Unit 1 A
Schools of Hindu Law and Differences
Between Mitakshara and Dayabhaga Schools
Introduction Schools of Hindu law, emerging from
commentaries and digests, significantly contribute to
the development and interpretation of Hindu legal
principles.
Mitakshara School:
1.Origin and Applicability:- Mitakshara, a by birth in the joint family property. Traditionally, this
commentary on the Smriti by Yajnvalkya, is a major
school of Hindu law. - Applicable across India, except
West Bengal and Assam.
2. Jurisdiction and Sub-Schools: - Widely influential
but with regional variations due to customary rules.-
Sub-divided into Benaras, Mithila, Maharashtra,
Punjab, and Dravida/Madras law schools.
3.Benaras Law School:Covers Northern India,
including Orissa-Major commentaries include
Viramitrodaya and Nirnyasindhu vivada.
4. Mithila Law School: - Authority in Tirhoot and North
Bihar.- Principles prevalent in the northern parts.- Major
commentaries:Vivadaratnakar,Vivadachintamani,
Smritsara.
5.Maharashtra or Bombay Law School:Jurisdiction
over parts including Gujarat, Karana, and Marathi-
speaking regions.- Main authorities: Vyavhara
Mayukha, Virmitrodaya, etc.
6. Madras Law School (Dravida): Covers the
southern part of India. - Authorities include Smriti
Chandrika, Vaijayanti, etc.
7. Punjab Law School - Established in East Punjab
with its own customs.- Major commentaries include
Viramitrodaya and established customs.
Dayabhaga School:
1. Origin and Applicability:
- Predominantly in Assam and West Bengal. -
Developed between 1090-1130 A.D., aiming to
eliminate absurd and artificial inheritance principles.
2. Commentaries in Dayabhaga School:- Dayatatya,
Dayakram-sangrah, Virmitrodaya, Dattaka chandrika,
among others.- Focus on partition, inheritance, and
joint family issues.
3. Differences between Mitakshara and Dayabhaga
Schools
Joint Family: - Mitakshara considers male members
and their descendants as joint family members.-
Dayabhaga acknowledges jointness but emphasizes
the father's absolute control until death
Coparcenary/Co-ownership:- Mitakshara grants
coparcenary rights to all during the father's lifetime-
Dayabhaga grants coparcenary rights only upon the
father's death, and shares are defined.
Partition:Mitakshara focuses on defining shares
numerically without physical separation. Dayabhaga
requires physical separation and assigns specific
portions to each coparcener.
Rights of Women:- Mitakshara grants the wife a share
in a partition between her husband and
sons,Dayabhaga doesn't grant partition rights to sons,
affecting women's share entitlements.
Doctrine of Factum Valet: The Doctrine of Factum
Valet, a principle in Hindu law, asserts that what ought
not to be done becomes valid when done. This
doctrine, formulated by the Dayabhaga school,
maintains that once an act is completed or a fact is
established, it cannot be altered by written legal texts.
In other words, the practical outcome or consequence
of an action prevails over any legal irregularities or
prohibitions. Although the Mitakshara school also
recognizes this doctrine to a limited extent, it holds less
prominence in comparison to its application in the
Dayabhaga school. The Doctrine of Factum Valet
reinforces the significance of the actual occurrence or
accomplishment of a fact in determining its legal
validity.
Conclusion:- Mitakshara and Dayabhaga, as major
schools of Hindu law, exhibit variations in their
approach towards joint family, coparcenary, partition,
and women's rights.- These schools, shaped by
commentaries and regional customs, contribute to the
rich and diverse landscape of Hindu legal principles.
Joint Hindu Family:
Definition:A Joint Hindu Family (JHF) is a concept
rooted in traditional Hindu law, where members of a
family, bound by blood and living together, are
considered a single economic unit.Formation:Formed
by the coming together of the patriarch (karta), his
sons, grandsons, and other male descendants living
under one roof. It is a result of the pious obligation of a
Hindu to continue the family lineage.
Karta:The head of the Joint Hindu Family is known as
the "karta."Traditionally, the karta is the eldest male
member, usually the father or grandfather, and he
manages the family's affairs.
Common Residence: Members of the joint family
typically share a common residence, contributing to a
sense of unity and shared responsibilities.
Common Property: Joint family property includes both
ancestral property and property acquired jointly by the
family. All members, including sons and grandsons,
have an interest in and a right to the joint family
property.
Pious Obligations: The JHF is formed with the
purpose of fulfilling pious obligations, including the
payment of debts, performing religious ceremonies,
and maintaining family traditions. HUF and Legal
Recognition: The Joint Hindu Family is often referred to
as a Hindu Undivided Family (HUF) in legal terms.
Recognized as a separate legal entity with the HUF
having its own rights, liabilities, and tax implications.
Unit 2C Partition its effects and Suit for
Unit 2A Division of rights and property
The division of rights and property under Hindu law
can be complex, and it largely depends on the
specific circumstances, the nature of the property,
and the applicable legal principles. Here is a general
overview:
Coparcenary Rights:
Coparceners are individuals who acquire an interest
was limited to male descendants up to four
generations in the male line of descent.
Joint Hindu Family Property: The joint family
property includes ancestral property and any
property acquired by the family through a common
effort or joint family funds.
Right by Birth:
A coparcener has a right by birth in the joint family
property. This right is not acquired by any act of the
parties but by the mere fact of birth into the family.
Mitakshara and Dayabhaga Schools:
The Mitakshara school recognizes the concept of
coparcenary, while the Dayabhaga school does not.
The Mitakshara coparcenary consists of all male
descendants up to four generations.
Partition of Property:
Partition by Agreement: Joint family property can
be partitioned by agreement among the
coparceners. Such an agreement can be oral or
written.
Partition by Demand: A coparcener has the right to
demand partition. The demand can be express or
implied, and it may lead to the physical division of
the property.
Partition Deed: A partition deed may be executed
to record the terms of partition, specifying the share
of each coparcener.
Effect of Partition: Partition brings an end to the joint
status of the family. Each coparcener becomes the
owner of his or her share, which can be used, sold,
or bequeathed.
Women's Rights:
Hindu Succession Act, 1956:
The Act has been amended to grant equal rights to
daughters as coparceners in ancestral property.
Previously, only sons were coparceners by birth.
Widow's Rights: A widow is entitled to a share in
the deceased husband's property, and she has the
right of residence in the family home.
Pious Obligations:
Debts and Obligations: Coparceners may have
pious obligations to discharge the debts and duties
attached to the joint family property.
It's important to note that legal provisions and
interpretations may vary, and the specifics can be
influenced by factors such as regional variations,
family customs, and individual circumstances.
Consulting with a legal professional well-versed in
Hindu family law is advisable for precise guidance
based on the specific context.
Unit 2B WHO CAN DEMAND PARTITION
Coparceners:
Sons: sons including adopted sons, are primary
coparceners and have a right to demand partition.
Grandsons: Grandsons, great-grandsons, and so
on, in the male line, also have a right to demand
partition as coparceners.
Father: The father is entitled to demand partition,
especially when the sons are reluctant or unwilling to
seek partition.
Grandfather: In cases where the father is not alive,
the grandfather has the right to demand partition.
Any Other Coparcener: Besides sons, grandsons,
fathers, and grandfathers, any other coparcener in a
Hindu joint family can also demand partition.
Daughters: The Hindu Succession (Amendment)
Act, 2005, has expanded the category of
coparceners to include daughters. Therefore,
daughters also have the right to demand partition.
Before this amendment, daughters had only a right
to maintenance and were not coparceners.
Widows: Widows of deceased coparceners are
entitled to a share in the coparcenary property. If the
partition has not occurred during the lifetime of the
deceased coparcener, the widow can demand her
share.
Alienees: A transferee of an interest in the
coparcenary property is entitled to a share upon
partition. An alienee is someone to whom a
coparcener has transferred his undivided interest in
the property.
Female Coparceners: The amendment in 2005
also made wives (including widows), daughters, and
even granddaughters, daughters of pre-deceased
sons, and daughters of pre-deceased daughters as
coparceners. Therefore, they have the right to
demand partition. It's important to note that while
these individuals are entitled to demand partition,
the actual division of the property can take place
through mutual agreement, arbitration, or by filing a
lawsuit for partition. The specific entitlements and
procedures may vary based on individual
circumstances, regional customs, and any existing
family arrangements.
The Hindu Succession (Amendment) Act, 2005
brought significant changes to property rights. It
granted daughters equal coparcenary rights, making
them joint heirs with sons. The amendment applied
retrospectively, irrespective of the birth date, and
included provisions for the partition of ancestral
property. This marked a departure from the earlier
male-centric succession laws, fostering gender
equality in property inheritance among Hindu
families. The amended Act aimed to eliminate
gender-based discrimination in matters of
inheritance, recognizing daughters as coparceners
and ensuring their entitlement to an equal share in
ancestral property, enhancing the rights of women
within the framework of Hindu family law.
partition
Partition under Hindu law refers to the division of joint
family property among its members. It can be initiated
through mutual agreement or, if necessary, through a
legal process such as a suit for partition. Here's an
overview of how partition affects individuals and the
process of filing a suit for partition under Hindu law:
Effects of Partition:
Severance of Joint Status: Upon partition, the joint
family status comes to an end, and the property is
divided into distinct shares for individual coparceners.
Creation of Individual Ownership: Each coparcener
receives a specific share of the property, and that share
becomes their individual ownership. They can deal with
it independently, including selling, gifting, or
bequeathing.
Equal Distribution: The division generally involves an
equal distribution of the property among the
coparceners, although adjustments may be made
based on factors like the value of specific assets.
Share of Female Coparceners: The 2005 amendment
to the Hindu Succession Act ensures that daughters
also have the right to a share in the joint family
property.
Right to Seek Partition: Coparceners who were not
willing participants in the partition can seek their share
through legal means.
Suit for Partition:
Filing the Suit:
A suit for partition can be filed in a civil court by any
coparcener who wishes to divide the joint family
property. The suit is filed against the other coparceners
seeking the division of property.
Jurisdiction of the Court:The suit should be filed in a
court that has jurisdiction over the property or the
residence of the parties involved.
Pleadings and Issues: The plaintiff (the coparcener
filing the suit) needs to state the facts, grounds, and the
relief sought. The court will frame the necessary issues
based on the pleadings.
Temporary Injunction: During the pendency of the
suit, a coparcener can seek a temporary injunction to
prevent any interference or alienation of the joint family
property.
Final Decree: Upon the resolution of the suit, the court
will pass a final decree specifying the share of each
coparcener, and the actual partition process can take
place.
Execution of Decree: The final decree is executed by
the concerned parties or court-appointed
commissioners to effectuate the physical division of the
property.
Costs and Appeals: The court may also determine
costs and allow for appeals against the decree.
It's crucial to consult with a legal professional for
accurate advice based on specific circumstances and
regional variations in Hindu law. Laws can vary based
on factors such as customs, personal laws, and
amendments.
State of Andhra Pradesh vs. R. Chenna Reddy
(1962):In this case, the Supreme Court held that a
mere desire for partition expressed by a coparcener is
sufficient to bring about a disruption of joint status, and
a suit for partition is not necessary.
Ganpat vs. Returning Officer (1978):The Supreme
Court clarified that the Hindu Succession Act, 1956,
confers an absolute right of property on a Hindu female
in a joint Hindu family.
Unit 1 C Coparcenary
Coparcenary is a concept related to joint family
property and the rights of coparceners within a Hindu
Undivided Family (HUF). The term "coparcenary" is
derived from the word "coparceners," which refers to
male descendants within a family who acquire an
interest in ancestral property by birth.
Formation and Composition: Coparcenary is formed
through the line of male descendants in a Hindu family,
with the eldest male member (karta) and his sons,
grandsons, and great-grandsons forming the
coparcenary group.
Birthright: Coparcenary rights are acquired by male
descendants by birth. This means that sons,
grandsons, and great-grandsons automatically become
coparceners in the ancestral property.
Ancestral Property: Coparcenary property includes
both ancestral and self-acquired property of the father
or grandfather. Ancestral property is defined as
property inherited up to four generations of male
lineage.
Joint Ownership: Coparceners have joint ownership
of the ancestral property. They hold an undivided
interest in the coparcenary property, and each
coparcener is considered a co-owner.
Right to Partition: Coparceners have the right to
demand a partition of the coparcenary property.
Partition involves the division of the property among the
coparceners, and each coparcener receives a share in
proportion to his interest in the property.
Equal Distribution: The principle of equal distribution
governs coparcenary property. Each coparcener is
entitled to a share that is determined based on the
principle of equality.
Prior to 2005, only male descendants were
coparceners. The Hindu Succession (Amendment) Act
in 2005 brought significant changes by granting
daughters equal rights as coparceners, irrespective of
their marital status.
Termination of Coparcenary: Coparcenary can come
to an end through partition. Once a partition is effected,
coparceners cease to have an undivided interest, and
each member holds a distinct share in the property.
Individual Management of Share: After partition, each
coparcener has the right to manage and deal with their
share of the property independently.
In conclusion, coparcenary in Hindu law represents the
group of male descendants in a joint family who have
joint ownership of ancestral property by birth. The 2005
amendment marked a significant step towards gender
equality by extending coparcenary rights to daughters,
ensuring a more inclusive framework in the context of
joint family property.

Unit 3A Institution of Marriage:
In Hindu law, marriage is considered a sacrament,
forming the foundation of family and society. It is a
sacred bond guided by religious scriptures and cultural
practices. The institution holds significance not only for
the personal happiness of the spouses but also for
fulfilling societal and religious duties. The Hindu
Marriage Act, 1955, codifies the legal aspects of Hindu
marriages, ensuring compliance with customs and
providing legal recognition.
Conditions of Marriage:
The Hindu Marriage Act, 1955, sets forth conditions for
a valid Hindu marriage:
Solemnization (Section 5): The marriage must be
performed with proper rituals and ceremonies as per
the customs and traditions.
Age (Section 5(i): The legal marriageable age is 18 for
the bride and 21 for the groom. Marriages below these
ages are considered void.
Consent (Section 5(ii): Both parties must give their
free and valid consent without any coercion or undue
influence.
Prohibited Relationships (Section 5(iii): Parties
should not fall within prohibited degrees of relationship,
i.e., they should not be close blood relatives.
Monogamy (Section 5(iv): Monogamy is the general
rule, but certain customs allow polygamy. In case of a
second marriage during the subsistence of the first, it is
void.
Sound Mind (Section 5(v): Both parties must be of
sound mind at the time of marriage for the marriage to
be valid.
No Existing Valid Marriage (Section 11): Neither
party should have a living spouse from a valid existing
marriage. If such a marriage exists, the subsequent
marriage is void.
Landmark Judgments and Case Laws:
Hindu marriage law have shaped legal principles and
provided significant interpretations. Here are some
notable cases:
Sarla Mudgal v. Union of India (1995):
Issue: Bigamy and conversion to another religion to
solemnize a second marriage.
Ruling: The Supreme Court held that a Hindu husband,
after converting to Islam and marrying again, continued
to be a Hindu for the purpose of the Hindu Marriage
Act. The case highlighted the need for legal reforms.
V. Revathi v. Union of India (1988):
Issue: Validity of restitution of conjugal rights under
Section 9 of the Hindu Marriage Act.
Ruling: The court ruled that the concept of forcing
spouses to cohabit against their will was a violation of
personal liberty. Section 9 was declared
unconstitutional to the extent that it enforced
cohabitation.
Gita Hariharan v. Reserve Bank of India (1999):
Issue: Guardianship rights of a Hindu mother.
Ruling: The Supreme Court held that the mother could
be the natural guardian of her minor children. This case
contributed to the evolving understanding of parental
rights and the welfare of the child.
D. Velusamy v. D. Patchaiammal (2010):
Issue: Definition of "live-in relationships" and their legal
status in Hindu law.
Ruling: The court recognized that a "relationship in the
nature of marriage" could be considered under certain
circumstances, providing protection and rights to
parties in such relationships.
A. Dinohamy v. W.L. Blahamy (1926):
Issue: Validity of a marriage under coercion.
Ruling: The Privy Council held that if consent to a
marriage was obtained by force, it could be considered
voidable.
These cases have had a profound impact on the legal
landscape of Hindu marriages, influencing legislation,
setting precedents, and addressing critical issues
related to marital rights and responsibilities.
Unit 3B Restitution of Conjugal Rights and
judicial separation
Restitution of Conjugal Rights It is a legal remedy
available under matrimonial laws, including the Hindu
Marriage Act, where one spouse can petition the court
for the restitution of conjugal rights.
The aggrieved spouse, usually the petitioner, seeks a
court order requiring the other spouse to resume
cohabitation and fulfill marital obligations.
The court may issue a decree of restitution of conjugal
rights if it finds that there is no legal ground for the
continued separation of the spouses.
However, this concept has been criticized, and in the
case of V. Revathi v. Union of India (1988), the
Supreme Court declared that forcing spouses to
cohabit against their will was a violation of personal
liberty, leading to a change in its legal standing.
Judicial Separation: Judicial separation is a legal
status that allows married couples to live separately
without officially ending their marriage.
It does not dissolve the marriage but provides legal
recognition to the fact that the spouses are living apart.
Grounds for judicial separation include cruelty,
desertion, adultery, or other statutory grounds provided
under matrimonial laws.
The court may grant a decree of judicial separation if it
is satisfied that the conditions for granting the decree
are met.
If the spouses remain separated for a specified period,
either party can later petition for divorce.
Landmark Case: The case of V. Revathi v. Union of
India (1988) is crucial in understanding the legal
perspective on restitution of conjugal rights. The court
declared Section 9 of the Hindu Marriage Act, which
dealt with the restitution of conjugal rights,
unconstitutional to the extent that it enforced
cohabitation against the will of either spouse.
Unit 3C Grounds for divorce
Under Hindu law, the Hindu Marriage Act, 1955,
governs marriages, including provisions related to
divorce. Here are the grounds for divorce under the
Hindu Marriage Act:
Adultery (Section 13(1)(i)): Adultery, once a criminal
offense, was decriminalized by the Supreme Court in
the landmark case of Joseph Shine vs. Union of India
(2018). While it is no longer a crime, it remains a valid
ground for divorce. The court emphasized that
adultery is a strong indicator of a marriage gone sour.
Cruelty (Section 13(1)(ia)): Cruelty is a subjective
term, and the courts have consistently emphasized
that it should be of such a nature that it makes it
impossible for spouses to live together. In Shobha
Rani vs. Madhukar Reddi (1988), the court held that
the cruelty must be grave and weighty, and evidence
must establish its existence
Desertion (Section 13(1)(ib)): Desertion, as a ground
for divorce, requires intentional permanent forsaking
and abandonment without reasonable cause and
without the consent of the other spouse. Bipinchandra
Jaisinghbhai Shah vs. Prabhavati (1957) clarified that
desertion must be for a continuous statutory period.
Conversion to Another Religion (Section 13(1)(ii)):
The case of Sarla Mudgal vs. Union of India (1995)
emphasized that a Hindu marriage solemnized under
the Hindu Marriage Act cannot be terminated by
embracing another religion. Conversion to another
religion without spouse's consent provides grounds for
divorce.
Mental Disorder (Section 13(1)(iii)):
The case of Sarla Mudgal vs. Union of India (1995)
emphasized that a Hindu marriage solemnized under
the Hindu Marriage Act cannot be terminated by
embracing another religion. Conversion to another
religion without spouse's consent provides grounds for
divorce.
Venereal Disease (Section 13(1)(iv)): In Smt. Sunita
vs. Surendra Kumar (1988), the court granted a
divorce on grounds of the husband suffering from a
venereal disease and the wife being subjected to a
risk of contracting the same. This case highlighted the
importance of health-related grounds for divorce.
Renunciation of the World (Section 13(1)(v)): If a
spouse renounces the world and enters a religious
order, it serves as a ground for divorce. Manisha Tyagi
vs. Deepak Kumar (2010) involved a husband
becoming a monk, and the court granted divorce,
recognizing that it falls under the category of
renunciation.If a spouse has renounced the world by
entering any religious order.
NotHear ofBeingAlive(Section
13(1)(vi)):Presumption of Death Smt. Sushila Devi vs.
Ramanand Prasad (2002) dealt with the presumption
of death. The court held that if a person is not heard of
for seven years, they may be presumed dead,
providing a ground for divorce.
No Resumption of Cohabitation After Decree of
Judicial Separation (Section 13(1)(vii)): If there is no
resumption of cohabitation for one year or more after a
decree of judicial separation, it becomes a ground for
divorce. Harvinder Kaur vs. Harminder Singh (1984)
highlighted the importance of non-resumption of
cohabitation as a decisive factor.
Divorce by Mutual Consent (Section 13-B):
If both spouses mutually agree to dissolve the
marriage, they can file for divorce by mutual consent.
They must have lived separately for at least one year
before filing.
These grounds are specified under the Hindu Marriage
Act, and the divorce petition must be presented to the
district court where either spouse resides. It's
advisable to consult with legal professionals for
precise advice tailored to individual cases.
"IRRETRIEVABLE BREAKDOWN OF MARRIAGE"
is not explicitly mentioned in the Hindu Marriage Act,
1955, but it has been recognized by the courts as a
ground for divorce under Section 13(1)(ia). It implies
that the marriage has reached a point where it cannot
be saved, and there is no possibility of the spouses
living together as husband and wife.
the concept of irretrievable breakdown of marriage and
relevant case laws:
Irretrievable Breakdown of Marriage:
This ground is subjective and not precisely defined in
the statute. It is based on the idea that if the marriage
has broken down to a point where it is beyond repair
and there is no chance of reconciliation, it is in the
best interest of both parties to be granted a divorce.
Case Laws:
Naveen Kohli vs. Neelu Kohli (2006):
In this landmark case, the Supreme Court held that the
concept of irretrievable breakdown of marriage could
be a valid ground for divorce. The court emphasized
that the continued cohabitation of the spouses would
be detrimental to the well-being of the parties involved.
V. Bhagat vs. D. Bhagat (1994):
While dealing with mental cruelty as a ground for
divorce, the court acknowledged that if the marriage
has reached a point where it is impossible for the
parties to live together, it could be considered an
irretrievable breakdown.
Anil Kumar Jain vs. Maya Jain (2009):
The Delhi High Court, in this case, recognized
irretrievable breakdown as a ground for divorce,
stating that if it is proved that the marriage has broken
down irretrievably, the court may grant a divorce even
if the grounds specified in the statute are not fully
established.
Unit 4 A Requisites of Valid Adoption:
Capacity to Adopt:
The adopting parent must have the capacity to adopt.
This includes being of sound mind, not disqualified by
law, and having the legal right to adopt.
Consent:
There must be express or implied consent from the
person giving the child in adoption (if any) and the
child (if capable of understanding).
Same Religion: The adopting parent and the child
must be of the same Hindu religion. This includes
Sikhs, Jains, and Buddhists within the definition of
"Hindu.“
No Consideration: Adoption should not involve any
monetary consideration or payment. The Act prohibits
the payment or receipt of any payment as
consideration for adoption.
Legal Formalities: Adoption must be made in
compliance with the legal formalities prescribed by the
Hindu Adoption and Maintenance Act, 1956.
Child's Welfare: The welfare of the child is of
paramount importance. The court will ensure that the
adoption is for the well-being of the child.
No Customary Adoption: Customary adoption,
where a child is given in adoption without following the
formalities of the Act, is not valid under Hindu law.
Capacity to Take Adoption:
Sound Mind: The adopting parent must be of sound
mind to understand the implications of adoption and
provide proper care to the adopted child.
Not Disqualified by Law:
The adopting parent must not be disqualified by law
from adopting. Certain legal provisions may prevent
individuals with specific conditions or situations from
adopting.
Legal Age: There is no specific age limit mentioned in
the Act for the adopting parent. However, the person
should be of an age where they are capable of
providing proper care and support to the adopted
child.
Consent:The adopting parent must consent to the
adoption. The act of adoption involves a conscious
decision and willingness on the part of the adopting
parent to take the child into their family.
Same Religion:
The adopting parent and the child must be of the
same Hindu religion. However, the definition of
"Hindu" in this context includes Sikhs, Jains, and
Buddhists.
Single Parent Adoption:A single Hindu can adopt a
child of the same gender. If a male wants to adopt a
female child or vice versa, there should be a
reasonable age difference (as prescribed by the Act)
between them.
No Consideration: Adoption should not involve any
monetary consideration or payment. The Act prohibits
the payment or receipt of any payment as
consideration for adoption.
Welfare of the Child: The paramount consideration in
adoption is the welfare of the child. The adopting
parent must be in a position to provide a loving and
nurturing environment for the child's overall well-
being.
Unit 4c Maintenance Rights of wife widow
daughter in law
Maintenance, as defined in Section 3(b) of the Hindu
Adoption and Maintenance Act, includes provisions
for food, clothing, shelter, education, and medical
expenses.
2. Maintenance for Wife:
The husband is obligated to pay maintenance to his
wife after divorce until she remarries.
The amount is determined by the court based on the
husband's earning capacity, ensuring a standard of
living similar to that during the marriage.
3. Entitlement of Wife to Maintenance:
Section 18(2) outlines situations where a wife is
entitled to maintenance, including desertion, cruelty,
incurable disease, bigamy, conversion, etc.
4. Exceptions to Wife's Maintenance:
Section 18(3) specifies conditions where a wife is not
entitled to maintenance, such as adultery or
conversion to a non-Hindu religion.
5. Maintenance for Widowed Daughter-in-law:
If the husband is deceased, the father-in-law is liable
to pay maintenance to the widowed daughter-in-law if
she lacks income or sufficient property.
6. Maintenance for Children and Aged Parents:
Parents, whether legitimate or illegitimate, are
obligated to maintain their children.
Section 20 emphasizes the duty to maintain aged or
infirm parents who cannot support themselves.
7. Maintenance for Dependents of the Deceased:
Section 21 defines dependents, and Section 22
specifies that heirs must maintain them using the
estate inherited from the deceased.
8. Determining the Amount of Maintenance:
Section 23 outlines factors considered in deciding
maintenance, including the status of parties, claims,
justifiable separation, income, and the number of
dependents.
9. Alteration of Maintenance Amount:
Section 25 allows for alteration in maintenance due to
changed circumstances, either by court order or
mutual agreement.
10. Applicability to Hindus Only:
- Section 24 states that only Hindus or those who
haven't ceased to be Hindus can claim maintenance
under this Act.
11. Maintenance as a Charge:
- Section 27 prohibits maintenance claims as a charge
on the deceased's estate unless specified in a will or
agreement.
12. Priority of Debts:
- Section 26 emphasizes clearing debts from the
estate before using the money for maintenance.
13. Effect of Property Transfer on Maintenance
Rights:
- Section 28 holds the transferee liable for
maintenance if there is notice or the transfer is
gratuitous.
Conclusion:
The Hindu Adoption and Maintenance Act provides a
comprehensive framework for maintenance, ensuring
financial support for wives, widowed daughters-in-law,
children, aged parents, and dependents of the
deceased.
As per Hindu law, the following persons are capable of
giving a child in adoption:
Father: The biological father of the child has the
primary right to give the child in adoption. However, this
right is subject to certain conditions and limitations.
Mother: The biological mother can also give the child
in adoption if the father is not alive, has renounced the
world, has ceased to be a Hindu, or has been declared
by a court to be of unsound mind.
Guardian:
In case the biological parents are incapable of giving
the child in adoption or have abandoned the child, the
legal guardian of the child may give the child in
adoption.
Any Person Legally Authorized:
Any person who is legally authorized to act on behalf of
the child can give the child in adoption. This includes
any person or institution that has the lawful care or
custody of the child.
Widow: A widow is also capable of giving a child in
adoption under certain circumstances, especially if she
has the lawful custody of the child.
Hindu Law:
Unit 5 B General Rules and Provisions Relating to
Succession in Hindus:
Introduction: Succession in Hindus is governed by the
Hindu Succession Act, 1956, which addresses both
intestate and testamentary succession.
The Act aims to regulate the devolution of property,
either according to a valid will or the laws of inheritance
in case of no will.
Historical Aspect:
Ancient Hindu law was based on Smritis, emphasizing
patriarchal inheritance.
Two schools of Hindu law, Dayabhaga and Mitakshara,
had different principles regarding inheritance. The
Hindu Succession Act, 1956, was enacted to bring
about a change, ensuring more equitable rights,
especially for women.
Applicability of the Hindu Succession Act, 1956:
The Act applies to Hindus, Buddhists, Jains, and
Sikhs.Those not covered include Muslims, Christians,
Parsis, and Jews, unless they choose to be governed
by Hindu law.
Scheduled Tribe members are excluded unless
directed otherwise by the Central Government.
Important Terms:
Agnate: Related by blood or adoption wholly through
males.
Cognate: Related by blood or adoption but not wholly
through males.
Heir: Male or female entitled to inherit the property of
the intestate.
Intestate: A person who dies without leaving a will.
Related: Legitimate kinship, including the deemed
relationship of illegitimate children.
Types of Succession:
Testamentary Succession: Governed by a valid will
made by a Hindu male or female.
Property distribution follows the terms of the will.
Intestate Succession: Occurs when a person dies
without making a will. Property distribution follows the
laws of inheritance.
General Rules of Succession in Hindus:
Full Blood Preferred to Half Blood (Section 18):
Heirs related by full blood preferred over those related
by half blood if the relationship is otherwise the same.
Mode of Succession of Two or More Heirs (Section 19):
Property distributed per capita, not per stirpes.
Heirs take as tenants-in-common, not as joint tenants.
Right of a Child in Womb (Section 20):
A child in the womb at the time of the intestate's death
has the same inheritance rights as if born before the
death.
Presumptions in Cases of Simultaneous Deaths
(Section 21):
Presumes the younger survived the elder in cases of
simultaneous deaths unless proved otherwise.
Preferential Right to Acquire Property (Section 22):
If an intestate's property devolves upon Class I heirs,
others have a preferential right to purchase.
Price determined by agreement or court if parties
disagree.
Landmark Cases:
K Laxmanan vs. Thekkayil Padmini & Ors:
Burden of proof on the propounder to establish the
legality and genuineness of the will.
Prakash v. Phulavati (2015):
Daughters had no right to coparcenary property if the
coparcener (father) passed away before 2005.
Danamma v. Amar (2018):
Daughters entitled to share in the property even if the
father passed away before 2005.
Vineeta Sharma v. Rakesh Sharma:
Daughters have equal coparcenary rights in HUF
properties irrespective of birth date.
Conclusion: The Hindu Succession Act, 1956, plays a
crucial role in regulating succession among Hindus,
striving for fairness and equality. Amendments,
landmark cases, and legal principles have contributed
to shaping a more inclusive and equitable succession
framework.
Unit 5 C Natural Guardian, Testamentary Guardian,
Guardian Appointed by Court - Powers and Duties
Introduction:
Early Dharmashastras had scant references to
guardianship, focusing more on protection of orphan
minors.The King was considered the supreme guardian
(parens patriae) during the ancient period.
British courts introduced laws during their regime,
recognizing parents as "natural guardians."
"The Guardians and Wards Act of 1890" and "Hindu
Minority and Guardianship Act, 1956" established legal
frameworks for guardianship.
Applicability and Overview:
Hindu Minority and Guardianship Act, 1956, applies to
Hindus, Buddhists, Jains, and Sikhs.
Two major categories: Guardianship of Persons and
Guardianship of Property of Minors.
Guardianship of the Person:
Natural Guardians:
Father, mother, and husband are recognized as natural
guardians.
Father's authority may be limited for the welfare of the
minor.Mother becomes the guardian after the father,
regardless of the father's living status.
Husband's guardianship over his minor wife is annulled
by the Prohibition of Child Marriage Act, 2006.
Rights of Natural Guardian of the Person:
Right to custody, determine religion, control education,
control movement, reasonable chastisement.
Conditional on the minor's well-being, prioritizing the
child's needs.
Testamentary Guardians:
Appointed by parents through a will.
Father's testamentary guardian ineffective if the mother
is alive. Mother solely appoints testamentary guardian if
the father is deceased.
Certified Guardians:
Appointed by district courts based on factors like age,
sex, child's wishes, and personal law.
Guardian's powers subject to court permission and
continuous monitoring.
Guardianship of Minor’s Property:
Natural Guardians:
Father, mother, and husband have authority over the
minor's property.
Natural guardian's power of alienation limited, requiring
court consent.
Minor can execute a decree of recovery if property
dealt with improperly.
Testamentary Guardians:
Act under the will constituted by natural guardians.
Property sale requires court permission.
Certified Guardians:
Powers defined, restricted, or extended by the court.
Guardian can request the court to fix and define the
scope of powers.
Guardianship by Affinity over Minor’s Property:
Guardian by affinity legally responsible for a minor
widow and her properties.
Authority over minor widow passes to the nearest
sapinda of the husband's family.
De-facto Guardian’s Interest over the Property:
Self-appointed guardian with no legal status.
Restricted in property dealings, can only alienate
property for legal requisites or advantage.
Conclusion:
Guardianship aims at the benefit of the minor, with
guardians having rights to represent the minor in legal
matters.
Guardians can initiate proceedings, refer matters to
arbitration, and compromise on behalf of the minor.
Guardians are entitled to indemnification for damages
incurred while protecting the minor, sourced from the
child's property.