacrifices. It consists of 1028 hymns arranged into 10 groups (mandala) some of
which are sub-divided into smaller groups, the compilation of each group being
ascribed to some renowned saintly poet-priest (Rishi) of ancient times.

2. The Yajur Vedas :- it is liturgical arrangement of part of hymns of the Rig veda
with additions, for intoning in the appropriate manner at sacrificial ceremonies. It
is in prose containing explanations and directions, for the guidance of the priests.

3. The Sam Vedas:- it consists of prayers composed in mantra intended to be

chanted at sacrifices.

4. The Atharva vedas:- it consists of magic charms.

The Upanishads are denominated as the Vedanta or the concluding porting of the
Vedas and embody the highest principles of hindu religion and philosophy.
 3. Smritis:- smritis means “what was remembered” and is of human origin
and is believed to be the recollections of Rishis handed down to us,
constituting the principle sources of Hindu Law.

The smritis are divided into primary and secondary smritis,

The primary smritis are again classified into

a. Dharma sutras:- Baudhyana, Apastamba, Harita, Vasishtha and
Vishnu are the chief writers.
b. Dharmashastras :- Manu, Yajnyavalkya, Brihaspati and Narada are
the writers of this Shastras.

The Smritis are of 2 kinds:

i. In prose style:- the Smritis in prose are called “Dharma Sutras”.

ii. In Poetry style:- the smritis in verse are called “ Dharmashastras”.

The code of Manu has always been treated by Hindu sages and commentators, as a
being of paramount authority.

According to Brihaspati Manu holds the first place because he has expressed in his
code the whole sense of the vedas and no code is authoritative which contradicts
him.

Next to Manu it is work of Yajnayavalkya, in fact it is more dynamic though

based on Manu smriti. His work deals with rules of procedure in greater detail. His
work is more concise and logical.

4. COMMENTARIES AND DIGESTS:-

The period of commentaries and digest is between 700 A.D. to 1700 A.D..

The commentaries and digests were also the records of the traditional customs
recorded in the Smritis as well as the new customs claiming for and found worthy
of recognition.

Because of incompleteness and frequent conflicts in the rules of the smritis and
desirability of interpretation of the injunctions of smritis in a manner so as to suit
prevalent custom and usages of different parts of the country, there was the
necessity to reconcile them on the points of difference. In this process there arose
this important source.

The commentaries, though professing and purporting to rest on the smritis,

explained, modified and, enlarged the traditions recorded therein to bring them into
harmony and accord with prevalent practices of the day.

5. CUSTOM
WHAT IS A CUSTOM?

In section 3(a) of the Hindu Marriage Act 1955 the expression custom and
usage signify any rule which, having been continuously and uniformly observed
for a long time, has obtained the force of law among Hindus in any local area,
tribe, community, group or family; provided that the rule is certain and not
unreasonable or opposed to public policy; provided further that in the case of a rule
applicable only to a family it has not been discontinued by the family.

Difference between custom and useage.

It often that custom and useage terms are used as synonym but there is
difference that is Custom must be of antiquity and useage is of recent origin.

So, the custom to have the force of law or rule of law, it is necessary for the party
claiming it to plead and thereafter prove that such custom is ancient, certain and
reasonable.

Kinds of custom.
a. Local custom
b. Class custom
c. Family custom.

a. Local custom:- such customs belong to some particular locality, or district and
they are binding on the inhabitants of such place.
Case Law
Smt.Subhani V. Nawab [AIR 1941 Lah 154]
That “it is undoubted that a custom observed in a particular district derives its force
from the fact it has from long usage obtained in that district the force of law. It
must be ancient; but it is not of the essence of this rule that its antiquity must in
every case be carried back to a period beyond the memory of man still less that it is
ancient in the English technical sense.

What is necessary to be proved is that the useage has been acted upon its
practice for such a long period and with such invariability as to show that it has
been acted upon in practice for such a long period and with such invariability as to
show that it has, by common consent, been submitted to as the established
governing rule of the particular district.

B. Class custom:-
Such customs are of a caste, or a sect of the followers of a particular
profession or occupation, such as agriculture, trade, mechanical art and the
like.
C. Family customs:-
Such customs relate to a particular family, particularly concerning
succession to an impartible Raj or succession to Math’s or religious
foundations.

ESSENTIALS OF CUSTOM
• In order that a custom to be valid, it must be-
• Ancient
• It must be ancient in India.
• It need not necessarily be from time immemorial in the English technical
sense.
• In India the Hindu lawyers have laid down a reasonable rule on this
question. One hundred years is the limit suggested by them?
• Whatever is beyond a century is immemorial or out of mind of man whose
span of life according to the sruti extends to one hundred years only.

1. Ancient:-
A custom should be very old. It should have been accepted as law binding upon
them.
In India the Hindu lawyers have laid down a reasonable rule on this question.
One hundred years is the limit suggested by them.

In GOKAL CHAND V. PRAVIN KUMARI [ AIR 1952 SC 231]

 • The Hon’ble supreme court held that a custom in order to be binding must
derive its force from the fact that by long usage it has obtained the force of
law but the English rule that a custom in order that it may be legal and
binding must have been used so long that the memory of men runneth not to
the contrary should not be strictly applied to Indian conditions.
• All that is necessary to prove is that the usage has been acted upon in
practice for such a long period and with such invariability as to show that it
has, by common consent been submitted to as the established governing rule
of a particular locality.

2. Invariable and continuous:-

Continuity is as essential to the validity of a custom as antiquity.

• In the case of a widely spread local custom, want of continuity would be an

evidence to the fact that it never had a legal existence.
• It is difficult to imagine that a custom once thoroughly established, would
come to an end suddenly.
• Thus when a particular custom has been discontinued for a period it would
come to an end.
• It is immaterial whether the discontinuance results from accidental cases, or
from the intention of the persons affected by it.

3. Established by clear and unambiguous evidence :-

The evidence of custom must be clear and unambiguous.

• A custom may be proved either by actual instances or by general evidence of

the members of the tribe or family who would naturally be cognizant of its
existence.
• Custom must be proved by clear and unambiguous evidence.
• The testimony of experienced and competent person that certain acts done in
accordance with a particular usage are held by them to be legal and valid, is
admissible in evidence, provided that statements are supported by examples
of class, the history of the class is to be considered, in order to establish the
custom.
• The burden of proof as to the existence of a custom rests on the persons who
sets up a custom contrary to law.
• The burden of proving that the family has abandoned the law of origin and
has adopted the law of state where it has settled, lies on the party setting it
up, and the burden can be discharged by showing that in the matter of
 devolution of property, the rules obtaining in the country of adoption have
been accepted as rules governing the family.

6. Reasonable :-

The custom must be reasonable.

• Customs are not to be enlarged beyond the usage without the parity of
reason.
• It cannot be said that a custom is founded upon reason, though an
unreasonable custom is void.

7. It must not be opposed to morality or public policy and

• Though a custom may be clearly established, it cannot be enforced if it is
immoral or is against public policy.
• A custom should not be opposed to the express provision of any law nor
should it be forbidden by law.
• A custom opposed to rules given in the texts of smritis or commentaries is
not void.
Case law
• Collector of Madura v. Mootoo Ramalinga

In this case the Privy Council observed, under Hindu system of law, clear proof
of custom will outweigh the written text of law.

8. It must not be forbidden by any express enactment of the legislature.

A mere agreement among certain persons to adopt a particular rule cannot

create a new custom binding on others, wherever its effect may be upon
themselves.

9. LEGISLATION

• Legislation is modern source of Hindu Law. It has been an important factor

in the development of Hindu law. Most of them are in the direction of
reforming Hindu law and some of them supersedes Hindu law.

The important legislations which have modified, altered and supplemented the
textual Hindu law are as follows,
 1. THE CASTE DISABLITIES REMOVAL ACT 1850:-
A Person renouncing his religion or losing his caste is not deprived of his
rights of inheritance under the Act.

2. The hindu widow’s remarriage Act 1956

This Act legalized remarriage of Hindu widows in certain cases and declared
their rights and disabilities on remarriage.

3. The native converts marriage dissolution Act 1866

A hindu who converts to Christianity may obtain a dissolution of marriage
under circumstances laid down in the Act, though under the pure Hindu
Law, marriage being a sacrament, would not be dissolved.
4. The Special Marriage Act 1872:-
It is amended in 1923 and now as repealed by Act 43 of 1954.
5. The Indian Majority Act 1875:-

Except is cases of marriage, divorce and adoption, the age of majority has been
fixed on the completion of the 18th year.

10.The T.P.Act 1882:-

It superseded the Hindu Law relating to Transfer of property.
11.The Guardian and wards Act 1890:-
It applied to appointment of guardianship by the court.
12.The Hindu Disposition of Property Act 1916:-
It allowed bequest to an unborn person.
13.The Indian succession Act 1935:-
It modified the Hindu law relating to wills.
14.Inheritance (Removal of Disabilities) Act 1928.

It amended the Hindu Law relating to exclusion from inheritance of certain classes
of heirs on account of physical defects.

15.The Hindu Law of Inheritance (Amendment)Act 1919.

It altered the order of heirs on intestate succession and created new
female heirs.
16.The Child marriage Restraint Act 1929.
 It restrained child marriage.
17.The Hindu Gains of learning Act 1930

It provides that the property acquired by a coparcerner by means of learning

becomes his separate property.

18.The Hindu women’s rights to property Act 1937:-

A widow of a deceased Hindu was entitled to get a share along with the
son.
19.The Arya marriage validation Act 1937:-
It recognized the validity of inter-caste marriage.
20.The Hindu marriage Disabilities Removal Act 1946.
21.The Hindu married women’s Rights to separate residence and maintenance
Act 1949.
22.The Hindu marriage Validity act of 1949.
23.The special marriage Act 1954.
24.The Hindu marriage Act 1955
25.The Hindu minority and guardianship act 1956.
26.The Hindu succession Act 1956.
27.The Hindu Adoption and Maintenance Act 1956.
28.The Child marriage Restraint (Amendment) act 1978
29.Marriage law (Amendment) Act 1976.
30.Hindu Succession (Amendment) Act 1976.

Judicial Decision :-

During the British regime, for administering law in India, the courts exercised the
old Smritis and their commentaries while deciding the legal issues applicable to
Hindus.

The English Judges administered Hindu law with the assistance of Hindu pandits,
later it was abolished.

The Judicial decision constitute an important source of law. A large number of

decision have now piled up on almost every point of law which have superseded
the law laid down in commentaries on several fronts.
The precedent is not merely an evidence of a law but also a source of law and the
courts are bound to follow the precedents.

The judicial decision have modified and supplemented the pure Hindu Law and
now they have emerged as important source of law.

There are numerous instances where the judges in administering the Hindu law
either modified or altered it.

Ex:- Adoption, son to pay father’s debts, restriction on definition of stridhan,

curtailment of women’s rights

b. Concept of Dharma

Hindu law refers to the system of personal laws (marriage, adoption, inheritance, etc.),
traditionally derived from Hindu texts and traditions, that shaped the social practice of Hindu
communities. In Vedic times, Hindu law was the legal system described and imagined in
Dharmaśāstra texts. Classical Hindu law, brings the realm of legal practice together with the
scholastic tradition of Dharmaśāstra by defining Hindu law as a usable label for myriad localized
legal systems of classical and medieval India that were influenced by and in turn influenced the
Dharmaśāstra tradition.

Hindu law has a very old ancestry. It was given by Hindu seers and sages who after their
long penance and meditation discovered certain rules of conduct which, according them, are
necessary for peaceful co-existence of society.

The hindu seers and sages regarded the law as revelation of god and therefore it was
given the highest respect in the society. The king and his subjects were equally subjected to law.
In order to bring certainty to them the laws were codified by the Dharmashastra writers. Law was
identified with Dharma and was supposed to have its origin from god itself.

Goal of a life of human being

According to hindu philosophy, the ultimate aim of life is to achieve salavation Moksha from
this physical world. Human body is mortal but the soul is immortal. When any person dies, his
soul remains in a free state and acquires a new form at rebirth. Thus the chain of birth and death
continues till the soul attains Moksha from this world.

According to Dharmashastra there are four goals of human life, Artha, dharma, Kama and
Moksha. Moksha,, that is salvation is the ultimate goal. Prior to attainment of Moksha man has
to undergo three other stages of human life ie, Artha, dharma and Kama.
Dharma stands foremost. As a matter of fact, Artha and Kama are concerned with this world ,
whereas Dharma and Moksha are concerned with the next world. A life in accordance with
Dharma leads happiness and pleasure in this life also.

OR

APPLICATION OF HINDU LAW

⮚ The power of the court to apply Hindu law before independence was derived for the Acts
and statutes passed by the British parliament and provincial legislatures from time to
time.
⮚ 1774- from this year Britishers approved customary and textual Hindu law to the extent
they were not in conflict with the statutory laws.

The Indian courts also applied the principles of justice, equity and good conscience freely
whenever the situations demanded so.
⮚ All laws were in force in the territory of India and after the constitution was adopted
four major Acts were established
⮚ Hindu Marriage Act 1955.
⮚ Hindu succession Act 1956.
⮚ Hindu minority and Guardianship Act 1956 and
⮚ Hindu Adoptions and Maintenance Act, 1956
⮚ Have been passed with a view to overhauling the law concerning the above subjects.

Who are hindus?

⮚ Before answer to this point

⮚ One more question need to be answered that is
⮚ To whom hindu law is applicable?
⮚ Answer:- Hindu law is applicalbe to Hindus.
⮚ Now who are hindus?
⮚ Hindus are all those persons who profess Hindu religion either by birth, or by
conversion to the Hindu faith.

Yagnapurusdasji v/s Muldas AIR 1966 SCC 1119

⮚ The supreme court accepted the working formula evolved by Tilak regarding Hindu
religion.
⮚ According to Tilak “Acceptance of Vedas with reverence, recognition of the fact that
the means or ways of salvation are diverse and realization of the truth that the number
of gods to be worshipped is large, that indeed is the distinguishing feature of Hindu
religion”.
⮚ But the court did not give correct explanation about it.
 ⮚ In short, a person who carries a hindu way of life and who is known by others to be a
Hindu can be said to be a Hindu.

“Hindus born as well as made”

⮚ Its often said the status of a person as Hindu is determined by his birth.

⮚ But this is not correct because a person who is born to Hindu parents may cease his
status hindu by converting to another religion.
⮚ “So Hindu are those born as hindus and also those who become converts to
hinduism”
⮚ Hindus are therefore born as well as made and thus the applicability of Hindu law is
not restricted or confined to those persons only who are hindus by birth.

It’s application has been extended to those person also who have accepted the hindu
religion or who convert to Hinduism

Methods of conversion

A non-hindu may renounce his religion and become Hindu by conversion by any of the three
methods:-
a. If he performs the ceremony of conversion prescribed by the caste or community to
which he converts.
b. If he expresses an intention to become a Hindu and actually lives as a Hindu and the
community or caste into the fold of which he is ushered in accepts him as a member of
that community or caste.
If he declares that he is a Hindu and lives as a Hindu

Persons to whom Hindu Law applies

Uncodified Hindu life applies to following categories of persons;

i) Hindus by birth, and also to Hindu by religion, i.e. , converts to Hinduism
ii) Illegitimate children where both parents are hindus
iii) Illegitimate children where the father is a christain and the mother a hindu, and the
children are brought up as Hindus
iv) Jains, Buddhists in India, sikhs and Nambudri Brahmans except, so far as such law is
varied by custom and to Lingayats who are considered as shudras.

v) v. A hindu by birth who, having renounced Hinduism, has reverted to it after performing
the religious rites of expiation and repentance. Or even without a formal ritual of
reconversion when he was recognised as a Hindu by his community.

vi.) Sons of Hindu dancing girls of the Naik caste converted to Mohammedanism where the sons
are taken into the family of the Hindu grand-parents and are brought up as a Hindu.
Vii). Brahmos, Arya samajishts and santhals of chota Nagpur, and also Santhals of Manbhum
except so far as it is not varied by custom.

Viii) . Hindu who made a declaration that they were not Hindus for the purpose of the special
marriage Act 1872; and

Ix). A person who is born Hindu and has not renounced the Hindu religion, does not cease to be
a Hindu merely because he departs from the standard of orthodoxy in matters of diet and
ceremonial observances.

Following persons are Hindus for the purpose of these codified laws.

Ex. Hindu marriage Act, Hindu succession Act,

1. any person who is hindu by religion in any of its forms or developments, including-
a. a virashaiva
b. a lingayat
c. a follower of the Brahmo, Prathana or Arya samaj.

II. Any person who is either –

a. a Buddihist by religion ; or
b. a jain by religion
c. a sikh by religion

III. Any other person domiciled in the territories to which these Acts extend who is not-
a. A Muslim by religion ; or
b. A Christian by religion ; or
c. A parsi by religion; or
d. A Jew by religion.;

The following persons are Hindus, Buddhists, Jains or Sikhs by religion

a. Any child legitimate or illegitimate both of whose parents (father and mother) are
Hindus, Buddhists, Jains or Sikhs by religion;
b. Any child , legitimate or illegitimate, one of whose parents either (father or mother) is a
Hindu, Buddhist, joins or Sikh by religion and who is brought up as a member of the
tribe, community, group or family to which such parent (either the father or the mother )
belongs or belonged.
Any person who is a convert to the Hindu, Buddhist, Jains or Sikh religion

Q.NO.2.a. Discuss the important changes brought by the Hindu Marriage

Act 1955 and marriage laws (Amendment) Act, 1976 to the Hindu Law.

Answer:-
Introduction

This act is a landmark in the history of social legislation

This enactment is exhaustive and it has brought important and dynamic changes in
Hindu matrimonial concept. It has not simply codified the Hindu law of marriage
but has introduced certain important changes in many respects.

The Hindu marriage contemplated by the Act hardly remains sacramental.

The Act has introduced some changes of far- reaching consequences which have
undermined the sacramental character of marriage and rendered it contractual in
nature to a great extent.

CHANGES BROUGHT ABOUT BY THE HINDU MARRIAGE ACT 1955.

The following changes were brought about by the Act in the law of marriage are
important,

1. Inter- caste marriage in not prohibited. According to Section 29 of the Act,

the marriage solemnized between the different caste or different religion is
valid.
2. Monogamy which is essentially the voluntary union for life of one man with
one women to the exclusion of all others, is not enforced by legislation-
Section 5(i) . any marriage solemnized after the commencement of this Act
is null and void if at the date of such marriage either party had a husband or
wife living
3. Bigamy has been made punishable as an offence under the Indian Penal
Code (sec 17).
4. The conditions and requirements of a valid Hindu marriage have been
considerably simplified (section 5 to 7).
● The sapinda prohibition has although been accepted yet the degree of
sapinda relationship has been curtailed.
● It has now been confined to fifth degree from the father and third
degree from the mother in upward line.
● Further, the Act has enumerated the list of prohibited degree of
relations, between whom a valid marriage could not take place.
 ● Several matrimonial reliefs has been provided by the act. Ex.
Divorce, judicial separation.
● Legitimacy has been conferred on such children who are born of void
and voidable marriage.
● Provision for alimony pendent lite, permanent alimony and
maintenance have been made.
● Wide discretionary powers have been conferred on the court to pass
suitable orders relating to the custody, maintenance and education of
minor children of the parties.

CHANGES BY VIRTUE OF MARRIAGE LAWS(AMENDMENT) ACT,

1976.

A few more changes have been brought by Act of 1976.

1. Section 13-B now provides for divorce by mutual consent of the parties.
2. Divorce on the ground of adultery has made easy. Now a single instance
of adultery on the part of the other spouse entitles the spouse to seek
divorce.
3. Divorce on the ground of incurable unsoundness of mind, incurable
leprosy or venereal disease, formerly the party seeking divorce could not
file petition for 3 years had elapsed. Now the party seeking divorce on
this ground need not wait for 3 years.
4. Section 21 –B has been added which provides for the continuance of the
trial (day to day) until conclusion of the case.

OR

BRIEFLY STATE THE GROUNDS FOR DIVORCE UNDER THE HINDU

MARRIAGE ACT 1955.

Answer:-

Introduction

Divorce was unknown to general Hindu law as marriage was regarded as an

indissoluble union of the husband and wife. Ancient Hindu law does not recognize
a divorce. Hindu Marriage Act 1955 has introduced vital and dynamic changes in
the Hindu Law of marriage.

SECTION 13: GROUNDS FOR DIVORCE.

1. AVAILABLE TO HUSBAND AND WIFE BOTH.

1. ADULTERY [SECTION 13(1)(i)]:-

Under the Amendment laws, now it has been replaced by a simple requirement of
adultery, that is, voluntary sexual intercourse with any person other than his or her
spouse.

Now even a single act of adultery may constitute a sufficient ground for obtaining
divorce.

In the present clause the expression ‘voluntary sexual intercourse’ has been used.
Therefore the sexual intercourse by either of the spouse with a person other than
his or her spouse must be a voluntary act. If one of the spouses is raped it cannot
be said that there is voluntary intercourse.

Case law:-

P v. P [AIR 1982 BOM 498]

In this case the wife was seen in a semi-naked state in a hotel with a
stranger, the court did not consider it sufficient to conclude adulterous relation of
wife with the stranger.

The court held that so long the act of cohabitation is not proved beyond doubt.

STANDARD OF PROOF :-

Adultery from its very nature is a secret act. Direct evidence of an act of
adultery is extremely difficult. Direct evidence, even when produced, the court will
tend to look upon it with disfavor, as it is highly improbable that any person can be
a witness to such acts, as such acts are generally performed with utmost secrecy.

But the evidence of adultery whether direct or circumstantial, must be

necessarily of such a character as would make a reasonable man to believe beyond
any doubts and mere probability that adultery may have been committed is not
enough.

CASE LAW:-

SMT. PUSHPA DEVI V/S. RADHEYSHAM [AIR 1972 RAJ 26]

In this case it was held that it is not necessary to prove the fact of adultery
by direct evidence and such evidence if produced would normally be suspected and
likely to be discarded.

THIMMAPPA DASAPPA V/S. THIMMVA [AIR 1967 SC 581]

The facts were that the wife used to be usually absent from the house and
found to be in company with strangers. She was also found in the room of the
strangers. She did not have any explainations for being in their company. On the
petition for divorce by the husband the court held that under the conditions the
wife’s living in adultery would be established and the petition would be decreed.

HARGOVINDA SONI VS. RAM DULARI [AIR 1986 MP 57]

The court observed that it was no longer required that adultery must be
proved beyond all reasonable doubt. It could be established by preponderance of
probabilities.

The law relating to standard of proof is clear and simple. It is not necessary
that the charge of unchastity must be proved beyond all reasonable doubt. It could
be established by preponderance of probabilities.

2.CREUELTY (SECTION 13(1) (1-a) :- cruelty where the petitioner has been
treated with cruelty after the solemnization of marriage he would be entitled to get
a decree of divorce. Cruelty has become a ground of divorce as well.

Cruelty is not defined in the act but for the purposes of establishing an act of
cruelty it should be so serious and weighty that cohabitation becomes impossible.
It should be somewhat more serious than ordinary wear and tear of routine marital
life.

CASE LAW
INDIRA GANGELE VS. S.K. GANGELE [AIR 1993 MP 59]

In this case it was stated that only some misunderstanding between parties
was established. It was held that merely saying that parties are unhappy is not
enough not even unruly temper of a spouse or whimsical nature of a spouse is
enough.

Cruelty consists of acts which are dangerous to life, limb or health. Cruelty
for the purpose of the Act means where one spouse has so treated the other and
manifested such feelings towards her or him as to have inflicted bodily injury, or to
have caused reasonable apprehension of bodily injury, suffering or to have injured
health. Cruelty may be physical and mental.

Mental cruelty is the conduct of other spouse which causes mental suffering
or fear to the matrimonial life of the other.

CASE LAWS

SHOBHA RANI V/S. MADHUKAR REDDI [AIR 1988 SC 121]

The Hon’ble Supreme court considerably enlarged the concept of cruelty

and held that the demand for dowry which is prohibited under law amounts to
cruelty entitling the wife to get a decree for dissolution of marriage.

RAJENDER BHARDWAJ VS. ANITHA [AIR 1993 DEL. 135]

In this case the wife did not allow the husband to consummate the marriage
for the first seven days and nights. The wife abused her mother-in-law , wrote a
nasty letter to her husband making illegal demand for clothes for her brother etc.,
and threatened to burn the whole house by putting gas cylinder on fire and also to
file a false dowry case against the family members. It was held that wife is guilty
of cruelty.

The question of legal cruelty justifying judicial separation or divorce on the

ground may be considered under the following heads:-

a. Actual or threatened physical violence.

b. Verbal abuse and insults
c. Excessive sexual intercourse
 d. Refusal of intercourse
e. Neglect
f. Communication of venereal diseases
g. Drunkenness and use of drugs
h. Forcing association with improper persons
i. False charge of immorality against the wife
j. Ill-treatment of children
k. Wife’s association persisting in with another women raising suspicion of
her practicing lesbianism
l. Wife suffering from deadly disease.

3.DESERTION [SECTION 13 (1) (1-b) :-

Where the petitioner has been deserted continuously for a period not less
than 2 years immediately preceding the presentation of the petition for judicial
separation or divorce, such petition may be granted.

Desertion means withdrawing from a matrimonial obligation i.e., not permitting or

allowing and facilitating the cohabitation between the parties.

Desertion is not a single act complete in itself, it is a continuous course of conduct

to be determined under the facts and circumstances of each case.

Desertion by the other party to the marriage without reasonable cause and without
the consent or against the wish of such party and includes the willful neglect of the
petitioner by the other party to the marriage.

For the offence of desertion, so far as the deserting spouse is concerned two
essential conditions must be proved:-

1. The factum of separation

2. The intention to bring cohabitation permanently to an end.

Desertion is classified into 2 kinds:-

a. Actual desertion
b. Constructive desertion
 A. Actual desertion:- in order to constitute actual desertion the following facts
should be established
i. The spouse must have parted or terminated all joint-living
ii. The deserting spouse must have the intention to desert the other
spouse
iii. The deserted spouse must not have agreed to the separation
iv. The desertion must have been without reasonable cause, and
v. This state of affairs must have continued for the period of 2 yrs.

Case law:-

BIPIN CHANDRA V/S PRABHAWATI [AIR 1957 SC 173]

It was a case decided by the Hon’ble Supreme court. It is an case example

on animus deserendi – an intention to bring cohabitation permanently.

In this case the wife used to reside with the husband along with the parents.
Their marital life was happy and a son was born to them. Late the husband left for
England for a few months.

During his absence the wife developed intimacy with the old friend of the
husband, and one of the letters containing objectionable contents was intercepted
by the father-in-law of the wife.

On the return of the husband the father-in-law told him everything. When
the husband asked her to explain all this, she refused and on next day left for her
parents place.

Later the husband wrote a letter to her asking her to send the child, some
attempts to reach an understanding were made between them.

When the mother of the wife sent a telegram to the husband to receive his wife on
station, the reply sent back by the husband was that she should not be sent.

After sometime the husband filed a petition for divorce on the ground of
desertion by the wife. The defence of the wife was that it was petitioner who by
his treatment made her life unbearable and compelled her to leave matrimonial
home.

The supreme court held that the ‘question to be considered is whether her
leaving marital home is consistent with her having deserted her husband in the
sense that she had deliberately decided permanently to forsake all relationship with
him with intention of non-returning to consortium with our the consent of the
husband and against his wishes.

In this case the court concluded that even though the wife leaves
matrimonial home without any cause, she will not be guilty of desertion if
subsequently she shows an inclination to return and is prevented from doing so by
the petitioner.

B. Constructive desertion:- it consists of that state of things where one party

to marriage has been compelled to leave matrimonial home owing to repulsive
behavior of the other party and the party thus living separately cannot be held to be
deserter but the party compelling her/him would be held to be the deserter.

CASE LAW

DR. SRIKANT RANGACHARYA VS. SMT. ANURADHA [AIR 2000 SC

1650]

The Karnataka high court held that willful neglect by one spouse to the other
would come within the meaning of desertion. It is not necessary to prove that one
of the parties to marriage is living separately from the other.

4.CONVERSION :- section 13(1) (ii) :- conversion to another religion is one of

the ground for divorce. A decree for divorce can be obtained by a petitioner
where the opposite party has ceased to be a Hindu by conversion to another
religion.

5.UNSOUND MIND [SECTION 13(1) (iii) ]:- incurable unsoundness of mind

or continuous or intermittent mental disorder of such a nature as to disable the
petitioner to live reasonably, with the respondent makes the petitioner eligible to
get a decree of divorce.

CASE LAW

RAM NARAIN GUPTA VS. SMT. RAMESHWARI GUPTA [AIR 1988 SC

2260]

The Supreme Court elaborately described about the decree of mental disorder
which will enable an aggrieved party to a marriage to obtain a decree of divorce.
The court held that the context in which the idea of unsoundness of ‘mind’ and
mental disorder occur in the section as grounds for dissolution of a marriage,
require the assessment of the degree of the ‘mental disorder’. It degree must be
such as that the spouse seeking relief cannot reasonably be expected to live with
the other.

LEPROSY [SECTION 13(1) (iv) ]:- here the spouse presenting the petition has
to show that the other spouse has been suffering from a virulent and incurable form
of leprosy.

Case law

Swarajya laxmi v/s. Dr. G.G.Padma Rao [AIR 1974 SC 165]

The Supreme Court held that lepromatous leprosy is virulent. This type of leprosy
is malignant and contiguous.

It also an incurable form of leprosy and entitles the other spouse to a decree for
divorce.

The petitioner brought the divorce petition against the respondent on the ground of
lepromatous and it was decreed.

6.VENERAL DISEASE [SECTION 13(1) (v) ]:-

it is essential for petitioner to prove that the opposite party is suffering from
venereal disease in a communicable form.

7.RENUNCIATION OF WORLD [SECTION 13(1) (vi) ]:-

Renunciation of the world is regarded tantamount to civil and therefore it is given

as a ground for a decree of divorce.

He or she must perform the ceremonies necessary for entering the class of sanyasi;
without such ceremonies he cannot be regarded dead for worldly purposes.

8.PRESUMED DEATH [SECTION 13(1) (vii) ]:-

Either of the party may seek divorce on this ground if the other party has not been
heard of as being alive for a period of 7 years or more by those persons who would
naturally have heard of it , had that party been alive.

The aggrieved party may marry again and have legitimate children
9.NON-PRESUMPTION OF COHABITATION AFTER THE DECREE OF
JUDICIAL SEPARATION [SECTION 13(1-A )( 1)]:-

It provides that the either party to a marriage may present a petition for
dissolution of the marriage by a decree of divorce on the grounds that there has
been no resumption of cohabitation between the parties to the marriage for a period
of one year or more after the passing of a decree for judicial separation in the
proceeding to which they were parties.

A party will be entitled to a decree of divorce if a decree of judicial separation

has already been passed and the other party has not resumed cohabitation within
one year thereafter.

10.FAILURE TO COMPLY WITH THE DECREE FOR RESTITUTION OF

CONJUGAL RIGHTS . [SECTION 13(1-A )]:-

A party will be entitled to a decree of divorce also when a decree for restitution
of conjugal rights has been passed and it has not been complied with within one
year of the passing of such a decree.

The spouse who fails to comply with it would do so at his or her risk and it
would not be necessary for the aggrieved spouse to prove that he or she had made
positive efforts to make the other party comply with the same and it would suffice
to show that there was no compliance with the decree.

GROUNDS AVAILABLE TO WIFE ONLY FOR DIVORCE [SECTION

13(2)

4 Additional grounds are available to wife only. They are as follows

1. Section 13(2) (1)- BIGAMY:- A wife may also present a petition for the
dissolution of marriage by a decree of divorce on the ground of second marriage
by husband which was solemnized after the commencement of the Act .

It is held that the 2nd marriage of the husband was void ab -initio and the 2 nd
marriage of the husband amounted to adultery. The petitioner therefore is entitled
to a decree of divorce under section 13(1) (i) and not under section 13(2).

2. Section 13(2)(II)- Rape, sodomy or bestiality:- the expression rape and

sodomy have been defined in section 375 and 377 of the IPC simultaneously.

A man is said to commit rape who has sexual intercourse with a women.
1. Against her will, or
2. Without her consent or
3. With her consent, when her consent has been obtained by putting her or
any person in whom she is interested in fear of death or of hurt, or
4. With her consent , when the man knows that he is not her husband and that
her consent is given because she believes that he is another man to whom she is
lawfully married or
5. With her consent, when at the time of giving such consent, by reason of
unsoundness of mind or intoxication or the administration by him personally or
through another of any stupefying or unwholesome substance she is unable to
understand the nature and consequences of that to which she gives consent, or
6. With or without her consent when she is under 16 yrs of age.

3. Section 13(2)(III)- NON-RESUMPTION OF COHABITATION AFTER

DECREE OR ORDER OF MAINTENANCE :-

Where the decree or order has been passed against the husband awarding
maintenance to the wife in a suit after passing of such decree or order,
cohabitation between the parties has not been resumed for one year or upwards,
decree of divorce would be granted.

4.Section 13(2)(IV)- OPTION OF PUBERTY :- where the wife’s marriage was

solemnized before she attained the age of 15 yrs and she repudiated the marriage
after attaining that age but before attaining the age of 18 yrs. It is immaterial
whether the marriage has been consummated or not.
Conclusion:-

Section 13 provides the circumstances in which the right to divorce accrues for
husband and wife together and special grounds for wife alone.

b. wife has moved to the court questioning the constitutional validity of Sec 9
of Hindu Marriage Act 1955( Restitution of Conjugal Rights ) a ground of
right to privacy. Discuss

Answer :- section 9 of the hindu marriage Act 1955 is not violating any
provision of the constitution that is section 14 and 21.
 Section 9 of Hindu Marriage Act 1955( Restitution of Conjugal Rights ) is
the foundation of the right is the fundament rule of matrimonial law that one
spouse is entitled to society and comfort- consortium- of the other spouse and
where either spouse has abandoned or withdrawn from the society of the other
without reasonable excuse or just cause the court should grant a decree for
restitution.
CASE LAW

T.SAREETHA VS. VENKATA SUBBAIAH [AIR 1983 ANDH PRA 356]

The Andhra Pradesh High court has observed that a decree of restitution of
conjugal rights deprived a women of control over her choice as and when and by
whom the various parts of her body should be allowed to be served. She loses her
control over her most intimate decisions. It did not subserve any social good. It
was arbitrary and void as offending Art 14 of the constitution.

SORAJ RANI VS. SUDARSHAN KUMAR [AIR 1984 C 1562]

In this case the Supreme court observed that section 9 of the Act cannot be
said to be violative of Art 14 or Art 21 of the constitution if the purpose of decree
of restitution of conjugal rights in the Act is understood in its proper perspective
and if the method of its execution in cases of disobedience is kept in view.

In India conjugal rights, the right of the husband and wife to the society of
other spouse is not merely creature of the statute. Such a right is inherent in the
very institution of marriage itself. The term conjugal rights may be viewed in its
proper perspective.

Solution :- hence it can be stated that the wife who has moved to the court
questioning the constitutional validity of Section 9 of Hindu Marriage Act
1955( Restitution of Conjugal Rights ) is valid and does violate Article 14 and
Article 21.
OR

Prabhakara aged 25 years & Kusuma aged 17 years are married with arrangement &
consent of their parents. Discuss the validity of their marriage .

ANSWER: The marriage between Prabhakara and Kusuma is not valid.

The reasons are as follows,

According to section 5:- which states the conditions for a valid marriage under
Hindu Marriage Act 1955. Are as follows,

1. Monogamy
2. Soundness of mind
3. Age of marriage
4. Marriage between prohibited relationship
5. Marriage within sapinda relationship.

Section 5 (iii) state the 3rd condition is that the bridegroom must be completed the
age of 21 years and the bride age of 18 years at the time of marriage.

The child marriage restraint (Amendment ) Act, 1978 has raised the minimum age
fixed for marriage to 21 yrs in case of bridegroom and 18 years in case of bride.

The Prohibition of child marriage Act 2006 : According to sec 2(b) of child means
a person who if a male has not completed 21 yrs of age and if a female has not
completed 18 yrs of age.

According section 3 of the Act the child marriage is voidable at the option
of the contracting g party who was a child at the time of the marriage , but petition
under this section can be filed before the child filing the petition completes 2 years
of attaining majority.

Solution:- hence the marriage between Prabhakara and Kusuma is void and
Kusuma can repudiate her marriage before attaining the age of 18 yrs and the girl
can obtain a decree for dissolution of marriage.

Q.NO.3.a.Who is a coparcener? What are his rights and liabilities in a

Mitakshara joint Family?

INTRODUCTION

A Hindu coparcenary is a much narrower body than a joint Hindu family. It

includes only those who acquire by birth an interest in the joint or as, it is called
“coparcenary property”, these being the sons, grandsons, and great-grandsons of
the joint property for the time being.

Now even the daughter is also a coparcener according to section 6 Hindu

succession (Amendment) Act 2005.

The essence of a coparcenary under the Mitakshara is community of interest

and unity of possession between all the members of the coparcenary.

Each coparcener is entitled to joint possession and, enjoyment of the common

property.

The essence of the coparcenary being unity of ownership, no individual

member of the family, while it remains undivided, can predicate of the joint and
undivided property that he has a certain definite share.

Thus, if a person inherits property from his father, grandfather or great

grandfather, his sons, grandsons and great grandsons and daughters of a
Mitakshara coparcener acquire an interest in it by birth and then they become with
him joint owners of the coparcenary property with a right to demand partition of
the same and all of them are coparceners and constitute a coparcenary.

STATE BANK OF INDIA V. GHAMANDI RAM [AIR 1969 SC 1330]

The Hon’ble Supreme court has laid down special feature of a Mitakshara
coparcenary given below.

1. The Male descendants up to three generations from a common ancestor, who

acquire an interest by birth, constitute a coparcenary.
2. These members of the coparcenary have right to demand partition.
3. So long there is no partition, each of the coparceners has control over the
entire property along with others.
4. Their ownership and right of joint possession are common, on account of co-
ownership.
5. There cannot be any transfer of the coparcenary property unless the
necessity of such transfer is proved and all other members of the
coparcenary give their consent to this effect.
 6. On the death of any of the coparceners, hid share devolves on other
coparceners by the rule of survivorship not be succession.

FEATURES OF COPARCENARY

1. UNITY OF OWNERSHIP:-

The essential feature of a Mitakshara coparcenary property is unity of ownership

and community of interest. The ownership of coparcenary property is in the whole
body of the coparceners.

2. INDETERMINABILITY OF SHARES:-

In a Hindu undivided family governed by the Mitakshara law, no individual can

predicate, while it remains undivided, that he has a definite share in the property of
the family.

3.COMMUNITY OF INTEREST:-

No coparcener is entitled to any special interest in the coparcenary property, nor is

he or she entitled to exclusive possession of any party of the property.

4. DAUGHTER OF A COPARCENER MY ALSO BE A COPARCENER:-

The Hindu succession (Amendment)Act, 2005 – has made a daughter of a

Mitakshara coparcener, a coparcener by birth as if she were a son.

5. RIGHT BY BIRTH:-

The coparcenary property is a property in which the issue of the coparceners

acquire an interest by birth.

WHEN DOES A COPARCENARY COMES TO AN END

1. By partition

2. By the death of the last surviving coparcener.

RIGHTS OF COPARCENERS

1. Rights of common possession and common enjoyment:-

 • There is community of interest and unity of possession between all
coparceners.

• No one is entitled to special interest in the coparcenary property.

2. Community of interest and right to savings

No coparcener has got a defined share in coparcenary property, or in the income of

the property.

While the property is undivided , no one can predicate that he has a certain
definite share in the property in the family.

RIGHT TO JOINT POSSESSION.

Each coparcener is entitled to joint possession and enjoyment of the family

property.

Right to enforce partition

Every coparcener whether major or minor is entitled to call for the partition of his
share, even against his father and brothers or the father and grand-father.

RIGHT TO RESTRAIN UNAUTHORISED ACT.

A coparcener may restrain any unauthorized act of the other coparceners property
if such act interfere with the joint enjoyment thereof.

Ex. Erection of building , or wall or giving joint property in security.

RIGHT TO ASK FOR ACCOUNT

A coparcener may demand an account of the management of joint property so that

he may know the actual state of family funds.

RIGHT OF ALIENATION

A coparcener may alienate his undivided interest in the coparcenary by gift or

mortgage or sale with the consent of the other coparceners.

Right to set aside alienations.

Every coparcener has a right to set aside alienation made by a father, manager or
any other coparcener beyond his authority.

RIGHT TO MAINTENANCE

A coparceners wife and children are entitled to be maintained out of the

coparcenary funds;

10. RIGHT TO RENOUNCE INTEREST IN COPARCENARY PROPERTY.

A coparcener can renounce interest in coparcenary property in favour of all or any

one of the coparceners.

OR

Explain the various modes of effecting a partition and when can be re-
opened?
SYNOPSIS

● Introduction
● Modes Of Partition
● Effects Of Partition
● Suit For Partition
● Reopening Of Partition
● Conclusion
According to Mitakshara Law

Partition is the adjustment of diverse rights regarding the whole by distributing them or
particular portions of the aggregate.

CASE LAW

KALYANI VS. NARAYANAN [AIR SC 1173]

Essentials ingredients of partition

1. Male members should express his clear wish for partition.

2. Expression according to circumstances
3. The desire of partition must be noticed to all members of the family
4. It is severance of the joint status
5. Every coparcener has right to claim partition
 6. By partition the joint status comes to an end resulting in putting the coparcenary to an
end.

MODES OF PARTITION:-

1. Partition by mere declaration to separate:-

2. Partition by notice
3. Partition by will
4. Conversion to another faith
5. Marriage under special marriage act 1954
6. Partition by agreement
7. Partition by arbitration
8. Partition by father
9. Partition by suits

1. Partition by mere declaration to separate:-

To constitute partition is a definite and unequivocal indication of his ‘intention’ by a member of

joint-family to separate himself from the joint family and enjoy his share in severalty.

2.Partition by notice

A severance of joint status may be effected by serving a notice by a coparcener on the

other coparceners, including his intention to separate and enjoy the property in severalty
or demanding partition of the property.

3.Partition by will

Partition may be effected by a coparcener by making a will containing a clear and

unequivocal intimation to his coparceners of his desire to server himself from the joint
family or containing an assertion of his right to separate.

4.Conversion to another faith:-

Conversion of a coparcener to any other religion operates as partition of the joint

status as between him and other members of the family.

5.Marriage under special Marriage Act, 1954.

Marriage of a hindu under the Special Marriage Act causes severance between him
and the other members of the family.

6.Partition by agreement.
 The agreement between the members of a joint family to hold and enjoy the property
in certain defined shares as separate owner operates as partition, although the property
itself has not been actually divided by metes and bounds.

7.Partition by arbitration:-

An agreement between the members of a joint family whereby they appoint an

arbitrator to arbitrate and divide the property operates as a partition from the date
thereof.

8.Partition by father:-

The father may also cause the severance of the sons without their consent.
Doctrine of patria potestas (paternal power)
● According to this doctrine father can get the shares of his sons fixes and also
get them separated.
● But he does not have the right to get the joint family property partitioned
through the will.
● Although he could do the same with their consent.

8.Partition by suits.

The institution of a suit for partition effects severance of joint family status and as
such the mere institution of such a suit effects immediate severance of joint status.

EFFECTS OF PARTITON

� Joint status comes to an end

� Coparcenary also comes to an end
� Share is also determined
� Partition does not annul the family and other relation

SUIT FOR PARTITION

Who can sue for partition?

1. Every adult coparcener :- every coparcener [son/daughter] is entitled to sue for partition and is
entitled to have a share on partition.

2. a purchaser of a coparcenary interest of a coparcener at a sale in execution of decree- such a

purchaser can demand a partition.

SUIT BY MINOR:-
The Hindu law makes no distinction between a minor and major coparcener so far as their rights
to joint properties are concerned.

Hence, a minor is also eligible to file a suit for partition.

VENKATA REDDI V/S LAKSHAMMA [AIR 1963 SC 1601]

The court held that if a suit for partition by a minor, the court will direct partition only if
partition is in the interest of the minor but that limitation arises not because of any peculiarity in
the estate of the minor but is imposed for protection of his interest.

REOPENING OF PARTITION :-

The general rule is that partition once made cannot be re-opened. But there are certain
exceptions

Cases where partition may be re-opened.

1. A son conceived at the time of partition, though not born before partition can re-open it if
a share has not been reserved for him.

On the other hand if a son is begotten as well as born after partition and if a share has been
allotted to the father, such after born is not entitled to have the partition re-opened and same rule
to daughter.

2. A son begotten as well as born after partition can demand a re-opening of partition, if his
father entitled to a share has not reserved a share for himself.
3. A disqualified coparcener after the removal of disqualification or a missing coparcener on
his return can re-open the partition.
4. A partition re-opened be minor coparcener on attaining the majority if the partition made
during his minority was unfair or prejudicial to his interest.
5. If a coparcener has obtained an unfair advantage in the division the partition may be
reopened for the readjustment of shares.

Conclusion:-

The coparcener of the joint family can also go for re-union on certain conditions. For re-union
intent of the parties to reunite in estate and interest. There shall be an agreement with in the
members.

b.Father has incurred debt for personal benefit; son has self- acquired
property. Is son liable to discharge debt of his father? Decide
Answer:- No, the son is not liable to discharge debt of his father.
In the above mentioned problem the son will not be liable to discharge the debts of his father,
because according to pious obligation, the son’s liability is classified as,

1. Before partition and 2. After partition.

Under 1. Before partition.

Which is again divided into 2, that is

a. Debt incurred by father as manager or ‘Karta’ of the joint family or for joint
family purposes.

b. Debt incurred by the father for his personal benefit.

Under the sub-head (b) , that is debt incurred by the father for his personal benefit, the son on
the basis of the doctrine of pious obligation will be liable for the payment of the debt provided
the debt is not tainted with illegality or immorality. And the liability is limited to the son’s
interest in the coparcenary property.

But in the above mentioned problem there is no coparcenary property and son has self- acquired
property hence, the son is under no obligation to pay the debts incurred by the father for his
personal benefit.

OR

A Joint Hindu family consist of father ‘F’ and his son ‘S’. Partition takes place between ‘F’
and ‘S’. Two years after partition another son ‘T’ is born to ‘F’. Now state who all
coparceners are and what the share of property of each person is.

ANSWER :- In this problem the coparceners are the father (F), his son(S). The share of
property of each person is 1/2rd of the property.

The son ‘T’ who is born as well as begotten to ‘F’ after the partition is entitled to his father’s
share at the partition. He is not entitled to reopen the partition.

Coparceners are such persons who jointly inherit property, whereof they have unity of
possession, which, however may be served at any time by partition.

Partition of the joint hindu family property may take place at the instance of the following.

1. after born sons (and after born daughters of a coparceners. After born sons may be considered
in two sets.

Firstly, those born as well as begotten after the partition, and secondly, those born after partition
but begotten before it or those in their mother’s womb at the time of partition.
In case of a son born as well as begotten after the partition, if his father has taken a share for
himself and separated from the other sons, then the after-born son, is entitled to his father’s share
at the partition and also his separated property to the exclusion of the separated sons and is not
entitled to reopen the partition.

So in the above mentioned case the son born as well as begotten after the partition is entitled to
get the share of his father and not entitled to re-open the partition.

Q.NO.4. a. Explain the general rules of succession of Hindu female dying

intestate under the Hindu Succession Act, 1956.

INTRODUCTION :-

The Hindu succession Act 1956 marks a new era in the history of social
legislation in India. It has attempted to bring some reforms in the system of
inheritance and succession.

RAU’S COMMITTEE was set up to codify Hindu law

Under this committee Hindu marriage act 1955, Hindu Minority and
Guardian ship Act 1956, Hindu adoption and Maintenance Act 1956 and Hindu
Succession Act 1956 was passed

Objects of the Hindu Succession Act 1956

1. It is was passed to meet the needs of a progressive society.

2. Removes inequality between male and women with respect of rights and
property and it evolves a list entitled to succeed
3. It is passed to codify and amend the Hindu law succession.

RULES OF SUCCESSION TO THE PROPERTY OF FEMALE;-

SECTION 15:- prescribes the general rules of succession of the property of a

female dying intestate, and section 16 lays down the order of succession.

Section 15(1):- 1. The property of a female Hindu dying intestate shall devolve
according to the rules set out in section 16-

a. Firstly, upon the sons and daughters (including the children of any
predeceased son or daughter) and the husband.
b. Secondly, upon the heirs of the husband.
 c. Thirdly, upon the mother and father.
d. Fourthly, upon the heirs of the father; and
e. Lastly upon the heirs of the mother.

2. Not withstanding anything contained in sub-section (1)

a. any property inherited by a female Hindu from her father or mother shall
devolve, in the absence of any son or daughter of the deceased (including the
children of any pre-deceased son or daughter) not upon the other heirs referred to
in sub-section (1) in the order specified therein, but upon the heirs of the father
and,

b. any property inherited by a female hindu from her husband or from her father-
in-law shall devolve, in the absence of any person or daughter of the deceased
(including the children of any pre-deceased son or daughter) not upon the other
heirs referred to in sub-section (1) in the order specified therein, but upon the heirs
of the husband.

ORDERS OF SUCCESSION – SECTION 16.

The order of succession among the heirs referred to in section 15 shall be, and the
distribution of the intestate’s property among those heirs shall take place,
according to the following rules, namely-

Rule 1- among the heirs specified in sub-section (1) of section 15 those in one
entry shall be preferred to those in any succeeding entry, and those included in the
same entry shall take simultaneously.

Rule 2- if any son or daughter of the intestate had pre-deceased the intestate
leaving his or her own children alive at the time of the intestate’s death, the
children of such son or daughter shall take between them the share which such son
or daughter shall have taken if living at the intestate’s death.

Rule 3- the devolution of the property of the intestate on the heirs referred to in
clauses (b) (d) and (e) of sub-section (1) and in sub-section (2) of section 15 shall
be in the same order and according to the same rules as would have applied if the
property had been father’s or the mother’s or the husband’s as the case may be and
such person had died intestate in respect thereof immediately after the intestate’s
death”.

Who are the heirs?

Sec 15(1) divides the heirs of a hindu female into 5 categories.

1). Heirs in the first entry:

a. Sons
b. Daughters.
c. Children of predeceased son.
d. Children of pre-deceased daughter.
e. Husband.

2). Heirs in the second entry:

The heirs of the husband of the female dying intestate come under second entry.
The heirs of the husband are:

a. Heirs of the husband specified in class I of the schedule.

b. Heirs of the husband specified in class II of the Schedule.
c. Agnates of husband.
d. Cognates of the husband.

3). Heirs in the third entry.

a. Mother- it does not include step-mother but includes natural as well

as adoptive mother.
b. father “father” does not include step-father of putative father. But
includes natural or adoptive father.

4. Heirs in the fourth entry-

Heirs of the father of the female dying intestate comes under this
entry. The heirs of the father are:
a) Heirs of the father specified in class I of the schedule.
b) Heirs of the father specified in class II of the schedule.
c) Agnates of the father.
d) Cognates of the father.
 5. Heirs in the fifth entry-

Heirs of her mother come under this entry.

1) Sons, daughters of the mother including sons and daughters of a pre-

deceased son and daughter, and husband.
2) Heirs of husband of the mother.
3) Father and mother of the mother.
4) Heirs of father of the mother.
5) Heirs of mother of the mother.

Section 15(2) is an exception to the general rule mentioned above

� Property inherited from her father or mother.

Property inherited from her father or mother shall devolve upon the heirs of father
provided the intestate died leaving no son or daughter or any children of any pre-
deceased son or daughter.

This excludes the heirs if alive, in the first entry, second entry, and the third entry.

Therefore it is excluded the husband who is in the first of entry and his heir in the
second entry.

Property inherited from her husband or her father-in-law.

Such property shall devolves upon the heirs of the husband, who came in as father,
or mother, or the heirs of the father or mother from inheriting such property.

Order of succession :-

The order of succession and manner of distribution among heirs of a female hindu
dying intestate are given in section 16 of the Act.

Rule-1:- heirs in the first entry of section 15(1) of the Act shall be preferred to
those in the second entry. In the absence of heirs in the first entry heirs in the
second entry shall be preferred to those in the third entry and so on. Where there
are more heirs than one, in the entry preferred, such heirs shall take
simultaneously.
Rule-2:- the children of pre-deceased son or daughter between them, get the share
which son or daughter would have taken if living at the intestate’s death i.e., the
division is per stripes.

OR

Discuss the types of property owned by a Hindu Woman. State the changes
brought to women’s estate.

Answer

STRIDHANA –W OMAN’S PROPERTY.

The term “Women’s Property” in its larger connotation means all property which
has come to a woman by means and from any source whatsoever, and includes
both property in which she has absolute interest (Stridhana) and property in which
she has only a limited interest.

Sources of property:-

There are two sources by which a Hindu female may possess the property.

1. Property inherited by females from a male.

2. Property inherited by females from a female.

Incidents of widow’s Estate-

The expression ‘stridhana’ signified an absolute estate, the expression ‘widow’s

estate implied a limited estate.

The following were the incidents of a widow’s estate;

1. Widow was the owner of the property inherited by her from her husband
except that she could not sell, mortgage, or effect any transfer of the corpus
of the property unless it was-
i. For legal necessity, or
ii. For the benefit of the estate, or
iii. With consent of the next reversioners, or
iv. For religious or charitable purposes.
 2. She fully represented the estate. She could institute suits in respect of the
property and she could be sued in respect thereof. Decrees passed against
her as representing the estates were binding not only on her, but on the
reversioners though they were not parties to the suit.
3. She could sue to recover possession from even third person. But if she
allowed the possession of third person to become adverse to her, the
reversioners were not affected by such adverse possession.
4. She was entitled to manage the estate as a prudent owner.
5. The restriction over the powers of the disposition of property did not depend
upon the existence or non-existence of the reversioners.
6. She could sell, mortgage or make gift of her life interest in such property.
7. She could spend the whole income and was not bound to save anything.
8. She could claim partition with collaterals.
9. She was not subject to the control of her kinsmen
10.It could lapse by her re-marriage or adoption by her of a son.
11.She could not, by any act or declaration, give her possession or estate a
character different from that attaching to the possession or estate of a Hindu
widow.

POWER TO ALIENATION:-

A limited owner had no power to alienate, except for ;

1. Legal necessity
2. Benefit of estate.
3. Religious or charitable purposes.

The limited owner had no right to dispose of the property, whether movable or
immovable by will.

A widow or other limited female heir could alienate the estate for certain religious
or charitable purposes.

These purposes may be divided in two classes:

a. The performance of the obsequial ceremonies of the deceased owner and

the payment of his debts.
 b. The performance of religious ceremonies of persons other than the
deceased owner and religious or charitable acts which are supposed to
conduce to the spiritual welfare of the deceased.

KAMLA DEVI V. BACHULAL GUPTA [AIR 1957 SC 434]

The supreme court observed that one of the principles which clearly emerged from
the decision on the subject was that a Hindu widow in possession of the estate of
her deceased husband can make an alienation for religious acts which are not
essential or obligatory but are still pious observances which conduce to the bliss of
the deceased husband’s soul.

INCOME AND SAVINGS FROM INCOME:-

A limited heir was not a trustee for the reversioners. She had absolute power to
disposal of the income of the property inherited by her. She was not bound to save
the income and she could spend the whole income or could give as she liked during
her lifetime.

Accumulation made during husband’s lifetime-

Accumulation of income which had accrued during the lifetime of the husband are
accretions to the estate which she had inherited and possessed in them the same
qualified interest which she had in the corpus of her husband’s main estate.

She has all the powers in such property too.

Power to lease property.

In exercise of her power to manage the property, she could lease property
belonging to her as limited estate. But not a permanent lease.

Power to compromise:-

A compromise not vitiated by fraud or collusion, but made bonafide for the benefit
of the estate and not for the personal advantage of the limited owner, was binding
on the heirs.

A compromise may be outside the court or one concluded in a suit.

EFFECT OF ALIENATION MADE WITHOUT LEGAL NECESSITY AND
WITHOUT CONSENT OF NEXT REVERSIONERS.

It will not be binding upon the reversioners.

b. WILLS

DEFINITION:-

A will is the legal declaration of the intention of a testator with respect of to his
property.

Meaning of codicil:-

A codicil means instrument made in relation to a will and explaining, altering or

adding to its dispositions and shall be deemed to form part of the will.

PERSON CAPABLE OF MAKING A WILL.

Every person of sound mind, not being a minor may dispose of his property by
will.

A mitakshara coparcener can dispose of by will his or her undivided interest in the
coparcenary property- according section 30 of Hindu succession act 1956.

The same rule is applicable for dayabhaga coparcener.

THE ONUS OF PROOF.

● The onus of proving a will is on the propounder.

● In the absence of suspicious circumstances surrounding the execution of
will.
● The proof of testamentary capacity and the signature of the testator.
● Is sufficient to discharge the onus of proof.
● The propounder to explain them to the satisfaction of the court before the
will could be accepted as genuine.
● The testator must have a disposing mind.
● He must be able to dispose of his property with understanding and reasons.

WHAT PROPERTY MAY BE DISPOSED OF BY WILL?

According to mitakshara, the following property.

1. Separate or self-acquired property.

2. A sole surviving coparcener may dispose of his property by will.
3. Sandayika stridhan
4. All stridhan during widowhood, and
5. Impartible property, unless prohibited by custom or the terms of the grant.

REVOCATION AND ALTERATION IN WILL.

A will is liable to be revoked or altered by the maker of it any time when he is

competent to dispose of his property by will.

But marriage or birth of the son will revoke the will.

BEQUEST TO UNBORN PERSON.

A will can be executed in behalf of an unborn person.

WILL WHEN VOID?

A will or any part of a will, the making of which has been caused by fraud or
coercion or by such importunacy as takes away the free agency of the testator, is
void.

BEQUEST TO A CLASS.

If a bequest is made to a class of persons with regard to some of whom it is

inoperative, such bequests shall be void in regard to those persons only and not in
regard to whole class.

RULES AGAINST PERPETUITY:-

No bequest is valid whereby the vesting of the thing bequeathed may be delayed
beyond the lifetime of one or more persons at the testator’s death and the minority
of some person who shall be in existence at the expiration of that period and to
whom, if he attains full age, the thing bequeathed will belong.

Construing of Hindu will.

 In construing a will the intention of the testator is to be looked to and the prime
duty of the court is to ascertain from the words of the will what the intention of the
testator was.

In ascertaining the intention of the testator, the following may be taken into
account.

1. The position of the testator;

2. His family relationship;
3. The probability that he would use words in a particular sense;
4. His race and religious opinions;
5. Ordinary notions and wishes of Hindus, with regard to the devolution of the
property.

RAM GOPAL V. NAND LAL [AIR 1951 SC 139]

The supreme court observed that,

“It may be taken to be quite settled that , when a grant of an immovable property is
made to a Hindu female, she does not get an absolute or alienable interest in such
property, unless such power is expressly conferred upon her.

ARUNACHALA V. MURUGANATHA [AIR 1963 SC 496]

Under the Mitakshara father had complete power of disposition of his self-
acquired property and if he made any deed of gift in favour of his son or some
other relation, there would be no presumption that the bequest was to confer the
nature of a joint family so that the property bequeathed became ancestral in the
hands of the legatee unless there were express words to indicate the same.

OR

a. A dies intestate leaving behind his two Widows “Y” and “X” and two
daughters “M” , “N” and one son “Z” and mother “K”. Distribute the
property among them.
Answer:-

The distribution of the property among the members will be divided into 1/5.
That is two wives Y and X together will take 1 share,

Two daughters M and N will take 1 share each.

Son Z will take 1 share and

Mother K will take 1 share.

Here the property among the following members will be divided as per the rules
given under Hindu Succession Act 1956.

Section 8 to 13 deals with rules of succession in connection with th separate

property of a male Hindu dying intestate.

Section 8 :- divides the heirs of a male for the purpose of inheriting the property
into 4 classes. These are,

1.Relation mentioned in Class I of the Schedule

2. Relation mentioned in Class II of the schedule

3.Agnates of the deceased.

4. Cognates of the deceased.

Section 9:- states among the heirs specified in the schedule those in Class I shall
take simultaneously and to the exclusion of all other heirs.

� Son
� Daughter
� Widow
� Mother
� Son of pre-deceased son
� Daughter of a pre-deceased son
� Son of pre-deceased Daughter
� Daughter of a pre-deceased Daughter
� Widow of pre-deceased son
� Son of pre-deceased son of pre-deceased son
� Daughter of a pre-deceased son of pre-deceased son
� Widow of pre-deceased son of a pre-deceased son
� Son of pre-deceased Daughter of pre-deceased Daughter
� Daughter of a pre-deceased Daughter of a pre-deceased Daughter
 � Daughter of a pre-deceased son of a pre-deceased Daughter
� Daughter of a pre-deceased Daughter of a pre-deceased son.

Distribution of property among heirs in Class-I of the schedule :- section 10

has given 4 rules regarding the distribution of property.

“The property of an intestate shall be divided among the heirs in class-I of the
schedule in accordance with the following rules:-

� Rule 1:- the Intestate’s widow or if there is more widows than one all the
widows together shall take one share.

Explanation:- widow is entitled to one share, if more than one widows that all
widows together are entitled to one share.

� Rule2:- the surviving sons and daughters and the mother of the intestate
shall each take one share.

� Explanation :- each surviving sons, daughters and mother get one share
each.

� Rule 3 :- the heirs in the branch of each pre-deceased son or each pre-
deceased daughter of the intestate shall take between them one share.

� Explanation:-the heirs of the deceased in the branches of predeceased sons

and pre-deceased daughters take not per-capita but per-stirpes.

Rule 4:- The distribution of the share referred to in Rule – 3

� Among the heirs in the branch of the pre-deceased son shall be so made that
his widow (or widows) and the surviving sons and daughters get equal
portion and the branch of his pre-deceased sons gets the same portion.

� Among the heirs in the branch of the pre-deceased daughter shall be so made
that the surviving sons and daughters get equal portions”.

� Explanation:- the heirs of pre-deceased son together shall get only one share
just as the branch of a pre-deceased son got only one share under Rule -3.
Q.NO.5.a. Explain the different types of guardians and their powers with
reference of Hindu Minority and Guardianship Act, 1956.

Introduction :-

This act has significantly made many changes in the position and status of the
mother as the natural guardian.

AGE OF MAJORITY:- SECTION 4:

It defines the word minor as a person who has not completed the age of eighteen
years.

GUARDIAN - A Guardian means a person have the care of the person of another
or of his property, or of both.

Section 4(b):- Guardina means a person having the care of the person of a minor,
or of his property or of both his person and property and includes.

1. Natural guardian.
2. A guardian appointed by the will of the minor’s father or mother
3. A guardian appointed or declared by a court ; and
4. A person, empowered to act as such by or under any enactment relating to
any court of wards.

KINDS OF GUARDIAN

Section 4:- of the Act mention four kinds of guardians, these are:-

1. A natural guardian.
2. A guardian appointed by the will or the minor’s father or mothers
(testamentary guardian)
3. A guardian appointed or declared by a court, and
4. A person empowered to act as such by or under any enactment relating to
any court of wards.
Besides this, there are other types of guardians such as.
5. De facto guardian and
6. Ad hoc guardian.

NATURAL GUARDIAN:-MEANING OF NATURAL GUARDIAN.

 A natural guardian is one who becomes so by reason of the natural
relationship with the minor. In other words a natural guardian is a person having
the care of the person of a minor or of his property or of both, by virtue of his
natural relationship with the minor.

Section 6:- of the Hindu minority and guardian ship act, runs as follows,

The natural guardian of a Hindu minor, in respect of the minor’s person as well as
in respect of the minor’s property (excluding his or her undivided interest in joint
family property) are,

a. In case of a boy or an unmarried girl-the father, and after him, the mother;
provided that the custody of a minor who has not completed the age of 5
years shall ordinarily be with the mother.
b. In the case of an illegitimate boy or an illegitimate unmarried girl-the
mother, and after her, the father.
c. In the case of a married girl the husband.
Provided that no person shall be entitled to act as the natural guardian of
a minor under the provision of this section.
a. If he has ceased to be a Hindu, or
b. If he has completely and finally renounced the world by becoming a
hermit or an ascetic (sanyasi)

Who are natural guardians?

Among the Hindus, the father is the natural guardian of his children during their
minority and in the absence the mother during their minority. He may, in exercise
of his discretion as guardian entrust the custody and education of his children to
another, but the authority he thus confers is revocable authority.

The powers of the father to act as a natural guardian do not come to an end simply
because the child is being looked after by his aunt and is living with her.

The father is the natural guardian of the person and of the separate property of his
minor children.

Case law jijabai v. pathan khan.

Where the father was alive but had fallen out with the mother of the minor
daughter and was living separately for several years without taking any interest in
the affairs of the minor who was in the keeping and care of the mother, it was held
by the supreme court that in the peculiar circumstances, the father should be
treated non-existent and the mother could be considered as the natural guardian of
the minor’s person as well as property.

K.S. Mohan v. Sandhya Mohan [AIR 1993 MAD 59]

The Madras High Court has held that custody of a child below the age of five years
should be given to its mother and only in exceptional circumstances, the father
may claim the custody of that child.

STEP MOTHER AND STEP-MOTHER

There are not the natural guardians of the minor child.

ILLEGITIMATE BOY AND GIRL.

In case of a illegitimate boy or girl the mother is the natural guardian, and in
absence of the mother the father will be the natural guardian.

Married girl.

The husband would be the guardian, unless he has ceased to be a Hindu or he has
completely and finally renounced the world by becoming a hermit or an ascetic.

DISABILITIES TO BE A GUARDIAN.

According to section 6 the disability may arise.

1. Disability arising from apostasy.

Before the passing of the Act the right of a guardian was not affected by the
change of his religion.

The fact that a father had changed his religion was of itself no reason for depriving
him of the custody of his child.

If the father voluntarily abandoned his parental rights and entrusted the custody of
the child to another person the court may not restore back the custody of the child
to the father if such a course is detrimental to the interest of the child.
VIJAYA LAXMI V. INSPECTOR OF POLICE.

The Madras High court held that where father converted to Islam and married a
muslim girl, he creases to be natural guardian as a matter of legal right.

It would not be in the interest of child that such convert should be allowed to
continue as a natural guardian and exercise the power as such.

2. CIVIL DEATH:-

Any person who has completely and finally renounced the world by becoming a
hermit or an ascetic forfeits his right to continue as the natural guardian of his
minor child or wife.

3. MINORITY:-

A Minor shall be incompetent to act as guardian of the property of the minor.

So, in respect of the joint family property, even if the Karta is a minor, such
property is and remains under his protection.

4. AGAINST MINOR’S WELFARE:-

No person shall be entitled to the guardianship of the minor, if in the opinion of

the court his or her guardianship will not be for the welfare of the minor.

EFFECT OF REMARRIAGE BY WIDOW.

A Hindu widow does not, by her remarriage, lose her preferential rights of
guardianship over her minor children by the deceased husband whether such
marriage is permitted by custom or not.

NATURAL GUARDIAN OF AN ADOPTED SON:-

Section 7:- that the natural guardian of an adopted son, who is a minor, passes on
adoption to the adoptive father and after him to the adoptive mother. The natural
father and mother do not have any right, after adoption.

NATURAL GUARDIAN AFTER ADOPTION:-

After adoption the natural guardianship of the adopted child passes from his
natural father to his adoptive father.
Natural father after adoption can only be regarded as a defacto-guardian.

POWERS OF A NAUTRAL GUARDIAN.

SECTION 8:-

1. The natural guardian of Hindu minor has power, subject to the powers
provision of this section, to do all acts which are necessary or reasonable and
proper for the benefit of the minor or for the realization, protection or benefit of the
minor’s estate:- but the guardian can in no case bind the minor by a personal
covenant.
2. The natural guardian shall not, without the previous permission of the court
a. Mortgage or charge or transfer by sale, gift, exchange or otherwise any part
of the immovable property of the minor, or
b. Lease any part of such property for a term exceeding 5 years of for a term
extending more than one year beyond the date on which the minor will attain
majority.
3. Any disposal of immovable property by a natural guardian, in contravention
of sub-section (1) or sub-section (2) is voidable at the instance of the minor of any
person claiming under him.
4. No court shall grant permission to the natural guardian to do any of the acts
mention in sub-section (2) except in case of necessity or for an evident advantage
to the minor.
5. The guardians and wards Act. 1890 shall be applicable.
6. Court means city civil court

NECESSARY OR REASONABLE AND PROPER ACTS FOR THE

BENEFIT OF THE MINOR.

A natural guardian has the power to place such restraint on the minor in regard to
his upbringing, education and health as may be necessary or reasonable or proper
for the benefit of the minor.

MANIK CHAND V. RAM CHAND [AIR 1981 SC 519]

The Supreme Court clearly laid down that, the natural guardian has been
empowered to do all such acts which are necessary for the welfare and benefit of
the child.
POWER TO ENTER INTO CONTRACTS.

RUMAL V. SRINIVAS [AIR 1985 DEL. 153]

The Delhi High court has held that any contract executed by the guardian of the
minor can be specifically enforced by the minor or against the minor. Under the
law the natural guardian has been empowered to enter into the contract.

If the contract is in the welfare of the minor, it will be binding and will be
enforceable.

COMPROMISE BY NATURAL GUARDIAN:-

A guardian is competent to enter into a compromise on behalf of his ward.

ACKNOWLEDGMENT OF DEBT BY GUARDIAN:

A natural guardian of a minor as well as a guardian appointed by the court or has

power to acknowledge a debt or to pay interest on a debt so as to extend the period
of limitation provided the act is for the protection or benefit of the minor’s
property.

FAMILY ARRANGEMENT:-

The natural guardian has the power to enter into family settlement on behalf of the
minor provided it is the nature of a bona fide compromise of doubtful claims.

POWER OF ALIENATION:-

The natural guardian of a Hindu minor has power in the management of the estate
to sell or mortgage any part of the estate in case of necessity or for benefit of the
estate, provided the natural guardian has taken permission of th court prior to such
alienation.

Case law

JANARDHAN PILLAI V. B.A RADHAMMA [AIR 1986 KER. 303]

The court held that a sale of minor’s property effected by his natural guardian
without obtaining the specific sanction of the court under section 8(2) is an act
which is prohibited by law and is, therefore invalid.
CONTROL OVER THE POWERS OF NATURAL GUARDIAN.

PREVIOUS PERMISSION OF THE COURT:- SECTION 8(2)

The natural guardian without the previous sanction of the court shall do no
transaction by sale, gift, exchange or otherwise of any part of the immovable
property of the minor and lease of any part of such property for a term exceeding 5
years of for a term extending more than one year beyond the date on which the
minor will attain majority.

WHEN COURT TO GRANT PERMISSION:-

1. Necessity, or
2. An evident advantage to the minor.

EFFECT OF SUCH PERMISSION:-

An alienation made with the permission of the court, cannot be impeached by the
minor or any other person except in a case of fraud of underhand dealing.

EFFECT OF TRANSFER IN CONTRAVENTION OF THE ACT:-

If any transfer is made in contravention of the Act, it would be voidable at the

option of the minor.

PROCEDURE FOR OBTAINING PERMISSION.

1. Procedure and principles which will govern grant of permission by the court
to a natural or his testamentary guardian to transfer the immovable property
are prescribed by sub-section (4) (5) and (6) of the section 8 of this Act.
2. The order granting the permission shall recite the necessity or advantage, as
the case may be, describe the property with respect to which the act
permitted is to be done, and specify such condition, if any as the court may
see fit to attach to the permission; and it shall be recorded, dated and signed
by the judge, of the court with his own hand, or when from any cause he is
prevented from recording the order with his own hand, shall be taken down
in writing from his dictation and be dated and signed by him.
3. The court may, in its discretion, impose the following among their
conditions namely;-
 a. The sale shall not be completed without the sanction of the court;
b. That a sale be made to the highest bidder by public auction before the
court or some person specially appointed by the court for that purpose as
a time and place to be specified by the court.
c. That the whole or any of the proceeds of the sale permitted shall be paid
into the court by the guardian, to be disbursed therefrom or be invested
by the court on prescribed securities or to be otherwise disposed of as the
court directs.
4. Before granting the permission to a guardian to do an act , the court may
cause notice of the application for the permission to be given to any relative
or friend of the ward who should, in its opinion, receive notice thereof, and
shall hear and record statement of any person who appears in opposition to
the application.”

2. TESTAMENTARY GUARDIAN

Are those guardians who are appointed by a will of the natural guardian, entitled to
act as a guardian for the minor. It becomes effective only after the death of the
testator.

Section 9

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

Who may appoint?

The Act recognizes the right of the following persons to appoint guardian of the
person and separate property of a Hindu minor.

1. The father , natural and adoptive;

2. The mother, natural and adoptive;
3. The widowed mother, natural and adoptive.

WHO CAN APPLY FOR APPOINTMENT AS GUARDIAN.

1. The person desirous of being or claiming to be the guardian of the

minor or;
2. Any relative or friend of the minor; or
3. The collector of the district or other local area in which-
a. The minor ordinarily resides.
b. The minor holds property or
4. If the minor belongs to a class the collector who has authority with
respect to that class.
Powers of guardian appointed by the court.

The powers are the same as of the natural guardian or testamentary guardian.

3. DE-FACTO GUARDIAN
A de-facto guardian of a minor, is neither a legal guardian, nor a testamentary
guardian nor a guardian appointed by the court, but he a person, who himself takes
over the management of the affairs of the minor, as if he was a natural guardian.

Some continuous course of conduct is necessary on his part.

A person having the care of properties of a minor but who is neither a natural
guardian, testamentary guardian nor a guardian appointed by the court is only a de
facto guardian and the restriction under section 11 will apply to his acts.

According to section 11 of the Act the de facto guardian is not recognized and he
cannot deal with the property of a minor.

4. AD HOC GUARDIAN.

It means “for this purpose.” There must be some course of conduct in that capacity,
it implies some continuity of conduct, some management of the property beyond
the isolated act of alienation which is being challenged.

Even this type has no place in this Act.

REMEDIES OF GUARDIAN FOR CUSTODY OF A MINOR.

A guardian, who has been deprived of the custody of his ward, has the following
remedies open to him:-

1. Writ of habeas corpus within the original civil jurisdiction of a High court.
2. Application to a Magistrate under section 97 or sec 98 of the criminal
procedure code 1973.
3. Regular suit by guardian for custody of the ward.
4. Petition for the restoration of the custody of his ward under section 25 of the
guardians and wards act, 1890.

RIGHTS AND LIABILITIES OF GUARDIAN.

1. Is entitled to the custody of his ward and exclusive possession of his

property.
2. He alone is entitled to sue or be sued on behalf of the minor.
3. He can enter into a compromise or can agree to refer the dispute to
arbitration in order to preserve the interest of the child.
 4. The compromise would be binding only when it fulfills the interest of the
minor and approved by the court.
5. The expensed incurred by the guardian can be taken from the minor’s
property.
6. He is liable for breach of trust.
7. He is not entitled for remuneration unless it has been specified in the will.
8. Manage minor’s property prudently.
9. Render all accounts to the minor.
10. If a minor discharges the guardian once he attains the majority, the
liability of the guardian comes to an end.

OR

What is an adoption? Explain the powers of a male and female Hindu in

adoption as per the Hindu Adoption and Maintenance Act 1956.

INTRODUCTION :-

Manu defines an adopted son as follows:- “A son equal in caste and

affectionately diposed whom his mother or father (or both) give with water at time
of calamity is known as the Dattrima (Dattaka Son).

Thus adoption is the transplantation of son from the family in which he is born, to
another family where he is given by the natural parents by way of gift. The
adopted son is then taken as being born in the new family and acquired rights,
duties, and status there only and his ties with the old family comes to an end.

The powers of a male and female Hindu in adoption as per the Hindu Adoption
and Maintenance Act 1956.

Section 7 deals with adoption by a male

Section 8 deals with adoption by a female

Section 7 deals with adoption by a male:-

The capacity of a male to take in adoption.

Section 7 Any male Hindu

 a. who is sound mind
b. who is not a minor has the capacity to take a son or daughter in
adoption.

Provided – if he has wife consent of the wife is needed

The consent of the wife is not needed

� if the wife has completely renounce the world

� has converted to another religion
� or unsound mind the consent of the wife is not needed

If the consent of the wife is not taken the adoption is invalid.

Case Law

GHISALAL VS. DHAPU BAI [AIR 2011 SC 644]

The supreme court has laid down that the consent of wife either should be in
writing or reflected by positive act voluntarily and willingly done by her.

If the person is having 1 or more wives consent of all the wives is necessary.

Consent of wife when not necessary;

The consent of the wife will not be necessary if the wife whose consent is sought
has,

1. Completely and finally renounced the world.

2. Ceased to be a Hindu
3. Has been declared by a court of competent jurisdiction to be of an unsound
mind.

Section 8 deals with adoption by a female

The capacity of a female to take in adoption.

Any female

a. who is of sound mind

b. who is not a minor
c. who is not married or
 if married,
i. whose marriage has been dissolved
ii. whose husband is dead
iii. whose husband has completely and finally renounced the world.
iv. Whose husband has ceased to be a hindu.
v. Whose husband 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. Consent of the husband is
necessary if husband is alive.

RIGHT OF MALE AND FEMALE TO ADOPT

Section 11 – other conditions for a valid adoption-

1. If the adoption is son , the father or mother should not have son, son’s son, or
son’s son’s son living (whether legitimate or adoption) living at the time of
adoption.

2. If the adoption is of a daughter , the father and mother must not have a Hindu
daughter or son’s Daughter (Whether legitimate blood relationship or by adoption)
living at the time of adoption.

3. If the adoption is by a male and the person to be adopted is a female the

adoptive father is at least 21 yrs older than the person to be adopted.
4. If the adoption is by a female and the person to be adopted is a male the
adoptive mother is at least 21 yrs older than the person to be adopted.
5. The child shall not be adopted by 2 or more persons
6. The child to be adopted must be actually given and taken from the place of
family to the adopted family.

CASE LAW.

GOLAK CHANDRA RATH VS. KRATIBAS [AIR 1979 ORI 205]

In this case the Orissa High court held that,

The condition under section 11 must be fulfilled in adoption otherwise adoption is

not valid.
WHO MAY GIVE IN ADOPTION:-

Section 9(1) prescribes the capacity of persons, who give the child in adoption to
another.

1. No person except the father or mother or the guardian of a child shall have the
capacity to give the child in adoption.

2. Subject to the provisions of sub-sec 4 , the father, or the mother, if alive, shall
have equal right to give a son or daughter in adoption.

3. 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 a child may give the child in adoption with the
previous permission of the court to any person including the guardian himself.

4. Before granting permission to a guardian, the court shall be satisfied that the
adoption will be for the welfare of the child.

Who may be adopted?

Section 10:- No person shall be capable of being taken in adoption unless the
following conditions are fulfilled, namely,

i. He or she is a Hindu
ii. He or she has not already been adopted.
iii. 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.
iv. He or she has not completed the age of 15 yrs, unless there is a
custom or usage applicable to the parties which permits persons
who have completed the age of 15 yrs being taken in adoption.

Case law

ATLURI MANADAM . V. ANNE SAI BAPUJI [AIR 2011 SC 545]

In this case a person who was adopted when he was above the age of 15 yrs under
custom which permitted the adoption claimed the property of his adoptive father
on the ground that since the adoptive father died intestate, he being the adoptive
child was entitled to his property.

Adoption was made through a registered adoption deed that stated that the natural
parents of the claimant aged 18 had given him in adoption in presence of the
elders to Anne Seetharamaiah who was issueless in accordance with the Hindu
Adoption and Maintenance Act, 1956.

It also recited that the adoption was in accordance with the custom prevailing in

The court accepted the adoption as valid in view of the statutory exception made in
favour of custom to the contrary.

b. Kantimati refuses to live with her husband as long as he stayed with his
aged parents. She approaches the court against her husband seeking separate
residence and maintenance. Will she succeeded ? Decide.
SOLUTION:- No Kantimati will not succeed.

The reasons are as follows,

According to Hindu Adoption and Maintenance Act 1956.

Section 18:- of the Hindu Adoption and Maintenance Act 1956 deals with the maintenance and
separate residence of a wife.

Section 18(1):-Subject to the provisions of the Act a hindu wife, whether married before or after
the commencement of this Act, shall be entitled to be maintained by her husband during her
lifetime.

Section 18(2):- A Hindu wife shall be entitled to live separately from her husband without
forfeiting her claim to maintenance.

1. If he is guilty of desertion,
2. If he has treated her with such cruelty.
3. Suffering from virulent form of leprosy.
4. If he has any wife living
5. If he keeps a concubine in the same house or habitually resides with her.
6. If he has converted to another religion.
7. If there is any other reason justifying her living separately?
Section 18 (3) A wife is not entitled if she is unchaste or converted to another religion.

The provisions of the Hindu Adoption and Maintenance Act 1956 clearly states the eligibility
circumstances for a wife to claim maintenance and separate residence from her husband.

In the above mentioned problem the wife wants maintenance and separate residence since she is
refuses to stay with her husband so long he stays with his aged parents.

This reason mentioned by kantimati is not mentioned in either of the clauses of section 18 of the
Act.

Hence Kantimati cannot succeed in getting separate residence and maintenance.

To claim it a grave and serious nature of grounds should be there which is not grave or serious
in the above mentioned problem.

OR

b.Varun writes a will that if he dies, his child kiran should be taken care by
his sister and Varun’s wife srimati writes a will that in case of her death her
brother should be the guardian of her son. Both die in an accident. Who shall
be the guardian of the son?
Solution :-

Srimati’s brother shall be the guardian of her son.

Reasons are as follows,

Under Hindu Minority and Guardianship Act of 1956.

Section 4 of the Act mentions four kinds of guardians,

1. A Natural Guardian.
2. Testamentary Guardian (guardian oppointed by natural guardian by will)
3. Guardian appointed by court.
4. Guardian empowered to act as guardian under any enactment relating to any court of
wards.”
Besides this there are other types of guardians.
5. Defacto guardian
6. Ad hoc guardian.

Testamentary guardianship is related to the above mentioned problem.

 Testamentary guardians of a minor are those guardians who are appointed by a will of the
natural guardian, entitled to act as a guardian for the minor. Needless to say that a will becomes
effective only after the death of the testator.

Section 9:-

1. A hindu father entitled to act as the natural guardian of his minor legitimate children may,
by will appoint a guardian for any of them in respect of the minor’s person or in respect
of the minor’s property (other than the undivided interest referred to in section 12) or in
respect of both.
2. An appointment made under sub-section (1) shall have no effect if the father pre-
deceases the mother, but shall revive, if the mother dies without appointing by will, any
person as guardian.
● So as per the provision a father can appoint a testamentary guardian only in absence
of minor’s mother.
● Appointment is of no value if mother is alive since she is a natural guardian. But the
appointment by father will continue if mother dies without appointed a testamentary
guardian for her children.

In the above mention problem father has appointed one testamentary guardian and even mother
has appointed one testamentary guardian and both died in accident. The appointment made by
the mother will be eligible to act as testamentary guardian for the child.

PREPARED BY
JAYALAKSHMI.V
ASST PROF.
AL-AMEEN COLLEGE OF LAW