'^‘=1 $

TODAY'S AN LL.B. STUDEOT IS TOMORROW'S AN ADVOCATE / JUDGE / PROFESSOR - GVR

SajUTHU LHW SERIES

[THE BEST OF THE BEST MATERIAL]
A. ANSWERS TO IMPORTANT QUESTIONS
B. SHORT NOTES
C. SOLUTIONS TO PROBLEMS
D. MINI / SHORT QUESTIONS / FILL UP THE BLANKS FOR
THE INTERNAL EXAMS

[ACCORDING TO THE NEW SYLLABUS & NEW EXAMINATION PATTERN]

SUBJECT

THE FAMILY LMW-J

[THE HINDU LAW]
(i) The Uncodified Hindu Law;
(ii) The Hindu Marriage Act, 1955 & The Family Courts Act, 1984;
(iii) The Hindu Minorityand Guardianship Act, 1956;
(iv) The Hindu Adoptions and Maintenance Act, 1956; &
(v) The Hindu Succession Act, 1956 (as amended by Act No. 39 of 2005).
[For LLB. (General), LL.B., (Honours), BA LL.B., B.BA LL.B., B.Com. LLB., B.Sc. LLB., Etc.]

By
GADE VEERA REDDY, b.sc., ll.b., m.a., m.b.a.
(Recipient of 5 Goldmedais in Law) (K.U.)
Kothi, Hyderabad-500 095, T.S.
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THE FAMILY LAW -1, and each of the SUJATHA LAW SERIES will be helpful to the students, no) only for studying the
LL.B. (General), LL.B. (Honours), B.A. LL.B., B.B.A. LL.B., B. Com. LL.B., B.Sc. LL.B. etc. but also for writing the .
1
Competitive Examinations and development in the career and legal profession until 15-20 years. Therefore every student
must preserve this book and each of the SUJATHA LAW SERIES in his safe custody NEITHER LEND NOR BORROW
NOR EXCHANGE ANY BOOK, PARTICULARLY SUJATHA LAW SERIES.
First read the Preface, Gold Medals, Important Tips for - before the Examinations and in the Examination Hall.
 ATTENTION PLEASE !

First read the Preface, Gold Medals, Important Tips for - Tips
before the Examinations and in the Examination Hall.

*PRESCRIBED SYLLABUS & CASE-LAWS

THE FAMILY LAW -1 (THE HINDU LAW)

UNCODIFIED HINDU LAW
UNIT-I

Source of Hindu Law-Scope and Application of Hindu Law-Schools of Hindu Law - Mitakshara
and Dayabhaga Schools - Concept of Joint Family, Coparcener, Joint Family Property and
Coparcenary Property - Institution of Karta, His Powers and Functions - Pious Obligation - Partition
- Debts and Alienation of Property.
CODIFIED HINDU LAW
UNIT-II

Marriage - Definition - Importance of Institution of Marriage under the Hindu Law - Conditions of
Hindu Marriage - Ceremonies and Registration - Monogamy - Polygamy.
UNIT - III

Matrimonial Remedies under the Hindu Marriage Act, 1955 - Restitution of Conjugal Rights -
Nullity of Marriage - Judicial Separation - Divorce - Maintenance pendente lite - Importance of
Conciliation. . K

UNIT - IV

Concept of Adoption - Law of Maintenance - Law of Guardianship - The Hindu Adoption and
Maintenance Act, 1956-The Hindu Minority and Guardianship Act, 1956.
UNIT - V

Succession - intestate Succession - Succession to the property of Hindu Male and Female -
Dwelling House - The Hindu Succession Act, 1956 as amended by the Hindu Succession
(Andhra Pradesh Amendment) Act, 1986 & the Hindu Succession (Amendment) Act, 2005 -
Notional Partition - Classes of heirs - Enlargement of limited estate of women into their absolute
estate.

Cases:

1. Sareetha vs. Venkata Subbaiah (AIR 1983AP 356).

2. Saroj Rani vs. Sudershan Kumar (AIR 1984 SC 1962).
3. Dastane vs. Datane (AIR 1975 SC 1536).
4. Shobha Rani vs. Madhukar Reddy (AIR 1988 SC 628).
5. Prathibha Rani vs. Suraj Kumar (AIR 1985 SC 628).
6. Geetha Hariharan vs. Reserve Bank of India (AIR 1999 SC 1149).
7. AshokHurravs. Rupa(1997)4SCC226).
8. Pulsing RamSingh vs. Durgabai (AIR 1997 Bomb. 201).
9. Bipin Chandervs. Prabhavathi.(AIR 1957 SC 176).
10. Ramdasvs. Gadiabai(AIR1997SC1563).
Suggested Readings :
1. Paras Diwan : Modern Hindu Law, 13th Edition, 2000, Allahabad Agency, Delhi.
2. Paras Diwan : Family Law, 1994 Edition, Allahabad Agency, Delhi.
3. Myne : Hindu Law - Customs and Usages, Bharat Law House, New Delhi.
m:.
4. Shaharaf: Law of Marriage and Divorce, 1999 Edition.
‘Note: This is the prescribed syllabus including prescribed case-laws for The Family Law - I (The Hindu Law) by the
Osmania University, according to the guidelines of the Law Commission of India, the Bar Council of India and the
University Grants Commission of India. The maximum number of Universities in India has been following the guideiines
issued by the Law Commission of India, the Bar Council of India and the University Grants Commission of India. In a very few
cases, certain Topics may be added or deleted In the syllabus and prescribed cases. The author of S.ujatha Law Series
requests the students of other Universities to send the prescribed syllabus and case-laws if any, so that this Series can be up
to dated from time to time.
 THE FAMILY LAW -1

(The Hindu Law)

PREFACE
Dear Student!

Through out the country, the syllabus of FAMILY LAW has been divided into two main Parts, viz., THE FAMILY
LAW -1 (THE HINDU LAW) & THE FAMILY LAW - II (THE MUSLIM LAW AND OTHER PERSONAL LAWS). The
Famiiy Law-1 (The Hindu Law) is taught in the First Semester, and the Family Law- II (The Muslim Law and Other

Personal Laws) is taught in the Second Semester.

SYLLABUS OF THE FAMILY LAW -1 (THE HINDU LAW)
According to the O.U., K.U., B.U., GU., P.U., and some other Universities, Syllabus of THE FAMILY LAW-1 (THE
HINDU LAW) is divided as foliows:—
Part-1 The Uncodified Hindu Law;
Part - II The Hindu Marriage Act, 1955 & The Family Courts Act, 1984;
Part - III The Hindu Minority & Guardianship Act, 1956;
Part - IV The Hindu Adoptions & Maintenance Act, 1956; &
Part-V The Hindu Succession Act, 1956 (As amended by Act No. 39 of 2005).
SYLLABUS OF THE FAMILY LAW - II (THE MUSLIM LAW AND OTHER PERSONAL LAWS)
According to the O.U. and some other Universities, Syllabus of THE FAMILY LAW - II (THE MUSLIM LAW AND
OTHER PERSONAL LAWS) is divided as follows:—
PART-1 THE MUSLIM LAW;
PART-2 THE CHRISTIAN LAW-

[(i) The Indian Christian Marriage Act, 1872;

(ii) The Divorce Act, 1869 and
(iii) The Succession Law]; <
PART - 3 : THE INDIAN SUCCESSION ACT, 1925;
PART - 4 : THE PARSI LAW (Marriage, Divorce & Succession);
PART - 5 : THE SPECIAL MARRIAGE ACT, 1954 &
PART-6 : THE UNIFORM CIVIL CODE.

According to the A.U., N.U., S.V.U., and some other Universities, the above said Syllabus of the Family Law, with
slight variations, has been shuffled as follows:—
ANDHRA UNIVERSITY: FAMILY LAW-I [PAPER-VI]:
UNIT-1 : MARRIAGE AND KINSHIP:
1.1. Evolution of the Institution of Marriage and Family.
1.2. Role of Religion, Rituals and Practices in moulding the rules regulating marital relations.
1.3. Type of Family based upon : Lineages-Patrilineal Matrilineal: Authority Structure-Patriarchal
and Matriarchal; Location - Patrilocal and Matrilocal; and Number of Conjugal Units - Nuclear,
Extended, Joint and Com posite.
V.

1.4. Applicability of Law.

1.4.1. Who is a Hindu, Who is a Muslim, Who is a Christian.
1.4.2. Sources of Hindu Law, Muslim Law and Christian Law.
UNIT-2 : CUSTOMARY PRACTICES AND THE STATE:
2.1. Polygamy.
2.2. Concubinage.
2.3. Child Marriage.
2.4. Sati.

2.5. Dowry.
2.6. State Intervention through various Legal Measures.
UNIT-3 : CONVERSION AND ITS EFFECT ON FAMILY:
3.1. Marriage.
3.2. Adoption.
3.3. Guardianship.
3.4. Succession.

(i)
 UNIT-4 : MATRIMONIAL REMEDIES:
4.1. Non-Judicial Resolution and Marital Conflict Problems,
(a) Customary Dissolution of Marriage - Unilateral Divorce, Divorce by Mutual Consent and other
Modes of Dissolution,

(b) Divorce under the Muslim Personal Law/ - Talaq and Talaq-e-tafweez.
4.2.
Judicial Resolution of Marital Conflict Problems: A general perspective of Matrimonial Fault
Theory and the Principle of Irretrievable Breakdown of Marriage.
4.3. Nullity of Marriage.
4.4. Option of Puberty.
4.5. Restitution of Conjugal Rights.
4.6. Judicial Separation.
4.7. Desertion : a ground for Matrimonial Relief.
4.8. Cruelty : a ground for Matrimonial Relief.
4.9. Adultery : aground for Matrimonial Relief.
4.10. Other grounds for Matrimonial Relief.
4.11.
Divorce by Mutual Consent under the Special Marriage Act, 1954; the Hindu Marriage Act, 1955;
the Muslim Law(Khula and Mubarat).
4.12. Bars to Matrimonial Relief.
4.12.1. Doctrine of Strict Proof.

4.12.2. Taking advantage of One’s Own Wrong or Disability.

4.12.3. Accessory.
4.12.4. Connivance.
4.12.5. Collusion.
4.12.6. Condonation.

4.12.7. Improper or Unnecessary Delay.

4.12.8. Residuary clause - no other legal ground exist for refusing the Matrimonial Relief.
UNIT-5 : ALIMONY AND MAINTENANCE:
5.1.
Maintenance of neglected wives. Divorced Wives, Minor Children Disabled Children, and Parents
who are unable to support themselves under the Code of Criminal Procedure, 1973.

I
5.2.
Alimony and Maintenance as an independent remedy: a Review under the different Personal
Laws.
5.3.
Alimony and Maintenance as an Ancillary ReliefAlimony Pendente Lite and Permanent Maintenance.
5.4. Maintenance of divorced Muslim women under the Protection of Rights on Divorce Act, 1986 - a
Critical Review.
UNIT-6 : CHILD AND THE FAMILY:
6.1. Legitimacy.
6.2. Adoption.
6.3. Custody, Maintenance.
6.4. Guardianship.
UNIT-7 : FAMILY AND ITS CHANGING PATTERN:
7.1. New Emerging Trends:
7.1.1. Attenuation of Family Ties.
7.1.2.
Working Women and their impact on spousal relationship, composition of family, status, and role
of women, and Decision Making Authority Structure.
7.2.
Factors affecting the family: Demographic, Environmental, Religious and Legislative.
7.3.
Processes of Social Change in India: Sanskritization, Westernization, Secularization,
Universalization, Parochialization and Modernization including industrialisation and Urbanization’
UNIT - 8 : ESTABLISHMENT OF FAMILY COURTS:
UNIT -9 : SECURING OF A UNIFORM CIVIL CODE:
9.1.
Religious Pluralism and its implications.
9.2.
Connotations of the Directive Principle contained in Article 44 of the Constitution.
9.3. Impediments to the formulation of the Uniform Civil Code.
Books Prescribed: 1. Paras Divan: Modem Hindu Law, 13th Edition, 2000, Allahabad Agency, Delhi; 2. Paras
Divan: Family Law, 1994, Allahabad Agency, Delhi; 3. Mynes: Hindu Law-Customs and Usage’s, Bharat Law
House, New Delhi; 4. Shaharaf: Law of Marriage on Divorce, 1999.
ANDHRA UNIVERSITY: FAMILY LAW-II [PAPER-VII]:
UNIT-1 : JOINT HINDU FAMILY(MITAKSHARAANDDAYABHAGA):
1.1. Mitakshara Joint Family.
1.2. Mitakshara Coparcenary - Formation and Incidents.
(ii)
 1.3. Property under Mitakshara Law - Separate Property and Coparcenary Property.
1.4. Dayabhaga Coparcenary - Formation and Incidents.
1.5. Property under Dayabhaga Law.
1.6. Kartaof the Joint Family - His position, Powers, Priviieges and Obligations.
1.7. Alienation of Property - Separate and Coparcenary.
1.8. Debts - Doctrine of Pious Obiigation and Antecedent Debt.
1.9. Partition and Reunion.
1.10. Joint Hindu Famiiy as a Social Security Institution and impact of the Hindu Gains of Learning Act
and various tax laws on it.
UNIT-2 : INHERITANCE:
2.1. Hindus.

2.1.1. Historical Perspective of traditional Hindu Law as a background to the study of the Hindu Succession
Act, 1956.
2.1.2. Succession to property of a Hindu male dying intestate under the provisions of the Hindu Succession
Act, 1956.
2.1.3. Devolution of interest in Mitakshara Coparcenary with reference to the provisions of the Hindu
Succession Act, 1956.
2.1.4. Succession to property of Hindu female dying intestate under the Hindu Succession Act, 1956.
2.1.5. Disqualifications relating to succession.
2.1.6. General Rules of Succession.
2.1.7. Marumakkattayam and Aliyasantana Laws governing people living inTravancore Cochin and the
Districts of Malabar and South Kanara.
UNIT-3 : NEW PROPERTY CONCEPTS, SUCH AS SKILL, JOB, etc., AS NEW FORMS OF PROPERTY:
UNIT-4 : MUSLIM OF LAW OF INHERITANCE AND SUCCESSION:
4.1. Rules governing Sunni and Shia Law of Inheritance.
4.2. Differences between Shia and Sunni Law.
4.3. Administration of Estate.
w
4.4. Wills under the Muslim Law.

UNIT-5 : THE INDIAN SUCCESSION ACT, 1925:

5.1. Domicile.

5.2. Intestate Succession.

5.3. Will and Codicil.

5.4. Interpretation - Revocation of Will.

5.5. Bequests - Conditional, Contingent and Void Bequests.
5.6. Legacies.
5.7. Probate and Letters of Administration.
5.8. Executor & Administrators.
5.9. Succession Certificate.
BOOKS PRESCRIBED:

1. TahirMahmood: TheMuslimLawof India, 1980, LawBookCompany,Allahabad; 2. AquilAhmed: TextBook

of Mohammadan Law, 5th Edition, 1992; 3. Prof. G.C.V. Subba Rao: Family Law in India, 6th Edition, 1993, S.
Gogia & Co., Hyderabad: 4. Asaf A.A. Fyzee: Outlines of Mohammadan Law, 4th Edition, 1999, Oxford
University Press, Delhi; 5. Mulla: Principles of Mohammedan Law, 19th Edition in 1990 and Seventeenth Reprint
in 2008, Butterworths India; 6. Paras Divan: Family Law (Hindu, Muslim, Christian, Parsi and others), 2nd
Edition, 1994, Allahabad Law Agency, Allahabad; 7. M.A. Qureshi: Text Book on Muslim Law, 1st Edition, 1997,
Central Law Publications, Allahabad; 8. Hidayatullah: Mulla Principles of Mohammadan Law, 19th Edition, 1993,
4th reprint, N.M. Tripathi Pvt. Ltd., Bombay: 9. Tondon M.P.: Muslim Law in India, 10th Edition, 1996, Allahabad
Law Agency, Allahabad; 10. Prasad V. : The Indian Succession Act, 1982, Allahabad Law Agency, Allahabad.
Basically, there are no new Topics in the syllabi of O.U. and A.U. The only difference Is that the syllabus is
shuffled.

In O.U. syllabus, the curriculum is taught religion-wise, i.e., the Family Law-1 relates purely to the Hindu Law, and
Family Law-11 relates to the Muslim and other Personal Laws. The Family Law-1 (Hindu Law) of O.U. contains the
Codified and Uncodified Hindu Laws, i.e., the Hindu Marriage, the Hindu Adoption, the Hindu Maintenance, the
Hindu Guardianship and the Hindu Succession Laws. The Family Law-ll (Muslim Law and other Personal Laws)
of O.U. contains the Personal Laws pertaining to marriages, matrimonial reliefs, succession laws relating to the
Muslim, Christian and Parsi religions.
In A.U. syllabus, the curriculum of the Family Law-1 & II is taught on comparative basis, i.e., the Marriage and
Matrimonial Reliefs of Hindu, Muslim, Christian and Parsi religions, succession laws relating to Hindu, Muslim,
Christian and Parsi religions, etc.
(iii)
 Majority of the Text Book Authors follows the O.U. system only. Kindly refer to the list of the prescribed books
above. In fact, the Sa/atha law SeFies (Family Law-1 & II) for O.U. are also sufficient to the A.U. pattern
However. I have prepared two kinds of FAMILY LAWS separately for O.U. and A.U. patterns. For O.U. and other
Universities, the title of Sujatha Law Series is Family Law-1 fHindu Law) & Family Law-il (Muslim Law and
Other Personal LawsL For A.U. and other Universities, the title of Sa/atha Law Series is Family Law-i
(Comparatiye Laws) & Family Law-ll fComparatiye Laws). The ISBN Code Nos. are also given separately.
I advise the students and book-sellers of other Universities to kindly refer to the syllabus of their respective University,
and purchase the books accordingly. I further advise the students that if there is no time to get Sa/atha Law
Series (Andhra University Pattern), they can also avail Sa/atha Law Series {Osmania University Pattern),
and studying them according to the syllabus of their respective University.
If any student is confused with the syllabus of their respective University, then he shall purchase Family Law-1 &
Family Law-ll of O.U. pattern at a time, and study both the books according to the syllabus and Topics of their
respective University.
The syllabus and the list of case-laws prescribed by the Osmania University, according to the Law Commission
of India, the Bar Council of India and the University Grants Commission, v\/ith effect from the academic year 2000-
200^ is given in the 2nd Page of the Title Pages. More or less the similar syllabus has been prescribed by the
majority Universities, except with certain variations, especially in the prescribed case-laws.
At that time, the pattern of question paper was different and was very easy to pass. Ten Essay Questions were
asked in each of the subjects for 100 marks, and the student was to answer any Five Questions. Out of ten
questions, one or two questions were Short Notes (in short SNs). Generally Four short notes in a question were
asked and choice was given to write any two of them.
In the old system, the syllabus of each subject was divided into Five Questions. From each Unit, two Essay
Questions were asked, and the student was to answer any one of them.

In that old pattern question paper, student had plenty of choice. If he perfectly read and prepared half of the
prescribed syllabus, and repeated questions, he could answer easily Five Questions, and happily would have
passed the examination, and even got more than first class marks. If the student concentrates on all the Units,
he would get highest marks, and even gold medals. As passing the LL.B. Examinations was very easy, a large
number of students were not attending the classes. This affected on the quality of legal education.
The Law Commission of India and the Bar Council of India observed all these defects, and opined that the legal
education was not upto the standard and to their satisfaction to fulfil the legal necessities of the country. To
overhaul the system, after several discussions and perusing several Committees’ Reports, the Law Commission
and the Bar Council of India have evolved a new concept of examining the students, so that every student
should be thorough in every subject. The Law Commission directed all the Universities to adopt this new concept
of examination, with effect from 2000-2001 academic year. Majority of the Universities have put this new concept
in practice. The Osmania University, and a few Universities have adopted this new concept with effect from 2007.
This new concept is in practice in majority of the Universities.
New Examination Pattern/Concept: According to this new system/pattern/concept, the student is examined
in two wavs:—

(i) Internal Examinations 20 Marks.

(ii) End Examinations/University Examinations. 80 Marks.

{') Internal Examinations: Two internals are conducted for each subject, each having 10 marks - totally 20
marks. The first internal for 10 marks shall be conducted in the middle of the Semester, and, the first half
of the subject is asked by way of fill up the blanks, objective type, match the following, etc. At the end
of the Semester, the second internal for 10 marks shall be conducted, and the remaining half of the subject is
asked.

O') End Examinations/Universitv Examinations: At the end of each semester, the University conducts the
End/Examinations/University Examinations for the subjects prescribed for that semester, for 80 marks. The
student should get at least 32 Marks out of 80 marks in each subject. The internal and end examinations
marks are clubbed to notify the Distinction, first class and second class (Pass or Fail).
End Examination Question Paper Pattern: According to this new examination pattern, the Question
Paper is divided into three Parts, i.e., Part-A, Part-B. and Part-C. consisting totally 16 questions
P^***'^ consists eight short-note questions. The student has to answer any five short notes. Each Short
Note carries six marks. Total marks for Part-A are 30 (5 SNs. x 6 Marks = 30 Marks).
Part-B consists four Essay Questions. The student has to answer any two. Each question carries Fifteen
marks (2 Qns. x 15 Marks = 30 Marks)
consists four PROBLEMS. The student has to answer any two. Each Problem carries ten marks (9
Qns. X 10 marks = 20 Marks).
The oMect of the Law Commission of India and the Bar Council of India is that the student must be thorough
in each of the subjects, and that he should attend the college very requiariv.

(iv)
This new concept/pattern and question paper is new to the Osmania University. This type of Question Papers
are being given in Andhra University, Sri Venkateswaraya University, Sri Krishnadevaraya University, Kamraj
University, Bangalore University, Pune University, etc., from the last seven or eight years with slight variations,
according to the guidelines and instructions of the Law Commission of India and the Bar Council of India.
This new model question paper and examination system is new to the Osmania University students, already
adopted since November, 2007, i.e., with the First Semester of LL.B. 2007-08 academic year.
In fact, according to the new examination pattern, the law student is equipped with full knowledge in all the
subjects prescribed, if he studies well. Otherwise, he cannot pass in the Internai and External/End/University
examinations. The new system also makes the students for compulsory attendance of the classes.
Notice and compare the previous and present question papers. At present, by mere writing/answering two
essay questions, a student cannot secure pass marks. Previously 9 to 10 Essay Questions were asked
(comprising 90% to 100% of the Question Paper). Now the number of Essay Questions has been strictly
reduced to four, i.e., only 40%.
Previously 4 Short Notes (SNs), which were equai to one essay question, giving choice to write any two, were
given in the examination. Now the number of Short Notes has been increased to eight, i.e., an increase of 40%,
in a separate Part, i.e., Part-A, and making the student compulsorily write them. Each Short Note should not
exceed 80 words.

Previously the Problems were not given by the majority of the Universities. A few Universities, viz., Pune
University, Andhra University, Bangalore University, Gulbarga University, etc., were giving a few problems as a part
of the essay questions.
Now Problems are being given in a separat Part, i.e., Part-C. Problems may be asked from any corner.
Similarly Short Notes may also be asked from any corner. If the student does not study entire subject, he may
not be in a position to answer/solve the problems/short notes.
For the new Pattern of Examinations, I give a few guidelines:—
Essay Questions and Short Notes: I have received several letters and requests from the students asking me to
write separate notes/books on Essay Questions and Short Notes. I would like to answer such students that there
is no necessary to study separate books for essay questions and short notes.
Kindly observe the previous question papers of different Universities given under each topic. By perusing these
questions, one can easily understand that an essay question may be asked as a short note, and a short note may
be asked as an essay question. For Example: Conditions of a Hindu Marriage may be asked as a short
note, as weli as an essay question and even as a problem.
There is no problem for me and for my publishers to write and publish two separate books for essay questions and
short notes. However, it cuts the pocket of the students unnecessarily.
In this connection, I would like to bring an incident happened in the life of Sir Isaac Newton. No doubt, he was
a great Scientist and intellectual person. He cannot be compared with any other scientist. He propounded so
many physical formulas, which are not challenged till now. However, he was careless in day-to-day life. Newton
was working in his room with heavy concentration in the closed doors room. One cat with its kitten used to enter
into the room, whenever the doors were open. When they wanted to go out, and if the doors were closed, they
used to make nuisance in the room disturbing him. Newton called his servant and instructed him to make two
holes in the wall, one’s size was big, and another’s size was small, so that the cat and its kitten could come and
go easily. The servant did it. Afriend came to visit Newton and found two holes in the wall. He asked Newton
what would be the purpose of two holes. Newton told him that the big hole was for cat, and small one was for its
kitten. The friend told to Newton when the big hole could be sufficient for cat and its kitten, why should be the
second small one. Newton surprised to note this point and told his friend that this idea was not struck to his brain.
This incident reveals that common sense is different with that of scientific and technical knowledge. The same
principle applies for Essay Questions and Short Notes. If a student is thorough in Essay, he could easily write the
short note also.

Instructions to write short notes: The student first

must be thorough in the subject. He must improve the
quality of precise writing. For this purpose, he has to improve his knowledge and skilness in the English
grammar. Thus he should improve his English grammar knowledge, and particularly sentence framing. He should
also practise perfect and speed hand-writing. If he improves these qualities, he can reduce/concise the essay
matter into a Short-Note consisting 80 to 100 words very easily, just like cat and kitten can go through a single
hole. Remember! Short-Note answers take less time, but fetch more marks than the Essay Questions. Therefore,
there is no necessary to publish another book on Short Notes. The present book itself is sufficient for both the
purposes.

Essays may also be asked as full questions, half questions or even short-notes (SNs). I have not given answers
for Short Notes separately. Every topic in our Notes contains sufficient material. The student has to concise the
material for Short Note (SN), Half Question, Problem, Essay, etc., depending upon the nature of the question
asked in the examination. If a person/woman has hairs on the head, he/she can decorate several ways beautifully
and conveniently. A bald head person has no chance. I mean to say that the person who studies this material
perfectly since the beginning, he can answer perfectly any question of any type in the examination.

(V)
Further, I would like to tell you that these Notes are not comparable with the text books or guides or with any other
material, either on the question of matter or on the question of price. Because, each of Suiatha Law Series
contains unique characteristics. It contains Sections, Exceptions, Explanations and illustrations, important
points, case-laws, quotations, legal maxims, definitions, differences between two Concepts in Tabular Forms,
etc.. It is all-in-one.

Since the beginning, Suiatha Law Series have occupied a prominent place in the law students’ community
through out India. From time to time, the students, lecturers, professors, principals and book-sellers have been
giving their co-operation and suggestions in increasing the sales and bringing them to a satisfied standard. Several
Students, Lecturers, and Professors have sent previous question papers and suggestions from all corners of the
country. It helped me a lot to improve the quality of the notes. At the same time, it also helps the students’
community to answer correctly in the examination hall. Thousands of the students wrote me letters appreciating
these Notes. Some of them are given at the last pages of these Notes.
I sent awards and thanking letters to them, who made the constructive remarks and sent the previous question
papers. However, I am extremely sorry I could not give reply to every student, due to busy in writing the books.
I express my gratitude to all them who sent their appreciation, remarks and suggestions. I have given separate
cell phone number and timings, and also e-mail address to the students in this book. I have also given Feed Back
Form along with these Notes. The interested student can use them and contact me.
I received certain remarks from a few students that the Notes in Sujatha Law Series have become volumous. I
too accept. I have been giving the abstract of each Notes, i.e., total number of pages, words, case-laws, topics,
etc., at the last page. We have been fixing the price each page @ 50 np or 60 np perfullscape page in keeping
the students’ buying capacity. If you compare other books, the price will be @ Rs. 1.00 or more per demmy/royal
size paper. Compare the price of that book not only with price, but also the matter/number of words and size of the
paper. Also compare our Series with other books, with the questions of the Previous Question Papers. In our
series, you will find 80 to 90 percent, often cent per cent, answers in our Notes. Our Series will meet the changed
question pattern system also, if studied completely.
Thus, I would like to tell that Sujatha Law Series are not comparable with the text books or guides or with any other
material. Because, each of Sujatha Law Series contains unique characteristics. It contains Sections, illustrations,
important points, case-laws, including prescribed and leading cases, quotations, definitions, tables showing the
differences between two Concepts, etc. Each Topic is answered to the previous questions. As far as possible the
prescribed leading and latest case-laws are given in every “Enhanced & Revised” Notes. It is ALL-IN-ONE.
The student has to concise the material from text book. Generally in most of the text books, the brief facts of the
case-laws are not given, but only principles are given. An average student cannot understand the Section with the
help of principle. A practising advocate, with his experience, can easily understand the principles and case-laws,
given under the foot-note of the Text Books and Reference Books. In all most all the reference books of law, brief
facts of the case-law are not given. The advocate refers such case-laws with AIR, SCC, Supreme To-day, ALT
CrLJ, Crimes, etc. In the journals, each case contains at least 10to 100 pages, or more. From the point of time,
expenditure view, it is not possible for a law student to procure the material for all the important and prescribed
case-laws from such books and for all the subjects within a Semester.
However, I have given all the prescribed case-laws prescribed by O.U., K.U., N.U. and some other Universities.
Besides the prescribed case-laws, I have also given the important case-laws old and very latest upto 2007 and
incidents upto 2008.
Each Book of Sujatha Law Series contains an average of one lakh fifty thousand to one lakh eighty thousand
words. This book contains one lakh fifty thousand words. At the same time, the price is very low. The rate
depends upon the number of pages and material given. Whenever the subject demands, automatically the
material is enhanced and number of pages are increased. According to the new common core syliabusfor entire
India, I am compelled to explain every topic with a number of case-laws, ingredients of Sections, important points,
etc. Hence the number of pages is increased. In fact, each Book contains the material half of the text book, but
having relevant material and topics keeping in view of the examinations. But the rate of each Book is only one-bv-
fourth of the text book. I request the students to assess quality, quantity of the material of Sujatha Law Series
and other materials.

“Family Law -1” consists a vast syllabus. I have explained the concept of these two Acts, and also I have given
Sections with its illustrations, wherever necessary, and also explained the case-laws.
Some of the students are writing letters that certain X-notes/guides are cheaper than Sujatha Law Series. In fact,
I need not explain for this question. However, I have already explained above about our concept of fixing the prices
of our books. Compare our books and those other books, with number of pages, words, cases, important points,
size of the paper, size of the letters and the number of answers, etc..
Some of the students are writing letters that certain X-notes/guides contain lesser pages than Sujatha Law Series,
and are easy to read just before the examinations. The answer is also given in their letters. Those X-notes/
guides, having lesser pages, lesser material, may be useful to the students, who do not study since the beginning
of the semester, but only just before the examinations. Then compare those books with the previous question
papers. How many questions can be answered with those books? How many questions can be answered with
Sujatha Law Series? Decide yourself. A student has to write 5,000 to 8,000 words in 3 hours (180 seconds) for
each Paper/Subject. Whereas each book of X notes contains 20,000 to 30,000 words. I too admit it is very easy
to read such a book in one day. But the matter read in one day cannot be memorised and cannot be produced in
the examination, except those who are Eka Santaarahis (having memory just by one reading). It is also not
possible in the legal subjects. It is also not possible in the changed system of new syllabus and new examination
pattern.
 1. Vast Subject : Each Subject of LL.B. is very vast. Time is less. Questions may be asked from any
corner. The student has to study entire subject and has to concentrate more on the important lessons,
particularly case-laws, Sections, illustrations, etc., of each subject.
2. Writing Speed ; The examiner does not see the face of the examinee. The examiner sees the answer
script, i.e., writing of the student. The student might have studied entire subject and thorough memory. It
is not sufficient. The relevant matter should be presented on paper within the time prescribed Syllabus.
I personally know some of the brilliant students failed in the written examinations due to lack of time-sense
and lack of writing speed. For this purpose, the student should practise some time convenient to him/her for
writing every day. Remember: Writing Speed is more important besides Reading and Memory.
3. Legible Writing : Writing must be legible, clear and with punctuation marks. Follow grammar principles.
You must observe that 16 lines should be maintained in each page. Give sufficient space on left, upper and
lower sides. Don’t write congestedly. There must be sufficient gap between the words and lines.
Your answer sheets must give a good look and impression. Clumsy writing, strikings, additions,
deletions, etc., would lessen the impression on the examinee.
4. Habituate reading Newspaper every day: Collect the information, statistics, judgments of the Supreme
Court and the concerned ^ate High Court, incidents, etc., and record in the concerned subject book, SLS,
or in a separate book. If you analyse and write the latest issue and case in your answer, it enhances the
validity and marks.
5. Division of Time: Three hours, i.e., 180 minutes time is given for each subject. Every minute is very
important and valuable in the examination hall. The student should first divide time for each part and
each question according to the nature and marks of such questions. The Highest Time should be allotted
to the Essay Questions. The Lowest Time available should be allotted to the Short-Note Questions. The
average time shall be allotted to the Problem Questions. I give a rough allotment of time as follows

Examination Time : 10 a.m. to 1 p.m.

Reading of Question Paper. from 10.00 a.m. to 10.05 a.m. 5 minutes
PART -A (Short Note Questions)
(60 Minutes = 12 Minutes each x 5 SNs.)
1st Short Note from 10.05 a.m. to 10.17 a.m. 12 minutes
2nd Short Note from 10.17 a.m. to 10.29 a.m. 12 minutes
3rd Short Note from 10.29 a.m. to 10.41 a.m. 12 minutes
4th Short Note from 10.41 a.m. to 10.53 a.m. 12 minutes
5th Short Note from 10.53 a.m. to 11.05 a.m. 12 minutes
PART - B (Essay Questions)
(70 minutes = 35 minutes each x 2 EQns.)
1st Essay Question from 11.05 a.m. to 11.40 a.m. 35 minutes
2nd Essay Question from 11.40 a.m. to 12.15p.m. 35 minutes
PART - C (Problem Questions)
(40 minutes = 20 minutes each x 2 PQns.)
1st Problem from 12.15 p.m. to 12.35 p.m. 20 minutes
2nd Problem from 12.35 p.m. to 12.55 p.m. 20 minutes
Verification of Papers,Tagging, etc. from 12.55 p.m. to 1.00 p.m. 5 minutes

Total Time 180 minutes

Examination Time : 2.00 p.m. to 5.00 p.m.

Reading of Question Paper. from 2.00 p.m. to 2.05 p.m. 5 minutes

PART -A (Short Note Questions)

(60 Minutes = 12 Minutes each x 5 SNs.)
1st Short Note from 2.05 p.m. to 2.17 p.m. 12 minutes
2nd Short Note from 2.17 p.m. to 2.29 p.m. 12 minutes
3rd Short Note from 2.29 p.m. to 2.41 p.m. 12 minutes
4th Short Note from 2.41 p.m. to 2.53 p.m. 12 minutes
5th Short Note from 2.53 p.m. to 3.05 p.m. 12 minutes
PART - B (Essay Questions)
(70 minutes = 35 minutes each x 2 EQns.)
1st Essay Question from 3.05 p.m. to 3.40 p.m. 35 minutes
2nd Essay Question from 3.40 p.m. to 4.15 p.m. 35 minutes
PART - C (Problem Questions)
(40 minutes = 20 minutes each x 2 PQns.)
1st Problem from 4.15 p.m. to 4.35 p.m. 20 minutes
2nd Problem from 4.35 p.m. to 4.55 p.m. 20 minutes

Verification of Papers, Tagging, etc. from 4.55 p.m. to 5.00 p.m. 5 minutes

Total Time 180 minutes

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While writing each answer the student must keep the time in mind, and should not excess the time allotted.
Practice is required to follow this time-table in the examination hall. However at the beginning, 10% to 20%
margin may occur for each question. By practice only, the time can be controlled.
Some students mis-estimate the time and involve in writing a question without looking the time for other
questions. For example, a student may write a short note for twenty or twenty five minutes, or an essay
question for 50 or 60 minutes. This disturbs the time of other questions. At the last, the time will not
sufficient to write other questions. Even if he writes the remaining questions at the end of the examination
time, he has to adjust matter and time. Due to this, certainly he is confused and forgets the matter.
Tension is created in the mind. The result is lesser marks and may yield to failure.

To avoid this clumsy position, it is the best way to prepare the time-table as above. The above time-table is
only for guidelines. You have to prepare according to the nature of the examination, nature of the questions,
total time given in the examination, etc.
It is not compulsory to write the answers numerically. It is the choice of the student to write the answers
according ot his convenience.
5. PROBLEMS: As said above, nowfour Problems are given in Part-C, out of which the student has to answer
any two of them. The Law is a social subject. It is not possible to score 80 to 100% marks in social subjects.
It is easy to get 100% marks in the mathematics. It is not easy to get 100% marks in social subjects, including
law.

However, answering to problems gives good scoring of marks, like sums in the mathematics. If the problems are
solved and answered correctly 100% marks, i.e., 20 out of 20 marks can be given.
The Problems are based on Case-Laws, Acts, Sections, illustrations, etc. In the Law of the Contract, majority
of the problems are given basing upon the case-laws. Sections and illustrations. If the student memorises the
case-laws. Sections and illustrations, he can perfectly solve the problems, and can get the highest marks.
Case-laws are very easy to memorise and to write in the examination.
I have already given 100 Problems with solutions in this book. Under the title of every case, 1 have given tips/
hints on which the case-law is concerned. Moreover, 1 have given the Table of Cases, containing tips/hints.
You need not read all the cases all the days. If you read this book one time, and later, you can take the
assistance of the Table of Cases, with hints, just go through the cases. In that way you can memorise the case-
laws along with their tips. This will be helpful to you in the examination hall.
I have compiled all the Topics and Sub-Topics according to the Syllabus and Units. In fact in the changed
examination pattern, there is no necessary to follow the Unit System. But it becomes very easy to trace the
subject, topics, sub-topics, short notes, problems, etc. Hence I have followed the Unit System. In this
connection, I would like to give a precaution to the students that the student must be thorough the first half
portion before the first internal examination.
EXAMPLE:

PROBLEM: A and B are wife and husbands. B is a highly educated person. A is harassing B and his relatives
and friends. A abuses B and in one occasion she hasburnt his research papers. Advise B.
(Anl.,2004,S.K.U.)
SOLUTION : B can seek divorce from A under Section 13 (1) (i - a) of the Hindu Marriage Act, 1955.

CONTEXT: The above given problem is identical with “Dastane vs. Dastane” for “Cruelty”.
CASE LAW:

# Dastane vs. Dastane (AIR 1975 SC 1536)

(Cruelty to husband)
Brief Facts: This case deals with “Cruelty” as a ground of divorce. Dr. N.G.Dastane married S. Dastane in
1956. Three children were born. After that, disputes arose between them. Mrs. Dastane behaved enemically
with her husband. She could not bear the cohabitation with her husband. Her conduct caused annoyance and
untolerable situation to the petitioner-husband. He filed a case for the divorce alleging that his wife behaved with
him “cruelly”. He alleged that she insulted him in the presence of the guests and neighbours, and she never
bothered to give respect to his parents.. In her outbursts of temper she accused falsely “the pleader’s sanadof
that old hag of your father was forfeited, ” “I want to see the ruination of the whole Dastane family”, “bum the book
written by your father and apply the ashes to your forehead”, “you are a monster in a human body”, “I will make
you lose yourjob and publish it in the Poona newspapers, "etc. She cut the mangalsutra, locking out the doors
when he was due to return from his office, rubbing chillie powder on the tongue of an infant child, beating a child
mercilessly while in high fever, and switching on the light at night and sitting by the bedside of the husband
merely to nag him were some of the examples averred by her husband in the Court. The acts were of so grave
an order as to imperil the husband’s sense of personal safety, mental happiness, job satisfaction and reputation.
She used to stay in other’s houses for days together. The husband proved her attitude and behaviour in the
Court. The trail Court and the High Court gave judgments against the husband.
JUDGMENT: The Supreme Court reversed the decision of the High Court and gave judgment in favour of the
husband. The Supreme Court observed that the English decisions on “cruelty” may not always be a safe guide
to the Indian social structure. The English law requires “danger to life, limb or health”. But Section 10 (1) (b)
laid down a lower requirement namely, “reasonable apprehension” that it is harmful or injurious for one spouse to
live with the other. This requirement is not satisfied in this case.
PRINCIPLE LAID DOWN: Cruelty simpliciter is now a ground for divorce as well as judicial separation. Prior
to the Marriage Laws (Amendment) Act (LXVI i I of 1976) cruelty was not a ground for divorce but under Section 10

(viii)
 (1) (b) of the 1955 Act prior to the Amending Act of 1976, it was a ground for judicial separation provided it was
such “as to cause” a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious
for the petitioner to live with the other party. The term “cruelty” has not been defined by the Legislature. It is
neither desirable nor practicable to define the term. Concept of cruelty is a changing one dependant on the
social and economic conditions, status of parties and a multitude of other considerations. Annoyance or
mental disturbance would not amount to cruelty unless it had affected the health of the petitioner to any extent.
In this Example, there are about 500 words (including the Problems). The student need not write the problem in
the answer sheet. It consumes the time, it is sufficient to write the Question Number/Problem Number and then
write the answer as explained above. The answer can be reduced or enhanced depending upon the examinee’s
capability in writing speed and memory. The student shall have to give headings and underlines as shown
above. Even in the paragraphs, the important Sections, matter. Act, etc., may be underlined. Whether the
answer is lengthy or shorter, the answer/solution to the Problem based questions, if solved correctly and perfectly
(like shown above), the examinee gets full marks like in mathematics.
PRECAUTION: Before attending Part-C, the student must read all the four problems slowly and understand
the concept, case-law or illustration and legal issue inherent in each of them. Then only decide two problems
to attend in the exams. Further, before writing solution of a Problem, the student must read that Problem at
least two or three times, come to a conclusion, and confirm it, and then start to write.
SHORT NOTES: The student has to write five short notes. While writing each short note, he must be careful
in maintaining the matter, quantity and quality of the matter. Remember! An essay may be asked as a short
note. If you go on writing a short note as an essay, it automatically consumes the precious time in the examination.
You must write the answer in not more than 80 words for each short note.
BITS IN THE INTERNAL EXAMS: There shall be two internals, ten marks for each internal, totally 20 marks
for each subject in every semester, in Internal, fill up the blanks, objective type questions, match the following,
etc., are asked. I did not give objective type questions, match the following, because they occupy too much
space and consumes a large number of pages. This imposes unnecessary burden upon the students’ pocket.
Hence, I have prepared Fill Up the Blanks with Answers for each subject. If the student memorises a bit, i.e.,
fill up the blanks, he can acquire knowledge on that particular point, and he will be in a position to answer any
type of questions, whether it may be a fill up the blank or objective question or any other bit type question. I also
advise the students to attend the classes regularly to acquire more knowledge and also marks.
WRITING PRACTICE: The student should possess capacity in writing the same matter/material as a short note
within the prescribed limit of words, or as an essay. If necessary to write a short note, the matter/material should
be concised. If necessary to write an essay, the matter/material should be enlarged with relevant matter. Act,
Section, illustration, case-law, if any. Therefore, the student must practise writing every day.
ENGLISH GRAMMAR. COMMUNICATION SKILLS & COMPUTER TECHNOLOGY: The English grammar and
communication skills are necessary (i) to pass in the LL.B. (English Medium), and (ii) to practise in the Courts
(Drafting and Pleadings, and Arguments). Due to globalisation, employment opportunities have grown
tremendously. Out Sourcing in the legal profession has been growing providing employment and money to
the budding advocates. Therefore, the student should concentrate and educate himself the English Grammar,
Communication Skills and computer knowledge every day during and afterthe studying the LLB. Degree.
According to the new syllabus and new question paper pattern, I have prepared the notes/material for
THE FAMILY LAW -1 (THE HINDU LAW) of SUJATHA LAW SERIES.
I sincerely advise the students to study each subject since the beginning of the Semester, and not to wait for
the date of examination fee or examination date. Istrictly warn the students to avoid one-day wicket practice.
In the new examination pattern and new semester-wise system, available time for a student is very less.
Semester means six months. However, hardly four or five months time is only available between one
semester to another semester. You have to study five subjects for each semester. It means that you can hardly
get one month time for one Subject/Paper.
For this purpose, I advise you to make it convenient to allot certain hours every day to study ail the
subjects of your semester. I further advise you to divide the time available to you in a day equally to all
the subjects. It means that you must study every subject every day.
Now coming to the legal education in India, the LL.B. course itself has become a deserted subject. Except
a few number of the students, the majority of them loin intheLL.B. as a last resort after Inter or any qraduation.
After joining in the course also, they do not pay attention on the legal subjects.

Kindly notice the difference between a doctor’s education and an advocate’s education in our country. Some
of the parents dream that their children should become doctors. Accordingly they plan their children’s education
and investing money in admitting them in quality schools and colleges. They get admissions in the famous
colleges, like Narayana Junior Colleges, Sri Chaitanya Junior Colleges, etc., by paying huge money. For
educating their children, some of the parents sacrifice their money, properties and lives.
The Corporate Colleges educate their students with EAMCET coaching since the beginning of Inter First year.
It is continued for two years uninterruptedly 18 hours per a day and without any leaves. They polish the students
to get the ranks for their colleges. Afew students are committing suicide, who cannot bear the strictness of the
teachers and residential colleges. Naturally their students get good ranks and seats in the medical colleges.
A medical student does not waste time since the time of joining in the Intermediate up to the completion of the
M.B.,B.S., and also P.G. it takes the minimum nine to ten years, i.e., approximately 78,840 hours (9 years x

(ix)
 365 days x 24 hours = 78,840 hours) to 87,600 hours (10 years x 365 days x 24 hours = 87,600 hours). All
these years, the student goes on studying the medical subjects. My estimation is every medical student
spends more than 50,000 hours to obtain the M.B.,B.S., and also P.G. Certificate. During this period, he/she
loses all enjoyments. We can notice their devotion, study hours and study patterns. Then only he/she attains
the goal of becoming a doctor.
Then compare a legal student. Now coming to the legal education in India, the LL.B. course itself has
become a deserted subject. Except a few number of the students, the majority of them join in the LL.B. as a
last resort after Inter or any graduation. After joining in the course also, they do not pay attention on the legal
subjects.
There are a fewer parents, preferably the Judges and Advocates prefer and intend to get their children to become
the judges and lawyers. They prefer to get admission to their children in the famous and well rated Law
Colleges, such as the NALSAR, etc. They happily incur huge expenses and fees. Getting the admission is also
very tough. Admissions are conducted by conducting the CLAT. The Common Law Admission Test (CLAT) is
a centralised test for admission to 16 prominent National Law Universities in India. The test is taken after
the Intermediate or the Higher Secondary Examination or the 12th grade for admission to FIVE YEARS
integrated under-graduation programmes in l^(B.A. LL.B., B.B.A. LL.B., B.Sc. LL.B., B.Com. LL.B.).
After the Graduation in Law for Master of Laws (LL.M.I courses are conducted by these law universities.
The two-hour admission test consists of objective type covering questions on Elementary Mathematics or Numerical
Ability, English with Comprehension, General Knowledge and Current Affairs , Legal Aotitude and Logical
reasoning.

The CLAT scores are used by other private law colleges across the country and Public Sector Undertakings for
admissions and recruitment respectively.
The students joined in the NALSAR and other National Law Universities also work hard with interest, like a
medical student. All the National Law Universities provide well furnished residential accommodation with
high quality library, and have eminent qualified under the UGC standard professors.
In such atmosphere, the students concentrate all the five years (5 years x 365 days x 24 days = 43,800
hours). No doubt, the legal education imparted in such institutions ranks very high. The result is that the law
students passed from such institutions become the judges, efficient lawyers in the courts and corporations.
While they are studying, they are selected in the campus selections.
The fact is that there are only a few numbers of such institutions and there are only fewer percentage of the
students getting their admissions in the National Law Schools.

Indeed, the majority of the Universities and Colleges are not in the standard of the NALSAR. For the rest of
India, i.e. majority legal education the majority of the Universities and Colleges are only the source. Each
State Government conducts LAWCET for 3-YDC and 5-YDC Law courses, i.e. LL.B. (General), LL.B. (Honours),
B.A LL.B., B.B.A LL.B., B.Sc. LL.B., B.Com. LL.B. and LL.M. CET for post grate courses forthe conventional
Universities and Colleges. The private colleges are allowed to admit the students under the management
quota.

Now we discuss about the study of the law students in the conventional Universities and Colleges. Majority
of the students do not go to the colleges. There are no qualified UGC Professors in the private colleges. Of
course, the private college management could not bear the salaries of the qualified UGC Professors. It is also
not possible to pay such UGC scales. They appoint the Advocates (completed the LL.M.) as the Part-Time
Lecturers on meager wages.
A considerable number of students do part-time jobs for their livelihood. I appreciate their interest in the LL.B.
They could not concentrate on the studies due to their jobs.
At the same time, I also observed that a considerable number of the students waste their time in unnecessary
matters and affairs.

I also notice and appreciate that the number of the girls studying LL.B. courses has been increasing.
However, sad to say that the majority of the students are not paying attention on the legal subjects. For example,
take 3-YDC LL.B., the majority of the students have not paying attention to study at least 2,000 hours out of the
3 years x 365 days x 24 hours = 26,280 hours. In the similar way, 5-YDC LL.B., the majority of the students
have not paying attention to study at least 3,000 hours out of the 5 years x 365 days x 24 hours = 43,800
hours. There are only 10% of the students studying 6,000 hours (3-YDC) and 10,000 hours (5-YDC).
There may be variation in my calculation. Whenever I used to meet the law students, I ask one or two questions
on the subjects, and analyse and assess their study pattern.
Now there are abundant opportunities for the iawyers in our country and in the western countries. Job
opportunities are also increased. The number of the Courts and Tribunals has been increasing. Accordingly,
there are chances to be appointed for the judicial officers. Besides it, there are abundant opportunities in the
corporate sector. You can also do out-sourcing drafting and other legal works for the developed countries.
You can exploit the dollars and pounds. All these opportunities are subject to your study pattern and acquiring
the legal knowledge and basics which are framed and taught in the LL.B. All the subjects are important.
For LL.B. (General) 3-YDC, there are 30 subjects + 2 optional subjects, five subjects per each Semester
(six months). Total six semesters for three years. For LL.B. (Honours) 3-YDC, there are 36 subjects + 3
optional subjects per each Semester (six months). Total six semesters for three years.
(X)
 For B.A. LL.B. 5-YDC, there are 50 subjects + 2 optional subjects, five subjects per each Semester (six
months). Total ten semesters for five years. Out of 50 Subjects, 30 subjects + 2 optional subjects are the
legal subjects. There are 18 subjects relating to political, social and economics, and 2 subjects/papers are
English-I&ll.
For B.B.A. LL.B. 5-YDC, there are 50 subjects + 2 optional subjects, five subjects per each Semester (six
months). Total ten semesters for five years. Out of 50 Subjects, 30 subjects + 2 optional subjects are the
legal subjects. There are 18 subjects relating to business administration, and 2 subjects/papers are English-
l&ll.

For B.Com. LL.B. 5-YDC, there are 50 subjects + 2 optional subjects, five subjects per each Semester (six
months). Total ten semesters for five years. Out of 50 Subjects, 30 subjects + 2 optional subjects are the
legal subjects. There are 18 subjects relating to commerce, and 2 subjects/papers are Engiish-I & II.
For B.Sc. LL.B. 5-YDC, there are 50 subjects + 2 optional subjects, five subjects per each Semester (six
months). Total ten semesters for five years. Out of 50 Subjects, 30 subjects + 2 optional subjects are the
legal subjects. There are 18 subjects relating to Physics, Chemistry, Biology and Mathematics, and 2
subjects/papers are English-1 & II.
The Bar Council of India is the supreme constitutional body governing the legal education and the legal
profession. It has been trying vigorously to enhance the standards of the legal education and the legal
profession from time to time.
If you work hard, and become efficient in the legal knowledge, and acquire skills, you will certainly win, and will
becomek the most efficient Advocate. All is dependent upon your hard work and study. There is no short rout
to win. Hard work pays the Raja Bata (King Way) to success.
Coming to the Interpretation of Statutes, this subject involves every subject of the Law in the LL.B. course
and also other laws the country. The 30 subjects prescribed and taught for the LL.B. course are the basic
laws. You must be thorough in every subject of the course.
Under the guidelines of the Law Commission of India and the University Grants Commission, the Bar
Council of India has been changing the syllabus and the Examination pattern of the LL.B. course, and has
been introducing new courses and new subjects from time to time.

^ HOW TO READ THE LEGAL SUBJECTS !

MOST IMPORTANT

Physical sciences, i.e., physics, chemistry, etc. involve the principles, formulae, etc. To understand the
principles, formulae, etc., the science student do hard work. The students of social sciences, i.e. B.A.,
B.Com., need not study like a science students. Law is a social subject. The Law student need not study
like the physical sciences. Law is related to the society, which means our family, society and the State in
day-to-day life. To control the people, the laws are made and amended from time to time according to the
changing social, political and economic circumstances in the country.
All the legal subjects are prescribed by the Bar Council of India for all the Universities, i.e. entire India,
from Kanya Kumari to Jammu and Kashmir. Each subject is divided and prescribed in Five Units.
I have started writing the Sujatha Law Series in 1992. Sujatha Law Series are sold throughout India.
Since then I have been revising Sujatha Law Series from time to time following the guidelines of the Bar
Council of India. I have been giving the INTERNALS WITH ANSWERS to every topic of the subject. [A
few subjects are left and are under preparation.]
The Law student should study and understand the legal subjects with concept orientation. For example,
Unit-1 of the Law of Torts, the Bar Council of India prescribed only five lines. I have explained Unit-1 - the
Nature of the Law of Torts in 14 Topics comprising 26 Pages with case-laws and problems. Besides 26
Pages, I have given the INTERNALS in 75 Short/Mini Questions and Fill up the Blanks. These 75
Internals (4 Pages) are the abstract of the entire Unit (26 Pages) - the Nature of the Law of Torts.
Here I explain the object and Importance of the INTERNALS with a metaphor.
EXAMPLE: In 2013, you sawthe film ‘Ashiqui-2’. You sat in the theatre for 2 Vi hours and enjoyed the film.
To seethe film, we sit in an attention position. We switch off our mobiles or put in silence mode. While
seeing the film, we cannot stand, cannot move our legs and hands. We cannot talk with our family members
or relatives or friends, who accompany to see the film.
After coming out of the theatre, you forget the film, and would involve in your day-to-day affairs. After many
months, the songs “Turn Hi Ho” or “Sun Raha Ha/" of ‘Ashiqui-2’ are heard from your neighbour’s radio/
television or irng tone from a cell phone of a person standing nearby you. You immediately refresh your
memory with entire film story, concept, actors’ names, their acting, sceneries, music, singers’ names, producer’s
and director’s names, etc. of ‘Ashiqui-2’. Moreover we refresh our memory of our family members or relatives
or friends, who accompanied to see the at film.

i
In the same manner, you have to study the legal subjects topic-wise. You must read and understand the
concept of each topic, paying the attention as you paid in the theatre to see the film Ashiqui-2. For
understanding purpose, you may take the help of the General Dictionaries (English-English-Vernacular

(xi)
Language), and the Legal Dictionaries (English-English-Vernacula r Language). It may take half-an-hour or
one hour for each topic. That is sufficient. Thereafter, read the INTERNALS of that Topic. Whenever you get
the time, refer to only the INTERNALS, but not to read that Topic. We see a film only one time. In the similar
way, we have to read each Topic only one time, but with heavy concentration and understanding paying
attention just as we pay attention to see a film.
For example. Topic 1.A. ‘Meaning and Definition of Tort’ is explained in two pages. There are nine
short/mini questions in the INTERNALS. Every time, you have refer to the NINE INTERNALS of Topic 1-A
only. If you could not refresh any internal, you may refer to the ANSWERS to that internal only. You need
not read and refer to the two pages.

Therefore, the INTERNALS consisting the Short/Mini Questions and Fill up the Blanks will be helpful to
you for decades together for:—
1. INTERNAL EXAMS/COLLEGE INTERNALS: The College conducts the Internal Exams two times
(10 marks for each internal exam) of each subject in each semester. If you follow the above said
procedure, you can acquire 20 Marks out of 20 Marks. [There is a variation of the marks allotted for the
internal exams from 10 Marks to 30 Marks. There are certain Universities do not conduct the internal
exams, and directly conduct the End Examinations/External Examinations for 100 Marks.]
2. END EXAMINATIONS/EXTERNAL EXAMINATiONS/UNIVERSITY EXAMINATIONS: Even though there
are no internal examinations and marks in your University, you must follow and study each topic with
concept orientation and frequently refer to the INTERNALS. Majority of this students are not following
the concept orientation study. They start purchasing the books after the examination date is
announced. Several students purchase the books just before the date of External Examinations.
This is a bad practice. Such type of the students could not acquire the legal knowledge. If you follow
the CONCEPT AND INTERNAL PROCEDURE as explained above, you will definitely get 60 to 70 Marks
and above (if the maximum subject/paper are 80 marks), and you will definitely get 70 Marks to 80
Marks and above (if the maximum marks for subject/paper are 100 Marks). [Each University follows its
own procedure in awarding the marks. Some Universities award the marks liberally and some Universities
award the marks strictly. For example, Delhi University, Kakatiya University, Andhra University, Nagarjuna
University, etc. follow the very strict policy. Osmania, Gulbarga, and several other Universities award the
marks very liberally. I was the student of Kakatiya University. I got 73 per cent marks and five gold
medals in 1991. These are the highest marks awarded by K.U.,
3. AIBE: Majority of the students have been studying the law courses taking easily and asha mashi, and
could not acquire the complete legal knowledge as that of a medical students work hard and acquire
medical knowledge. The Bar Council noticed it. Hence it had introduced the All India Bar Examinations
(AIBEs) two times in a year for 100 marks objective/multiple choice questions. The qualifying marks
required are 40 out of 100 questions. Text books, guides, any other materials, are also allowed in the
examination hall. So far eight times, AIBEs were conducted and the ninth exam is going to be conducted
in December, 2015. Surprisingly only 15 percent or title more or less were being qualified in all these
eight AIBEs. They are repeatedly appearing for the AIBEs. If you followthe CONCEPT AND INTERNAL
MANNER as explained above, you will definitely qualify for the first time only that too securing 80
marks and above. [Some of the law student leaders have been presurrizing the Bar Council of India to
wind up of the AIBE. I advise them not to pressurize to wind up the AIBE. The AIBEs are helpful to the
budding advocates, at least they refer to and refresh the legal subjects and concentrate on the profession
perfectly]
4. PGCET/LLMCET: The INTERNALS will be useful to you, if you want to appear for the PGCET/LLMCET.
By referring to the INTERNALS, you can acquire the highest rank i.i the PGCET/LLMCET.
5. LL.M., any PG Diploma Course: The INTERNALS will be useful to you to study the LL.M. and PG
Diploma Courses also. The LL.M. and PG Diploma Courses are also based on the LL.B. The
additional topics or subject-matter or syllabi may be pursued in the internet.
6. U.G.C. NET/STET (LAW): After passing the LL.M., every person is entitled to write the University
Grants Commission National Eligibility Test and the State Eligibility Test (LAW), and will be entitled
to be appointed as a Professor (Law) in any University or Private Law Coileges. A person appointed
under the U.G.C. NET/STET (LAW) is entitled to salary under the U.GlC. Scale, which will be more than
Rs. 1,00,000/-and more.
7. MAGISTRATES’/JUDGES’ (JUDICIAL) AND PUBLIC PROSECUTORS’ EXAMINATIONS: There is
heavy competition for the posts of the Public Prosecutors/Magist rates/Judges at 1:1000 ratio or
more. However, the INTERNALS will be useful to you to write and get appointment as the Judges’/
Magistrates’ (Judicial and Public Prosecutors).
8. CIVILS/I.A.S./I.R.S./i.F.S.: The youth can appear the Civils/I.A.S./I.R.S./f.F.S., eL;. taking the Law
as an option. In such occasion also, the INTERNALS will be useful to you to write the Civils/I.A.S./
I.R.S./I.F.S., etc. and get appointment.
9. JOBS IN THE CORPORATE SECTOR/CAMPUS SELECTION: There are abunc ant chances in the
Corporate Sector consisting the Domestic and Multi-National Corporations. The Corporate Companies
have been sending their Human Resource Officers to recruit the Law Officers selecting the highly

(xii)
 intellectual law students having legal knowledge and efficiency at the campus selections at the National
Schools. The Law Officers selected at the campus selections are being paid higher packages by the
Corporate Sector. The Human Resource Officers have been concentrating at the campus selections
at the National Schools and other prestigious private law colleges. The Human Resource Officers
verify the previous track record and marks of the law students, and also ask the questions to the candidates
basing upon the legal subjects. In such occasion also, the INTERNALS will be useful to you to be
appointed as the Law Officers in Campus Selections.
10. PRACTICE: The INTERNALS will be useful to you in the practice. Whenever a doubt on the subject,
required for your cases, first you may refer to the INTERNALS and then to the commentaries, journals,
case-laws in the AIR, SCC, etc. through the printed books or through internet. The internals will be
helpful to you to bright your career, and bring the name, fame and money too.
11. INTERPRETATION OF STATUTES: The famous and rich Advocates got their name, fame and money by
interpreting the statutes and winning the cases. They did not get this efficiency in one day. They might
have worked day and night for years and even for decades. The internals of the legal subjects will be
helpful to you and enrich the abundant knowledge. By referring to the INTERNALS frequently or
whenever any doubt arises, you will become the efficient and eminent lawyer.
IMPORTANCE OF SUJATHALAW SERIES

I can say proudly that only me following the guidelines of the BAR COUNCIL OF INDIA, and have been writing the
INTERNALS in our Sujatha Law Series. No Series, guides, text books have the INTERNALS. Therefore, each
of the Sujatha Law Series will be useful to you at least for TWENTY YEARS in the ways mentioned just above.
SUJATHA LAW SERIES: According to the new examination pattern and new semester-wise system, and
the revised syllabus, I have prepared THE FAMILY LAW -1 (THE HINDU LAW). I have tried to give the best of
the best material. I hope that this book contains sufficient material and can meet the requirements of all the
Universities throughout India. However, if any student finds any shortage of material/topics of the syllabus of his
University, he/she may kindly contact me through my e-mail or letter, so that I shall add such material in the
revised edition.

cut here
r
READER’S FEED BACK FORM

THE FAMILY LAW -1 (THE HINDU LAW)

Sujatha Low Serias have gained popularity among the legal students’ community through out the
country. Each book of the series is the most effective means of achieving success in the legal
examinations. The pattern of the LL.B. Examinations has been changed by the majority of the
Universities in India. Each subject contains two parts - first Internal Examination (20 Marks); and
second University Examination (80 Marks). The Internal Examinations, consisting Objective Questions
and Fill Up the Blanks, have been introduced newly. The University Examination paper is also
changed. Previously 10 Essay Questions and a few short notes were asked. Now the eighty marks
paper is divided into three Parts, viz., Part-A (Short Notes), Part-B (Essay Questions) and Part C
(Problems). The object of this change is that student must be thorough with entire subject.
According to the changed pattern, we have started revising the Sujatha Law Series incorporating
Objective questions and fill up the blanks for Internal Examinations, Problems in the notes and also
2 latest Bare Acts. Our writer Sri Gade Veera Reddy has been taking utmost care and caution in
0)

writing these books. In spite of his best care and caution, errors and omissions can creep in due to
o shortage of time. In this connection, we invite your suggestions for further improvement of our
Publications.

For this purpose, we seek your valuable time and suggestions. Find any mistakes/errors, whatsoever
they may be, including spellings in this book and write them to me.

Point out the mistake/error/spelling mistake, and write it in space provided in this page, and also write
the number of line, number of para and page number, of the book. Kindly write the correction what
according to you should be the correct one. Write your name, address with PIN Code, College,
University, and telephone number, e-mail address, if any. If the space is not sufficient, use additional
white paper. You can also send the Feed Back Form through e-mail.

We send you one free/complementary copy of the revised edition of the book, as soon as it is revised
and printed. However, it generally takes time for revision.
Fill up this Page, tear it and send it to us or send it through e-mail.
Sojatha Low Books Pvt. ltd.
(xiii)
 THE FAMILY LAW -1 (THE HINDU LAW) and other books of Sujatha Law Series can be useful for the budding
advocates also. Sujatha Law Seriesare also useful for ALL INDIA BAR EXAMINATION FOR ENROLMENT OF
ADVOCATES conducted by the Bar Council of India. Sujatha Law Series are also useful for the Judicial
Examinations. These books are also useful to LLM Entrance and other competitive examinations. Therefore,
I advise the students not to lend, borrow, resale or threw it in a corner. Keep these books in your library
and refer to as when the time is available, during the study of law course and even during the practice.
However, I sincerely say that Sujatha Law Series can be useful to those students, who study since the very
beginning of the Semester, but not to those who do one-day wicket practising at the time of the examinations.
If the student has no plan of reading, he cannot go through the entire subject-matter of all the subjects prescribed
for the semester, and cannot answer the problems, short notes, internals, and cannot obtain the best marks, and
even may fail, if the valuation of the examination paper is done by the strict Lecturer/Professor.
In these Notes/Books, there may errors or omissions crept without my knowledge due to speed writing. I invite the
constructive advice, suggestions and remarks from the Students, Lecturers, Professors, Principals and Jurisprudents
for the enhancement of quality in Sujatha Law Series.
I request the students of all Universities to send the question papers of THE FAMILY LAW - I
(THE HINDU LAW) as the case may be, as soon as you have written the examination of this subject immediately
to our publishers, so that I can revise this book, so that more useful for the successive students.
GOLDEN TIPS TO THE BUDDING ADVOCATES
1. If you are the advocate for the plaintiff/petitioner, it is your first duty to study all the required statutes, g.os.,
notifications, etc., and must be equipped with the latest knowledge on the subject. Must have the latest
knowledge on the ruling position given by the Supreme Court and the High Court of your State, and the
decisions of the remaining High Courts on the subject.
cut here
n
SaiflTHfl lisra SERIES - [THE BEST OF THE BEST MATERIAL]
Page No. Para & Error / Misprint Should be
Line No. printed as

CD

3
I

Name:

S/o. W/o. D/o.:

Address;

PIN:.
College: University
Cell No. ;
.E-mail

Date :
Signature :
(xiv)
 2. If you are the advocate for the defendant/respondent, it is your first duty to study all the required statutes,
g.os., notifications, etc., and must be equipped with the latest knowledge on the subject. Must have the
latest knowledge on the ruling position given by the Supreme Court and the High Court of your State, and
the decisions of the remaining High Courts on the subject. You must read thoroughly the plaint, affidavits,
and other documents submitted by the Plaintiff. You must point out the defects in them.
3. Dates: Dates and timings of the documents and incidents are most important to memorise and point out
the difference,

4. and many more.

Comparing with other material: Each of SLS Notes contains the best of the best material, containing
J 1,50,000 to 4,00,000 words, 120 to 400 pages. Topics 30 to 90, or even more, according to the prescribed
syliabus, 100 to 300 prescribed case-laws, 50 to 100 Problems, short-notes, essay questions, and 200 to 400
bits/fill up the blanks for internal examinations. Price of each SLS Notes is also very cheap not exceeding @
70 np to 80 np per foolscape page in 8 & 10 point size letters. Compare other books with quantity and
quality. However, it is sincerely stated that SLS Notes can be useful to those students, who study from the
very beginning of the Semester, not to those of one-day or two-day reading students at the time of the
examinations. If the student has no plan of reading, he cannot go through the entire subject, and cannot answer
the problems, and cannot pass.
Request: I request the Users/Readers of SLS Notes to kindly send the Previous Question Papers (English
and Hindi) (Original/Xerox) of LLB. (3-YDC & 5-YDC), Syllabus of LL.B., Judicial and Competitve Examinations.
I also request the sender to write the University name, and month and year of the examinations on the question
papers. Kindly write your name, address, mobile number, e-mail. If any, clearly. An appropriate reward shall
be given to the senders. If any body does not get any response from the publishers, immediately telephone or e-
mail to me.

You are also Invited to talk on academic matters only with me on cell phone 9394084208 (strictly
between 8-00 p.m. to 9-00 p.m.) or
e-mail gadeveerareddy@yahoo.com, sujathalawbookspvtlted@yahoo.co m.
Repeat the Foot Box I Title Page and then add the following matter. I advise the students to purchase the
next Semester Books as soon as this Semester University / External Examinations are completed, and start
reading the subjects with concept orientation as stated in above.
However, there may be defects, omissions, etc., in this book due to shortage of time. If they are brought to
my notice, I will rectify in the next edition. I am very much thankful to those students, lecturers, principals,
and book sellers, who sent the remarks, suggestions, and previous question papers of different universities.
I request the Readers / Users to continue the same co-operation, suggestions and remarks.
To enhance the quality of the Sujatha Law Series, our Company started “Reader’s Feed-Back”, which is
given hereunder. Kindly utilise it and co-operate.
There is no short route to successi Hard work is the winning principle!!

Wish you the best of success!

Wish you to get the highest marks, ranks and Gold Medals!!

11.12.2015 GADEVEERA REDDY

Advocate - Author

Ph.8885231739

(strictly between
8 p.m. to 9 p.m.)

(w)
 PARTICULARS OF GOLD MEDALS DECLARED FOR LL.B.
STUDENTS OF OSMANIA UNIVERSITY

1.
tt

Justice P. Jaganmohan Reddy Gold Medal” awarded to the candidate who stands first

division in LL.B. and highest marks in aggregate.

2. Shri C. Satyanarayanacharyuiu Memorial Gold Medal” shall
Ct

be awarded to the candidate

who passes LL.B. Final Examination securing highest number of Marks in March / April Exami
nation irrespective division obtained by him. In case of a tie the marks of LL.B. Previous and
Finai may be combined and the award be made to the candidate who secures more marks.

3.
6i

Shri T. Anantha Babu Gold Medal” shali be awarded each year to a candidate of Law
Coiiege (Evening Session) who passes LL.B. (Final) Year in i - Division topping the iist of First
Class Candidates in one attempt.
4.
C(

Justice V.K. Vaidya Memorial Gold Medal” shall be awarded to the candidate who secures
First Division in First Attempt in LL.B. and aiso secures highest marks in Constitutional Law.

5.
((

Shri A. Ramaswamy Iyengar Memorial Gold Medal” shall be awarded to the candidate who
secures First Division in First attempt in LL.B. and aiso secures highest marks in Family Law
& Property Law.

6.
tt
Sri Jairam Rao K. Deshmukh Gold Medal” shall be awarded to the candidate who secures

First Division in First Attempt in LL.B. and aiso secures highest marks in Administrative Law.

7.
tt

Sri Koka Srinivasa Murthy Gold Medal” shall be awarded to the candidate who secures
First Division in First attempt in LL.B., and aiso secures highest marks in Labour Law.

/■ -

♦ Good to think it. Better to take it. Best to act it.

♦ The busy bee has no time for sorrow.
♦ He, who foresees calamities, suffers them twice over.
♦ Take everytiing seriously except yourself.
ft
♦ No great man ever minds stopping.
♦ There is nothing like success. r

♦
Glory of virtue, to fight to struggle, to right the wrong.
♦ Success covers a multitude of blunders.

K,
♦ The beginning of all things are small.
J -
Vi
w

[Note : There are Seven Goid Medals declared for the Law students by the O.U. Several Law
Colleges are affiliated to the O.U. The affiliated colleges too declared certain Gold Medals at
their respective Law Colieges. Similar to the Gold Medals in O.U. and its affiliated colleges, every
University and its affiliated colleges declare the Gold Medals in LL.B. and other courses. The
students of other Universities are advised to know the information and detaiis of the Gold Medals
of their respective Universities and Colleges, and pJan their education accordingly since the
beginning of the First Semester.

(XVI)
 THE FAMILY LAW -1 (THE HINDU LAW)
CONTENTS

Topic Contents Sections Page

No. No.

UNiT - i

1. THE UNCODiFiED HINDU LAW

1. A Sources of the Hindu Law. 1

TheAncient/Traditional Hindu Law. 1

Vedas (Srutis). 1

Smritis. 2

Customs. 2

Modern Sources. 2

Codified Hindu Law. 3

1. B. Schools of the Hindu Law. 4

Distinction between the Mitakshara and the Dayabhaga Schools. 4

Sub-Schools of Mitakshara. 4

1. C. Custom as a Source of the Hindu Law. 5

‘Clear proof of usage willoutwiegh the written text of law. 7

1. D. Application of the Hindu Law. 8

Persons governed by the Hindu Law. 9

Effects of Conversion. 9

[Also Refer to Page No. 58]

1. E. Concept of the Hindu Joint Family and Coparcenary -
Joint Family Property and Coparcenary Property -
Institution of Karta, his Powers and Functions. 11

Coparcenary. 11

Coparcenary Property. 12

Ancestral Property. 12

Hindu Joint Family. 12

Members of Undivided Hindu Joint Family. 13

Powers of Karta. 13

Functions, Duties and Liabilities of Karta. 13

Advantages of the Joint Hindu Family System. 14

Distinction between the Joint Hindu Family and Coparcenary. 15

Distinction between Joint Property/Joint Tenancy and the

Joint Hindu Family Property/Coparcenary Property. 15

Composite Family. 16

Self Acquired Property. 16

[Position of Coparcenary/Joint Family Property after the

Hindu Succession (Amendment) Act, 2005.] 16

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1. F. Partition & Impartible Property. 17

[Law Before the Hindu Succession (Amendment) Act, 2005.] 17

Partition. 17

Subject-Matter of Partition. 18

Persons entitled for Partition. 18

Mode of Partition. 18

Allotment of Shares. 19

Reopening of Partition. 19

Re-Union. 21

Partial Partition. 22

Impartible Property. 22

[Present Position of Partition of Coparcenary/Joint Family

Property after the Hindu Succession (Amendment) Act, 2005.] 22

1. G. Debts - Antecedent Debts, Vyavaharika and Avyavaharika

Debts - Doctrine of Pious Obligation. 24

[Before the Commencement of the Hindu Succession

(Amendment) Act, 2005.] 24

Debt/Antecedent DeWVyavaharika Debt. 24

Avyavaharika Debt. 25

Doctrine of Pious Obligation. 27

[Present Position After the Commencement of the Hindu

Succession (Amendment) Act, 2005.] 29

CODIFIED HINDU LAW

UNIT - II

2. THE HINDU MARRIAGE ACT, 1955

2. A Marriage - Definition - Importance of Institution of Marriage
under the Hindu Law. 30

Basic FeaturOs of the Hindu Marriages. 31

2. B. Conditions to be fulfilled for a valid Marriage under the

Hindu Marriage Act. 5, 17& 18 32

Punishments. 5. 17&18 36

2. C. Ceremonies of a Hindu Marriage. 7 36

2. D. Registration of the Hindu Marriages. 39

TheAndhra Pradesh Compulsory Registration of Marriage Act 2002. 39

2. E. Kinds of Marriages. 41
Monogamy. 41

Polygamy/Bigamy. 41

Polyandry. 41

Polygny. 41

Cenogamy. 42

Endogamy & Exogamy. 42

(xviii)
 UNIT - III

3. MATRIMONIAL REMEDIES UNDER THE HINDU MARRIAGE ACT, 1955

3. A. Restitution of Conjugal Rights. 9 44

3. B. Judicial Separation. 10 46

Distinction between Judiciai Separation and Divorce. 47

3. C. Nullity of Marriage - Void Marriages. 11 48

3. D. Nullity of Marriage - Voidable Marriages. 12 49

3. E. Divorce. 13,13-A,
13-B, 14&15 52

Grounds on which Hindu Wife or Husband can seek Divorce. 13, 14& 15 54

Grounds on which Hindu Wife can seek Divorce. 13(3) 60

Procedure. 13-A, 14 & 15 62

3. F. Divorce by Mutual Consent. 13-B 63

3. a Changes brought by Amendment Act No. 68 of 1976. 64

3. H. Legitimacy of Children of Void and Voidable Marriages. 16 65

3. I. THE FAMILY COURTS ACT, 1984. 67

(i) The Family Courts Act, 1984. 67

(ii) The Protection of Women from Domestic Violence Act, 2005. 70

(iii) Importance of Conciliation. 71

3. J. Effects and After Consequences of the Nullity of Maniage/Divorce .

15,16,
23-A, 24, 25,
26, 27, 28-A 74

UNIT i IV

4. THE HINDU ADOPTIONS AND MAINTENANCE ACT, 1956

ADOPTIONS

4. A (Concept of Adoption - Law of Adoption - Secular or Spiritual. 76

Two Texts. 76

Effect of the Two Texts and the Metaphor on the Evolution

of the Law of Adoption. 76

4. B. Law of Adoption - Secular or Spiritual. 77

Changes before and after the Hindu Adoptions and

Maintenance Act, 1956. 77

4. C. Essentials of Valid Adoption. 6-17 79

4. D. Effects of Adoption. 12 86

Adopted Son and After bom Aurasa Son. 87

Factum Valet 88

4. E. Ante Adoption Ag reement. 13 89

4. F. Factum Valet 89

4. Gl Doctrine of Relation Back. 90

MAINTENANCE

4. H. Maintenance of Wife. 18 91

(xix)
 Avarudha Stri. 92

Children Avarudha Stri. 92

4. I. Maintenance of Daughter-in-Law. 19 93

4. J. Maintenance of Dependants. 20&21 95

4. K. Amount of Maintenance. 23-25 96

UNIT - V

5. THE HINDU MINORITY AND GUARDIANSHIP ACT, 1956

5. A Changes brought by Act 32 of 1956. 97

5. B. Natural Guardians. 6-8 98

5. C. Testamentary Guardians. 9 104

5. D. Guardian Appointed by the Court. 4(b) 106

The Guardians & Wards Act, 1869. 106

The Inter-Country Adoptions. 106

5. E. De Facto Guardians. 11 108

Distinction between De Jure and De Facto Guardians. 11 108

Distinction between Testamentary and De Facto Guardians 109

Guardian Ad Hoc. 109

Guardian Ad L/tem. 109

UNIT - VI

6. THE HINDU SUCCESSION ACT, 1956

6. A Devolution of Interest in Coparcenary Property. 6 110

[Law before the Hindu Succession (Amendment) Act, 2005] 110

Theory of Notional or Deemed Partition. 6 113

[Law after the Hindu Succession (Amendment) Act, 2005] 114

6. A (i) The Hindu Succession Act not to apply to certain properties. 5 117

6. A (ii) Devolution of interest in property of a Tarwad, Tavazhi,

Kutumba, Kavaru or illom. 7 117

Aliyasanta Law. 3(1)(b) 117

Marumakkattayam Law. 3(1)(h) 117

6. B. General Rules of Succession in the case of Males. 8-13 &

Schedule 119

[Before the Commencement of the Hindu Succession

(Amendment) Act, 2005.]
Agnates. 3(1) (a) 120

Cognates. 3(1)(b) 120

Full Blood. 3(1)(e) 121

Half Blood. 3(1)(e) 121

Uterine Blood. 3(1)(e) 121

[After the Commencement of the Hindu Succession

(Amendment) Act, 2005.] 121

(XX)
6. C. Stridhanl\Noman’s Estate (Limited Estate). 14 124
[Before the Commencement of the Hindu Succession
(Amendment) Act, 2005.]
Stridhan. 14 124

Women’s Estate (Limited Estate). 14 125

Distinction between Life-Estate and Limited Estate. 125

The Hindu Disposition of Property Act, 1916. 126

The Hindu Women’s Rights to Property Act, 1937. 126

Doctrine of Surrender of Limited Estate/Woman’s Estate. 127

Abolition of Sfnd/ian/Limited EstateAA/oman’s Estate. 128

[After the Commencement of the Hindu Succession

(Amendment) Act, 2005.] 128

6. D. General Rules of Succession to the Property of Females/

The Position of Daughter in the Hindu Succession Act. 6, 14,
15 & 16 +
Schedule. 130

[Before the Commencement of the Hindu Succession

(Amendment) Act, 2005.] 131

The Position of a Daughter in the Hindu Succession Acts. 131

6. E. Fundamental Changes Brought by the Hindu Succession Act, 1956. 133

6. F. Changes introduced in the Hindu Succession Act, 1956 by the

A.P. Act of 1986. 134

Changes introduced in the Hindu Succession Act, 1956 by the

State of Tamil Nadu Act, 1990. 135

Changes introduced in the Hindu Succession Act, 1956 by the

State of Maharashtra Act, 1994. 135

Changes introduced in the Hindu Succession Act, 1956 by the

State of Karnataka Act, 1994. 135

6. G. Changes introduced in the Hindu Succession Act, 1956

by the Centrai Act No. 39 of 2005. 136

6. H. Right of Dwelling House [Sec. 23 Repealed] 23 139

6. I. Disqualifications. 24-28 140

6. J. Escheat. 29 141

6. K. Testamentary Succession. 30 141

[Before the Commencement of the Hindu Succession

(Amendment) Act, 2005.] 142

[After the Commencement of the Hindu Succession

(Amendment) Act, 2005.] 142

Fill up the Blanks with answers - for Internals and iVva-Voce, etc. 144

Table of Cases with hints to memorise and to solve the Problems. 160

(xxi)
 Code No. 15102
FACULTY OF LAW

LL.B. (3 YDC) / LL.B. (Hon.) (3 YDC) I - Year I - Semester Examination, February 2019
Subject: LAW
PAPER : li FAMILY LAW -1
Time: 3 hours Max. Marks: 80
PART - A (5 X 6 = 30 Marks)
Answer any FIVE of the following:
1. Hindu.
2. Cruelty.
3. Ceremonies of Hindu Marriage. 4. Essentials of Adoption.
5. Voidable Marriages. 6. Pious Obligation.
7. Portion.
8. Testamentary Guardian.
PART - B (2 X 15 = 30 Marks)
Answer any TWO of the following :
9.
Define “Marriage”. State the importance of marriage under the Hindu Marriage Act.
10. What are the special grounds to woman for divorce under the Hindu Marriage Act?
11. Write a brief note on the law relating to Adoption.
12. Explain the devolution of property of Hindu female intestate.

PART - C (2 X 10 = 20 Marks)
^ any TWO of the following :
13. A, a karta of a joint family sold some of the land of the family for the purpose of medical of his son.

Whether the alienation of the property is valid?

14. A Hindu husband married again concealing the fact that he had wife and children. Advise the second wife.
15. A Hindu dies intestate leaving behind his mother, brother, son, daughter-in-law distribute the property.
16.
A and B a Hindu husband and wife mutually agreed to take divorce with-in-5 months from the date of
Marriage. Is it possible, if so under which Section?
Code No. 9550
FACULTY OF LAW

LL.B. (3 YDC) / LL.B. (Hons.) (3 YDC) 1 Year I Semester Examination,

March/April 2018
Subject: Law
PAPER- il: FAMILY LAW -1 (HINDU LAW)
Time: 3 Hours Max. Marks: 80
PART-A(5x6 = 30 Marks)
Answer any FIVE of the following questions.
1. Polygamy. 2. Marriage.
3. Legal Guardian. 4. Classification of Heirs
5. Notiona Partition. 6. Powers of Karta.
7. Pious Obligation 8. Nullity of Marriage.
PART - B (2 x 15 = 30 Marks)
Answer any TWO of the following.
9. Write a brief note on the law relating to maintenance under Hindu Marriage Act.
10. What are the functions of Karta? Explain
11. What is the importance of marriage under Hindu Law and what are the ceremonies to be followed to
perform a Hindu marriage?
12. Differentiate between Judicial Separation and Divorce with decided cases.
PART - C (2 X 10 = 20 Marks)
Answer any TWO of the following.
13.
A Hindu died intestate leaving behind his wife, mother, father, daughter-in-law and a son. Distribute the
property according to succession Act.
14. A Hindu male married a girl of 16 yrs old, without her consent. Is this a valid marriage or not? Discuss.
15. A Divorced Hindu women filed case in the court of law stating that she wants to claim the custody of her
children. One is II - year of age and other on is 18 years of age - Advise her.
16. A Hindu husband married again with the consent of his first wife. He disclosed that the second wife is an
employee. Is this a valid marriage or not? Discuss.
(xxii)
 THE FAMILY LAW -1 (THE HINDU LAW)
UNIT -1
1, THE UNCODIFIED HINDU LAW

1.A. SOURCES OF THE HINDU LAW

Q.1. Explain the legislation as an important source of the Hindu Law. (May, 2008, O.U.)
Q.2. Explain various sources of Hindu Law. How far legislation is considered as modern source? . (Feb., 2008, Burdwan U.. W.B.)
Q.3. Explain the various sources of Hindu Law.
(Dec., 2007, O.U.) (Dec., 2006, B.U.) (Dec., 2004, B.U.) (AnI., 2004, P.U.) (AnI., 2004, K.U.) (AnI., 2003, P.U.)
Q.4. How do you classify the various sources of Hindu Law? Explain Legislation as an important source of law after 1955.
(Aug., 2006, O.U.)
Q.5. What are the principal schools of Hindu Law? Explain the fundamental points of difference between the two schools.
(Dec., 2005, B.U.)
Q.6. Explain the ancient sources of the Hindu Law. (Dec., 2005, GU.)
Q.7. What are the sources of the Modem Hindu Law? (July, 2003, O.U.) (Jan., 2003, O.U.)
Q.8. Narada Smriti. (SN) (Dec., 2005, G.U.)
Q.9. What are the various sources of Hindu Joint Family property. (SN) (Apr., 2003, A.U.)
Q.10. Father’s power of Alienation of Joint Family Properties. (SN) (Apr., 2003, A.U.)
Q.11. Gentoo Code. (SN)
ANSWER:

SOURCES OF THE HINDU LAW: The Hindu Law is developed from two main sources:—

(i) The Traditional Sources: and

(ii) The Modem Sources,
(i) THE ANCIENT/TRADITIONAL SOURCES: The ancient Hindu Law has been developed from
the following sources:—
1. The Vedas (Srutis);
2. The Smrithis; and
3. The Customs.

(Ii) THE MODERN SOURCES: The Modern Hindu Law has been developed from the following
sources:—

1. The Judicial decisions of Privy Council, Supreme Court and High Courts.
2. The Principles of Justice, Equity and Good Conscience,
3. Acts, Rules, Regulations, etc., enacted by the Central and State Governments.

(i) THE ANCIENT/TRADITIONAL SOURCES (SN)

THE VEDAS (SRUTIS) (SN)
MEANING:

Veda, (n.) = Knowledge.

V7d. (v.t.) = to know.
The Vedas are also known as “Sruti” which are the ‘‘Direct words of the God”, and these words
were heard by Sages. “Sruti” means “What is heard”. The Vedas contain the sacred lore and
esoteric knowledge of Hindus. The Vedas do not contain rules of law. But they deal with marriage,
succession, adoption, partition and other human relations. The hymns of Vedas contain incantations,
spells, charms etc. The hymns of the Rig Veda are being used even now in the Hindu marriages.
The Hindus give great respect to the Vedas from the thousands of years to till now. The Vedas are
regarded as of paramount authority for the Hindus.
CLASSIFICATION OF VEDAS. There are four Vedas - (a) Rig Veda] (b) Yajur Veda] (c) Same Veda]
and (d) Atharvana Veda. The Four Vedas are the fountain-head of the Hindu religion and law.
(a) Rig Veda: Rig Veda contains 1028 Hymns. It is the oldest Veda.

(b) Yaiur Veda: It contains sacrificial ceremonies. It contains passages in prose containing
explanations and directions for the guidance of the priests.
-1-
2 The Family Law - / (The Hindu Law)

(c) Sama Veda: It shows the ways of‘Offering’to the God. The name is attributed to it on the name
of “Soma Plant ”,

(d) Atharvana Veda. It is the last veda. The priests, who were called as “Atharvanas" compiled
the Hymns. Hence it is called Atharvana Veda.

2. SMRmS (SN)
Meaning:
Smriti. (n.) = What was remembered.
Vedas are also known as “Srutis” (What is heard). Sages heard directly the words spoken by the
God. Smritis (What was remembered) represent, what was recorded by the Sages in their own
words of what they had heard from the God.
Manusmnti-. Manu, the Sage prepared 2694 Slokas some 200 B.C. Manusmriti deals with many
matters pertaining to human life, viz., marriage, succession, adoption, partition, wages, employment,
caste system, criminal law, civil law, etc. It is well known even to-day. The most evil system of Caste
System has been emanated from this period. Manu is the supporter of the caste system.
Yaanavalkva Smriti\ It contains 1010 Slokas. Yagnavalkya wrote these slokas. This Smriti deals
with marriage, courts, debts, pledges, criminal law.
Other Smritis-. Narada Smriti; Brihaspati Smriti, etc.
SCHOOLS: The remote sources of the Hindu law are Smritis. The Smirits are common to all the
different schools. There are two main schools:— (1) the Mitakshara School, (2) the Dayabhaga
School.

The Dayabhaga School prevails in West Bengal. The Mitakshara prevails all over India. The
Mitakshara is the supreme authority throughout India. The Code of Yajnavalkya is a running commentary
on the Mitakshara. It was written by Viinaneswara in the latter part of the eleventh Century. The
Dayabhaga is not found in any particular Code, but it can be found in all Codes. It was written by
Jimutayahana in the twelfth century. [Refer to Topic "Schools of the Hindu Law”.]
3. CUSTOMS (SN)
Custom is the third source of the Hindu Law. Customs are the source of the Hindu Law. Under the
Hindu system of law, clear proof of usage will outweigh the written test of the law. Still there are
several customs and sentiments in the Hindu community. The Codified Hindu Laws and other laws
also recognise certain customs, if proved in the Court. Section 13 of the Indian Evidence Act, 1872
lays down that “Facts are relevant when right or custom is in question”. Section 48 of the Indian
Evidence Act, 1872 lays down that “Opinion of third person as to existence of right or custom, are
relevant”. [Refer to Topic “Custom as a source of Hindu Law”.]

(ii) THE MODERN SOURCES (SN)

1. Judicial decisions as a source of Law: Judicial decisions on the Hindu Law are sometimes
spoken of as a source of law. The decisions of the Privy Council are still now binding in some of the
issues. Now, the Supreme Court stands first. The decisions of the Privy Council and the Supreme
Court are binding on all the Courts of India including the High Courts. But the decisions of any High
Court are not binding on any other High Court. The decisions of a High Court are binding on its
subordinate Courts.

The Hindu law was at first administered by English Judges with the assistance of Hindu Pandits.
Later, this system was abolished. The English Judges gradually incorporated the principles of natural
justices, good conscience, equity of the English law canons into the Hindu Law.
2. Principles of Justice. Equity and Good Conscience: This is the concept of the English
Common Law. In England, these principles were applied by the English Judges if there was no
statute law or regulation on any dispute in question before them. Later basing upon the Common Law
Courts, the laws were enacted in England. In India, the Courts were established by the British rulers
as were in their home land.

Thus, relating to the Hindu disputes, the then Indian Courts also adopted “The Rule of Justice,
Equity and Good Conscience”, where there was no rule of Hindu Law and no proof of existence of
any custom.
The concept of justice, equity and good conscience did not have a clear and precise meaning, except
in a particular case, where there was no law. Judges decided the case in accordance with the principles
of substantial justice. It was like legislation of the Judge. It depended upon the discretion of the
Judge. The circumstances, period of the case, etc., would influence the Judge’s discretion. Naturally,
the discretion would differ from Judge to Judge.
 The Family Law - I (The Hindu Law) 3

The Principle “Justice, Equity and Good Conscience” was gradually introduced in India, when the
Company had taken possession of the parts of India and established their Courts. At that time, there
was no regular legal procedures. The District Collector was entrusted the duties of the revenue
collection and also judicial work. The English Collectors did not know the Hindu and Muslim Laws and
their Customs. They used to take the assistance of the Hindu Pandits to interpret the Hindu laws and
customs, and the Muslim Mullas to interpret the Muslim laws and customs. In their final decisions,
they adopt the Principles of Justice, Equity and Good Conscience.

Under the Charter of 1774, the Supreme Court was established at Calcutta. This Court was made
a Court of Equity. The Supreme Court at Calcutta was fully empowered with authority to administer
justice in a summary wav as nearly as might be according to the Rules and Proceedings of the High
Court of Chancery in Great Britain. Thus the Judges of the Supreme Court were given the power to
administer justice, equity and good conscience. Later the High Courts established in the Provinces
(now States) inherited this right from the Supreme Court.
Effect of this Doctrine: Application of this Doctrine introduced the technical rules of the English Law
into India. This Doctrine helped the growth of the different branches of the Law, including the Hindu
Law, in this country.
3. Codified Hindu Law

During the British reign: The British rulers tried to codify the Hindu Law. In 1772. Warren Hastings,
the first Governor Generai of India, made efforts and brought the Gentoo Code (Hindu Code) with
the help of the Pandits. It was the first step towards the codification of the Hindu Law.

Aboiition of Sati: Sati was an old bad practice and very worst custom of the Hindus, in which a Hindu
widow was forced to burn herself with the dead body of her husband. Lord Bentinck. the then
Governor-General of India, enacted the Sati Abolition Regulation. 1829. The majority of Hindu had
criticised the Sati Abolition Regulation and Lord Bentinck. However, the Hindu educated people
praised it.
Several Acts for the Hindus were enacted by the British Rulers. Some of the other Acts were:—

(1) The Hindu Disposition of Property Act, 1916;

(2) The Hindu inheritance (Removal of Disabilities) Act, 1928;
(3) The Child Marriage Restraint Act, 1929;
(4) The Hindu Gains of Learning Act, 1930;
(5) The Hindu Women’s Right to Property Act, 1937;
(6) The Hindu Widow’s Re-Marriage Act, 1856;
(7) The Benami Transactions (Prohibition) Act, etc.
After independence: After independence, the Indian Government codified some of the important
Hindu Laws on the recommendations of the Law Commission of India. Those Codified Hindu Laws
are:—

1. The Hindu Marriage Act, 1955;

2. The Hindu Adoptions and Maintenance Act, 1956;
3. The Hindu Minority and Guardianship Act, 1956;
4. The Hindu Succession Act, 1956 (as amended by The Hindu Succession Amendment Act, 2005)
etc.

Some of these Acts have been amended by the Indian Parliament and State Legislatures. The Hindu
Marriage Amendment Act, 1976 has brought several changes in the Hindu marriages. Particularly the
latest amendment Act, i.e., “The Hindu Succession (Amendment) Act, 2005” has brought several
tremendous changes in the Hindu Succession Law. We shall read such changes in the concerned
Topics.

rCADE Veera Reddy

LL.M. EMMIANCE TEST
(Multiple Choice Questions with Answers)
(Also useful for U.P.S.C., A.P.P.S.C., Civil Prelims, etc.)

^No. of Pages : 444 No. of Bits : 2393

Cost: Rs! 450/-J
4 The Family Law - I (The Hindu Law)

1.B. SCHOOLS OF THE HINDU LAW I

THE MITAKSHARAAND DAYABHAGA SCHOOLS

Q.1. What are the different schools of Hindu Law? State the essential differences between the two major schools of Hindu Law.
(Feb., 2008, Burdwan U., W.B.)
Q.2. Explain the salient features of the Milakshara and Dayabhaga Schools. (Feb., 2006, O.U.) (June, 2004, B.U.)
Q.3. Write an explanatory note on two main schools of Hindu Law and state the distinctions between them. (Dec., 2005, GU.)
Q.4. Explain the difference between Mitakshara and Dayabhaga Schools. (July, 2003, O.U.)
Q.5. What are the two main schools of Hindu Law? Explain the main differences between these Schools? (Jan., 2003, O.U.)
Q.6. Describe the salient features of Mitakshara School. (Apr., 2003, A.U.)
Q.7. What are the differences between Mitakshara and Dayabhaga coparcenary? Discuss their incidents. (May, 2003, N.U.)
Q.8. Mitakshara School. (SN) (May, 2008, O.U.)
Q.9. Dayabhaga School. (SN) (Nov., 2007, O.U.) (Dec., 2003, S.V.U.)
Q.10. If a Hindu migrates from one part of India to another part to which school he belongs. Discuss. (SN) ,(Apr., 2003, A.U.)

ANSWER:

SCOPE: The main source of the Hindu iaw is Vedas (Sruti). From Vledas (Srutis), Smritis were
born. Thereafter the Commentators wrote commentaries basing on the principies of Sruti. Smritis
and Customs. The remote sources of the Hindu iaw, i.e., Smritis are common to all the Schools.
There are two main Schools, viz., (i) the Mitakshara, and (ii)the Dayabhaga. The Dayabhaga School
prevails in Bengai and the Mitakshara School prevails in other parts of India. The Code of Yainavalkva
is the running commentary on Mitakshara. It was written by Viinaneswara in the latter part of the
eleventh century. The Dayabhaga is not a compiled in any particular Code, but it is deemed to be a
digest of all Codes. It was written by Jimutavahana in the beginning of the twelfth century. The
Mitakshara is a supreme authority throughout India except in Bengai.
DIFFERENCE BETWEEN THE MITAKSHARAAND THE DAYABHAGA SCHOOLS

The Mitakshara School The Dayabhaga School

1. The School of Mitakshara prevails all over 1. The School of Dayabhaga prevails only in
India except in Bengal. Bengal.
2. The Mitakshara School has four sub-schools. 2. The Dayabhaga School has no such sub-
schools.

3. The Majority of the Hindus in India follow the
Mitakshara School.
4. Viinaneswara wrote the commentary, which
explains about the school of Mitakshara.
5. The Hindu jurisprudents opine that the
Mitakshara School is the Orthodox School.
6. The son gets a right by birth in the joint family
property and can insist on a partition even
during the father’s lifetime.
7. The son by virtue of his right by birth can
restrain unauthorised alienation of ancestral
property by the father.
8. There is no absolute right in a collateral of the
joint family like a brother, without a male issue,
to alienate his interest after his death, survives
to his brother.
9. The widow of a deceased coparcener cannot
enforce partition of her husband’s share
against his brothers.
10. Rule of propinquity is the basis of and
dominating rule of preference in succession.
3. Only a small fraction of Hindus follow the
Dayabhaga School.
4. Jimutavahana wrote the commentary stating
the rules of School of Dayabhaga.
5. The Hindu jurisprudents opine that the
Dayabhaga school is the reformed school.
6. There is no right by birth accorded to a son
and he cannot demand partitioned so long as
the father is alive.
7. The father is the absolute owner of the
properties and can deal with the property in
any way he likes.
8. Owing to the existence of the theory of quasi
severalty each brother can alienate his interest
and on his death without male issue his
interest descends to his widow.
9. The widow becomes a coparcener with her
husband’s brothers and can insist on a
partition of his share.
10. Test of religious efficacy is the prevailing rule.

SUB-SCHOOLS OF MITAKSHARA
The Mitakshara Schooi is sub-divided into four minor Schoois. These differ between themselves in
some matters particuiarly related to adoption and inheritance. Each of such sub-schools is prevailing
in its particuiar area. Totaiiy, throughout india, the School of Mitakshara is prevailing. Names of the
Sub-Schoois are:—
 The Family Law - / (The Hindu Law) 5

Name of the Sub-school Name of Commentator/book Area in which it prevails

1. Benares School Viramitrodaya, Nirnayasindhu. Benares.
2. Mithila School Vivada Chintamani, Mithila.

Vivada Ratnakara,
Madana Parijata.
3. Maharashtra or Bombay Vyavahara Mayukha, Maharashtra.
School (Western India) Viramitrodaya, Nirnayasindu
4. Dravida or Madras School. Smriti Chandrika, Southern India.
(Southern India) Parashara Madhaviya,
Saraswati Vilasa,
Vyavahara Nirnaya.

Effect of Migration from one area (one school) to another area (another school):
PROBLEM: Where a Hindu family migrates from one area to another area, by which school that
Hindu family shall be governed? If a family from South India migrates to Bengal, by which school the
family shall be governed? (Anl.,2003,A.U.)
SOLUTION: In South India, Mitakshara (Sub-School Dravida School) is prevailing. In Bengal,
Dayabhaga School is prevailing. By what school, the migrated family shall be governed? It was
decided by the jurists, and Privy Council in several cases that the family shall be governed bv its
previous school (area) from where it was migrated.
# Prabati vs. Jagadish (1902 Cal.)
Question of Law: In this case, the family was migrated from Madras to Bengal. A question arose by
which school the family in dispute would come.
JUDGMENT: The Privy Council decided that the family shall be governed by Dravida School, not by
Dayabhaga School.

1.C. CUSTOM AS A SOURCE OF HINDU LAW

Q.1. “In the Hindu system of law, custom outweighs the written text of the law.” — Comment. Explain whether this dicta is true after
the modern iegisiations have been passed. (Feb., 2006, O.U.) (Ani., 2004, P.U.) (Dec., 2001, O.U.)
Q.2. “Under the Hindu Law, a fact cannot be altered by hundred texts.” — Explain. (Dec., 2006, B.U.)
Q.3. Examine the importance of Custom as a source of Hindu Law. (Apr., 2002, O.U.)
Q.4. Can a custom be created?
(SN) (Dec., 2005, B.U.)
Q.5. Coilector of Madura vs. Mootu Ramaiinga Sathupathy (1869, 12 MiA 397).
(SN) (Dec., 2006, B.U,) (Ani., 2004, P.U.) (Dec., 2004, B.U.) (Ani., 2003, K.U.)
ANSWER:

The Importance of the Custom: Custom is the parent of personal law in each country. Even in
India, which is a land of diverse customs of families, castes and regions, custom is the most important
source of the Hindu Law. Custom is based on unrecorded revelation and its observance is insisted on
by the ancient writers. It is a source of law, because the customs are observed by those which are
good and are approved by the public.
Custom in its legal sense means a rule exceptional to the general law. A rule which in a particular
family, class or district has from long usage obtained the force of law. It must be ancient, certain,
reasonable and continuous and, being in derogation of the general rules of law must be strictly construed.
Custom cannot be extended by analogy, nor one custom deduced from another. Much less can a
custom be enlarged by a parity of reasoning since it is the usage that makes the law and not the
reason of the thing.
KINDS OF CUSTOM: There are three kinds of custom recognised by the Courts. They are:—
(i) Family Custom;
(ii) Class Custom; and
(iii) Local Custom,
(i) Family Custom: A custom is governed only one particular family. It differs from the District
Custom or Local Custom.
6 The Family Law -1 (The Hindu Law)

(ii) Class Custom: A class custom is one binding on all persons in the particular class. Example:
Kutchi Memons are Muslims. But they are not governed by the Muslim Personal law. They are
governed by the Hindu Law. This is a class custom.
(Ill) Local Custom: A local custom is one binding on all persons in the particular local area within
which it prevails. It is again of two kinds - (a) Local Custom; (b) General Custom of the realm. The
Local Custom is that which prevails in some defined locality only, such as a State or District of the
Country. The General Custom of the realm is that which prevails throughout the Country, and
constitutes one of the sources of the common law of the land. Examples: Mangalasutra dharanam,
Kanyadanam, Saptapadi, etc., prevail in every Hindu marriage, throughout the country.
ESSENTIALS OF A CUSTOM:

1. Reasonableness: A custom must be reasonable. It must be with the confirmity with justice and
public utility.
2. Confirmity with statute Law: A custom must not be contrary to an Act of Parliament or Assembly.
At the same time, the framers of the Act must bear in mind and consider a custom while drafting and
enacting an Act. The framers must take the good characteristics of a custom, and leave the bad
characteristics. Example: Dowry is prevailing in India. It is a bad element. It must be omitted, and
make liable for punishment, while enacting an Act pertaining to the Marriage.
3. Observance as of right: The custom must have beenobserved as of right. The custom must
have been followed openly. The custom does not require force for its enforcement.
4. Immemorial antiquity: A custom cannot be created all of a sudden. A custom is created and
used by the generations. The custom must be immemorial. Recent or modern custom is of no
value. Time immemorial means in the civil and canon law and in the systems derived there from, and
originally meant in India also, time so remote that no living man can remember it or give evidence
concerning it.
5. Peaceable enjoyment: The custom must be enjoyed peaceably. It must be followed openly.
The custom does not require force for its enforcement.
6. Obligatory force: The custom must have an obligatory force. The general public and community
must follow it, and enjoy the custom as of right.
7. Certainty: A custom must be certain. It must not be vague, ambiguous, indefinite.

8. Consistency: A custom must not come into conflict with the other established customs. There
must be consistency among the customs.
BURDEN OF PROOF: The burden of proof lies on the person pleading a special custom to prove it.
The onus is on the party alleging an interruption or cessation of it to prove the allegation. Oral evidence
of witnesses acquainted with instances and judicial pronouncements would suffice to prove the custom.
In order that the general law may be overridden by proof of custom, the evidence must satisfy the
Court that the majority at least of the given class of persons look upon the customary rule put forward
as binding. That must be established by a series of well-known concordant and on the whole continuous
instances, so that the common consent of the class in question is clearly demonstrated by the number
of the instances proved.
RULE OF PROCEDURE AND EVIDENTIARY VALUE: Section 13 of the Indian Evidence Act.
1872 lays down: “Facts relevant when right or custom is in question.— Where the question is as to
the existence of any right or custom, the following facts are relevant,—
(a) any transaction by which the right or custom in question was created, claimed, modified, recognized,
asserted or denied, or which was inconsistent with its existence,
(b) particular instances in which the right or custom was claimed, recognized or exercised, or in
which its exercise was disputed, asserted or departed from.”
Section 48 of the Indian Evidence Act, 1872 lays down: “Opinion as to existence of right or
custom, when relevant.— When the Court has to form an opinion as to the existence of any general
custom or right, the opinions, as to the existence of such custom or right, of persons who would be
likely to know of its existence if it existed, are relevant. The expression “General Custom or Right”
includes customs or rights common to any considerable class of persons.”
Balwinder Singh vs. Gurpal Kaur (AIR 1985 Del 14)
(Custom & Divorce)
Question of Law: In a divorce case of the spouses belonging to Jat Sikhs, the husband pleaded that
the private customary divorce among Jat Sikhs was prevailing, and he introduced witnesses under
Sections 13 and 48 of the Indian Evidence Act.
 The Family Law -1 (The Hindu Law) 7

JUDGMENT: The Delhi High Court rejected the evidence of the witnesses.

PRINCIPLES: The Delhi High Court observed: “The witness must be a person likely to know of the
custom. His testimony must be based upon personal knowledge. The weight of his evidence would
naturally depend upon his position and character and of persons on whose statements he formed his
opinion, but he cannot be confined to instances in which he had personally known the usage or custom
exercised as a matter of fact.”

Ahmad Khan vs. Channi Bibi (AIR 1925 PC 267)

(A tribal or family custom)
Question of Law: A tribal or family custom excludes a daughter or sister from inheritance in favour of
collaterals.

JUDGMENT: The Privy Council held that a tribal orfamily custom excluding a daughter or sister from
inheritance in favour of collaterals may be proved by general evidence as to its existence by members
of the tribe or family who would naturally be cognizant of its existence and its exercise without
controversy.
Gururadhwaja Pd. vs. S.P. Singh (1900 (10) Mad LJ 267)
(family custom)
Question of Law: A witness deposed as to the existence of a family custom based upon information
derived from deceased persons. Is the evidence relevant?
JUDGMENT: The Privy Council held that the opinion of witness as to the existence of a family
custom based upon information derived from deceased persons is relevant.
# Collector of Madura vs. Mootoo Ramalinga Sethupathy (1868) 12 MIA 397)
(Ramnad Case)
Reference to the Context: Sir James Colville. Justice, spoke the words “Clear proof of usage
will outweigh the written text of law”, while disposing the case "In Collector of Madura vs. Mootoo
Ramalinga Sethupathy” (Ramnad Case) (12 M.I.A. 397"
Brief Facts: The Zamindari of Ramnad was very famous in Madras Presidency. It was very rich.
The Zamindar of Ramnad died without sons. His wife Rani Parvathavardhani succeeded to the
Zamindari. Ramnad did not give any authority to his wife to adopt a son. However, with the assent of
the sapindas of her husband, she adopted a son. If she had not adopted, there was a fear from the
British Government that they would escheat the estate. After the death of Rani Parvathavardhani, the
Collector of Madura had issued a notification that as the Zamindar had no children, the zamindari
would escheat to the Government. The adopted son made an application to the Collector that he was
a valid legal heir of the zamindari. The Collector refused to recognise him as the son of Ramnad,
Zamindar, opining that there was no system of adoption in the Dravid School. The adopted son filed
a suit for declaration that he was the adopted son of Ramnad, the Zamindar.
JUDGMENT: The Privy Council gave the judgment that in the Dravida School, in the absence of
authority from the husband, a widow may adopt a son with the assent of his kindred.
Principles laid down: 1. Sir James Colville, Justice, observed: “The remoter sources of Hindu
Law are common to all the different schools. The process by which those schools have been developed
seems to have been of this kind works universally or very generally received became the subject of
subsequent commentaries. The commentator put his own gloss on the ancient text; and his authority
having been received in one and rejected in another part of India, Schools with conflicting doctrines
arose.”

2. “The duty of an European Judge who is under the obligation to administer Hindu Law, is not so
much to inquire whether a disputed doctrine is fairly deducible from the earliest authorities, as to
ascertain whether it has been received by the particular school which governs the District with which
he has to deal, and has there been sanctioned by usage. For under the Hindu system of Law, clear
proof of usage will outweigh the written text of the law.”
DUTY OF THE COURT: The Supreme Court of India observed: “If there is a clear usage to the
contrary the Sastras have to yield” and in case of conflict between the Sastras, the Judges should
consult the practice prevailing among the people while deciding a case. If the custom is one a
barbarous, it must be rejected as repugnant to natural justice, equity and good conscience and
cannot be given effect to a milder form, unless in that milder form, it is recognised by the community
as regulating the relations of its members inter se.
“

Law Commission in its Fourteenth Report on Reforms of Judicial Administration in India (1958) Vol. 1
page 633 says: “There appears to have been no system of reliance upon judicial decisions in Hindu
jurisprudence except in so far as they have serve as evidence of custom. ”
 8
The Family Law - I (The Hindu Law)
The Supreme Court opines: “Courts which within strict limits have to essay social engineering are
not the sanctuary of age-old but unwholesome customs, even if they are not the refuge of social
reformers. In the inevitable chemistry of social change, Courts certainly are not anti-catalysts.”
Custom and the present Codified Hindu Law: Almost all the codified laws adopt the custom as a
source. Of course, the framers of the Hindu Codified Laws discarded some of the customs which are

opposed to public policy, and not good to the society. Examples: Dowry, Child Marriages, Bigamy,
Sati, etc. The framers of the Hindu Laws accepted certain customs and incorporated in the Acts.
Examples: Saptapadi, Mangalasutra Dharanam, etc.
Examples of such customs are: Legislation also has defined custom more or less in a similar way
in the identical enunciations. Sections (a) of the Hindu Marriage Act, 1955; Section 3(d) of the Hindu
Succession Act, 1956; and Section 3 (a) of the Hindu Adoptions and Maintenance Act, 1956, are the
examples which clearly permit the custom,
^ction 3 (a) of the Hindu Marriages Act. 1955 defines: “the expressions “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; and
PROVIDED FURTHER THAT in the case of a rule applicable only to a family it has not been discontinued
by the family.”
Section 3 (1) (d) of “The Hindu Succession Act. 1956’^ defines: “The expression custom” and
“usage” sigify 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; and
Provided further that in the case of a rule applicable only to a family it has not been discontinued bv the
family.”

1.D. APPLICATION OF THE HINDU LAW

Q.1. Who is a Hindu and to whom the Hindu Law is appiicabie? (Sep., 2005, O.U.)
Q.2. Explain the term ‘Hindu’, and to whom does the Hindu law apply? What are the Schools of Hindu Law? (Feb., 2005, O.U.)
Q.3. Explain briefly the scope and application of Hindu law.
(Aug., 2004, O.U.)
Q.4. “A Hindu is bom and not made."— Discuss.
(June, 2004. S.U.)
ANSWER:

PRODUCTION: As a general rule, the Hindu Law whether Codified or Uncodified, is applicable to
the Hindus only. At the same time, the Hindu Law is also applicable to Buddhists, Jains, Sikhs.
Who are Hindus? The word ‘Hindu’ is derived from ‘Sindhu’. ‘Sindhu* is a river, and it is also
known as ‘Indus’ which flows from the Punjab. The Persians pronounced ‘Sindhu’ as ‘Hindu’. The
AQ^ans, who had settled nearby that river, were called as ‘Hindus’. Greeks invaded india. Greeks,
before the invasion of Alexander, used to visit India for the business. Greeks used to cail the Aryans as
‘!n^ by dropping the hard aspirate ‘H’. Graduaily ‘IndoF has been changed as ‘India’. Etymologically,
the word ‘Hindu’ has only a territorialsignificance.
The terms ‘Hjndu’and ‘Lndoi’ were used for the territorialsignificance. But now both the terms have
been changed their meaning, ‘lndoi’ has become ‘India’ and became the name of our country,
without the river ‘Sindhu’. ‘Hindu’, in present day law, stands for a narrower meaning representing
to the community, who professes ‘Hinduism’. Now the word ‘Hindu’ gives the meaning of the
‘Hindu religion’, and also the person who professes Hinduism. Therefore, the word ‘Hindu’ was
originally used to signify the territory and the persons who lived in that territory of a small area. Gradually
the term ‘Hindu’ is given meaning to the entire country.
What is Hinduism? Regarding Hinduism, BalGanqadharTilak. in his Gitarahasva’ defines Hinduism
as “acceptance ofthe Vedas with reverence, recognition of the factthatthe means orways to salvation
are diverse; and realisation of the truth that the number of Gods, to be worshipped is large, that indeed
is the distinguishing feature of Hindu religion. ”
The Hindus believe that there is only one God and the God has several names and incarnations,
viz., Krishna, Rama, etc. The Hindus believe in the idols of the Gods. They also believe on ‘Karma’.’
The individual has his own soul and it does not die and remains for several births. The re-birth
depends upon his past karma. Lastly, the individual soul merges in the God depending upon the
Good Karmas done by that individual. Now the term ‘Hindu’ is recognised for the ‘Hindu Religion’
and the people who profess ‘Hindu religion’.
 The Family Law -1 (The Hindu Law) 9

What is the Hindu Law? The Hindu law was not a codified law until independence. In the ancient
times, it developed from Srutis, Smritis and Customs. There are different Schools in the Hindu law,
such as Mitakshara and Dayabhaga. Again Mitakshara is divided into four sub-schools. Generally in
every country, the law is generally territorial in nature. But in India, it depends upon the personal law,
in marriage, divorce, etc. The personal law operates only in that narrow field. In 1772, Warren
Hastings, the first Governor-General of India, prepared “Gentoo Code” (the Hindu Code) basing
upon Sastras for the Hindus, with the help of eminent Hindu Pandits. The British rulers, thereafter
brought some Legislations, Acts, Regulations for the modernisation of the Hindu law, such the Sati
Abolition Regulation, 1829, the Child Marriage Restraint Act, 1929, the Hindu Widows Remarriage
Act, 1856, etc. After Independence, the Government of India, on the recommendations of Law
Commission of India, codified the four important Hindu Laws - (1) The Hindu Marriage Act, 1955; (2)
The Hindu Succession Act, 1956; (3) The Hindu Minority and Guardianship Act, 1956; and (4)
The Hindu Adoptions and Maintenance Act, 1956.
Besides the codified Hindu Law, still uncodified Hindu Law prevails in force in certain areas, wherever
the codified Hindu Law does not touch.

PERSONS GOVERNED BY THE HINDU LAW (SN)

1. Hindus by birth: As a general rule, a Hindu acquires the Hinduism by birth. A child acquires the
‘Hinduism’ by birth, if his parents are Hindus, whether he is an illegitimate or legitimate child. If only
one of the parents, is a Hindu, the child is governed by the Hindu Law, if that child is brought up as a
Hindu. If one of the parents is a Hindu and another is a Christian, and the boy is brought up by the
Christian parent, then the child is not governed by the Hindu law, and he will be governed by the
Christian law.

2. Offshoots off the Hinduism: The Hindu law applies to the Hindus only. Besides the Hindus, the
Hindu Law is also applicable to the Sikhs, the Jains and the Buddhists. In fact, the Buddhism, the
Jainism and the Sikhism are offshoots of Hinduism. Buddha, Jain and Gurunanak, the founders of the
Buddhism, the Jainism and the Sikhism respectively, were themselves the Hindus by birth. Since the
beginning of the eighteenth century onwards some leaders of the Hindu religion criticised the evils and
orthodoxies of the Hinduism and tried to rectify them.
The Hindu law is flexible. Raja Rama Mohan Rai, Kandukuri Veereasa Lingam, Dayananda Saraswati,
etc., were the leaders of social reformers of the social movements in the nineteenth and the twentieth
centuries, during the British rule. Due to their efforts, some radical changes were brought in the Hindu
society, and its customs. They established some organisations such as the Bramha Samaj, the Arya
Samaj, the Prarthana Samaj, etc. They had deviated from the orthodox Hinduism. Of course, the
followers of these organisations, and offshoots, are also governed by the Hindu law.
Lingayats, Veerashaivas, Vaishnavas, etc., are the sects of the Hinduism. They are also governed by
Hindu Law.

Kuchi Memons belong to the Muslim religion. But by their custom, they are governed by the Hindu
Law only.
Scheduled Tribals within the meaning of Clause (25) of Article 366 of the Constitution of India are
Hindus.

3. Converts to the Hinduism: At one time, it was thought that a Hindu is born and not made. But
this proposition has been now changed. Now a person from other religion may be converted into the
Hinduism, and vice-versa. In the earlier days of the British Reign itself, this rule was recognised.
(Case: Ratansi Morarji vs. Administrator-General of Madras). “Hindu is born and not made” is an
old rule. The Hinduism recognises conversion, and the Hindu Law is applicable to the persons
who are converted from other religions.
4. Re-converts to the Hinduism: Now the Hindu law is clear. The Hindu law is applicable to the
Reconverts to the Hinduism. What is meant by reconversion? A is a Hindu. He converted his
religion from the Hinduism to the Islam. Thereafter again he converted his religion from the Islam to
the Hinduism. It is called re-conversion. Therefore, A is now governed by the Hindu law.
EFFECTS OF CONVERSION (SN)
(i) Succession & Maintenance
On conversion of a member of a Hindu family to other religion he becomes at once severed from the
family and the tie which bound the family together. Is, so far as he is concerned, not only loosened but
dissolved, with the result that the obligations consequent upon and connected with that tie also become
dissolved with it. He cannot claim to retain any incident of the Hindu, if the same is repugnant to the
Code of his adopted faith. Under the Hindu law, the renunciation by a member of a joint family of the
Hindu religion involves the forfeiture of civil rights to the extent of depriving the convert of his share
10
The Family Law -1 (The Hindu Law)

in the joint estate. But this disability has been removed by the Caste Disabilities Removal Act of
18^, enacting that “so much of any law or usage now in foi ce inflicts on any person forfeiture of rights
or property or may be held in any way to impair or affect any right of inheritance, by reason of his or her
renouncing or having been excluded from the communion of any religion, or being deprived of caste,
shall cease to be enforced as law in the Courts But the wife, the infant son and the aged parents
must be maintained by a Hindu, even after his conversion, except in the case of his wife chooses to
dissolve their marriage. If the wife, or children or parents convert their religion from the Hinduism to
other religion, they lose their right to maintenance.
(ii) Marriage: Under the Hindu Marriage Act, 1955, conversion of either party is perse a ground for
seeking divorce from the otherparty (Sec.13 ofthe Hindu Marriage Act, 1955).
(iii) Guardianship: When a parent converts from one religion to another religion, he is not entitled
for the guardianship his/her minor child/children. The welfare of minor is to be paramount consideration.
APPLiCATION OF HINDU SUCCESSION: The provisions of the Hindu Succession Act, 1956 are
applied only to the Hindus. Section 2 of the Hindu Succession Act, 1956 reads:—
“Sec. 2. Application of Act.— (1) This Act applies,—
(a) to any person, who is a Hindu by religion in any of its forms or developments including a Virashah/a, a Lingayat
or a follower of the Brahmo, Prarthana or Arya Samaj;
(b) to any person who is Buddhist, Jaina or Sikh by religion; and
(c) to any other person who is not a Muslim, Christian, Parsi or Jew by religion unless it is proved that any such
persons would not have been governed by the Hindu law or by any custom or usage as part of that law in
respect of any of the matters dealt with herein if this Act had not been passed.

Explanation:— The following persons are Hindus, Buddhists, Jainas or Sikhs by religion, as the case may be,—
(a) any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas or Sikhs by religion;
(b) any child, legitimate or illegitimate one of whose parents is a Hindu, Buddhist, Jaina or Sikh by religion and who
is brought up as a member of the tribe, community, group or family to which such parent belongs or belonged;
(c) any person who is a convert or re-convert to the Hindu, Buddhist, Jaina or Sikh religion.

(2) Notwithstanding anything contained in sub-section (1), nothing contained in this Act shall apply to the members
of any Scheduled Tribe within the meaning of Clause (25) of Article 366 of the Constitution unless the Central
Government, by notification in the Official Gazette, otherwise directs.

(3) The expression “Hindu” in any portion of this Act shall be construed as if it included a person who, though not
a Hindu by religion, is, nevertheless, a person to whom this Act applies by virtue of the provisions contained in
this Section."

Gade Veera Reddy’s

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 The Family Law - I (The Hindu Law) 11

1.E. THE CONCEPT OF THE HINDU JOINT FAMILY AND

COPARCENARY - JOINT FAMILY PROPERTY AND
COPARCENARY PROPERTY - INSTITUTION OF KARTA,
HIS POWERS AND FUNCTIONS

Q.1. Define “Joint Family”. Explain the sources of joint family property. (May, 2008, O.U.)
Q.2. Define “Coparcenary” under the Mitakshara School and explain the rights of coparcener of a Hindu Joint Family.
(Aug., 2006, O.U.) (Dec., 2005, G.U.)

Q.3. Who can be a manager of a Joint Hindu Family? What are his powers and iiabilities?
(Dec., 2006, B.U.) (Anl., 2004, K.U.) (Apr., 2003, A.U.)
Q.4. What are the powers and functions of Karta of Hindu Joint Family? (Sep., 2005, O.U.)

Q.5. Explain the incidents of Hindu Joint Famiiy properties and separate properties of the members of the Joint Family. (Dec., 2005, B.U.)
Q.6. What do you understand by coparcenary? Explain the rights of coparceners. (Aug., 2004, O.U.)
Q.7. Wtiat is “Coparcenary” and “Coparcenary Property”? What are its incidents under the Hindu Law? Can there be a Coparcenary
within a coparcenary? (Dec., 2006, B.U.) (Feb., 2004, O.U.) (Anl., 2004, P.U.)
Q.8. “A Coparcenary is purely a creature of Hindu Law.” — Explain. (Dec., 2004, B.U.)
Q.9. "The Hindu Joint Family is purely a creature of custom and does not arise by act of parties. ” — Explain. (May, 2003, N.U.)

Q.10. What are the salient features of the Hindu joint family? Do you consider it relevant to the present day conditions?
(Dec., 2003, S.V.U.)

Q.11. What is the difference between joint family property and coparcenary property? Discuss the rights of a coparcenar to alienate his
share. (Dec., 2001, O.U.)
Q.12. Joint Family. (SN) (May, 2008, O.U.)

0.13. Self-acquired property. (SN) (Dec., 2005, G.U.) (Dec., 2004, B.U.)

0.14. Define position of Karta in the Joint Famiiy. (SN) (May, 2003, N.U.)

Q.15. Formation of Mitakshara Coparcenary. (SN) (May, 2003, N.U.)

Q.16. Coparcenary. (SN) (Aug., 2005, S.V.U.) (Apr., 2003, A.U.)

ANSWER:

A THE COPARCENARY (SN)

MEANING: Every coparcenary starts with a ‘Common Ancestor’ which after his death, consists the
collaterals only. The natural persons forming for the time being the members of an undivided Hindu
family, fluctuate both by births and deaths in the family. A coparcenary must be a family united and
must possess property. Every coparcenary is a corporated body and is purely a creature of law.
Therefore, if a person inherits property from his father, grand-father or great-grand-father, his sons,
grandsons and great grandsons acquire the interest in it by birth and they become the 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. A coparcenary is limited to four degrees from the holder of the property.
A coparcenary consists only four degrees from the point of common ancestor.

PROBLEM: Rajaiah was a common ancestor in a coparcenary property.

Rajaiah had two sons
Ramaiah and Laxmaiah. Ramaiah and Laxmaiah had one son each, Kotaiah and Danaiah.
Kotaiah
and Danaiah have one son each, Rakesh and Raju. Rajesh, Raju’s son, demands partition. Advise.
SOLUTION: Rajesh being in fifth degree/generation of the common ancestor of the coparcenary
property, he is not entitled to demand partition. However, Raju, being in fourth degree/generation, can
demand for partition. See the following diagram:—
A

B C

D E

H
G

In the above diagram, A is the Common ancestor. His sons B and C, Grandsons D and E, and Great-
grandsons F, G & H consist a ‘Coparcenary Family’. I and J great-great-grand sons of A do not form
 12
The Family Law -1 (The Hindu Law)

the part of coparcenary. The coparcenary consists only four degrees from the point of common
ancestor. Hence I and J, being in the fifth degree, they are out of coparcenary property.
Rights of Coparceners: The following are the rights of a coparcener:—
1. Right by birth;
2. Right by survivorship;
3. Right to partition;
4. Right to joint possession and enjoyment;
5. Right to restrain unauthorised acts;
6. Right to alienation;
7. Right to accounts, and
8. Right to make self acquisition.
PROBLEM: Can there be a Coparcenary within a coparcenary?(Feb., 2004,0.U.) (An!., 2004, P.U.)
SOLUTION:
Yes. There can be a coparcenary within a coparcenary, when the existence of
obstructed heritage and unobstructed heritage arises.
EXAMPLE: A coparcenary consists A, the ancestor, and his sons, B, Cand D. There are joint Hindu
family properties-X. D goes to another city for job or business. D has two sons - G and H. D
acquires self acquired properties-Y. Here D’s joint family continues with his son. Therefore one
coparcenary is in existence another coparcenary. In the Partition of X, D gets 1/4th share. In the
partition of Y, D gets 1/3rd share. In the partition of X and Y, G gets 1/3rd share in Y properties, and 1/
3rd share of 1/4th share of (D) in X properties.
THE COPARCENARY PROPERTY

It is the property in which all the coparceners have community of interest and unity of possession.
Such property consists of,—
(a) Ancestral property;
(b) Property jointly acguired by the members of the joint family;
(c) Separate property of a member "thrown into common stock”, with the intention of abandoning and
claims on it;

(d) Property acquired by all or any of the co-parceners with the aid of joint family funds.

ANCESTRAL PROPERTY (SN)

The following are the Ancestral properties’:—
I- Share allotted on partition: It is ancestral property as regards male issue whether they are bom
prior or subsequently to the partition.
2- Property inherited from the parental ancestor: It is ancestral property and it must be noted
that the only property that can be ancestral is property inherited by a male Hindu from anyone of his
immediate parental ancestors.
3. Property inherited from the maternal grandfather: It is an ancestral property that can be
inherited by a male Hindu from his maternal grandfather.
4- Property inherited from the collaterals: It is an ancestral property, if it is acquired from collaterals.
5- Gift or will from the parental ancestor: It is an ancestral properly, if any property is accrued in
the way of gift or will from parental ancestor.
❖ ❖

B. THE HINDU JOINT FAMILY

MEANING: “Joint Family System” is a peculiar institution under the Hindu jurisprudence. The joint
and undivided family is the normal condition of the Hindu society. It consists of all persons lineally
descended from a common ancestor and includes their wives and unmarried daughters. A daughter
ceases to be a member of herfather’s family on marriage and becomes the member of her husband’s
family. The persons of a joint family live together joint in food and worship, procure property. Of
course, existence of a joint estate is not an essential requisite to constitute a joint family and a family
which does not own any property may nevertheless be joint. The Hindu law does not recognise a joint
Hindu family or coparcenary as a juristic personality capable of holding property, as an entity separate
from the members of the family. When it is popularly said that a property is joint family or coparcenary
 The Family Law -1 (The Hindu Law) 13

property, the true position in law is that the members collectively own it each having an interest. The
undivided family is not a corporation or even a sort of corporation as sometimes stated. The undivided
family is not a juridical entity distinct from the members who constitute it. It cannot sue or be sued in
the joint family name and cannot convey the property held by it in its joint character. It has peculiar
characteristics. This type of family institution is not found in anywhere in the world. It is unique in all
jurisprudences of the entire globe. Hence the jurisprudents call it: “The Hindu Joint Family is a
floating island.”

MEMBERS OF UNDIVIDED HINDU JOINT FAMILY: The members of a joint family consist the
following members:—
Males:—

1. Those who are lineally connected in the male line;

2. Collaterals:

3. Relatives by adoption; and

4. Poor dependants.
Females:—

1. Wife or widowed wife of a male member;

2. His maiden daughters.

The joint family system is emanated from the principle of subordination. It is not a co-ordination of
equality of the members. The youngsters give respect to the elders. No two persons can be equal -
one of them must be superior and other is inferior relatively to the other. The entire family is led by one
person called ‘Karte’. Generally the father of the joint family, if alive, or in his absence, by other senior
male member of the family for the time being.
PROBLEM: A, a Hindu coparcener converts to other religion and marries the girl of that religion and
registers his marriage under the Special Marriage Act, 1954. Is A entitled to a share in the coparcenary
property? Can A be considered as a continuous coparcener in the Hindu joint family.
SOLUTION: A converted Hindu coparcener is entitled a share in the coparcenary property as on his
date of marriage. After the conversion, a converted Hindu cannot be considered as a coparcener/
member of that joint Hindu family.
POWERS OF KARTA (SN)
The Karta of the Hindu Joint Family has the following powers:—

Power over income and expenditure;

2. Power to alienate;
3. Power to reference to arbitration;
4. Power to compromise:
5. Power to contract debts for family purpose;.
6. Power to covenant;
7. Power to give discharge;
8. Power to acknowledge debts;
9. Power to sue; and
10. Power to manage family business.
FUNCTIONS, DOTIES AND LIABILITIES OF KARTA (SN)
The Karta of the Hindu Joint Family has the following Duties and Liabilities:—

1. to maintain the family;

2. to give paramount consideration for the welfare of the family;
3. to look all the members equally:
4. to incur the income in the appropriate manner for the development of the joint family,
5. not to do immoral acts and illegal acts, which will harm reputation of the joint family and its joint
family members and their estate;
6. not to incur avyavaharika debts; etc.
 14 The Family Law - 7 (The Hindu Law)

ADVANTAGES OF THE JOINT HINDU FAMILY SYSTEM

1. Joint Hindu Family system is a unique jurisprudence established in the world. It is established
by the History, Custom and Religion. Sapindashio and family relationship are the fundamental
principles and distinguishing features of this institution. It is purely a creature of law. A Joint Hindu
Family cannot be created by act of parties or by agreements.
2. Mutual co-operation, integrity, stability, respect to the elders, etc., are found in this institution.
3. The decisions are taken by Karta for the benefit of the entire family. He has experience in the
administration. The speedy decisions can be taken at the emergency and in the ordinary times.
Generally there will be no group discussions consuming the time. The other family members follow
his instructions. This gives a fruitful and advantageous benefits to entire family.
4. A joint Hindu family can acquire large property comparing with that of small holdings by individuals.
Therefore, generally the produce and profits will be higher, and costs will be lesser.
5. The society honours the entire joint Hindu family members who live amicably, honouring with each
other, and accumulated huge properties in the villages.
6. The younger honours the elder. Obedience plays an important factor in this institution. Similarly,
the elder loves the younger. Love and affection stand as a strong bond between the members of the
joint family.
7. The household expenses, food expenses, etc., are also lessened.

8. Financial security is the top most ingredient of this institution. If one of the members dies, his
sons or daughters will not come on roads. Their marriages, education, livelihood, etc., are performed
by the remaining family members. There is a good safety for all the members. If one of the
members falls sickness, the entire family members will attend affectionately. There is no need to
worry for future.
9. There are certain beneficial tax provisions in the Income Tax Act for a Joint Hindu Family.

10. Since the beginning, the joint Hindu Family system has been very rigid and complex. It was
coupled with religion, economy, custom and caste. Therefore it did not allow others to enter into their
institution. Other persons could not damage the joint family system. Other person could enter into a
joint family by way of marriage or adoption of the same caste and status. Moreover it was generally
coupled with profession. Even the foreign invaders could not to damage the joint Hindu family system
and its living style. At the same time, the joint Hindu family institution saved the villages from the
internal aggression and religious conversion. It helped villagers for attaining self-sufficient economy.
That is why the Hinduism has been in tact for several thousand years. Even now the remnants of this
system is inherently prevailed in entire India.
DISADVANTAGES:

1. The members of the joint Hindu family lose their individuality. They cannot take any decisions.
Karta is the only competent person to take the decisions.
2. The Karta may become an autocrat master on all the family members, He may misuse his
powers. He
f may incur expenditure for unnecessary wastages, such as drinking, dancing girls,
gambling, etc.

3. All enjoy the benefits, whereas only a few are working laborously.
4. Generally, disputes arise between women in the joint family. They create nuisance and headache
for the entire family.
5. Ajoint Hindu Family is not a juristic person. It cannot sue or cannot be sued.
6. Where a joint Hindu family is stronger in property and influence, the members of the family become
the uncrowned kings, and administrate entire village with their own will and wishes. Thus the villagers
will be compelled to bear their atrocities and autocratic doings.

# U.D. Dhanwanty vs. CIT, M.P. (AIR 1968 SC 683)

(Income-tax Case)
Brief Facts: In this case, the coparceners, with an intention to avoid the income-tax, invested the joint
family assets in a Partnership, and it was agreed upon that profits of Partnership were to be taken as
personal salary by each coparcener. The income-tax authorities raised the objections on the partnership
firm, and they treated it as a joint Hindu family concern and property. They denied the coparcenersto
avail the benefits under the PartnershipAct, and imposed the tax on the coparceners according to the
provisions of joint Hindu family concern. The coparceners argued strenuously that the manager in
 The Family Law -1 (The Hindu Law) 15

fact earned his salary on account of his personal skill and labour. They also argued that they invested
the investment in the firm as partners. The Income-tax authorities contended that the investment was
part of the joint family property, therefore it could not be treated as a partnership firm.
JUDGMENT: The Supreme Court gave the judgment in favour of the Income-tax Department, treating
the appellants as the coparceners of a joint Hindu undivided family.
PRINCIPLE LAID DOWN: All properties acquired either with the income of ancestral property, or the
proceeds of sale of such property and business started with the proceeds of sale of ancestral property
by the sole surviving coparcener/s is held to be an ancestral asset. A purchase made with money
borrowed on the security of ancestral property belongs to joint family. Similarly, remuneration paid to
the Karta as the Managing Partner of a firm in which a portion of the share capital came from the family
assets will become joint family property. And also, life-insurance policies effected on the life of a
member with premium paid out of joint family funds are joint family assets.
DISTINCTION BETWEEN THE JOINT HINDU FAMILY AND COPARCENARY

Joint Hindu Fannily & Coparcenary: It is said “Every coparcenary is a joint Hindu family, but
every joint Hindu family is not a coparcenary.” Because there are few differences between the
Joint Hindu Family and Coparcenary, which are given below:—

Joint Hindu Family , Coparcenary

1. A Joint Hindu Family is unlimited both as to 1. Coparcenary is limited to only certain
the number of persons and the degrees, e.g., members of the joint family. It is limited four
the remoteness of their descent from degrees only.
common ancestor.
2. The Joint Hindu family does not show any 2. Coparcenary is limited only to males, that too
difference between males and females. for four degrees.
3. A Joint Hindu family shall continue even after 3. A coparcenary may come to an end with the
the death of the male/karta and consisting death of the last coparcener or the sole
only females. surviving coparcener.
4. Every joint family is not a coparcenary. 4. Every coparcenary is a joint Hindu family.
5. The membership of joint Hindu family is 5. The membership of the coparcenary can be
acquired by birth or by marriage (e.g. wife, obtained only by birth or in exceptional case
daughter-in-law). of adoption of sons.

JOINT PROPERTY: Often we confuse with the words “Joint property”, “Joint Family Property",
“Coparcenary Property’”. The distinction between “Joint Hindu Family” and “Coparcenary” is
explained above. Hereunder the distinction between “Joint Property” and “Joint Family Property/
Coparcenary Property” is explained.

Joint Hindu Family Property/

Joint Property/Joint Tenancy
1. Joint Property system is derived from the
English law.
2. Joint property can be acquired by any two
persons without having any blood relations or
family relations. Example: Partnership.
Even strangers shall also become the
members of joint tenancy.
3. The Joint property can be had by two or more
persons.
Coparcenary Property
Joint Hindu Family property and Coparcenary
property systems derived from the Hindu
jurisprudence only.
2. Joint Hindu family property and coparcenary
property can be acquired only by birth or by
marriage, or by adoption.
3. Generally in these categories several
members will be consisted.

4. The purpose of joint property is purely
commercial.
5. Joint property is not acquired by birth. It is
acquired by the equal work, equal capital and
based on the proportion system.
6. The principle of equal respect is applicable in
the joint property, even though the proportion
of share is little or more.
7. Generally, there shall be no pre-existence
property.
4. The fundamental principle of the Hindu Joint
family is the tie of Sapindaship. i.e., purely
religious.
5. Every member of the family acquires in it a
right by birth which cannot be defeated by
individual alienation or disposition of any kind
except under certain peculiar circumstances.
6. In these systems, the youncers give respect
to elders. The inferior gives respect to the
superior.
7. Generally, there shall be pre-existence of
ancestral property.
16 The Family Law -1 (The Hindu Law)

8. A joint property/joint tenancy is created by a 8. Coparcenary is a creature of law.

deed or will and not by descent.
9. Joint tenancy/property is absolute. The
member can easily transfer his share as he
wishes.
10. The joint tenant’s interest is fixed and
ascertained.
11. On the death of the last surviving joint tenant
the property descends in equal shares to the
heirs of all the joint tenants.
Coparcenary/joint Hindu family membership
is acquired by birth not by deed.
9. The member of a joint family/coparcenary
has the power to alienate his share, but it is
restricted with moral and customary
obligations.
10. The quantity of coparcener’s interest of the
member of joint Hindu family fluctuates with
births or deaths in the family.
11. On the death of the last surviving coparcener,
the whole property passes to his heirs.

COMPOSITE FAMILY: Where two or more families agree by express or implied terms, to live and
work together, pool their resources, throw their gains into the joint stock, bear the common risks and
utilise the resources of the units indiscriminately for the purposes of the entire families, such a case is
known as a composite family. They do not belong to one common ancestor. They belong to different
families. But their relation becomes stronger by marriages. This is not a joint Hindu family system.
This system of composite family is seen in South India and especially in Andhra Pradesh. This
system is not mentioned in any school. It has no basis in the original texts of the Hindu Law.
A composite family is constituted basing upon some agreement, express or implied. It is purely a
creature of custom obtaining in some of the families. The object is the convenience and efficient
management of the properties of the larger unit by the corporate effort of all the members of the
smaller units composing the same. The spirit of co-operation and mutual help and the policy of all-for-
each, and each-for-all are the dominant factors of this family. Each member works for himself and
also for other members. Each member shall have a share in composite family, depending upon his
work, agreement, skilfullness, etc. It can be treated as a joint property. The differences between
“Joint Property/ Joint Tenancy” and “Joint Hindu Family ” also applicable between ““Composite
Family” and “ Joint Hindu Family”.
❖ ❖

SELF ACQUSRED PROPERTY (SM)

Ancient Law: There are two texts of the Mitakshara relating to ““self acquired property”.Mitakshara
(i-4-1) says: “Whatever else is acquired by the coparcener himself without detriment to his father’s
estate, does not appertain to the co-heirs.” Mitakshara (i-4-20) says: “What is obtained through the
father’s favour will be subsequently declared exempt from partition. ”

Yajnavalkya writes: “Whatever is acquired by the coparcenerhimse if without detriment to the father’s
estate, as a present from a friend on a gift at nuptials, does not appertain to the co-heirs. Nor shall he
who recovers hereditary property which has been taken away give it up to the coparceners; nor what
has been gained by science. ’’
In Lakshan Singh vs. Bitola Kunwar (1981) 7 All.L.R. 607), the Allahabad High Court held that a
member of a Hindu joint family may possess separate property of his own apart from his interest in
joint family property and the burden is on him to establish that such separate property had been acquired
by him out of his own funds.
In Beharee vs. Lall Chand (25 W.R. 307), the Court held that nuptial gifts made out of the joint family
fund to a member of the family, marriage gifts given by friends and father-in-law and other relatives
become his self-acquired property, and they could not be clubbed with the joint family properties.
After enacting The Hindu Succession Act 1956. as amended by The Hindu Succession Amendment
Act 2005. the ancient view is not changed.
Example: In a joint Hindu family, there is father, and four sons. A, one of the sons migrates to
Hyderabad and works or does business, and earns property in Hyderabad. When a question of
partition of joint family properties comes, Aand A’s heirs can claim his share from the joint Hindu family
properties. At the same time, the other coparceners cannot claim the share from the properties of A.
❖ ❖ ❖

POSITION OF COPARCENARY/JOINT FAMILY PROPERTY AFTER

THE HINDU SUCCESSION AMENDMENT ACT, 2005 (CENTRAL ACT No. 39 of 2005)
Prior to the Hindu Succession Amendment Act, 2005 (Central Act No. 39 of 2005), w.e.f. 09-09-
2005, only male was considered as a coparcenary of the coparcenary/joint family property, and male
 The Family Law - / (The Hindu Law) 17

was entitled to devolve the interest and share in the coparcenary/joint family property. The Central
Act No. 39 of 2005 changed it. Now female is also entitled to devolve the interest and share in the
coparcenary/joint Hindu family properties. The Central Act No. 39 of 2005 has made several drastic
changes in the Hindu succession. It has made the legal provisions making daughter equal to son.
PROBLEM: A executes a Will in respect of his interest in joint family property and dies leaving behind
two sons. Can his sons claim the property by survivorship? (Dec., 2004, B.U.)
SOLUTION: According to the provisions of Section 30 of the Hindu Succession Act, 1956, as
amended by The Hindu Succession Amendment Act, 2005, a Hindu can execute a Will in respect
of his self-acquired properties, and to his share in the joint family properties. Therefore, As sons are
entitled to claim their respective shares in the joint family property after deducting their father’s share
executed in the will.

[Note: The stiident is advised to write the contents of Topic “Changes introduced in the Hindu Succession Act, 1956 by the Central Act
of 2005 (Act No. 39 of 2005)”.]

1.F. PARTITION & IMPARTIBLE PROPERTY

Q.l. What is “Partition”? What are the different modes of partition? Explain. (Dec., 2006, B.U.)
Q.2. What is partition? How partition be effected? When can partition be re-opened? Explain. (Dec., 2005, B.U.) (Dec., 2005, G.U.)
(Dec., 2004, B.U.)
Q.3. Who are the legal heirs to have right to demand for partition and how partition is effected? (Apr., 2003, A.U.)
Q.4. How does a legal partition come into force? (Apr., 2002, O.U.)
Q.5. What are the various ways in which a partition can be made under the Hindu Law? Can it be set aside by the Court? Give reasons.
(Dec., 2001, O.U.)
Q.6. Impartible Estate. (SN) (June, 2004, B.U.) (Dec., 2004, B.U.)
Q.7. Kalyani and others vs. Narayanan and others (AIR 1980 SC 1173). (Dec., 2005, B.U.)
Q.8. Self Acquired Property. (SN) (Dec., 2005, G.U.)
Q.9. What are the grounds for re-opening of partition. (SN) (Apr., 2003, A.U.)
ANSWER:

PARTITION (SN)
[LAW BEFORE THE HINDU SUCCESSION (AMENDMENT) ACT, 2005]
INTRODUCTION: Joint families were very common in India from Kashmir to Kanyakumari. Even
today the existence of joint families is seen. The characteristic feature of the joint Hindu family of the
Hindu jurisprudence is a unique feature in entire world. It has been in existence from the last several
thousands of years. Of course, due to thejndustrialization, urbanization, transportation facilities,
expansion of job opportunities at a very far places, increasing selfishness, etc., are the causes of
splitting the joint families.
To-day, the people like individual families, not joint families. In the olden days, when there was only
one profession of agriculture and its related professions, the necessity of joint families was existed.
Each village was self-sufficient. Village and cottage industries compelled for the existence of joint
families. Those ancestral industries were destroyed by the British Rulers. Simalarly the joint families
were also destroyed by new industrialization, urbanization and transport facilities. The object of joint
family is to have strong nucleus with strong economy so that safety can be provided to each and every
member of the family.
REASONS FOR SPLITTING OF JOINT HINDU FAMILIES: Migration
to cities and foreign countries
is one of the major reasons for splitting of joint Hindu families. Upto 1950s, the joint Hindu families
were common. Population increased. Literacy increased. Transport facilities increased. The
structure of village was badly effected. Since 1990, employment opportunities have been increased
in the foreign countries. The educated persons have been going to America and other developed
countries for their livelihood. The unskilled persons have been going to Gulf countries. Those
persons, who could not go to foreign countries, have been migrating to the cities and metros for their
livelihood. Some of the parents began to migrate to cities for their children’s education.

The Joint Hindu Family system could not withstand even in the agricultural families. At that time, there
was no family planning. Each couple had six to dozen children. As the family planning has been
introduced, it also caused for the splitting of the joint families. As the education, entertainment,
urbanisation, money circulation, etc., are increased, the individuality of the persons has been increased.
Another cause is that from the last four decades, the agriculture is not profitable due to the Central and
States’ policies. Particularly from the last twenty years, several crores of agriculturists have been
18 The Family Law -1 (The Hindu Law)

leaving the agricultural professions, and have been migrating to the cities and adopting other professions
or become labour in the cities. To come to cities, such people sell away their agricultural lands in the
villages. To sell their shares, partition has become compulsory in the joint Hindu families.
The American and European culture affected on the joint Hindu family system. When the joint family
system was in existence, there was feeling of “we”, “us”. Now we see nuclear families only, i.e., wife
and husband and one or two children. Now there is only one feeling of “me” and “my family”.
If the American culture increases further, the existing family system also spoils. In America, one joke
is heard: A wife says to husband: “My children and your children are quarrelling. Go and settle the
issue.” In future, that system may be seen in India also.
Due to the reasons stated above, the joint Hindu family system has been damaged. Still there are a
few joint Hindu families.
PARTITION: Partition of a joint Hindu family means separation. Partition is the act of dividing the
properties between the members of the existing unit into several small holdings/units. The lands,
houses, cattle, jewellery and money are divided according to the number of members. With a view to
the more convenient and perfect partition or allotment of the premises, equity frequently followed by
way of pecuniary compensation to one of the parties for ‘equality’, i.e., equality of partition, so as to
prevent any injustice or unavoidable inequality. The village and caste elders play role in partition.
Some times disputes also arise. In few cases, the aggrieved party may also approach the Court of
Law.

PROBLEM: Coparceners transferred the ancestral properties to a company consisting of themselves.

One of the coparcener’s son questioned this transaction. Decide whether this transaction is binding
upon coparcener’s son who had challenged it. (Apr., 2003, A.U.)
SOLUTION: It is the common phenomenon in India that the coparceners form the private limited
companies and invest their joint family properties. Example: (i) RamojiRao and his family members,
(ii) Dhirubhai Ambani and his family members. In doing so, there can be no objection from any
coparcener. However, if any of the coparceners object it, it means, he wants to separate from that
coparcenary. Therefore, the coparceners shall decide his share and send him out of the coparcenary.
It means partition takes place in that coparcenary.
The essential inqredientsof a partition are:

1. Subject-matter of Partition.
2. Persons entitled for a partition.
3. Mode of Partition.

4. Allotment of shares.

5. Does reopening of partition possible?

6. Reunion.

1. SUBJECT-MATTER OF PARimOi^ (SN)

As a general rule, the joint family property of any kind either movable or immovable properties can be
partitioned, such as lands, houses, animals, crops, jewellery, cash, etc. But some of the properties
are not liable to be partitioned. They include: Family shrines, temples and idols, stair cases, wells,
court-yards, tanks, pasture lands, roads, right of way, impartiable properties, etc. The debts,
maintenance, marriage expenses of daughter, performance of certain ceremonies and rites, etc., are
to be deducted from the joint fund or properties, while partition takes place.
2. PERSONS ENTITLED FOR PARTITION (SN)
As a general rule, every member of the coparcenary or joint family shall have a right to partition. But
the females are not entitled. Only a few female members are entitled to partition. They are father’s
wife, mother, and grand-mother. In a coparcenary families, the females are not entitled for partition.
In a Mitakshara family, on the death of male, the females are entitled to take the share.
3. MODE OF PARTITION (SN)
There are two modes of partition. They are: (i) Severance of Status of Interest, and (ii) Actual Division
of Property in accordance with the shares so specified, known as partition by metes and bounds,
(i) Severance of status or interest: Severance of status or interest is a matter of individual
decision, the desire to sever himself and enjoy his share separately from others. Each member of
that joint family shall get a definite portion of the joint family property towards his own share, and such
member shall enjoy his possession, enjoyment and every right on the property. He may develop it by
his own efforts or sometimes he may lose it depending upon the circumstances and his choice.
 19
The Family Law - I (The Hindu Law)

(ii) Partition bv metes and bounds: Partition by metes and bounds means the property shall be
shared by measurements (metes) and with boundaries (bounds). In the partition of joint family
properties, by metes and bounds is not essential one. But the partition must be made in numerica!
division, i.e., defining the shares of the coparceners in the joint property. Once the shares are
defined numericaiiv. the partition is compiete.

After the shares are so defined, the parties may divide the property by metes and bounds, or they may
continue to live together and enjoy the property in common as before. Sometimes, in some families,
the joint family properties are divided according to the shares, thereafter the members of that family
live separately, but continue to cultivate the land or do the business, in common as before, and divide
the crops or profits accrued thereon according to their respective shares already allotted. The property
ceases to be joint Hindu family status immediately after the shares are defined. The members
of the joint family so partitioned and are enjoying the property jointly, as above said, are called the
tenants-in-common. It effects only the mode of enjoyment. Sometimes the property of joint family
shall be divided according to the shares allotted to each member by metes and bounds in the presence
of village elders, caste elders, village officers such as village munsiff, karanam, village officers, etc.
4. ALLOTMENT OF SHARES (SN)
In a partition by metes and bounds, the shares are allotted to coparceners as follows. Principles of
Absolute Equality is now applicable in all the States and in the Mitakshara and Dayabhaga Schools,
(a) Division among father and sons: When partition takes place between father and sons, each
son takes a share equal to the share of the father,
(b) Division among brothers: When a coparcenary consisting brothers, each brother takes a
share,

(c) Division among branches: Where a joint family consists several branches, each branch takes
per stripe, i.e., according to the stock, as regards every other branch, and the members of each
branch takes per capita, i.e., per head, as regards each other.

Example:

S Sa S3

GS, GS, GS
GS GS3 GS3
If the partition takes in the above family, it affects on basis of per stripe. In the first place the property
shall be divided among father and 3 sons as per Rule (a) above stated, and each takes one share, i.e.,
F takes one share, S1 takes one share, S2 takes one share, S3 takes one share. Thus each of them
gets 1/4th share of the property. Again the share of Si is divided among S1 and his three sons GS1,
GS2 and GS3 by the Rule (b). Similarly the share of S2 shall be divided among GS4 and GS5. In the
case of S2 joint family partition, S2 and his sons GS4, GS5 get each 1/3rd share out of S2’s Share got
from F. Similarly the share of S3 shall be divided among him and his son GS6 equally, i.e., 1/2 share
out of S3’s share got from F.
5. REOPENING OF PARTITION (SN)
According to Manu text, if partition is once made, it is final and irrevokable. It cannot be re-opened.
The same text allowed re-opening of a partition in two occasions: (i) Re-adjustment of properties; and
(ii) Re-opening of partition,
(i) Re-adiustment of assets: In a joint family, the partition took place. At the time of partition, they
left some properties without partition, as those properties under the occupation or possession of third
persons, viz., usufructuary mortgage. Court litigation, etc. After the partition, the properties may be
got back. In those circumstances, the properties may be divided among the members of such joint .
family. In some other occasions, any members of the joint family may feel that he got less property
than the others. Then he may demand for re-adjustment of the properties. On the principle of justice,
equity and good conscience, the properties may be re-adjusted,
(is) Re-opening of Partition: As a general rule, partition once made cannot be re-opened. But a
partition can be re-opened if it was obtained by fraud, coercion, misrepresentation or undue influence.
The burden of proof lies upon the person who claims re-opening. The principle is similar to that of
Indian Contract Act, 1972 (Fraud Sec. 17); (Undue influence - 16); (Coercion - 15); and
(Misrepresentation -18). Besides these reasons, in some other occasions, which are mentioned
hereunder, the re-opening of partition is also possible.
 20
The Family Law -1 (The Hindu Law)
(a) Son in Womb: If at the time of partition a son is in the womb, and no share is reserved for him
he can get the partition re-opened.
(•’) Disqualified coparcener: A disqualified coparcener, who recovers from his disqualification
after the partition, can get the partition re-opened, if he was an afterborn son.

(c) Son conceived and born after partition: Where the father does not take a share on partition,
and a son is begotten and born to him after partition, the partition can be re-opened.
Absentee coparcener: If at the time of partition a coparcener is absent for any vaiid reasons.
and no share is allotted to him, he can get the partition re-opened,
(e) Minor coparcener: When a partition is effected during the minority of a coparcener, he can get
the partition re-opened if he can show that partition was unfair, prejudicial and unjust.
#Appuvier vs. Rama Subba Aiyer (1866) 11 MLA75 PC)
(Partition by defining shares)
Brief Facts: One Sitaraman was the common ancestor of the Appellant and Respondent, belonging
the Mitakshara School. He died leaving six sons who formed an undivided Hindu famiiy. In the year
1806, the family being then undivided, and the first, second and third sons of Sitaraman being dead,
their three sons, together with three surviving sons of Sitaraman, concluded the division of the property!
This was a merely a temporary arrangement, and a reunion of the family ensued, after which the
coparceners continued to hold the property as an undivided famiiy untii 1830 when a kararnama
(agreement) was entered into by the then surviving members of the family for the division of the property
at some future period, mean while with joint cuitivation and engagement thereof in six equal shares.
The appellant, being a minor, was represented by his mother as his guardian. In 1834, six shares
were allotted separately to the appellant, 1 st, 2nd and 3rd Respondents and the fathers of 4th and 5th
Respondents. There was no actual division of all the property. In 1835, the appellant filed his piaint
chaiienging the partition of 1834 after attaining majority, and the adoptions of 4th and 5th respondents
by the widows of deceased coparceners. Thus asserting that the famiiy was undivided till then and he
was entitled to 1/3rd of the property there being only 3 coparceners, if the adopted sons were to be
excluded. The trail Court dismissed the case. He appealed to the Privy Council.
JUDGMENT: The Privy Councii gave the judgment dismissing the appeai with costs. Their Lordships
opined after the execution of the instrument, there was a division of rights in the whoie property, although
the actual division by metes and bounds was postponed tiii some future time. This was enough to
change the status of the family, and it was severed.
PRINCIPLE: In a Mitakshara partition, when there is a division of right, and the shares of coparceners
are defined, the partition is completed, although there is no actual division of the property by metes and
bounds.

# Gfrija Bai vs. Sadashiv (1916) 43 lA 1031 PC)

(Oral Partition)
Brief Facts: A was the common ancestor, belonging to the Mitakshara Schooi. A died surviving two
sons. Two brothers agreed to divide by oral agreement beforethe village elders. Equal shares were
decided. However, the property was not divided by metes and bounds. The agricultural works were
done combinely. Some years after oral partition, the younger brother died. On behalf of the minor
sons, the wife of the deceased brother filed a case for partition.
JUDGMENT: The traii Court held that the partition aiready took piace in this case and the parties
should take the properties by metes and bounds.
PRINCIPLES: In this case, the nature of partition in the Mitakshara Schooi is explained that partition
covers both division of title and division of property. An unequivocal manifestation by a member of a
joint family by his words or conduct of a fixed and determined intention to become separate from the
other members is sufficient evidence to effect the separation of his titie and the severance of his
share, although division of possession or partition by metes and bounds does not take place and the
members continue joint in food and dwelling. The Privy Councii observed the following principles to
be found in a severance in status:
1. There must be an unmistakable manifestation of intention to become divided.
2. No division by metes and bounds is necessary.
3. Existence of property is not essential.
4. Reasons for the severance are immaterial.
5. The existence of minors in the family is no bar.
6, The intentionto separatemust be communicatedto the other members.
 The Family Law -1 (The Hindu Law) 21

# Sat Narain vs. Shri Kishen Das (1936 MLW 44 PC)

(Karta’s alienation after partition)
Brief Facts: Father and sons divided by an oral agreement. The agricultural activities were conducted
combinely. Kitchens were separated. Father sold certain properties exceeding his share to pay the
debts. One of the sons challenged it contending that father had no right to sell the properties, as they
were already divided. Father contended that the properties were joint Hindu family property, and being
he was Karta he could alienate the property for paying vyavaharika debt.
JUDGMENT: The Privy Council gave judgment in favour of the son and held that after partition, the
father had no right to sell the joint properties. However, the father was entitled to sell the property upto
the extent of his share only.
PRINCIPLES: The Privy Council summed up the propositions emerging as a result of the authorities
as follows:—

“(1) The managing member of a joint undivided estate cannot alienate or burden the estate qua
manager except for purposes of necessity.
(2) If he is the father and other members are the sons, he may by incurring debt, so long as it is not
for an immoral purpose, lay the estate open to be taken in execution proceedings upon a decree for
payment of the debt.
(3) If he purports to burden the estate by mortgage, then unless that mortgage is to discharge an
antecedent debt, it would not bind more than his own interest.
(4) Antecedent debt means, antecedent in fact as well as in time, that is to say, that the debt must be
truly independent and not part of the transaction impeached.
(5) There is no rule that this result is affected by the question whether the father, who contracted the
debt or burdened the estate, is alive or dead. But this power of the father to sell the son’s shares for
his debts exists only so long as the joint family remains undivided.”
PROBLEM: A father/kartha of a joint Hindu family executes a will partitioning ail the joint family
properties without the consent of the remaining coparceners. Is it valid?
SOLUTION: No. This is held in the following case:—
# Kalyani and others vs. Narayanan and others (AIR 1980 SC 1173)
(Partition by Will of Father/Kartha)
Brief Facts: One Karappan, had two wives - Nani and Ponni. Six sons and four daughters were born
to Nani. One son and two daughters were born to Ponni. Kalyani was the widow of Raman, one of
the sons of the first wife. Karappan, the Karta executed a will, partitioning the properties worth Rs.
8,000 and Rs. 200 between him and the sons on 1910. The sons/coparceners did not ask the
partition. Maximum portion was retained by father/karta. After the death of father, Kalyani and others
filed a civil case for re-partition contending that father had no power to partition with out the intention
and consent of the remaining coparceners, and that he did not divide the property equally. The trial
Court dismissed the petition. The High Court also dismissed the appeal.
JUDGMENT: The Supreme Court gave judgment in favourof the Appellants/Kalyani and others.
PRINCIPLES: (i) To constitute a partition all that is necessary is a definite and unequivocal indication
of intention by a member of a joint family to separate himself from the family. Afurther requirement is
that this unequivocal indication of intention to separate must be to the knowledge of the persons affected
by such declaration,
(il) A Hindu father has no right and power to make a partition by will of joint family property amongst
various members of the family except of course, if it could be made with their consent.
6. REUNION (SN)
Meaning: When a partition took place in a joint family Coparcenary, they start to live individually and
separately. After partition, any two members of such joint family/coparceners may reunite together
with the intention to reunite and with their estates.

Ingredients of Re-Union:

(a) The parties to “Re-union” must show their intention by express or implied manner,
(b) The properties of such parties shall be physically re-united,

(c) No writing is necessary,

(d) The burden of proof lies on the person who asserts the reunion.
22
The Family Law -1 (The Hindu Law)
(e) Effect of reunion: The property ceases to be joint Hindu family status immediately after
the shares are defined. The members of the joint family so partitioned and are enjoying the property
jointly, as above said, are called the tenants-in-common. It effects only the mode of enjoyment.
(f) A minor cannot join in “Re-union”, since a minor is not entitled to contract.
(9) Order of succession among re-united members: The share of a reunited member survives
to the other members of the re-united family like the share of a member of a normal joint family.
PARTIAL PARTITION (SN)
Partition may be general or partial. It is open to the coparceners of a joint family to make a division and
severance of interest in respect of a part of the joint estate, while retaining the rest as the properties of
the joint and undivided family.
REGISTRATION: Oral partition and written agreements before the village elders are also sufficient to
prove the partition. Registration is not compulsory. It is only optional. In Andhra Pradesh, the
Registration fee is Rs. 1,000 under the Indian Registration Act, 1908 plus one per cent stamp duty
under the Indian Stamp Act. 1899.

❖ ❖

IMPARTIBLE PROPERTY (SN)

MEANING:

Impartible, (adj.) = Not liable to be partitioned; incapable of partition.

Property, although partible by nature, may by custom, or by the terms of a grant by Government, is not
liable to be partitioned. It means such property always devolves on a single member of the family to
the exclusion of the other members. Sometimes it is attached with sentiments. Such property is
called the “Impartible Property”. The impartible estate may be ancestral or self-acquired .
Illustrations

(a) Ancient Zamindaries, which partake of the nature of a Raj or Sovereignty,

(b) Royal grants of revenue for services such as Jagirs, village offices in Madras Region,
(c) A, an ancestor, worked as a soldier in Nizam's Army. Nizam presented a gold knife to A as a reward. At the time of
death, A gave his gold knife to his eldest son-B. At the time of death, B gave the gold knife to his eldest son-C. C gave
the gold knife to his eldest son-D. Thus the sentiment and a family custom was created in the family.

IMPORTANT POINTS:

A The law of impartible property was in practice before the Hindu Succession Act, 1956, except in
cases especially where the Government of India or State Governments grant such estates from time
to time, such as “Rajabharanam” or any other such circumstances only.
B. The devolution and enjoyment of the impartible property depends upon the custom.
C. The holder has power to alienate the estate, whether ancestral or otherwise, by gift or will, unless
he is prohibited from doing so by custom or by law.
D. Section 5 of the Hindu Succession Act. 1956 abolishes Permanent Impartible Estates except
those saved by clause (ii) of the same section.
“Sec. 5. (The Hindu Succession Act, 1956).— Act not to apply to certain properties.— This Act shall not apply to,—
(i) any property succession to which is regulated by the Indian Succession Act, 1925, by reason of the provisions
contained in Section 21 of the Special Marriage Act, 1954;
(ii) any estate which descends to a single heir by the terms of any covenant or agreement entered into by the Ruler of any
Indian State with the Government of india or by the terms of any enactment passed before the commencement of this
Act;

(iii) the Valiamma Thampuran Kovilagam Estate and the Palace Fund administered by the Palace Administration Board by
reason of the powers conferred by Proclamation (iX of 1124) dated 29th June, 1949, promuigated by the Maharaja of
Cochin.”

E- Succession to impartible estate: Before the Hindu Succession Act, 1956, the succession to
impartible estate was governed by custom. In most cases, custom of male lineal primogeniture was
applicable.
❖ ❖ ❖

PRESENT POSITION OF COPARCENARY/JOINT FAMILY PROPERTY AFTER

THE HINDU SUCCESSION AMENDMENT ACT, 2005 (CENTRAL ACT No. 39 of 2005)
Prior to the Hindu Succession Amendment Act, 2005 (Central Act No. 39 of 2005), w.e.f. 09-09-
2005, only male was considered as a coparcenary of the coparcenary/joint family property, and male
was used to devolve the interest and share in the coparcenary/jo int family property. The Central Act
 23
The Family Law - / (The Hindu Law)

No. 39 of 2005 changed it. Now female is also entitled to devolve the interest and share in the
coparcenary/joint Hindu family properties. The Central Act No. 39 of 2005 has made daughter equal
to son.

Before the Act of 2005, only a male coparcener was entitled to claim a right or interest in the coparcenary/
joint Hindu family property. After the Act of 2005, female is also considered as a coparcener, and she
is also entitled to claim a right or interest in the coparcenary/joint Hindu family property.
Before the Act of 2005, the partition of coparcenary/joint Hindu family property may be partitioned
between the male coparceners by defining the shares and/or fixing the metes and bounds. There
was no necessary for the registration and/or a decree of Court for a partition. Now according to the
Act of 2005, every partition should be registered under the Indian Registration Act, 1908 or by a Decree
of Court. The Act of 2005 recognises the previous partitions only if they were registered or by a
Decree of Court before the 20th December, 2005.

Before the Act of 2005, only a male coparcener had capacity to dispose of his share in the coparcenary
property by a will. Now according to the Act of 2005, a Hindu (male or female) has the capacity to
dispose of his or her share in the coparcenary property by a will.
Before the Act of 2005, the Doctrine of Pious Obligation was recognised in the Hindu Succession Act,
1956. Sub-Section (4) of Section 6 of the Hindu Succession Act, 1956, as substituted by the Act of
2005, abolishes the Doctrine of Pious Obligation.
Before the Act of 2005, Schedule incorporated under Section 8 of the Hindu Succession Act, 1956
includes the list of male heirs. Now, the Act of 2005, added a list of daughter and her heirs in the
Schedule making a daughter equal to a son.
According to the changes brought by the Hindu Succession Amendment Act, 2005, every partition
must have been registered compulsorily ora Decree of a Court affecting the partition should be produced.
Every disposition or alienation including any partition or testamentary disposition of property
should be registered deed or decreed by a court: Explanation appended to sub-section (5) of
Section 6 of the Hindu Succession Act, 1956, as is inserted by the Central Act, 2005, makes it
compulsory to recognise the “Partition” that for the purposes of this Section, every partition must have
been executed and registered under the Indian Registration Act, 1908, partition effected by a
Decree of a Court, and has been effected before the 20th day of December. 2004.

Before the Central Act, 2005, and according to the old Hindu laws of succession. Partition may be by
fixing the shares and/or by fixing the metes and bounds. The oral partitions or written partitions were
also accepted as proof evidence by the Court. Registration of Partition was not compulsory. It was
only optional.
Now under the new provisions of Section 6, every partition must have been executed and registered
under the Indian Registration Act, 1908, partition effected by a Decree of a Court, and has been
effected before the 20th day of December. 2005.

This is the drastic change. It affects on the majority of partitions of the Hindu coparcenary properties,
which were partitioned some 60 years or ninety years ago. The majority of the partitions were not
registered. The majority of partitions did not approach the Court of Lawfor Decree of Partition. There
may be a few occasions, rather than we can say one or two per cent of the total partitions, which had
approached the Court for partition. Even a ninety years aged woman and her heirs can claim her
right, interest and partition of a Hindu coparcenary property.
[Note : The student is advised to write the contents of Topic “Changes introduced in the Hindu Succession Act, 1956 by the Central Act
of 2005 (Act No. 39 of 2005)”.]

NOTE

While revising Suiatha Law Series Notes, I am also compiling the Bare Acts
for the Criminal Major Acts keeping in view of the students requirements or
the Internal, Problems and Notes. Within a short period, I would like to the
Criminal Major Acts for Advocates, incorporating the Ingredients, latest
and leading case-laws, etc. which can be useful in the Courts.
GADE VEERA REDDY
■j
24
The Family Law - / (The Hindu Law)

1.G. DEBTS - ANTECEDENT DEBT, VYAVAHARIKA AND

AVYAVAHARIKA DEBTS - DOCTRINE OF PIOUS OBLIGATION
Q.l. Explain the Doctrine of ‘Pious Obligation’. Can a Hindu father alienate coparcener’s property to discharge his personal debts?
(May, 2008, O.U.)
Q.2. Write a note on ’Debts’, and its application to the Hindu Law. Explain the law relating to ‘Avyavaharika Debti". (Feb., 2005, O.U.)
Q.3. What is an “Antecedent Debt”? Can there be an alienation of property by the Karta to satisfy the Debts? (Feb., 2004, O.U.)
Q.4. Explain the Doctrine of Pious Obligation. Discuss the liabilities of a son to discharge his father’s debts. Is the son liable for the debt
incurred by the father for his personal benefit? (AnI., 2004, P.U.) (AnI., 2003, K.U.)
Q.5. Doctrine of Pious Obligation. (SN) (Dec., 2007, O.U.) (Dec., 2005, B.U.) (June, 2004, B.U.) (May, 2003, N.U.) (Apr., 2003, A.U.)
Q.6. Antecedent Debt.
(SN) (Dec., 2005, B.U.) (Dec., 2004, B.U.) (Dec., 2003, S.V.U.)
Q.7. Avyavaharika Debt. (SN) (Aug., 2005, S.V.U.) (Apr., 2003, A.U.)
ANSWER:

GENERAL RULES OF DEBT, VYAVAHARIKAAND AVYAVAHARIKA DEBTS -

DOCTRINE OF PIOUS OBLIGATION

[BEFORE THE COMMENCEMENT OF THE HINDU SUCCESSION (AMENDMENT)

ACT, 2005 (Central Act 39 of 2005]
DEBT / ANTECEDENT DEBT / VYAVAHARIKA DEBT (SN)
MEANING:

Debt, (n.) = something, especially, money, owed to another; the state of owing.
In the Muslim Law, taking or giving loans on interest is void. In the Hindu Law, it is valid. The Hindu
Law states that “He who having received a sum lent or the like does not repay it to the owner will be
born hereafter in his creditor’s house a slave, a servant, a woman or a quadruped”.
Antecedent, (n.) = prior.
Antecedent debt, (n.) = means antecedent in fact as well as in time, that is to say, that the debt must
be truly independent of and not part of the transaction impeached.
Vyavaharika. (adj.) = It is a Sanskrit word. It meals a normal activity of a normal person. It also
means “in practice”, “practising”, “legal”, “in the normal course”.
Vyavaharika Debt, (n.) = a legal debt.
IMPORTANT POINTS:

A. KARTA’S POWER TO BORROW: The father of a joint Hindu family may sell or mortgage the joint
family property including the sons’ interest therein to discharge a debt contracted by him for his own

personal benefit, and such alienation binds the sons, provided that,—
(a) the debt was antecedent to the alienation, and
(b) it was not incurred for an immoral purpose.
B.
Illustration: The father of a joint Hindu family borrows Rs. 10,000 from A for his own use.
Subsequently he executes a mortgage of the joint family property to A to secure the debt. It is not
proved that the money borrowed was used by the father for immoral purposes. The mortgage binds
not only the father’s but also his sons’ interest in the property. Here the debt is antecedent of the
mortgage in fact as well as in time.
C. The object of the “Doctrine of Antecedent Debt ” arises from the necessity of protecting the
rights of third persons, who advanced the amount to Karta.
D. The Doctrine of Antecedent Debt is a part of the Doctrine of Pious Obligation.
E. “Antecedent debt" means antecedent in fact as well as in time.

Burden of proving immoral or illegal debt: First, the alienee has to prove that the antecedent
debt existed. It is the duty of the sons to prove that the debt was for immoral purpose. The alienee
need not prove the purpose of the debt, whether it is moral or immoral.

G. After Partition: The father has no power to alienate his son’s share after a partition between him
and the son, although the alienation may be in respect of a debt which was contracted before partition.
H. The expression “sons ” includes grand-sons and great-grand sons. The expression “father”
includes grand-father and areat-qrand-father.
I. If the alienation be one for legal necessity, it is not necessary, to bind the sons’ interests, to have
recourse to the Doctrine of Antecedent Debt.
J. Antecedent must be real.
 The Family Law - I (The Hindu Law) 25

K. PROBLEM: There is a joint family consist of father and son. Father has incurred certain debts
for his own purpose in the year 1990 and to discharge such debts in the year 1995 he has alienated
joint family properties. This alienation was challenged by his son. Decide the case.
(Apr., 2003, A.U.)
SOLUTION; The father can alienate the joint Hindu family properties, if the purpose of debt was
vyavaharika. The father cannot alienate the joint Hindu family properties, if the purpose of debt was
Avyavaharika. The distinction between Vyavaharika and Avyavaharika is always a question of fact.
The following cases are leading cases on this question of fact:—
# Brij Narain vs. Mangal Prasad (46 A11. 951 PC)
(Antecedent Debt)
Brief Facts: The father executed a mortgage upon some of the joint properties. The amount of the
debt was increased due to accumulation of the interest. To clear the principal and the interest accrued
thereon, the father executed the second mortgage on the same properties. The creditor brought a
suit on the second mortgage. The sons challenged the validity of second mortgage.
JUDGMENT: The Privy Council under the Chief Justiceship of Lord Dunedin gave the judgment
that the antecedent debt may be a simple money debt or a mortgage debt, and the earlier mortgage,
though not binding on the sons as a mortgage, could serve as an antecedent debt to support and
uphold the later mortgage. The second mortgage was binding on the sons.
PRINCIPLES LAID DOWN :

1. The pious obligation exists both during and after the father’s lifetime.

2. The true basis of the son’s pious obligation to discharge the father’s debt is the relationship of
father and son and not the incident of the father being also the manager of the joint family, and it is on
this principle of the liability of the son’s share for the discharge of the father’s debts that the father’s
power of disposal of the son’s share for the satisfaction of those debts has been based. It is true that
a distinction has been made between an involuntary sale of the father’s property for the satisfaction of
his debts and a voluntary disposition by him, by introducing the limitation that in the latter case the debt
must be antecedent to the transfer of property and not contemporaneous with the transfer.
3. Antecedent debt means a debt antecedent in fact as well as in time to the alienation in question,
that is to say, that the debt must be truly prior to and independent and not part of the transaction
impeached.
4. The son being under a pious obligation to discharge the father’s vyavaharika debt the cause of
action against him in respect of that liability must be held to arise on the date when the father’s debt
becomes due and payabie.
5. If the decree is only against the father, the creditor has an option, in execution of the decree, either
to bring the father’s interest only to sale, or to bring to sale the whole joint family property.
6. The father’s power for sale for his debts exists only so long as the joint family property is undivided;
and the capacity of the Official Assignee must be similarly limited. When the family estate is divided,
it is necessary to take account of both the assets and the debts for which the undivided estate is liable.
The appellants maintained that the pious obligation of the sons was an obligation not to object to the
alienation of the joint estate by the father for his antecedent debts unless they were immoral or illegal,
but that these debts were not a liability of the joint estate for which provision is required to be made
before partition.

II. AVYAVAHARIKA DEBT (SN)

MEANING;

Avyavaharika. = An abnormal activity of a normal person.

Vyavaharika. = in the normal course, legal.
Avyavaharika Debt. = Immoral debt; A debt obtained for immoral purpose; Adebt obtained for the
purpose of an activity which is against the public policy.
As a general rule, sons, grandsons and great-grandsons are bound to pay all debts contracted by
father, grand-father or great-grand-father which are Vyavaharika (Legal). But the sons, grandsons
and great-grandsons are not bound to pay the Avyavaharika debts contracted by the father, grand
father or great-grand-father.
What are “Avyavaharika Debts”? The following are the some examples of Avyavaharika Debts:—
1. Debts for spirituous liquors,
2. Debts due for losses at play,
26 The Family Law -1 (The Hindu Law)

3. Debts due for promises made without consideration,

4. Debts contracted under the influence of lust or wrath,

5. Debts for being surety for the appearance or for the honesty of another,
6. Unpaid fines,
7. Unpaid tolls,
8. Any debt repugnant to good morals, etc.
Important points on Awavaharika Debt:

A. Justice, Cole Brooke describes: “Awavaharika debts are repugnant to good morals.”
B. Aparkara explains: “It is not righteous or proper.
”

C. Balambhatti describes: “Awavaharika debt is not for the benefit of the family. ”

D. The Supreme Court opines in a case Jakati vs. Borkar (AIR 1959 SC 282) that the translation of
the term “Awavaharika” given by Justice Colebrooke may well be taken to represent its correct
meaning and that the term did not admit of a more precise definition.
E. Money borrowed by a father for payment to a Hindu woman as a bribe to induce her to take one of
his sons in adoption is an Avyavaharika debt, and the sons are not liable for it.

F. Time-barred debt: A Hindu father may, like any other debtor, passes a promissory note for a
time-barred debt. Such a note constitutes, a binding contract having regard to the provisions of
Sec. 25 (3) of the Indian Contract Act 1872. and it may be enforced against him, and after his death,
against the sons. A time-barred debt, under the Hindu law, is not Awavaharika. It is not immoral.
It is not against the public policy. However, if a Hindu father executes a time-barred promissory note
after partition, the son is not liable to pay.
PROBLEM: Is time-barred debt “Avyavaharika”? Does the son bind father’s Avyavaharika debt?
SOLUTION: This problem was decided in the case “Gaiadhar vs. Jagannath (1924 A. 551 F.B.)”.
The Law of Limitation was not known to the Hindu jurisprudence. The Hindu people strongly believe
that they must repay the debts under any circumstances with any costs. Else they fear that they will
re-born as animals or third persons (kojjas), and it affects on their family members and the sapindas.
The law of limitation is adopted from the English Law. It is recent development. A debt becomes
barred after three years. If the debt is barred against the father, the son also ceases to be liable on it.
But if the father executes a promissory note in consideration of the time-barred debt, he is liable on it
under Section 25 (3) of the Indian Contract Act, 1972. So the son also becomes liable under the
Doctrine of Pious Obligation for such a debt. The liability extends to his interest in the coparcenary
property and does not impose any personal liability. A time-barred debt is not an Avyavaharika debt.
Therefore, the father can alienate also the son’s interest in the coparcenary property for discharging
such a debt. Such an alienation would be binding on the son.
G. Burden of proving immorality debt: First, the alienee has to prove that the antecedent debt
existed. It is the duty of the sons to prove that the debt was for immoral purpose. The alienee need
not prove the purpose of the debt, whether it is moral or immoral.
H. The father has no power to alienate his son’s share after a partition between him and the son,
although the alienation maybe in respect of a debt which was contracted before partition.
I. Money borrowed to pay the cost of a suit in forma pauparis brought by the father knowing it to be
false is an Avyavaharika debt.
J. Money borrowed to pay a fine inflicted for a criminal offence is an avyavaharika debt.
K. A member of the family is involved in a criminal case. The father obtained the loans to rescue the
member. It is not Avyavaharika debt. It is not illegal or immoral. Hence the sons are liable to pay the
debt.

L. A debt incurred by the father in connection with buying and selling of shares which resulted in loss
is not an Avyavaharika debt. The sons are liable to pay the debt.
M. The Income-tax due from a father cannot be regarded as Avyavaharika debt on the ground that the
assessment was made on the basis of concealment of true income by the father.
N. # Loharu Amrutaial vs. Jayantiia! (AIR 1960 SC 964)
(Execution of Mortgage Deed)
Brief Facts: The father-karta of the family executed a mortgage in the course of speculative transactions
undertaken by him. There was no benefit or necessity to the joint family properties. The son questioned
 The Family Law - / (The Hindu Law) 27

the validity of the mortgage, and he argued that the transaction of alienation was avyavaharika. He did
not want to take the liability of the debt of the mortgage executed by his father treating it as avyavaharika
debt. The creditor argued that the transaction was an antecedent debt, and the son was liable to pay
the debt under mortgage deed. The creditor also proved that he had no notice of the immoral purpose
of the debt. The son could not produce the evidence on the question of such notice.
JUDGMENT: The Supreme Court held that mortgage executed by the father-karta of joint family was
not an avyavaharika. and it was an antecedent debt, and the son was bound to oblige it.

PRINCIPLE LAID DOWN: The son can escape liability only if he can show that the alienee had notice
of the immoral character of the debt. If he fails to prove the evidence on the question of notice, he fails
to secure immunity from liability. Even when the debt is Avyavaharika, the son would be safe only
when he can prove that the alienee was aware of the immoral character of the debt for the discharge
of which alienation was made.

O. # Faqirchand vs. Sardarini Harnam Kaur (AIR 1967 SC 727)

(Vyavaharika Debt - Mortgage)
Brief Facts: A father of a Hindu joint family consisting of himself and his sons executed a mortgage
of family property which was neither for necessity nor for payment of antecedent debt. The mortgagee
obtained a decree on the mortgage and was bringing the property to sale in execution. At that stage
the sons intervened and wanted to prevent the execution of the decree against their interests in the
property.
JUDGMENT: The Supreme Court held: (1) that the sons being under a pious obligation to pay the
debt of the father which was not Avyavaharika, the decree against the father for one payment of the
debt could be enforced against the interest of the sons as well, and the fact that the debt was a
secured debt would not affect the question; and (2) that inspite of the preliminary decree in the suit, the
sons would not be prevented from asking for a declaration that the mortgage as such not being for
necessity or for payment of antecedent debt of the father would not be binding on their shares.
III. DOCTRINE OF PIOUS OBLIGATION (SN)
MEANING :

Pious, (n.) = Godly; religious; devout; reverential.

Doctrine of Pious Obligation. = In the Hindu law, a debt is considered as a sin. Hence it was
enjoined by the Sastras at the son, whether he possesses any joint family property or not, should
extricate the father from the after-death tribulations consequent thereon by paying off the father’s debt.
However such debt should not be connected with any illegal or immoral transactions. The debt sum
should have been taken for the joint family purposes.
Every son, grandson or great-grandson is under a pious duty to discharge the debts with interest of
respectively the father, grand-father or great-grandfather. The liability imposed on the son to pay the
debt of the father is not a gratuitous obligation thrust on him by the Hindu law but is a salutary counter
balance to the principle that the son from the moment of his birth acquires alongwith his father an
interest in joint family. The Doctrine of Pious Obligation is a necessary and logical corollary to the
doctrine of the right of the son by birth to a share of the ancestral property and both these conceptions
are co-related.

IMPORTANT POINTS:

A The liability of the son is however not a personal liability. It is limited to sons who are joint with their
father. It is limited only to their interests in the coparcenary property. It subsists, so long as the liability
of the father subsists.

B. The doctrine of pious obligation cannot apply to the wife and she, therefore, cannot be liable to the
creditors.

C. The Hindu law imposes a duty upon the descendant of a person to pay the debts of the father
provided they are not trained with immorality.
D. The obligation of the son is not a personal obligation existing irrespective of the receipt of any asset
but a liability confined to the assets received by him as his share in joint family property or his interest
in the same.

E. The liability exists whether the sons are majors or minors or whether the father is alive or dead.

F. For the pious obligation to pay the father’s debts to arise, it is not necessary that the father should
be the manager or the karta of the joint family or that family must be composed of the father and his
sons only and no other male member. The authority of the manager to incur a debt binding on the
 28
The Family Law - I (The Hindu Law)

family is based upon the principle of agency or implied authority and a family debt contracted by him for
necessity or benefit of the family stands on quite a different footing from a personal debt contracted by
the father which does not benefit the family.
G. The liability of his sons to pay such debts does not rest on the principle of agency but is a special
liability created purely on religious grounds and can be enforced only against the sons and no other
coparcener.

H. The liability of the son is enforceable both after the father’s death and also after partition between
the father and his sons-.

I- Pious obligation of grandson and great-grandson: The text of Brihaspati which enjoins on the
son’s duty of paying his father’s debts with interest, lays down that the grandson, though he is bound
to pay the grandfather’s debts, yet need not pay the interest thereon and that the great-grandson need
not at all his great-grand-father’s debts unless he has assets in his hands.
J. PROBLEM: A, a father, renewed a pre-partition debt after partition took place. Is the son liable to
pay the pre-partition debt?
SOLUTION: No. The son cannot be made liable in respect of the pre-partition debt renewed after
partition.
Debts not attracting pious obligation: The following is the classification of the debts, which according
to the texts of Brihaspati, Gautama, Manu and Usanas, the son is not under the pious obligation to
discharge:—
1. Debts for spirituous liquor;
2. Debts due for lust;
3. Debts due for gambling;
4. Unpaid fines;
5. Unpaid tolls;
6. Useless gifts or promises without consideration or made under Suretyship the influence of lust or
wrath;

7. Suretyship debts;
8. Commercial debts;
9. Avyavaharika debts;
10. If a pre-partition debt of the father is renewed by father subsequent to partition the Son cannot be
made liable in respect of the renewal.
11. The obligation of a prized subscriber of a chitty to pay future subscriptions cannot be said to be a
debt incurred by a Hindu father. (Narayana Prabhu vs. Janaradhan Malian, 1973 Ker. 665)
CONCLUSION: The Doctrine of Pious Obligation is an illogical relic of antiquity which has been
controlled and moulded into shape by a series of decisions making it a working rule which in its application
is neither unjust nor inconvenient.
Does the son has pious obligation in the following cases?

PROBLEM-1: A Hindu father incurs a debt for treatment of his venereal disease.
SOLUTION-1: No. The Sastras say that the debt incurred by father must be moral and legal. Here
the treatment of a venereal disease means the father has bad character having debauching. Hence
the son has no pious obligation to pay the father’s debts incurred in the treatment of his venereal
disease.

PROBLEM-2: A Hindu motherwas suffering with cancer. The father incurred debts for the treatment
of her.

SOLUTION: Yes. The son has the pious obligation and has to pay the father’s debts.
PROBLEM-3: A Hindu father acknowledges a pre-partition debt after a partition with his son.

SOLUTION: No. If a pre-partition debt of the father is renewed by him, subsequent to partition, the
son cannot be made liable in respect of the renewal. It was decided in the case: Peda Venkanna vs.
Sreenivasa (1918 MLJ 519).
PROBLEM-4: The father incurred debts for a speculative business, which was not for the benefit or
necessary of the family.
SOLUTION: Yes. The sons are liable. The debts incurred by the father is a Vyavaharika. The
Supreme Court decided in the case Amritlal vs. Javantilal (AIR 1960 SC 9641 in variourof the creditors.
 The Family Law -1 (The Hindu Law) 29

In that case, the father executed a mortgage in the course of speculative transactions undertaken by
him. There was no benefit or necessity to the estate. The antecedent debt was Avyavaharika. Even
then, the Supreme Court opined that the sons must prove that the debt was incurred for immoral
purposes. In this case, the sons failed to prove that the debts were incurred for immoral purposes.
The Supreme Court opined that even when the debt is Avyavaharika, the son would be safe only when
he can prove that the alienee was aware of the immoral character of the debt for the discharge of
which alienation was made.

❖ ❖

GENERAL RULES OF DEBT, VYAVAHARIKAAND AVYAVAHARIKA DEBTS -

DOCTRINE OF PIOUS OBLIGATION

[AFTER THE COMMENCEMENT OF THE HINDU SUCCESSION (AMENDMENT)

ACT, 2005 (Central Act 39 of 2005]
The Hindu Succession (Amendment) Act, 2005, which came into force with effect from 9th
September. 2005, brought several drastic changes in the Hindu succession laws. One of the important
changes is the abolition of the Doctrine of Pious Obligation.
IMPORTANT POINTS:

A. Abolition of the Doctrine of Pious Obligation: Sub-section (4) of Section 6 of the Hindu
Succession Act, 1956, as is substituted by The Hindu Succession (Amendment) Act, 2005 abolishes
the Doctrine of Pious Obligation. According to sub-section (4), “after the commencement of the Hindu
Succession (Amendment) Act, 2005, any Court shall not recognise any right to proceed against a son,
grandson or great-grandson for the recovery of any debt due from his father, grandfather or great
grandfather so|ely.onthe_ground_ofthe_Bious.obligation under the Hindu law, of such son, grandson
or great-grandson to discharge any such debt.”
B. Exception to sub-section (4): Proviso a ppended to sub-section (4) lays down that in the case
of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005,
nothing contained in this sub-section shall affect,—
(a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case
may be; or
(b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or
alienation shall be enforceable underthe rule of pious obligation in the same manner and to
the same extent as it would have been enforceable as if the Hindu Succession (Amendment)
Act, 2005 had not been enacted.
C. Explanation: For the purposes of clause (a), the expression “son”, “grandson” or “great-grandson”
shall be deemed to refer to the son, grandson or great-grandson, as the case may be, who was born
or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005.
PROBLEM-1; In a joint Hindu Family a coparcener was sent to America for higher studies by spending
joint family property. He became a software Engineer in a big company in India and his salary was
attached in execution of a decree debt binding on the joint family. Decide its maintainability.
(May, 2003, N.U.)
PROBLEM-2: X is a minor-coparcener of a Mitakshara Hindu Joint Family. For the purposes of his
education, joint family properties are utilised and the family also incurred certain debts. After completing
his education he has become an officer in the Central Government. The creditors have filed a suit for
recovery of debt given to joint family and insisting for attachment of salary of Mr. X. Decide the case.
(Apr., 2003, A.U.)
SOLUTION-1 &2: According to the banking rules and the educational loan rules, the property is kept
as collateral security. The persons having the ownership of such collateral security sign on the
guarantee bonds of the bank, as collateral sureties. Therefore, the student and every person/owner of
the property offered to collateral security, are personally liable, including the liability on the properties.
Here in the given problem, the properties belong to joint Hindu family. Hence the properties are liable.
The engineer-coparcener is also personally liable to pay the debt, which is Vyvaharika.

William Shakespear writes: ‘Neither lend nor borrow. This is quite appiicabie to the iaw students and
lawyers. Law books and legal knowledge are the source of reputation and money for an advocate. Therefore,
the law student should not borrow or should not lend their books. All the books purchased by a law student and
lawyer will be useful one day. Particularly the subjects of LL.B. are inter-linked. Refer to the previous subjects
often, and memorise the contents therein.
 THE CODIFIED HINDU LAW
UNIT - il
2. THE HINDU MARRIAGE ACT. 1955
2.A. MARRIAGE - DEFINITION - IMPORTANCE OF
INSTITUTION OF MARRIAGE UNDER THE HINDU LAW
Q.1. Define “Marriage”, and what is its importance under the Hindu iaw? (May, 2008, O.U.)
Q.2. Define the concept of Hindu marriage, and expiain the importance of monogamy. (Sep., 2005, O.U.) (Apr., 2002, O.U.)
[Also refer to Topics “Conditions of Hindu Marriage” & “Monogamy-Poiygamy”.]
Q.3. “Hindu marriage is a sacrament and not a contract: Explain. (Feb., 2005, O.U.) (AnI., 2004, K.U.) (AnI., 2004, P.U.)
Q.4. Define “Marriage”. Give an account of essential conditions of the Hindu marriage. (Aug., 2004, O.U.)
[Also refer to Topic “Conditions of Hindu Marriage”.]
ANSWER:

INTRODUCTION: Man is a social animal. A powerful Social Institution has been established.
However the social institution is not a sole institution. It consists several institutions, viz., marriage,
family, educational, political, economical, religious institution, etc. Asocial institution is a complex one
combined with all these institutions. It is inter-related system of social roles and norms organized for
the satisfaction of social needs and functions. It consists social roles, norms, values, interactions,
conflicts, culture, emotions, etc., pertaining to behaviour.
The marriage institution and the family institutions are the Basic Social Institutions. The social
institution starts with the family institution. A family institution is established by the marriage institution.
Marriage is the base of a family. Thus the marriage institution and the family institutions have close
relationship.
The first benefit of the marriage is to give legal relation between wife and husband to have sex.
Besides it, there are several other benefits, such as, social status, economic security, the opportunity
to bear legitimate offspring, etc. Marriage gives basic harmony of interests between the wife and
husband and their children. In fact, the marriage is beneficial for both men and women.
Kessler Essex, a Social Scientist, scientifically proved that in contrast to the non-married, married
people tend to live longer, report higher levels of persona! happiness, and to be in better physical and
mental health. Bernard opined that marriage is more important to the physical and mental well-being
of men and women.

MEANING: Marriage is an institution. It regulates the complex relations of the society and safeguards
the social norms. It sanctions the relationship of man and woman and binds them in a system of
mutual obligations and rights essential to the functioning of family life. The marriage is a ritual ceremony.
It is performed publicly or by some representative of the community. It announces the recognition of
both the husband and wife of their new status in the community. It also signifies the social approval
and support of the new status being contracted.
DEFINITION:

Mazumdar T. defines: ‘‘Marriage is a socially sanctioned union ofmale and female, eras a secondary
institution devised by society to sanction the union and mating of male and female, for purposes of (a)
establishing a household, (b) entering into sex relations, (c) procreating, and (d) providing care for the
offspring. ”
Anderson and Parker define: “Marriage is the sanctioning by a society of a durable bond between
one
or more males and one or more females established to permit sexual intercourse for the implied
purpose ofparenthood. ”
Hunt defines: “Marriage is the approved social pattern whereby two or more persons establish a
family.”
Lundberg defines: “Marriage consists of the rules and regulations which define the rights, duties and
privileges of husband and wife, with respect to each other.”
Ernest R. Grove defines: “Marriage is a public confession and legal registration of an adventure in
fellowship.”
Do not open the books after remitting the examination fee or just before the examination, One-Day Wicket
practising is always bad. Start reading since the beginning of the Semester.

-30-
 The Family Law - / (The Hindu Law) 31

BASIC FEATURES OF THE HINDU MARRIAGES

1. SASTRAS AND CUSTOMS: There are several religions in the world. Each religion has established
its own system of marriage institution. Some thousands of years ago the Hindu marriage and family
systems were established according to the Vedas. Sastras and Customs, and the same has been
continuing uninterruptedly.
2. UNITY IN DIVERSITY: Though India is a vast country, having different languages, castes,
colours, cultures, religions and sub-religions, the basic rules, roles and norms of the Hindu marriage
and family institutions remain the same with little variations, from Kanyakumari to Kashmir.
3. SACRAMENTAL: The Hindu marriage is not the result of a contract, as in case of other religions.
Under the Hindu Law, the marriage is regarded as sacramental. The marriage institution in the
Hindu Law has been given high respect and honour and is treated as “Sacramental”.
4. Patriarchal System: The Hindu marriage and family institutions are based on the patriarchal
system. It means father is the ruler of the family. He is the karta. In this system, the child takes his
sur name, gotra, etc., from father, but not from mother.
5. CONDITIONS: There were certain conditions for a Hindu marriage in the ancient Hindu Law.
Some of these ancient conditions were good and some were bad. In the Hindu Marriage Act, 1955,
the good ancient conditions are incorporated in Section 5, and some new conditions are also added-
[Refer to Topic “Conditions of the Hindu Marriage”.]

6. CEREMONIES: There are several ceremonies conducted in a Hindu marriage. Some ceremonies
accompany Sastras/Mantras/Slokas. These are compulsory in every Hindu marriage. Some
ceremonies are followed due to customs. These customs may slightly vary depending upon the
caste, sub-caste, region, language. The marriage tie comes into effect between the man and woman
by Paniqrahika mantras, Saptapadi and Manqalasutra dharana, Kanvadana, etc. The relationship
between a man and a woman becomes as wife and husband by the recitation of the Mantras (Vedic
Texts) at the time of the ritual known as ‘Panigrahana’ in the course of the Hindu Marriage ceremony.
“Marriage under the Hindu Law is sacrament, being based upon a sacred religious ceremony.”
All these customs are recognised by the modern and codified Hindu Law, and incorporated in Section
7 of the Hindu Marriage Act, 1955. [Refer to Topic “Ceremonies of the Hindu Marriages”.]
7. NO DIVORCES: Except the Hindu marriage institution, almost all the remaining religious marriage
institutions have Divorce Systems, laws and procedures. The ancient Hindus did not know the
term ‘Divorce’. In the ancient Hindu marriages, the wife and husband live together until the
death.

Even afterthe death of the husband, the wife would not re-marry. However, after the death of the wife,
the husband used to remarry. In the Hindu marriages, polygamy, a husband had two or more wives at
a time, was also in practice. Except few Gods, like Rama, all most all the Hindu Gods have two or
more wives (Goddesses). Even in the cases of polygamy, after the death of husband, none of the
wives could not remarry.
There was Sati custom, in which the wife burnt herself with the dead body of her deceased husband.
This was very worst custom. This was abolished by Warren Hastings, the first Governor-General of
India, by enacting The Sati Abolition Regulation in 1829.
There were only marriage sastras. mantras, slokas coupled with ceremonies in the ancient Hindu
Law. There were no divorce sastras. mantras, slokas. ceremonies, etc. Even there were no customs
relating to divorce. The same has been continuing till to-day. The Divorce system has incorporated
in the Hindu Marriage Act, 1955 by the Indian Parliament, following the English Common Law.
Therefore, the concept of Divorce is new to the Hindu Law. Even to-dav. the percentage of divorces
in the Hindu marriages is very meagre comparing with the Western marriages. This is the greatness
of the Hindu marriage institution, and is praised through out the world.
8. SAME CASTE: The marriages between the same caste and sub-caste were the condition and
custom. Inter-caste marriages were unknown in those days. The Constitution of India adopts secular
in its content. Even to-day, the marriages are being performed between the same caste people. The
inter-caste marriages are very rare. This is a peculiar characteristic feature of the Hindu marriages.
This type of system is not found any where in the world.
Love marriages are exception to this custom. Even in love marriages, the parents of both sides
become anger against the newly married couple. To-day, several lakhs of Indians are living in the
Developed countries, as the engineers, doctors, businessmen, etc. The bridegrooms or the brides
settled in the foreign countries seek their alliance/match in the same caste and same area. Even the
American culture could not damage the casteism in India. This is proved by advertisements in the
matrimonial columns in the newspapers and web-sites. This can be observed in the marriage bureaus
in the cities through out the country.
32
The FamHy Law -1 (The Hindu Law)

9- JOINT HINDU FAMILY SYSTEM: From the ancient period to upto the ending of the twentieth
century, the Joint Hindu Family System played an important role in the marriage institution and family
institution, it gave economic safety to the Hindu families. Even the repeated foreigners’ invasions and
rulings also could not spoil thp, Hinduism, the Hindu culture, the Hindu economy, the professions, and
rural construction and development. [Refer to Topic “Joint Hindu Family/Coparcenary".]

2.B. CONDfTIONS TO BE FULFILLED FOR A VALID

MARRIAGE UMDER THE HINDU MARRIAGE ACT[Ss. 5,17 & 18]
Q.1. Wh^t are the essential requirements for contracting a valid Hindu Marriage? . (Feb., 2008, Burdwan U., W.B.)
Q.2. What are the conditions of a valid Hindq Marriage? (May, 2008, O.U.) (Sept., 2005, O.U.) (Dec., 2005, GU.) (June, 2004, B.U.)
(AnI., 2004, K.U.) (July, 2003, O.U.) (Jan., 2003, O.U.) (Dec., 2001, O.U.)
Q.3. Discuss the conditions imposed by the Hindu Marriage Act, 1955. for solemnization of valid marriage. (Dec., 2007, O.U.)
Q.4. Explain the conditions of a Hindu Marriage. (Aug., 2006, O.U.)
Q.5. Define “Marriage”. Give an apcount of essential conditions of the Hindu /marriage. (Aug., 2004, O.U.)
[Also refqr to Topic “Hindu Marriage”.]
Q.6. Is the marriage between two Hindus valid if they have Sapinda or prohibited Degree relationship? Explain the essential conditions
of a Hindu marriage. (Feb., 2004, O.U.)
[Also refer to Topic “Void Marriages’’.]
Q.7. Polygamy. (SN) (May. 2008, O.U.)
Q.8. Monogamy. (SN) (Dec., 2007, O.U.)
ANSWER:

SCOPE: Section 5 of the Hindu Marriage Act, 1955 provides certain conditions to be fulfilled for a
valid Hindu marriage. These conditions are mandatory. If these conditions are fulfilled in a Hindu
marriage, it is called “Valid Marriage". The Hindu Marriage is a sacrament. It is not a contract. It is
sacred, because the marriage is performed by the Mantras. The Sastraic law and custom have been
prevailing in India since Manu time to upto now in tact.

After the independence, the Government of India brought several changes in the Hindu law, and codified
four important Hindu Laws. Among them, the Hindu Marriage Act, 1955 is an important one. It
brought several changes in the Hindu marriages. The Hindu Marriage Act. 1955 provides some
mandatory guidelines for the performance of a marriage Section 5 to Section 8. Out of them.
Section 6 has been omitted. By incorporating Section 5, and by imposing certain conditions, the Act
of 1955 put an end to Sastraic Law of marriage, and started the beginning of a secular law of marriage.
CONDITIONS: There were certain conditions for a Hindu marriage in the ancient Hindu Law. Some
of these ancient conditions were good and some were bad. In the Hindu Marriage Act. 1955. the good
ancient conditions are incorporated in Section 5, and some new conditions are also added.
ANCIENT CONDITIONS/CUSTOMS (SN)
1. Same Caste: The marriages between the same caste and sub-caste were the condition and
custom. Inter-caste marriages were unknown in those days. The Constitution of India adopts secular
in its content. Even to-day, the marriages are occurring between the same caste people. Love
marriages are exception to this custom. Even in love marriages, the parents of both sides become
anger against the newly married couple. To-day, several lakhs of Indians are living in the Developed
countries, as the engineers, doctors, businessmen, etc. The bridegrooms or the brides settled in the
foreign countries seek their alliance/match in the same casta and same area. Even the American
culture could not damage the casteism in India. This is proved by advertisements in the matrimonial
columns in the newspapers and web-sites. This can be observed in the marriage bureaus in the
cities through out the country.
2. Age Restriction: There was no age restriction in the ancient Hindu marriages. The minor
marriages were common. Sixty years male would marry twelve years girl. Even though, this condition/
custom was bad, in those days, the society accepted such marriages. Since the beginning of the
twentieth century. Raja Ram Mohan Roy, Kandukuri Veeresha Lingam, Gurajada, etc., social reformists
agitated against child marriages. The then British Government enacted The Child Marriage Restraint
Act, 1929 and prohibited the child marriages and fixed the marriageable ages 15 years for bride and
18 years for bridegroom. The same age restrictions were incorporated in Section 5 of the Hindu
Marriage Act, 1955. By the Amending Act No. 2 of 1978, the age limit has been increased to 18
years for bride, and 21 years for bridegroom, and incorporated in Clause (iii) of Section 5. In spite of
officers’ vigilance, still here and there, child marriages are occurring.
 Th^ Family Law - / (The Hindu Law) 33

3. Prohibited Degrees: In the ancient Hindu Law, the bride should be separated by seven degrees
on the father’s side and five degrees on the mother’s side. Further the bride and bridegroom should
not be within the prohibited relations. This is a good condition and custom. There were few exceptions
to this condition in case of a few castes and tribals. This ancient condition is incorporated in Clause
(iv) of Section 5 of the Hindu Marriage Act, 1955.
Section 3 fq) of the Hindu Marriage Act, 1955 defines: “Degrees of prohibited relationship” — two persons are said
to be within the “degrees Of prohibited relationship”,—
(i) if one is a lineal ascendant of the other; or
(ii) if one was the wife or husband of a lineal ascendant or descendant of the other; or
(iii) If one was the wife of the brother or of the father’s or mother's brother or of the grandfather’s or grandmother’s
brother of the other; or

(iv) if the two are brother and sister, uncle and niece, aunt and nephew, or children of brother and sister or of two brothers
or of two sisters.

Explanation:— For the purposes of CIs. (f) and (g), relationship includes,—•

(i) relationship by half or uterine blood as well as by full blood;

(ii) illegitimate blood relationship as well as legitimate;
(iii) relationship by adoption as well as by blood,

and all terms of relationship in those clauses shall be construed accordingly.”

EXCEPTION: In certain castes, i.e., Kamma, Reddy, etc., there is a custom of marriage between a
male with his niece (sister’s daughter). Even though such a blood relation is prohibited under the
clause (iv) of Section 5, such a marriage is held valid under the customs. Clause (iv) recognises
such customs.

SCIENTIFIC RESULTS: The doctors of the twentieth and

twenty first centuries have proved that the
children procreated by blood related marriages will have genetical and health problems, and advise
not to perform such blood related marriages. The Science and Technology developed very speedily
and wonderfully in the twentieth century. However, our ancient sages had made customs and rules
prohibiting blood related marriages some thousands years ago.
4. Sapindas: In the ancient Hindu Law, bride and bridegroom should not belong to Sapindas.
Sapinda indicates one ancestor. Therefore it was the custom that the bride and bridegroom should
belong to different sapindas. It is also a good condition and custom. This condition/custom has been
incorporated in Clause (v) of Section 5.
Section 3 (f) (i) of the Hindu Marriage Act, 1955 defines: “Sapinda relationship”, with reference
to any person extends as far as the third generation (inclusive) in the line of ascent through the
mother, and the fifth (inclusive) in the line of ascent through the father, the line being traced upwards
in each case from the person concerned who is to be counted.”
Section 3 (f) (ii) of the Hindu Marriage Act, 1955 defines: “two persons are said to be “Sapinda” of
each other if one is a lineal ascendant of the other within the limits of sapinda relationship, or if they
have a common lineal ascendant who is within the limits of sapinda relationship with reference to each
of them.”

5. BLOOD RELATION: One of the important conditions and customs of the Hindu marriage is that
the blood related persons should not marry. Example: brother and sister. There are different blood
relations, such as, “full blood”, “half blood”, “uterine blood”.
Section 3 (c) of the Hindu Marriages Act, 1955 defines: “Full Blood” and “Half Blood” — two
persons are said to be related to each other by full blood, when they are descended from a common
ancestor by the same wife and by half blood when they are descended from a common ancestor but
by different wives.”
Section 3 (c) of the Hindu Marriages Act, 1955 defines: “Uterine Blood” — two persons are said to
be related to each other by uterine blood when they are descended from a common ancestress but by
different husbands.”

Explanation:— In clause (c) and (d), “ancestor” includes the father, and “ancestress” the mother.
6. Persons of Unsoundness/Impotent: In the ancient Hindu marriages, the marriages were fixed
by the Karta of the joint Hindu family. He would decide the match for younger members of the joint
family depending upon the prestige, reputation, status, property, etc., of the opposite family. Usually,
according to Karta’s decision and discretion, marriages occurred. Generally consent of bride or
bridegroom were not enquired. The child marriages were also common. Even if a bride or bridegroom
would suffer with unsoundness or impotency, marriage was performed by the Kartas of both the
families. The other spouse would suffer life long. This is a bad custom/condition. This is rectified by
Clause (ii-a) of Section 5. Now persons of unsoundness and impotency are not entitled for the
marriage.
34 The Family Law -1 (The Hindu Law)
7. BIGAMY/POLYGAMY: The ancient Hindu Law and customs allowed bigamy and polygamy.
This custom is removed by Clause (i) of Section 5. Now the bigamy and polygamy are punishable
offences under Section 494 of the Indian Penal Code, 1860.
“Sec. 5. Conditions for a Hindu Marriage.— A marriage may be solemnized between any two Hindus, if the following
conditions are fulfilled, namely;—
(i) neither party has a spouse living at the time of the marriage;
(ii) at the time of the marriage, neither party,—
(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or ,
(b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an
extent as to be unfit for marriage and the procreation of children, or
(c) has been subject to recurrent attacks of insanity or epilepsy;
(iii) the bridegroom has completed the age of twenty-one years and the bride the age of eighteen years at the time of
the marriage;

(iv) the parties are not within the degrees of prohibited relationship, unless the custom or usage governing each of them
perrhits of a marriage between the two;
(v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage
between the two.”

THE CONDITIONS/INGREDIENTS OF SECTION 5 (SN)

A. BIGAMY/POLYGANIY: In the ancient Hindu Law and customs, bigamy and polygamy were
allowed. Clause (i) of Section 5 prohibits bigamy and polygamy marriages. This is the first condition
that “neither party has a spouse living at the time of the marriage”.
PROBLEM-1 : A married EJ on 1st July, 2007. On the next day, A came to know that B had already
married C and had one child. Advise A.

SOLUTION: A has two remedies:— (i) To file a petition for a Decree of Divorce under Section 13;
and (ii) to file a criminal complaint against B under Section 494IPC.
PROBLEWl-2: A Hindu marries another wife with the written consent of his first wife during her life
time. Is he criminally liable for the offence of bigamy?
SOLUTION; Permission or release deed obtained from the first wife does not save the husband who
marries second marriage. Similarly, if the husband gives the permission or release deed to his wife,
that wife is not entitled to have second marriage. The only solution is that first they should take
divorce, and later each of them can enter into the second marriage choosing the persons as per their
choice. This applies to all the religions, except to Muslim males.
Santosh Kumari vs. Surjit Singh (1990 CrLJ 1012 HP)
(Permission from the first wife for her husband’s second marriage)
Brief Facts: In this case, the first wife gave the permission to her husband for his second marriage.
Both the wife and husband applied for the permission before the District Court, which was accorded
by that Court. The proposed second bride came to know it and filed an appeal before the High Court.
The Himachal Pradesh held that no Court is authorised to permit a second marriage without proper
legal divorce even if the first wife consented and made the application. It is against the law.
B. AGE RESTRICTION: The bridegroom must have completed the age of 21 years and the bride
the age of 18 years at the time of the marriage. (Clause (iii) of Sec. 5)
C. PROHIBITED DEGREES: The parties are not within the degrees of prohibited relationship,
unless the custom or usage governing each of them permits of a marriage between the two. She
should be separated by FIVE DEGREES on the father’s side and THREE DEGREES on the mother’s
side. (Clause (iv) of Sec. 5)
D. SAPINDA: The bride should not be a Sapinda of the bridegroom. (Clause (v) of Sec. 5). She
should not have the same qotra of the bridegroom.
E. BLOOD RELATED/SAPINDAS: The parties should not be sapindas of each other, unless the
custom or usage governing of each of them permits of marriage between the two.
F. MENTAL CAPACITY: Neither the bride nor the bridegroom, at the time of the marriage, should be
an idiot or lunatic. The bridegroom should not be impotent. Both the parties should give their consent
freely. Both the parties should possess good health to give their consents. Clause (ii) of Sec. 5 lays
down that at the time of the marriage, neither party must be suffering from unsoundness of mind,
mental disorder or insanity renders, at the instance of a party, the marriage voidable, if the other party
was suffering from any such mental incapacity.
Do practise writing every day. It enhances the writing speed in the examination hall.
 The Family Law -1 (The Hindu Law) 35

Gl Should a bride be a virgin? As a general rule, the Hindu bride is expected a virgin. Itisagenci al
condition in India, that no bridegroom likes a girl, who lost her virgin. But neither Sastraic law nor
Codified Hindu Marriage Act does insist upon this particular point. According to the Codified Law, there
is no requirementthat a bride should be a virgin. If the bride had been made pregnant by another, the
husband can have the mam'age set aside by a decree of nullity. If the bride confesses to the bridegroom
her sexual relations with other persons before the marriage, and after hearing them also, if the bridegroom
accepts her as his wife, later he cannot set aside the marriage. Therefore, even a prostitute is also
entitled to get the marriage on her confess to would-be-husband before marriage.
H. ItVlPOTENCY: The old Hindu jurisprudence allowed a man impotent to marry and get the children
by Nyocfi (allowing his wife to have intercourse with the nearest male relative. Example; Kunti. But
no such system is discarded. If the bridegroom is found impotent after the marriage, the marriage
can be set aside under Section 12, and such marriage is a voidable marriage. Section 13 of the
Hindu Marriage Act, 1955, also allows to obtain the decree of divorce from such person.
S. MYOGUM MODERN ERA & TECHNOLOGY: To-day, Nyogi is applied in certain cases through
out the world with the help of modern technology. Example: If a husband does not have sperms or
sperm count, he may permit his wife to have pregnancy with the sperm from a known or unknown
donor, with the help of the highly qualified and experienced doctors. In the Western countries, this
system has been followed. There are Sperm Banks like Blood Bank in those countries.

J. Factum Valet: “Quod fieri non debrist factum valet” is the famous maxim. The meaning of
the maxim is “What ought not to be done, is valid when done.” According to one of the Conditions
mentioned in Section 5 of the Hindu Marriage Act, 1955, is that the bridegroom should have completed
the age of 21 years, and the bride 18 years respectively. But the Section does not attract any penal
offences for the violation of this condition. The Child Marriage Restraint Act 1929 originally fixed
the age limit 15 years for bride and 18 years for the bridegroom. These limits have been enhanced
to 18 and 21 yeans respectively with effect from 1978. The child marriages are made as penal offence
under the Child Marriage Restraint Act, 1929.

As a result of recent decisions of the Supreme Court, it can be concluded that the marriage solemnized
in violation of Sec. 5 (iii) remains unaffected. Neitherthe marriage is void nor voidable. Underthese
circumstances, the doctrine “Quod fieri non debrist factum valet” (What ought not to be done,
is valid when done) has been recognised by the Indian Courts. This doctrine means that law
imposes certain conditions, but when the conditions are violated, such violation is also treated as
correct for time being. It is also called: “A fact cannot be changed by a hundred texts”. This
shows that custom is more stronger than the law in the Hindu marriages.
K. Inter-caste Marriages: Manu prohibited inter-caste marriages. After independence, the
Government of India codified certain Hindu Laws. One of them is “The Hindu Marriages Validating
Act, 1949”, which validated inter-caste marriages and also validated mamages between Hindus, Jains
and Sikhs. Now the Hindu law recognises and validates the inter-caste marriages. Moreover the
Government of India has adopted the policy of encouraging the inter-caste marriages by giving incentives
in certain cases.

L. # Pendenti Venkata Ramamma vs. State of Andhra Pradesh (AIR 1977 AP 43)
(Child Marriage)
Brief Facts: A-a bridegroom was aged 13 years, and B-a bride was aged 9 years of age. Their
marriage was solemnised in 1959 due to the elder’s interest. In 1975, the husband-A married another
woman treating is previous marriage with B as void, which was solemnized in his childhood. B-the
first wife filed criminal petition against A under Section 494 of I.P.C. for the offence of bigamy. The
husband-A intended that his first marriage was void according to the provisions of the Child Marriage
Restraint of Act. 1929, and against the provisions of Section 5 of the Hindu Marriage Act, 1955.
Question of Law: An important question of law arose that if the marriage of 1959 was treated as
void, the husband-A would not be punished. If the marriage of 1959 was treated as “valid”, the
husband should have been punished under the bigamy.
In Saramma vs. Ganapatulu (AIR 1975 AP 193), the High Court of Andhra Pradesh decided that a
child marriage is void, and is in contravention of Cl. (iii) of Section 5 of Hindu Marriage Act, 1955. The
Husband cited this case.

JUDGMENT: The High Court of Andhra Pradesh overruled the decision of Saramma’s case in the
case of Venkata Ramamma. The High Court opined that according to the Doctrine of Factum Valet
(A fact cannot be changed by a hundred texts), the marriage as valid.
PRINCIPLE LAID DOWN: The High Court has given honour to the customs. A child marriage is not
void. However, the bride or bridegroom has an option to cancel the marriage after obtaining their
36 The Family Law -1 (The Hindu Law)

majority. It is equal to the Muslim marriages. A bride or bridegroom in that religion can revoke their
child marriage, after attaining his/her puberty, if he does not like it, but before consummation of marriage.
If he does not revoke, the marriage tie continues. Section 12 of the Child Marriage Restraint Act also
explains the same thing, i.e., the Civil Courts can issue injunction against the performance of the Child
Marriage, after giving due opportunity to the concerned parties. The Patna High Court asserted the
same principle in “Rabindra Prasad Vs. Sita Devi (AIR 1986 Pat 128)” case that a child marriage is
not void.

PROBLEM: Arun aged 19 years and Asha aged 17 years run away from their homes and get married
as per Hindu rights. Asha’s father wants to challenge the marriage. Canhedoso? (AnI. 2003, P.U.)
SOLUTION: According to Clause (Hi) of Section 5 of the Hindu Marriage Act, 1955, a bridegroom
should have completed twenty one years of age and the bride should have completed eighteen
years of age. In the above given problem, Arun and Asha violated this condition. Their marriage is
void. Asha’s father has right to take legal proceedings for the nullity of marriage under the civil law,
and he can also file a criminal case against Arun under Section 363 of the Indian Penal Code, I860.
❖

PUNISHMENTS (SN)
PUNISHMENT FOR BIGAMY: Section 5 (i) of the Hindu Marriages Act, 1955 prohibits bigamy.
Section 17 of the Hindu Marriages Act, 1955 prescribes “Punishment of Bigamy”. Section 17
states that any marriage between two Hindus solemnized after the commencement of this Act is void
if at the date of such marriage either party had a husband or wife living; and the provisions of Sections
494 and 495 of the Indian Penal Code, 1860 (45 of 1860), shall apply accordingly.
According to Section 494 (IPC), the wrong-doer shall be punished with imprisonment of either
description for a term which may extend to seven years, and shall also be liable to fine. According
to Section 495 (IPC), the wrong-doer shall be punished with imprisonment of either description for a
term which may extend to ten years, and shall also be liable to fine.
PUNISHMENT FOR CONTRAVENTION OF CERTAIN OTHER CONDITIONS FOR A HINDU
MARRIAGE: Section 18 of the Hindu Marriages Act. 1955. every person who procures a marriage
of himself or herself to be solemnized under this Act in contravention of the conditions specified in
clauses (iii), (iv), and (v) of Section 5 shall be punishable,—
(a) in the case of a contravention of the condition specified in clause (iii) of Section 5, with simple
imprisonment which may extend to fifteen days, or with fine which may extend to one thousand
rupees, or with both;
(b) in the case of a contravention of the condition specified in clause (iv) or clause (v) of Section 5,
with simple imprisonment which may extend to one month, or with fine which may extend to
one thousand rupees, or with both.

2.C. CEREMONIES OF A HINDU MARRIAGE

Q.l. What are the ceremonies and procedure for solemnization of the Hindu marriage after, 1955? (Aug., 2006, O.U.)
Q.2. “A Hindu marriage is a sacrament, but not a civii contract.” — Discuss. (Dec., 2005, B.U.) (Dec., 2005, GU.)
Q.3. What ceremonies are essential for validit; of a marriage under the Hindu laws? (Feb., 2005, O.U.) (Dec., 2001, O.U.)
Q.4. What are the ceremonies of Hindu marriage? Is Registration compulsory for Hindu marriage? (July. 2003, O.U.)
[Also refer to Topic “Is Registration compulsory for Hindu marriage?”]
Q.5. Saptapadi. (SN) (Dec., 2001, S.V.U.)
ANSWER:

SCOPE: SACRAMENTAL: The marriage in the Hindu Law has been given high respect and honour
and is treated as “Sacramental”. The Hindu marriage is not the result of a contract. The marriage
tie comes into effect between the man and woman by Panigrahika mantras, Saptapadi and Mangalasutra
dharana, Kanyadana, etc. The relationship between a man and a woman becomes as wife and
husband by the recitation of the Mantras (Vedic Texts) at the time of the ritual known as ‘Panigrahana’
in the course of the Hindu Marriage ceremony. “Marriage under the Hindu Law is a sacrament,
being based upon a sacred religious ceremony.” Section 7 of the Hindu Mamage Act, 1955 has
incorporated all these customs and ceremonies, and made Saptapadi, Panigraha, as mandatory.
CEREMONIES OF A HINDU MARRIAGE (SN)
Section 7 of the Hindu Marriage Act, 1955 adopts the ceremonies and sastras.
 The Family Law - / (The Hindu Law) 37

“Sec. 7. Ceremonies for a Hindu marriage.— (1) A Hindu marriage may be solemnized in accordance with the
customary irtes and ceremonies of either party thereto.

(2) Where such irtes and ceremonies include the Saptapadi (that is, the taking of seven steps by the bridegroom and bride
jointly before the sacred fire), the marriage becomes complete and binding when the seventh step is taken."

INGREDIENTS OF SECTION 7:

1. The Sastras and customs are inter-linked in the

Hindu marriage. A Hindu marriage is also called
as “Sastraic Marriage” and “Sacramental Marriage”.
2. Two important ceremonies in the Hindu Marriage are:— (i) Kanyadana; and (ii) Saptapadi.
(i) Kanyadana: The father of Kanya (bride) gives his daughter to the bridegroom as “gift” {dana).
This is honoured and highly respected in the Hindu community. The Hindu father feels with great joy,
honour respect in performing “Kanyadana”.
ii. Saptapadi: Sapta = Seven; Padi = walking steps.
The bride and bridegroom combinely walk seven steps around the sacred fire pronouncing certain
mantras, pledging mutual fidelity with the Agni (fire) as witness. This is called “Saptapadi”.
3. Besides the above two important ceremonies, there are some other subsidiary ceremonies while
the marriage ceremony is performed. The ceremonies and customs may differ depending upon the
caste, region, etc. They are;—
(a) Ganapati Puja;
(b) Nandi Devatas;
(c) Graha Yagna;
(d) Snataka Ceremony;
(e) Kasi Yatra;
(f) Vak Nischaya Muhurta;
(g) Sankalpa;
(h) Mangala Sutradharana;
(i) TalambraluAkshinthalu;

(i) Bridegroom’s promise;

(k) Kankana Bandhana;
(I) Seeing Arundhati Nakshatra; etc.
4.' The Hindu Marriage Act of 1955 does not prescribe any ceremonies. But Section 7 provides that
the Hindu marriage may be solemnized in accordance with the “customary rites and ceremonies of
either party”. At the same time, in the same Section it recognises “Saptapadi”.
CASE-UWS:

A # Bhaurao vs. State of Maharashtra (AIR 1965 SC 1564)

(Proof of the ceremonies of the second marriage)
Brief Facts: Bhaurao Shankar Lokhandev @ Bhaurao married one lady. Due to the disputes, the
wife began to reside in her father’s house. She came to know that her husband married another
woman in a temple. She filed a petition to the Police. The police enquired the matter, and filed a case
under Section 17 of the Hindu Marriage Act, 1955 and Section 494 of the Indian Penal Code,
1860. The accused-Bhaurao argued that he did not marry any woman. He also challenged the
prosecution to prove the required ceremonies of marriage of the alleged second marriage under
Section 7 of the Hindu Marriage Act, 1955. The prosecution failed to prove the alleged second
marriage as there was no proof that the essential sastraic ceremonies of invocation before the sacred
fire and Saptapadi were performed.
JUDGMENT: The Supreme Court gave the judgment in favour of the accused/appellant and quashed
the conviction for bigamy. The Supreme Court observed: “The marriage to which Section 494 Indian
Penal Code (Bigamy) applies on account of the provisions of the Section 17 of the Act of 1955 should
have been celebrated with proper ceremonies and in due form. Merely going through certain
ceremonies with the intention that the parties be taken to be married will not take the ceremonies
prescribed by law or approved by any established custom.
”

PRINCIPLES LAID DOWN: 1. The term ‘solemnise’ in relation to a marriage means celebration
with special attendant ceremonies and in due form. Unless a marriage is so celebrated, it cannot be
said to be solemnised.
 38 The Family Law - / (The Hindu Law)

2. The performance of the homa, an oblation in the sacred fire, the panigrahana or taking hold
of the bride’s hand by the bridegroom and circumambulating the sacred fire to the chant of vedic
mantras, the treading on the stone and the Saptapadi. the seven steps by the couple jointly before
the sacred fire are the principal rites for a Hindu marriage according to the Asvaiavana Grihvasutra.
Under Section 3 f1) however a Hindu marriage may be completed by ceremonies other than the
above when sanctioned by custom. Merely going through ceremonies with the intention that the
parties be taken to have been married will not make them ceremonies prescribed by law or approved
by custom.
3. It is an essential requirement of the offence of bigamy under Sec. 17 of the Hindu Marriage Act,
1955 that the second marriage is “solemnised”.
B. In Pavan Kalyan vs. Mandini (2008) case, the Principles of Bhaurao vs. State of Maharashtra
(AIR 1965 SC 1564), have been followed. (Proof of the ceremonies of the second marriage)
C. PROBLEM: X, married Y by exchange of garlands in a temple. Later X married Z according to
the customary irtes of both of them. Y contested the validity of second marriage and also claimed
maintenance from X. Decide. (Dec., 2001, S.V.U.)
SOLUTION: The above given problem is identical with the following case:—
# Deivain Achi vs. Chidambara Chettiar (AIR 1954 MAD. 357)
(Proof of the ceremonies of the second marriage)
Brief Facts: The bride and the bridegroom belonged to the Anti-Purohit/^sociation of Tamilnadu.
The members of that Association hate the age-old Hindu customs. Brahmins, Purohits, Sastras, etc.
They oppose to having priests officiating at maniages. Therefore, the bride and bridegroom exchanged
the garlands in the presence of the elders, friends and invitees. After some yeans of maniage, disputes
arose between the couple. The wife filed a petition against her husband. The husband argued that
there were no ceremonies according to the Section 7 of the Hindu Marriage Act, 1955 in their marriage,
and their marriage by exchanging the garlands was invalid and void.
JUDGMENT: The Madras High Court gave the judgment that there was no marriage between the
parties, as no customary ceremonies were performed. Satyanarayana rao and Rajagopalan JJ.
observed that if the parties do not want to perform their marriage according to the Hindu Marriage
Act, 1955, they can perform their marriage under the Special Marriage Act, 1954 which requires no
ceremonies, but registers the marriage legally. The alteration of garlands cannot be recognised
as a Hindu marriage.

PRINCiPLES LAID DOWN:

1. For a valid Hindu marriage, the ceremonies prescribed in Section 7 of the Hindu Marriage Act, 1955
should necessarily be performed.
2. There may be other forms recognised by the custom of the caste or community as equally effective
to complete a marriage in which case the adoption of the form will be sufficient to make the marriage
irrevocable.

3. The Doctrine of Factum Valet can have no application, where there cannot be a valid marriage
either because the parties are incompetent to marry by reason of their being within the prohibited
degrees or because they are insane. The rule as to prohibited degrees is mandatory, so also the
injunction for the performance of essential rites.
4. If the parties do not want to follow the ceremonies of a Hindu marriage, they can get their marriage
under the Special Marriage Act, 1954.

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I.
 The Family Law - / (The Hindu Law) 39

2.D. REGISTRATION OF THE HINDU MARRIAGES

Q.1. Does the provision for registration of marriage under Section 8 of the Hindu Marriage Act, 1955, iay down an aiternative form of
contracting a vaiid Hindu marriage? Briefly state the object of the provision under the above Section.
(Feb., 2008, Burdwan U., W.B.)
Q.2. Write a note on the various ceremonies performed in a Hindu marriage, is registration compuisory? (Dec., 2001, O.U.)
[Aiso refer to Topics “Ceremonies of Hindu Marriage”.]
Q.3. Are marriages to be registered? What are the consequences of registration or non-registration? (Dec., 2006, B.U.)
Q.4. Is a Hindu marriage compulsorily registered? (SN) (AnI., 2003, K.U.)
ANSWER:

SACRAMENTAL: The marriage in the Hindu Law has been given high respect and honour and is
treated as “Sacramental”. The Hindu marriage is not the result of a contract. The marriage tie
comes into effect between the man and woman by Panigrahika mantras, Saptapadi and Mangalasutra
dharana, Kanyadana, etc. The relationship between a man and a woman becomes as wife and
husband by the recitation of the Mantras (Vedic Texts) at the time of the ritual known as ‘Paniqrahana’
in the course of the Hindu Marriage ceremony. “Marriage under the Hindu Law is a sacrament,
being based upon a sacred religious ceremony.”
REGISTRATION OF A HINDU MARRIAGE (SN)
Registration of a Hindu marriage: In the ancient Hindu marriages, there was no registration system,
because the Hindu marriage was considered as “Sacred”. There was no “Divorce System”.
Once a marriage takes place, the wife and husband should live together until death. There was no
written law. Sastras and Customs were very strong in that period. It was continued upto 1955, until
the Hindu Marriage Act, 1955, which has been framed basing upon the English Law. Thus the Divorce
System of the English Law has been introduced in the Hindu marriages. In the similar way, registration
system also has been introduced in the Hindu marriages. In the Western countries registration of
marriages is compulsory according to their laws. Therefore, if any Indian couple applies for a Visa,
the authorities verify the date of registration of marriage. For that purpose, the Hindu bridegroom, who
settles in America or in any other western country, immediately gets registration his marriage before
the Registration Officer, even though he marries that bride according to the Hindu Sastras and customs.
Section 8 of the Hindu Marriage Act 1955 provides that the registration of the Hindu marriage is
optional and every State in India is at optional to make the rules in enacting the registration of a Hindu
marriage compulsory.
“Sec. 8. Registration of Hindu Marriages.— (1) For the purpose of facilitating the proof of Hindu marriages, the State
Government may make rules providing that the parties to any such marriage may have the particulars relating to their
marriage entered in such manner and subject to such conditions as may be prescribed in a Hindu Marriage Register kept for
the purpose.
(2) Notwithstanding anything contained in sub-section (1), the State Government may, if it is of opinion that it is necessary
or expedient so to do, provide that the entering of the particulars referred to in sub-section (1) shall be compulsory in the
State or in any part thereof, whether in all cases or in such cases as may be specified, and where any such direction has
been issued, any person contravening any rule made in this behalf shall be punishable with fine which may extend to
twenty-five rupees.
(3) All rules made under this Section shall be laid before the State Legislature, as soon as may be, after they are made.
(4) The Hindu Marriage Register shall at all reasonable times be open for inspection, and shall be admissible as evidence of
the statements therein contained and certified extracts
therefrom shall, on application, be given by the Registrar on payment
to him of the prescribed fee.
(5) Notwithstanding anything contained in this Section, the validity of any Hindu marriage shall in no way be affected by the
omission to make the entry.”

PRESENT POSITION IN INDIA: According to Section 8 of The Hindu Marriage Act 1955, the
registration of a Hindu marriage is not compulsory. The States are empowered to make the necessary
legislation in this regard. Majority of the States did not make any legislation upto now. A few States,
including State of Andhra Pradesh, started to make the necessary legislation making compulsory
Registration of the Hindu Marraiges. The problem arisen is that if any State makes any Act or Rules
making the Hindu marriages compulsory, the Hindus agitate that such Acts must be secular, but should
not damage their religion only. If such an Act is enacted making compulsory registration for all the
marriages, then the Muslims will agitate. Due to this reason, sucti a legislation has not been enacted
by the majority of the States.
PRESENT POSITION IN A.P.: However, the Andhra Pradesh State Legislature enacted “The Andhra
Pradesh Compulsory Registration of Marriages Act, 2002” (Act No. 15 of 2002). The Governor
has given his assent on the 21st May, 2002, and it was published on the 22nd May, 2002 in the Andhra
Pradesh Gazette for Part-IV-B. The A.P. State Legislature has also enacted “The Andhra Pradesh
Compulsory Registration of Marriages Rules, 2003”, vide G.O.Ms. No. 35, Women Development,
Child Welfare and Disabled Welfare (Prog), dated 24-9-2003. The Muslims protested the Act and
Rules made thereunder. Hence the commencement date of the Act and Rules has not yet started.
40 The Family Law - / (The Hindu Law)

STATEMENT OF OBJECTS AND REASONS: The Statement of Objects and Reasons of “The
Andhra Pradesh Compulsory Registration of Marriages Bill, 2002” read: “The Chairperson,
A.R Women’s Commission has proposed a iegislation for compulsory registration of marriages in the
State with the local authorities to avoid Bigamy marriages, since it is becoming very difficult to prove,
the factum of marriage. In majority cases the women are cheated. The Commission has felt that it
is very essential to register the factum of marriage with the local authorities as is being done in the
cases of births and deaths. The compulsory registration of marriages with the local authorities gives
a legal status to wedlock, and strengthen the Institutions of marriages and be the conclusive proof of
the evidence of such marriages.
The Government, after careful examination of the proposal of the Chairperson, A.R Women’s
Commission, have decided to make registration of marriages with the local authorities as compulsory
in the State by undertaking a specific legislation.
The Bill seeks to give effect to the above decision.”
STRUCTURE OF THE ACT: There are four Chapters consisting total 21 Sections.
Chapter-I (Ss. 1-6) states about “Preliminary”. Chaoter-ll (Ss. 7-9) states about “Registration of
Marriages”. Chapter-Ill (Ss. 10 & 11) narrates the “Penalties”. Chapter-IV (Ss. 12-21) states
about “Miscellaneous” Provisions.

Section 2 (a) defines: “Marriage” include all the marriages performed by persons belonging to any
caste or religion and aiso the marriages performed as per any custom, practices or any traditions
including the marriages performed in the tribal areas and the word “Marriages” also includes
“Remarriages”.”
OFFICERS UNDER THE ACT: There shall be a Registrar General of Marriages for entire State.
(Sec. 4). There shali be a District Registrar of Marriages for each District, and the Additional
Deputy Registrars of Marriages. (Sec. 5.). There shall be “Marriage Officer” for each local area
comprising the area within the jurisdiction of a Municipal Corporation, Municipality, Gram Panchayator
any other area or a combination of any two or more areas. Every Marriage Officer shall have an office
in the locai area for which he is appointed. (Sec. 6)
PROCEDURE: Section 7 states that “after the commencement of the Act, every marriage performed
in the State shali be registered under this Act in the manner provided in Section 8 notwithstanding the
fact that the said marriage had been entered in the Marriage Registers governed by any other personal
laws of the bride or bridegroom or customs and traditions.”
Section 8: Memorandum of marriage.— (1) The parties to a marriage either bride or bridegroom
or their parents or guardian shall inform the Marriage Officer about the factum of the marriage to be
registered in the Form as prescribed duly signed by the said person within 30 days from the date of
the marriage in duplicate.
(2) The Memorandum shall be signed by the bride and bridegroom and two witnesses on each side of
bride and bridegroom before the Marriage Officer.
(3) The Marriage Officer shall maintain the Register of Marriages in the Form prescribed and enter
in the Register ail the information supplied to him in the memorandum and obtain the signatures of the
bride and bridegroom and two witnesses on each side.
(4) On receipt of the Memorandum of the factum of marriage or the proposed marriage and on payment
of the such charges, the Marriage Officer may go to the place specified within his jurisdiction and
obtain the signatures of the bride and bridegroom and two witnesses on each side.
According to Section 9, if the Memorandum of marriage is presented after 30 days, the parties may’
submit it within a period of 60 days with the payment of fee of Rs. 100/-.
PENALTIES:

Section 10. Penalty for neglecting to comply with the provisions of Sections 8 and 9 or for
making false statement in memorandum.— Any person who,—
(a) wilfully omits or neglects to get the marriage registered as required in Sections 8 and 9 shall be
punished with fine which may extend to one thousand rupees, or;

(b) any person who makes any statement in the memorandum which is false in any material particulars
and which he/she knows or has reason to beiieve to be false, shall be punished with imprisonment
for a term which may extend to one year or fine which may extend to one thousand rupees or
with both.

Section 11. Penalty for failing to register the marriage.— Any Marriage Officer who fails to
register a marriage pursuant to Section 8 shall be punished with imprisonment for a term which may
extend to three months or fine which may extend to five hundred rupees or with both.
 The Family Law -1 (The Hindu Law) 41

DEFECTS: The title of the Act denotes that after the commencement of this Act, all the marriages
should be compulsorily registered. However, Section 16 makes it optional. According to Section
16. non-registration does not invalidate marriage. No marriage performed in this State to which this
Act applies shall be deemed to be invalid solely by reason of the fact that it was not registered under
this Act. Another defect of the Act is that there are no punishments for non-registration.

2.E. KINDS OF MARRIAGES - MONOGAMY AND

POLYGAMY UNDER THE HINDU LAW

Q.1. Explain in detail the difference between Monogamy and Polygamy with illustrations. (Feb., 2006, O.U.)
Q.2. Explain the various forms of marriage under the Hindu law. (Aug., 2004, O.U.)
Q.3. Explain the difference between polygamy and polyandry. (Jan., 2003, O.U.)
Q.4. Bigamy. (SN) (AnI., 2004, P.U.) (AnI., 2004, K.U.)
Q.5. Endogamy and Exogamy. (SN)

ANSWER:

KINDS OF MARRIAGES (SN)

There are different kinds of marriage. They are: (1) Monogamy, and (2) Polygamy. Polygamy is of
three kinds: (a) Polyandry, (b) Polygny, and (c) Cenogamy.
1. MONOGAMY (SN)
“Monogamy” is a form of marriage, in which one man is married to one woman. In India, majority of
the marriages are “monogamous”. Example: Rama-Sita.
The Western Society in general holds to monogamous norms. Strictly speaking the marriages in the
Western countries do not come “Monogamy”. In those countries, widowed or divorced person may
re-marry as many times as the other spouse dies or divorces. This type of monogamous marriages
are called “Serial Polygamy”.

The Hindu Marriage Act, 1955 and the Christian Marriage Act, 1872 are framed on the lines of English
Law, which favour monogamous marriages.
Advantages of Monogamy: According to the Sociologists, monogamy is the most appropriate and
suitable marriage for leading happy family life. In Polygny, the father cannot concentrate equally on all
his wives and children. Jealousy and quarrels between the wives, and between the children are very
common. In his old age also, he could not receive any affection from his children nor from his wives.
Contrary to polygny, the parents of monogamous marriage certainly give more love and affection to
their children and also certainly receive more love and affection from their children at their old age.
Economically too, monogamous marriage is safer than polygny marriage. Malinowski, the Russian
Sociologist, praises: “Monogamy is. has been, and will remain the only true type of marriage.
2. POLYGAMY (SN)
MEANING: Polygamy means plural marriage, or marriage involving more than one spouse
simultaneously. “Polygamy” includes “Bigamy”, Bigamy” means a husband having two wives.
or a wife having two husbands.
KINDS OF POLYGAMY: There are three kinds of Polygamy. They are:— (A) Polyandry,
(B) Polygny, and (C) Cenogamy.
(A) POLYANDRY (SN)
MEANING: Polyandry” means “one woman marries two or more males at a time”. Example:
Draupathi-Pandavas.
Polyandry was practised in earlier period of civilization. The reasons for practising polyandry in a
community are - (i) lesser number of women and more number of men; (ii) the men going to longer
distances for livelihood or for war; (iii) the customs; (iv) the high price of the bride; (vi) illiteracy,
backwardness, etc. However, in the era of the modern and technical period, polyandry is not favoured
in almost all the civilized communities. In India, in limited areas, in the Tribal communities, this is still
in practice, but only nominal.
(B) POLYGNY (SN)
MEANING: Polygny” means “one male marries two or more women at a time”. Polygny is the
most common form of “Polygamy”.
Polygny was common in the ancient period in all the communities of the Hindu marriage institution.
Even the Hindu Gods have two or more wives. Lord Krishna had 16,008 wives. Polygny was very
common in all the communities in the initial, middle and feudal periods.
42
The Family Law - I (The Hindu Law)
Polygny in the Hindu community was common in India upto the independence. Section 494 of the
Indian Penal Code, 1860 prohibits “Polygamy”, and imposes severe punishments. Section 494
applies to all forms of Polygamy.
Sec. 494. (I.P.C.) Marrying again during iifetime of husband or wife.— Whoever, having a husband or wife living,
marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall
be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable
to fine.

Even though the provisions of the Indian Penal Code, 1860 are so severe and serious, they were not
implemented during the British reign. Section 494 does not differentiate the religions. The Islamic
law permits a Muslim male to contact four marriages at a time. The British rulers afraid about the
communal conflicts between the Muslims and the Hindus, if Section 494 strictly would apply to the
Hindus and Muslims. Besides this political and religious reason, in the Hindu community, particularly,
among the Hindu women, there was no literacy, legal awareness and economic backup. The Joint
Hindu Family system did not allow the Hindu wives to come out of the houses. The Hindu Sastras
say: Every woman should be protected by her father in her childhood, by her husband in her youth,
and by her sons in her old age. Therefore Hindu women were completely depended on the men. The
Hindu customs were created such circumstances so that the Hindu wives were confined to the kitchen
rooms.

The Western countries discarded polygny long back. In India, the British Rulers introduced the
Christianity in India, and enacted the Christian Marriage Act 1872 and The Indian Divorce Act.
1869 for the Christians and imposed strict punishments. The living style, monogamous marriages,
culture, etc., affected on the Hindu community gradually.
After the commencement of the Constitution of India, 1950 and the Hindu Marriage Act, 1955 only, the
Hindu women began to get legal awareness. The literacy and economy have been increased in the
Hindu women. Therefore, from 1960s., polygamy has been reduced. Even now polygny is practised
here and there very rarely. Mr. Karunanidhi, the Chief Minister of Tamilnadu, has three wives. Late
Gemini Ganeshan, Tamil Cine Actor, had four wives.
REASONS FOR POLYGNY: (a) Religious sanction, i.e., customs in the Hindu religion. Sanction
from Quran in case of Islam; (b) customs in certain tribal communities; (c) social prestige; (d)
economic necessity in agriculture, etc., more members of the family will be useful to work in the fields;
(e) desire and passion - few male have desire and general tendency to have sex with several women;
(f) few men want to have sex with other women, when his wife at monopause stage or pregnancy, etc.
Advantages of Polygny: (a) In the traditional families, more children means more work and more
produce in the agriculture or any other profession of the family; (b) It controls prostitution; (c) It
protects the health of men and women; (d) The advantages, which are available by a joint family, are
also available in polygny.
Disadvantages of Polygny: (a) Polygny represents the rigid and autocratic patriarchal society. It
lessens the dignity of women, (b) Women enjoy minimum freedom or are confined to kitchen room.
(c) Due to continuous giving births, woman’s health shall be deteriorated, (d) There shall be high
economic burden on the husband, whose liability is to maintain all the wives and children equally, (e)
Frequent disputes come between the children and wives. It spoils the progress, harmony and
amicableness of the family, (f) It causes for the enhancement of overpopulation, (g) The husband
cannot look after all the wives and children equally and carefully. Some of them shall be attracted to
the bad habits and anti-social elements, and gradually they may become criminals.
(C) CENOGAMY (SN)
Meaning: It is a rare form of marriage, in which two or more men are married to two or more
women, and live combinely. This form is very rare in India, particularly in the Hindu community. In
certain tribal communities, brothers and their wives live together. Each brother can have sexual access
with the wives of all the brothers.

CONTRACT MARRIAGES: It is read in the newspapers that in the Western countries, a man and a
woman make a contract to live together as wjfe andjiusband fora certain period, and after that period,
separate and live independently. Therp isJnQ sbQp^for such contract marriage culture in the Hindu
culture. Due to American culture, in futdi^M^riray^reep in India too. In “Pavitra Bandham” a Telugu
picture, the Hero Venkatesh marries Soundarya for one year under a contract. We see such a news

in TVs. and newspapers very rarely.

❖ ❖ ❖

ENDOGAMYAND EXOGAMY (SN)

Depending upon the basis of establishing marriage ties, they are of two types - (i) Endogamy; and
(ii) Exogamy.
 43
The Family Law - I (The Hindu Law)

ENDOGAMY: The custom requiring marriage within one’s own social group. Negative sanctions are
applied on those who marry outside the group. The endogamous unit may be, for example, a kin unit,
a religion, or a social class, etc. The Hindu marriages are the best examples for Endogamy.
In India, the marriages are performed within the boundaries of caste and off-shoot of Hindu religion
basis. Reddy marries the girl of Reddy caste. Brahmin marries the girl of Brahmin caste. Mala,
Madiga, etc., are the castes incorporated in the Scheduled Castes. Mala marries the girl of Mala.
Madiga does not marry the girl of Mala. Kamma does not marry Reddy girl. Even Brahmins are of
several sub-castes. Vaidik does not marriage the girl belonging to other sub-caste of Brahmin.
The inter-caste marriages are not encouraged by the Hindu community. The Government encourages
the inter-caste marriages by providing subsidies.
Advantages of Endogamy: (1) Unity of the caste is saved. (2) Wealth and skilness of a profession
of the group can be retained in the group. (3) The habits and customs of particular caste or religion
are protected. (4) Other community/caste people do not gain authority over the group’s internal
social regulations and customs. (5) The business secrets and professional secrets and skills of a
caste can be kept intact. For Examples: Other caste persons could not enter in the professions of
barbar or goldsmith in India. (6) Purity of blood in the group is maintained.
The main advantages casteism and endogamy are that India was invaded and ruled by several foreigners,
Muslims and lastly the English from the last 1200 years. But they could not destroy the Hinduism, the
Hindu culture, caste culture, endogamy, etc. Especially, the family institution and caste institution
have not damaged due to endogamy. Though there are different castes, languages, religions, colours,
etc., India practically shows “Unity in Diversity”.
Disadvantages of Endogamy: (1) It may affect on national integrity and unity. (2) The scope for
choice of a life partner is limited. Therefore, it leads into polygamy, dowry system, kanyasulkam,
unsuitable marriages, etc. (3) It creates superiority and inferiority complexes in the society. When
these complexities crept in the society, that society cannot progress. The same thing happened in
India due to casteism and endogamy. (4) The Genetists with their experiments proved that due to
endogamous (more particularly marriages between near relatives create genetic problems on the
children.

EXOGAMY: The custom requiring an individual to marry outside a specific group of which he is not
a member. Marriage between a Negro and white American vice versa is an example for exogamy. All
inter-caste marriages are exogamies. Example: Shrija, D/o. Hero Chiranjeevi, married Bharadwaja,
a Brahmin. All inter-religious marriages are exogamies. The marriage between a Hindu male and a
Muslim girl vice versa is an example of exogamy. (Examples: Azaharuddin-Sangeetha Bijiani,
Sharuk Khan-Gauri, All inter-national marriages are exogamies. Examples: Our Ex-President
R.K. Narayanan married Usha of Mianmar citizen. Our Ex-Prime Minister Rajiv Gandhi married
Sonia Gandhi, an Italian.

f Gade Veera Reddy’s

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 UNIT - III

3.MATRIMONIAL REMEDIES UNDER THE HINDU MARRIAGE ACT, 1955|

Q.1. What is meant by “Matrimonial Remedies’? What are the matrimonial remedies availabie to an aggrieved Hindu spouse under the
Hindu Marriage Act, 1955? (An| _ 2004, K.U.) (Anl. 2003, S.V.U.)
Q.2. Are any special provisions made for the Hindu wives under the Hindu Marriage Act. 1955?
ANSWER:

SCOPE; The marriage in the Hindu jurisprudence is a Sacrament. The Sastraic Hindu Law did not
know the terms of “Divorce”, “Restitution of Conjugal rights”, “Judicial Separation”, etc. These
terms have been incorporated in the Hindu Marriage Act, 1955 by the influence of the English Law.
All the matrimonial proceedings are conducted in camera, i.e., only the Judge and spouses present in
the Court hall. Other parties and Advocates are not permitted in such in camera proceedings, In
camera proceedings are conducted on the application of either spouse.
The Judicial/Matrimonial remedies mentioned hereunder have been provided in the Hindu Marriage
Act, 1955, to the parties to an unhappy marriage. They are:—
1. Restitution of Conjugal Rights (Sec. 9),
f.
2. Judidiil Separation (Sec .

-r

3. Nullity of Marriage - Void Marriages (Sec. 11),

4. Voidable marriages (Sec.12),
5. Divorce (Sec. 13),
6. Alternate relief in divorce proceedings; and
7. Divorce by Mutual Consent (Section 13-B).
[Note: The student is advised to study the material on the above judicial remedies in the coming respective Topics The student is
advised to write the essential ingredients of the Sections (given in the said Topics) towards the answer asked in the examinations. The
7.._
questions asked in this Topic requires vast answer. The student must keep in mind about the time allotted for each question. That means
he must answer each essay question viShin 30 to 35 minutes. Hence, the answer must be precise and brief, but must include all the
Sections from 9 to 13. If it is asked as a Short Note (SN), the student should concise the matter in 80 words. In the present and exisfing
examinations. Short Notes (SNs) are asked more. Don’t show the enthusiasm and write a large number of pages for each Short Note
Concise the matter into 80 wards for each Short Note, and write all Short Notes asked.]

3.A.
Q.1.
RESTITUTION OF CONJUGAL RIGHTS [Sec. 9]|
Explain the concept of “Restitufion of Conjugal Rights” with reference to Sareetha vs. Venkata Subbaiah’s case. (Aug., 2006, O.U.)
Q.2. Critically examine the scope of the remedy of “Restitution of Conjugal Rights". Refer to decided cases.
(Feb., 2006, O.U.) (Jan., 2003, O.U.)
Q.3. Explain fully the rules relating to the Restitution of Conjugal Rights as provided in the Hindu Mamage Act

(Aug., 2005, S.V.U.) (Aug., 2004, O.U.)

Q.4.
Examine the matrimonial remedy of Restitution of Conjugal Rights. (July. 2003, O.U.)
Q.5.
Explain the concept of the restitution of Conjugal rights. Has it contributed in reuniting the spouses? (Dec., 2001, O.U.)
Q.6. Explain the constitutional validity Section 9 of the Hindu Marriage Act. 1955. (Dec., 2001, S.V.U.)
Q.7. Restitution of Conjugal Rights. (SN) (May, 2008, O.U.) (Dec., 2005, B.U.)
Q.8.
Sarqj Rani vs. Sudarshan Kumar (AIR 1984 SC 1562). (SN) (Dec., 2006, B.U.)
Q.9.
Sareetha vs. Venkata Subbaiah (AIR 1983 AP 356). (SN) (Dec., 2005, B.U.) (Anl., 2004, P.U.) (June, 2004, B.U.)
ANSWER:

SCOPE: The Matrimonial Reliefs are explained Sections from 9 to 13 in the Hindu Mamage Act,
1955. Section 9 provides about the Restitution of Conjugal Rights.

OBJECT: Divorce is the drastic step. It puts an end to the matrimonial life to the parties of the
marriage. There is no chance or reunion between the wife and husband. After divorce, each of the
spouses is entitled to marry another person according to his/her choice.
Restitution of Conjugal Rights is a hope of getting nearer both the spouses, and avoids conflicts, It is
a ray of hope. It is a last resort to establish amicable relations between them. Sometimes, the wife
and husband may live separately due to conflicts. The Decree of Restitution of Conjugal Rights may
bring them together, and get them united, which is the object of the marital life.
“Sec. 9. Restitution of Conjugal irghts.— When either the husband or the wife has, without reasonable excuse vnthdrawn
from the society of the other, the aggrieved party may apply, by petition to the District Court, for restitution of conjugal irghts
and the Court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why
the application should not be granted, may decree restitution of conjugal rights accordingly.
Explanation.— Where a question arises whether there has been reasonable excuse for withdrawal from the society, the
burden of proving reasonable excuse shall be on the person who has withdrawn from the society.”
44
 The Family Law - / (The Hindu Law) 45

IMPORTANT POINTS:

A Essential ingredients:
1. By marriage, the husband becomes entitled to the conjugal society of his wife and vice-
versa.

2. The wife or husband withdraws from the society of the other due to conflicts.

3. The aggrieved party is entitled to the restitution of conjugal rights.

4. The aggrieved party shall apply by petition to the District Court.

5. The District Court must satisfy with the contents of the petition that the other party withdrew
the society of the other ‘without reasonable excuse’, and there are legal grounds to grant the
decree of restitution of conjugal rights.
6. The withdrawal from the society of the other by anyone of the spouse must be “without
reasonable excuse’.

7. This remedy was known to England long back. But it was abolished there with effect from
1970. This remedy is incorporated in the Hindu Marriage Act, 1955, and still now continues.
The social, economical and marital relations in India cause this remedy to continue here.
8. The burden of proof lies upon the petitioner, who submits the petition for Restitution of
Conjugal Rights.
9. If Respondent has a valid and reasonable ground to live separately from the Petitioner, the
of conjugal irghts.
Petitioner cannot succeed in a suit for restitution

10. An agreement between husband and wife to live separately is void as it is contrary to public
policy.
CASE-LAWS:

B. # Sareeta vs. Venkata Subbaiah (AIR 1983 AP 356)

(Sec. 9 vs. Article 21 Case)
Brief Facts: This is a sensational case. Sareetha is a cine artist. Her marriage was performed
with one Venkata Subbaiah before her entering into the cinema field. As she became a famous star in
the picture field in Madras, she neglected her husband who was residing at Nellore. She neglected
the cohabitation with her husband. Venkata Subbaiah filed a petition for Restitution of Conjugal irghts
before the District Court, Nellore, which granted a decree in his favour. Sareetha appealed before the
Honourable High Court in Hyderabad and contended that granting the Decree of Restitution of Conjugal
Rights was against Article 21 (Right to live which includes irght to privacy) and Article-14 (Right to
Equality) and that “A right of free choice as to whether, where and how her body is to be used for the
procreation of children and also the choice of when and by whom the various parts of her body are to
be sensed”. This freedom of choice was a part of her right to privacy. Section 9 of the Hindu
Marriage Act, 1955 and Article 21 of the Constitution are quite different. Section 9 overrides the
Article 21 of the Constitution and the right of the husband or wife overtakes the ‘liberty’ of the other
party.
JUDGMENT: The A.P. High Court struck down Section 9 holding that it violates the wife’s irght to
privacy by compelling her to have sexual intercourse (probably leading to pregnancy) against herwill.
Justice Choudhary dismissed the petition filed by Venkata Subbaiah.
C. # Smt. Harvinder Kaur vs. Harmander Singh (AIR 1984 DEL. 66)
(Sec. 9 and Art. 21)
Brief Facts: The facts of this case were similar to that of Sareetha Case. The Apellant-wife argued
in the similar lines of Sareetha Case.

JUDGMENT: In this case, the Delhi High Court did not agree with the opinion of the High Court of
Andhra Pradesh. The Delhi High Court Judicature opined that the view of High Court of Andhra
Pradesh was wrong. Section 9 of the Hindu Marriage Act does not override “liberty” given under
Article 21 of the Constitution. It is a ‘narrow view’. The object of Section 9 of the Hindu Marriage
Act is to promote harmony and amicableness between the wife and husband, which is the primary
purpose of the marriage. In the marriage life, the questions of ‘liberty’ and ‘one is high and another is
lower' would not arise. The Delhi High Court upheld Section 9 and opined that it does not override
the Articles 14 or 21 of the Constitution.
D. # Saroj Rani vs. Sudarshan Kumar (AIR 1984 SC 1562)
(Sec. 9 and Art. 21)
Question of Law: The conflicts of the decisions between the High Courts came to an end, when the
Supreme Court resolved in the case Saroi Rani and favoured with the decision of the Delhi High
46
The Family Law -1 (The Hindu Law)

Court. The decision of the Andhra Pradesh High Court was overruled. In this case the Supreme
Court gave judgment in favour of the husband treating that Section 9 does not violate the Article 21
of the Constitution. The objects of both, i.e., Section 9 and Article 21 are different. Article 21
protects the life whereas Section 9 protects the family relations.
PRINCIPLE: Sabyasachi Mukharji J. of the Supreme Court observed: “The object of the restitution
decree is to bring about cohabitation between the estranged-parties so that they can iive together in the
matrimonial home in amity. The remedy of restitution aims cohabitation and consortium and not
merely sexual intercourse.”
PROBLEM: A and B are wife and husband both of them employees, and working at different places
in Hyderabad and Warangal respectively. The husband-B asked his wife Ato resign her job and reside
with him at Warangal. A does not agree. B filed the petition under Sec. 9 of the Hindu Marriage Act for
the restitution of conjugal rights. Decide.
SOLUTION: The mere fact that the wife-A v/orks at different place against her husband’s wishes
does not constitute a good ground for a decree for restitution of conjugal rights. Hence Husband-B
could not succeed.

3.B. JUDICIAL SEPARATION [Sec. 10]

Q.1. What is “Judicial Separation”? What are the grounds on which a Decree can be passed for judicial separation? (Feb., 2005, O.U.)
Q.2. What is the difference between Divorce and Judicial Separation and what is the utility of Judicial Separation?
(Dec., 2005, G.U.) (July, 2003, O.U.) (Jan., 2003, O.U.)
Q.3. Judicial Separation. (SN) (Dec., 2006, B.U.)
ANSWER:

MEANING: Alegal or judicial separation permits te-parties to a marriage to live separately. It is one
of the matrimonial reliefs given to a spouse in the Hindu Law.
SCOPE: Section 10 of the Hindu Marriage Act, 1955 provides the Judicial Separation to the
parties to a marriage. The grounds for the judicial separation are similar with those of the Divorce
under Section 13 enunciated in that section.

OBJECT: The Divorce is the last step to the parties to a marriage, who quarrel psychologically,
physically, economically, etc., with each other. It puts an end to their conflicts. It puts an end to their
marriage. It gives the right to each of the spouses to marry another person as he/she likes. It frees
them from the marital ties. Then what will be the position of the children? The children are put into
heavy difficulties. Under such circumstances, the Judicial Separation tries to resolve the issue.
The judicial separation does not put an end to the marriage. It temporarily allows the parties to the
marriage to live separately. Sufficient time can be available to both the spouses to think over, so that
each of such parties may realise his or her fault. The Hindu marriage is regarded as sacrament. It
is not a contract. The Hindus believe the marriage as most sacred. More particularly the Hindu
woman does not like to have divorce. The divorce, on one side, puts the end of matrimonial life, and
on the other side, it causes humiliation to the divorced woman in the society.
Distinction between Judicial Separation and Divorce: There is, generally, no hope of getting any
reunion between the divorced husband and wife, after divorce. In the Hindu society, the divorced
man may re-marry immediately or after some time. However this is not the position of a divorced
woman. She cannot marry another person so easily. It is the general presumption that a Hindu wife
loves her husband more than her life. She cannot presume her and her children’s life without her
husband. Besides her personal feelings, she fears much more about the societal humiliation.
Hence considering the circumstances prevailing in the Hindu society. Section 10 has been provided.
Of course, in another angle, the judicial separation (Sec. 10) is a lesser remedy, when it is compared
with Divorce (Sec. 13), a drastic step. The Judicial separation still gives a chance to reunite the
wife and husband. Due to separation, if the wife and husband realise, regret, and then they may unite,
and lead their family life happily with honey-moon. Therefore, it is said “judicial separation is a
lesser remedy than Divorce ” in another sense. It is a remedy helpful particularly to the Hindu
woman and children, who can have a hope of re-union after some time after judicial separation, and at
the same time, they also get maintenance.
“Sec. 10. Judicial Separation.— (1) Either party to a marriage, whether solemnized before or after the commencement of
this Act, may present a petition praying for a decree for Judiciai separation on any of the grounds specified in sub-section (1)
ofJSection 13, and in the case of a wife aiso on any of the grounds specified in Sub-section (2) thereof, as grounds on
which a petition for divorce might have been presented,
a (2) Where a decree for judicial separation has been passed, it shall no longer be obligatory for the petitioner to cohabit with
respondent, but the Court may, on the application by petition of either party and on being satisfied of the truth of the
■statements made in such petition, rescind the decree if it considers it just and reasonable to do so.”
 The Family Law - / (The Hindu Law) 47

IMPORTANT POINTS :

A. Grounds for the judicial separation: The grounds for the judicial separation are same as those
of divorce, mentioned in Section 13 of the Hindu Marriage Act. The grounds are:—
(a) the other spouse had voluntary sexual intercourse with any other person, other than his or
her spouse; or
(b) the other party treated the petitioner with cruelty: or

(c) one spouse deserted the other spouse for a continuous period of not less than two years
immediately preceding the presentation of the petition; or
(d) the other party converted his or her religion: or
(e) the other party became the person of unsoundmind. so that the petitioner could not able to
live with him or her; or

(f) the other party has been suffering with virulent and incurable form of leprosy;
(g) the other party has been suffering from venereal disease;
(h) the other party renounced the world by entering any religious order; or
(i) the other party has not been heard or being alive for a period of seven years or more; etc.
B. A legal or judicial separation shall be granted by the Court, on anyone or more of the above
grounds.
C. A legal or judicial separation permits the parties to live separately.
D. During the period of judicial separation, the rights and duties of the parties to the marriage are
suspended, and certain new rights and duties imposed by the Court substitute the rights and duties of
the marriage.
E. The decree of judicial separation does not dissolve the marriage.
F. The object of the judicial separation is the hope of adjustment or reconciliation.
G. DISTINCTION BETWEEN JUDICIAL SEPARATION AND DIVORCE

JUDICIAL SEPARATION DIVORCE

(a) Judicial separation suspends the rights and (a) The divorce puts an end to marriage.
duties of a marriage for some time by the
Court.

(b) The object of judicial separation is the hope (b) The object of Divorce is to give the last
of adjustment, reconciliation and reunion of resort, and drastic remedy.
the spouses.
(c) Judicial separation is a lesser remedy than (c) Divorce is stronger, drastic and last remedy
Divorce. than judicial separation.
(d) By the decree of judicial separation, parties (d) By the decree of divorce, the parties are
to the marriage, cannot remarry another entitled to get another marriage of his/her
person. choice.

(e) After obtaining the judicial separation, the (e) The divorced woman cannot file for the
wife can file and succeed for the maintenance under the Hindu Adoptions &
maintenance. Maintenance Act. But she can file for the
maintenance under Section 125 Cr.P.C.

CASE-LAW:

H. # Rohini Kumari vs. Narendra Singh (1972 (1) SCJ 487)

(Desertion without any cause)
Brief Facts: Rohini Kumari and Narendra Singh married in 1945. Their married life was spent
smoothly upto 1947. Rohini Kumari often quarelled with her husband in 1947, and in the same year
she packed up her belongings and went away to her father’s house. Narendra Singh made several
efforts to get her back, but in vain. She did not return to her husband’s house. In 1955, before the
Hindu Marriage Act, 1955 came into force, Narendra Singh married another woman. After the Act
came into existence, he filed a judicial separation mentioning the ground “Desertion” in Section 13 of
the Hindu Marriage Act, 1955. The wife contended that due to the ill-treatment of her husband she
developed heart trouble, and her father-in-law sent her to her father’s house. The husband proved
with sufficient evidences that she herself deserted him and went away from the matrimonial house
without just causes.
JUDGMENT: The Supreme Court gave the judgment in favour of the husband, treating that the wife
left the house of her husband without just cause.
 48
The Family Law - I (The Hindu Law)

PRINCIPLES LAID DOWN: For the offence of desertion, so fares the deserting spouse is concerned
two essential conditions must exist:—
1. the factum of separation, and

2. Intention to bring cohabitation permanently to an end {animus disserendi.)

3.C. NULLITY OF MARRIAGE - VOID MARRIAGES [Sec. 11]|

Q.1. Write a note on Nullity of Hindu Marriage. (May, 2008, O.U.)
Q.2. Write an essay on the Void and Voidabie Marriages under the Hindu Marriage Act, 1955. (Sept, 2005, O.U.)
[Also refer to Topic “Voidable Marriages”.]
Q.3. Nuiiity of Marriage. (SN) (Dec., 2007, O.U.)
Q.4. Void and Voidabie Marriages. (SN) (Dec., 2005, B.U.)
ANSWER:

SCOPE: Section 11 provides about the void marriage which can be declared as “Nullity of Marriage’
if any of the spouses approaches the Court of Law.
SECTION 11:—

“Sec. 11. Vqid marriages.— Any marriage soiemnized after the commencement of this Act shall be null and void and may,
on a petition presented by either party thereto against the other party, be so declared by a decree of nullity if it contravenes
any one of the conditions specified in clauses (i), (iv) and (v) of Section 5.”
IMPORTANT POINTS:

A. Relation between Section 5 and Section 11: Section 5 narrates the 5 conditions for a Hindu
marriage. If these conditions are not followed in a Hindu marriage, such a marriage becomes null
and void.

Conditions: Five Conditions are mentioned in Section 5. If these five conditions are fulfilled, such
a marriage becomes valid. If these five conditions are not followed and fulfilled, such a marriage
becomes nullity of marriage and void.
B. First Condition/Bigamv/Polygamy: Clause (i) of Section 5 says that neither party has a
spouse living at the time of the marriage.This Clause intends that the Hindu marriages should be
monogamy. It prohibits bigamy and polygamy. Example: A and Bare wife and husband. B marries
C during the life time of A, without obtaining divorce. The first condition applies. The marriage
between B and C becomes null and void marriage. Section 494 (the Indian Penal Code, 1860)
also applies, and the husband is liable to be punished accordingly. Besides the penal provisions, the
first wife/the complainant is entitled to obtain matrimonial reliefs, such as divorce, maintenance, etc.
The first condition is that neither party has a spouse living at the time of the second marriage. If the
wife dies, the husband is at liberty to contract forthe second marriage legally. In the similar way, if the
husband dies, the wife is at liberty to contract for the second marriage legally.
According to the first condition, if the wife does not die, and lives, and the husband contracts to marry
another woman, without obtaining legal divorce from the wife, then the first condition applies, and
makes the second marriage as Nullity of Marriage. Further the penal provisions of Section 494 of
IPC also applicable. In such a situation, the husband is liable to be punished according to Section
494 of the Indian Penal Code, 1860. The Second Marriage becomes null and void.

C. Persons of unsoundness and impotencv: The second condition is that either party of the
marriage should not have been suffered or suffering with unsoundness or impotency. If the husband
is proved to be a person of unsoundness or an impotent person, such a marriage becomes null and
void. If the wife is proved to be a person of unsoundness, such a marriage becomes null and void.
{Clause (ii) of Section 5)
D. Age Restriction: C/ause (///) of Section 5 of the Hindu Marriage Act, 1955 imposes the condition
that the bride should have completed eighteen years of age, and bridegroom should have completed
21 years of age. If A, a male Hindu, aged 21 years, contracts marriage with B, aged 15 years, the
marriage between A and B becomes null and void.
PROBLEM: A, a Hindu girl, was married before she attained 15 years of age. She repudiated the
mam'age before she obtained 18 years of age. She filed the petition for divorce after attaining 19 years
of age. Decide. (Aug., 2005, S.V.U.)
SOLUTION: A can repudiate the marriage under Clause (iii) of Section 5 of HMA, as her marriage
was performed while she was in minority. A can file a petition for a Decree of Divorce under Section
13 of HMA.
 The Family Law - I (The Hindu Law) 49

E. PROHIBITED DEGREES: According to Clause (iv) of Section 5, the parties should not be within
the degrees of prohibited relationship, unless the custom or usage governing each of them permits of
a marriage between the two. Two persons - belonging to the same “full blood”, “half blood”, “uterine
blood” should not marry.
Two persons are said to be within the “Degrees of Prohibited Relationship”,—
(i) if one is a lineal ascendant of the other; or
(ii) if one was the wife or husband of a lineal ascendant or descendant of the other; or
if one was the wife of the brother or of the father’s or mother’s brother or of the grandfather’s or
grandmother’s brother of the other; or
(iv) if the two are brother and sister, uncle and niece, aunt and nephew, or children of brother and
sister or of two brothers or of two sisters.

For the purpose of this clause, relationship includes,—

(i) relationship by half or uterine blood as well as by full blood;
(ii) illegitimate blood relationship as well as legitimate;
(iii) relationship by adoption as well as by blood,
and all terms of relationship in those clauses shall be construed accordingly.
Therefore, two persons, who are within the “Degrees of Prohibited Relations” should not marry.
Example: If brother and sister marry, such marriage becomes “nullity of marriage” and “void”.
The marriage between aunt and nephew is null and void. The marriage between the children of
brother and sister or of two brothers or of two sisters, becomes null and void.
F. SAPANIDAS: According to Clause (v) of Section 5, the parties should not Sapindas of each other,
unless the custom or usage governing each of them permits of a marriage between the two. Two
persons are said to be “Sapindas”of each other if one is a lineal ascendant of the other within the limits
of Sapinda relationship, or if they have a common lineal ascendant who is within the limits of Sapinda
relationship with reference to each of them.
Therefore, if the parties are Sapindas of each other, such a marriage becomes null and void.

3.D. NULLITY OF MARRIAGE - VOIDABLE MARRIAGE [Sec. 12]

Q.1. When a marriage is voidable under the Hindu Marriage Act? (Feb., 2006, O.U.)
Q.2. Write an essay on the Void and Voidable Marriages under the Hindu Marriage Act, 1955. (Sept., 2005, O.U.) (June, 2004, B.U.)
[Also refer to Topic “Void Marriages”.]
Q.3. Examine the validity of child marriages. (Apr., 2002, O.U.)
Q.4. Make a distinction between void and voidable marriages? Is a marriage with an impotent person valid? (Apr., 2002, O.U.)
[Also refer to Topics “Void Marriages” & “Divorce”.]
Q.5. Void, and Voidable Marriages. (SN) (Dec., 2005, B.U.)
ANSWER:

MEANING:

“void” and “voidable”. = There is a lot of difference between these two terms. “Void” means that
“an instrument or transaction is so nugatory and ineffectuai and it cannot be cured by any means”.

“Voidabie” means that ‘^vherein an imperfection or defect crept in an instrument or transaction can
be cured by subsequent act or confirmation by th«i parties, who could take advantage of it ”.
A “Void Marriage” is void ab initio (from the very beginning). For example, a marriage between the
parties, who are in prohibited degrees, is void ab initio.
A “Voidable Marriage” is valid until is set aside. The voidable marriage can be set aside only by the
parties to the marriage approaching the Court of Law. The application to the District Court must be
submitted within the period of limitation prescribed.
SCOPE: Section 12 of the Hindu Marriage Act, 1955 lays down the provisions relating to the Voidable
marriages.
“Sec. 12. Voidable Marriages.— (1) Any marriage solemnized, whether before or after the commencement of this Act, shall
be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:—

(a) that the marriage has not been consummated owing to the impotence of the respondent; or

(b) that the mamage is in contravention of the conditions specified in clause (ii) of Section 5; or
50 The Family Law - I (The Hindu Law)
(c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner was required under
Section 5 as it stood immediateiy before the commencement of the Child Marriage Restraint (Amendment) Act, 1978 (2
of 1978), the consent of such guardian was obtained by force or by fraud as to the nature of the ceremony or as to
any materiai fact or circumstance concerning the respondent; or

(d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner.
(2) Notwithstanding anything contained in sub-section (1), no petition for annuiling a marriage,—
(a) on the ground specified in ciause (c) of sub-section (1), shali be entertained if,—
(i) the petition is presented more than one year after the force had ceased to operate or, as the case may
be, the fraud had been discovered; or

(ii) the petitioner has, with his or her full consent, lived with the other party to the marriage as husband or

wife after the force had ceased to operate or, as the case may be, the fraud had been discovered;
(b) on the ground specified in clause (d) of sub-section (1) shail be entertained unless the Court is satisfied,—
(i) that the petitioner was at the time of the marriage ignorant of the facts alleged;
(ii) that proceedings have been instituted in the case of a mamage solemnized before the commencement of
this Act within one year of such commencement and in the case of marriages solemnized after such
commencement within one year from the date of the marriage; and
(iii) that maritai intercourse with the consent of the petitioner has not taken piace since the discovery by the
petitioner of the existence of the said ground.”

IMPORTANT POINTS:

A. NULLITY OF MARRIAGE: Section 11, read with Section 5, narrates the provisions about
“Nullity of Marriage in case of Void Marriage”. Section 12. read with Section 5. narrates the provisions
about “Nullity of Marriage - in case of Voidable Marriage”. Section 13 provides the grounds for
divorce for both the spouses.
B. IMPOTENCE OF THE RESPONDENT: According to Clause (a) of sub-section (1) of Section
12, any marriage solemnized shall be voidable and may be annulled by a Decree of Nullity on the
ground that “the marriage has not been consummated owing to the impotence of the respondent”.
The very object of a marriage is to give the legal relationship to the couple to have sexual intercourse.
One of the conditions mentioned in Section 5 makes the impotence as disqualification and makes
such marriage void. However, before the marriage, a man’s impotence or a woman’s frigidity can not
be known. After marriage, impotence is found, it becomes voidable marriage. The aggrieved party
can approach the Court of Law for nullity of marriage under Section 12 of the Hindu Marriage Act, 1955.
Cases:

In Ratan Moni Devi vs. Nagendra Narain (AIR 1949 Cal 404) case, the Calcutta High Court held that
the marriage of a female with a male, who was impotent and who had not been able to consummate
the marriage, was a nullity.
In Nighawan vs. Nighawan (AIR 1973 Del 200) case, the wife had no vagina at all. In place of vagina,
an aritificial vagina was created by the surgical operation. The Delhi High Court held that it was a clear
impotency on the side of the wife, and issued the Decree of Nullity of Marriage.
In D. Balakrisnan vs. Pavalamani (AIR 2001 Mad 147) case, the impotency of the husband was
proved by medical evidence. The Madras High Court held that where impotency was proved by
medical evidence and the marriage had not been consummated, the marriage was voidable in view of
Sec. 12(1) (a).
In Harprasad Santore vs. Anita Santore (1993) 1 D.M.C. 27), the husband’s contention was that his
wife’s vagina was not well developed. Except his statement, he did not produce any medical evidence.
The Madhya Pradesh High Court dismissed his claim.
Limitation: The limitation prescribed in sub-section (2) of Section 12 would not applicable to the
cases of impotence.
Incapacity to procreate the children: There are few childless couples. The Hindu society ridiculates
the childless wives. In functions, regard is not given to the childless wife, saying that she is “barren”.
In Telugu she is named as “Godralu” (Sterile/Impotent). There may be several medical reasons for
her childlessness. If there is no sufficient sperm count or no sperms at all in the husband, he cannot
be called as an impotent. If a wife does not have uterus, or any problem in uterus, she cannot be
called as impotent. By mere cause of incapacity to procreate the children, either spouse can get a
Decree of Nullity of Marriage.
PROBLEM: After the marriage, and after consummation, the wife felt sick. To save her life, the
doctors removed her uterus. As there was no uterus, there could be no chance of getting children.
The husband filed case for nullity of marriage under Section 12(1) (a). Can he succeed?
SOLUTION: No. In Samar Som vs. Sadhana Som (AIR 1975 Cal 413), the Calcutta High Court
dismissed the petition of the husband, and held that the removal of uterus would not amount to
impotency.
 The Family Law - I (The Hindu Law) 51

C. UNSOUNDNESS OF MIND. MENTAL DISORDER AND INSANITY: Section 12 (1) (b) states
that any marriage solemnized shall be voidable and may be annulled by a Decree of Nullity on the
ground that the marriage is in contravention of the condition specified in CL (ii) of Section 5. which
reads:

“(ii) at the time of the marriage, neither party,—

(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind;
or

(b) though capable of giving a valid consent, has been suffering from mental disorder
of such a kind or to such an extent as to be unfit for marriage and the procreation of
children, or

(c) has been subject to recurrent attacks of insanity or epilepsy;”

According to Section 5 (ii), either spouse must have the requisite mental capacity to enter into
matrimony. If a marriage takes place in contravention of Section 5 (ii), such a marriage is not void, but
only voidable under Section 12 (1) (b).
PROBLEM: A was suffering with Schizophrenia. This fact was suppressed by her father, and
performed A’s marriage with B. After the marriage, B found that A was suffering with Schizophrenia.
He also incurred expenditure to cure her. However she was not cured. Advise B.
SOLUTION: Yes. B can obtain the Decree of Nullity of Marriage under Section 12(1) (b). The facts
of the Problem are identical with Pranab Kumar vs. Krishna (AIR 1975 Cal. 109) case. The Calcutta
High Court issued the Decree of Nullity of Marriage.
Brief Facts:

D. FORCE OR FRAUD: Section 12 f1) (c) states that any marriage solemnized shall be voidable,
and may be annulled by a Decree of Nullity on the ground that the consent of the petitioner, or where
the consent of the guardian in marriage of the petitioner was required under Sec. 5 as it stood immediately
before the commencement of the Child Marriage Restraint (Amendment) Act, 1978, the consent of
such guardian was obtained by force or fraud as to the nature of the ceremony or as to any material
fact or circumstance concerning the respondent.
The terms “force” and “fraud” are not defined in the Hindu Marriage Act, 1955. These two terms
are defined in the Indian Contract Act, 1872. However, the definitions given in the Indian Contract
Act, 1872 cannot be used in the Hindu Marriage Act, 1955. The reason isthattheActof 1872 deals
with the general transactions and the Act of 1955 deals with marital relations.
Cases:

Sunil K. Mirchandani vs. Reena S. Mirchandani (AIR 2000 Bom 66) (SN)
(Fraud)
Brief Facts: After the marriage, the appellant-husband found that the respondent-wife was suffering
with insanity, and the father of the respondent did not disclose it before and at the time of the marriage.
While the case was tried in the trail Court, she was sent for medical examination, and the Doctors
gave expert opinion that she was insane. In spite of the medical evidence, the trail Court dismissed
the petition of the husband-appellant.
JUDGMENT: The Bombay High Court gave judgment in favour of the appellant-husband, and held
that it was a clear fraud from the side of the father of the respondent.

PROBLEM: According to the bio-data submitted to a marriage bureau, the marriage tie took place A
the bride and B, the bridegroom. A wrote her age as 22 years. B wrote his age as 23 years. After
mamage, B found that A’s actual age was 27 years, and some other deviations from the bio-data of A
Is A played any fraud? Advise B.
SOLUTION: Yes. It is clearly a fraud. The facts of the above problem are identical with Aurag
Anand vs. Sunita Anand (AIR 1997 Del 94) case, in which the Delhi High Court held it would be
clearly a fraud, and issued Decree of Nullity of Marriage under Section 12 (1) (ii).
Som Dutt vs. Raj Kumar (AIR 1986 P&H 191) (SN)
(Fraud - non-disclosure of first marriage)
Brief Facts: The appellant-wife married the respondent-husband. In fact, the appellant was a
widow. She suppressed this truth and contacted the respondent. After the marriage, the respondent
came to know this truth from third person, and this filed a case fora Decree of Nullity of Marriage. The
trail Court issued the Decree of Nullity of Marriage.
52
The Family Law - / (The Hindu Law)

JUDGMENT: The Punjab and Haryana High Court upheld the trail Court’s Judgment, and held that it
was a clear fraud appearing from the appellant. It was the duty of the appellant to disclose of herfirst
marriage to the respondent before contracting the second marriage. If she would have disclosed the
first marriage to the respondent before the marriage, and the respondent accepted it and married her,
then it would not be treated as fraud.

E- PREGNANT AT THE TIME OF THE MARRIAGE: According to Section 12 (1) (d), any marriage
solemnized shall be voidable and may be annulled by a Decree of Nullity on the ground that the respondent
was pregnant at the time of marriage by some person other than the petitioner. If A a person knows
that B was deceived and pregnant by C. and marries B to give her new life, then such a marriage
between A and B is valid. The child born to B shall be legally considered as the child of A. After the
marriage between A and B, A cannot claim divorce on this point. Even a person knowingly marries a
woman - prostitute, later he cannot defence of her prostitution.
F. Who can challenge? Avoidable marriage can only be challenged at the instance of either party to
the marriage, and cannot be challenged after the death of one of the parties to the same.
PROBLEM : A group of dacoits came to rob the house and threatened the members of the family with
arms. The Family members kept quiet. After robbing the house, one of the dacoits raped the wife.
Remaining family members were helpless to protect her. On this ground can the husband seek
divorce from his wife ?

SOLUTION: No. Indeed the remaining family members and the Society, particularly the husband can
not digest it. Moreover they humiliate that victim wife. Legally, the husband has no irght to claim
divorce. All these legal, social and psychological factors are screened in “Damini” Hindi picture.

3.E. DIVORCE
[Ss.13,13-A,13-B,14&15i|
Q.1. What are the grounds of divorce under the Hindu Law? (May, 2008, O.U.) (Feb., 2005, O.U.) (Feb., 2004, O.U.)
Q.2. Explain various grounds of divorce under the Hindu Marriage Act, 1955. (May, 2008, O.U.) (Aug., 2004, O.U.)
Q.3. What are the grounds of Divorce under the Hindu Marriage Act, 1955? (Aug., 2006, O.U.) (Feb., 2006, O.U.) (Dec., 2001, O.U.)
Q.4. Discuss the grounds of Divorce under the Fault Theory. (Sept., 2005, O.U.)
Q.5. What is meant by Divorce? Distinguish between divorce and Judicial separation. (Dec., 2005, B.U.)
Q.6. What is meant by "Divorce"? Distinguish between Divorce and Judicial Separation. (Anl., 2004, P.U.)
Q.7. Examine the validity of polygamous marriages and marriage with persons of unsoundness of mind. (Feb., 2004, O.U.)
Q.8. What are the various grounds for Divorce under the Hindu Marriage Act, 1956? (Feb., 2004, O.U.)
[Note: Two questions are asked in Feb., 2004, O.U. on “Divorce” in two different ways. The student should write the answers
appropriately]
Q.9. Examine cruelty and desertion as grounds of divorce. (Apr., 2002, O.U.)
Q.10. Epilepsy as ground of matrimonial relief. (SN) (Anl., 2004, K.U.) (Dec., 2001, S.V..U.)
Q.11. Sati.
(SN) (Dec., 2001, S.V..U.)
Q.12. Dowry. (SN) (Dec., 2001, S.V..U.)
Q.13. Cruelty. (SN) (Aug., 2005, S.V.U.)
Q.14. Alternate relief in divorce proceedings. (SN)
ANSWER;

INTRODUCTION: Except the Hindu marriage institution, almost all the remaining religious marriage
institutions have Divorce Systems, laws and procedures. The ancient Hindus did not know the
term ‘Divorce’. In the ancient Hindu marriages, the wife and husband lived together until their death.
“Marriage under the Hindu Law is sacrament, being based upon a sacred religious ceremony.”
Even after the death of the husband, the wife would not re-marry. However, after the death of the wife,
the husband used to remarry. In the Hindu marriages, polygamy, a husband had two or more wives at
a time, was also in practice. Except few Gods, like Rama, all most all the Hindu Gods have two or

more wives (Goddesses). Even in the cases of polygamy, after the death of husband, none of the
wives could not remarry.
There was Sati custom, in which the wife burnt herself with the dead body of her deceased husband.
This was very worst custom. This was abolished by Warren Hastings, the first Governor-General of
India, by enacting The Sati Abolition Regulation in 1829.

There were only marriage sastras, mantras, slokas coupled with ceremonies in the ancient
Hindu Law. There were no divorce sastras. mantras, slokas. ceremonies, etc. Even there
were no customs relating to divorce. The same has been continuing till to-day. The Divorce system
 The Family Law - I (The Hindu Law) 53

has been incorporated in the Hindu Marriage Act, 1955 by the Indian Parliament, following the English
Common Law. Therefore, the concept of Divorce is new to the Hindu Law. Even to-day, the percentage
of divorces in the Hindu marriages is very meagre comparing with the Western marriages. This is the
greatness of the Hindu marriage institution, and is praised through out the world.
Sections 9 to 13 of the Hindu Marriage Act, 1955 provide for the matrimonial reliefs. Among them.
Divorce is the last one, enunciated in Section-13 has been several times amended to meet the
requirements of changing social and economical circumstances of the Hindu Society. It was amended
in 1964 by the Hindu Marriage Amendment Act, 1964 and also drastically was changed in the year
1976 by the Hindu Marriage (Amendment) Act, 1976.
OBJECT: The object of Divorce is to put the fullstop to the conflicts between the parties to the
marriage and to end the marriage. It solves the problems between wife and husband. The Decree of
the Divorce allows each of the parties to remarry with other persons, as they like. Thus the marriage
tie breaks away between the wife and husband, and thus lead to live peacefully.
SCOPE: Section 13 of the Hindu Marriage Act, 1955 describes the divorce and the conditions to
obtain the divorce. The Hindu Marriage is sacrament. It is not a contract. Marriage is a contract in
the Islam and Christianity. The Hindu Marriage is the result of Mantras + customs. The Hindu
marriage is a Sastraic law of marriage. The Marriage is performed by pronouncing the sacred Mantras.
What was the effect if a marriage failured in the ancient time? The Commentators of Sastras did not
expect the dissolution of the marriage in those days. Therefore, there were no “divorce mantras”
formed. The old Hindu Jurisprudence did not know about the dissolution or divorce of marriage.
Usually the marriage came to an end with the death of any of the parties to the marriage. In those
circumstances too, the husband was allowed to marry another woman. Remarriage was prohibited
to the widows. She had to remain her whole life without marriage.

After independence, the Government of India tried to codify the Hindu Law and brought Four Laws into
codification. Among them, the Hindu Marriage Act, 1955 is one. The Act of 1955 provides the
remedy of Divorce to the aggrieved party to the marriage. Therefore, the dissolution of the marriage
is now possible in the Hindu Law legally. The Act of 1955 provides the matrimonial reliefs from
Sections 9 to 13 to the aggrieved party to the marriage. The Act of 1955 marked the end of the
Sastraic law of marriage and the beginning of a secular law of marriage. The Hindu Marriage
(Amendn^ent) Act 1976 is again another landmark changing the Sastriac law of marriage into a secular
one.

Section 5 of the Hindu Marriage Act 1955, lays down certain conditions for a valid Hindu marriage.
If any violation occurs, the aggrieved spouse is entitled to obtain the legal remedy against the marriage.
If any of the conditions specified in Section 5 are violated the other party to the marriage is entitled to
seek marriage to set aside within the time limits specified for each of such occasion.
Section 7 of the Hindu Marriage Act, 1955, lays down certain ceremonies for a valid Hindu marriage.
If any violation occurs, the aggrieved spouse is entitled to obtain the legal remedy against the marriage.
If any of the ceremonies specified in Section 7 are violated the other party to the marriage is entitled to
seek marriage to set aside within the time limits specified for each of such occasion.
SECTlON-13:

“Sec. 13. Divorce.— (1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a

petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other
party,—

(i) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her

spouse: or

(i-a) has, after the solemnization of the marriage, treated the petitioner with cruelty; or

(i-b) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation
of the petition; or

(ii) has ceased to be a Hindu by conversion to another religion; or

(iii) has been incurable of unsound mind, or has been suffering continuously or intermittently from mental disorder of such

a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.

Explanation.— In this clause,—

(a) the expression “mental disorder” means mental illness, arrested or incomplete development of mind, psychopathic
disorder or any other disorder or disability of mind and includes schizophrenia;
(b) the expression “psychopathic disorder” means a persistent disorder or disability of mind (whether or not
including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct
on the part of the other party, and whether or not it requires or is susceptible to medical treatment; or
(iv) has been suffering from a virulent and incurable form of leprosy; or
(V) has been suffering from venereal disease in a communicable form; or
(Vi) has renounced the world by entering any religious order; or
54 The Family Law - / (The Hindu Law)
(vii) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have
heard of it, had that party been alive.

Explanation.— In this sub-section, the expression “desertion” means the desertion of the petitioner by the other
party to the marriage without reasonable cause and without the consent or against the wish of such party, and
includes the wilful neglect of the petitioner by the other party to the marriage, and. its grammatical variations and
cognate expressions shall be construed accordingly.
(viii)

(ix) Clauses (viii) and (ix) were omitted by the Hindu Marriage (Amendment) Act, 1964 (44 of 1964), w.e.f. 20th Dec., 1964.
(1-A) Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a
petition for the dissolution of the marriage by a decree divorce on the ground,—
(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or
upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or
(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or
upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.
(2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground,—
(i) in the case of any marriage solemnized before the commencement of this Act, that the husband had married
again before such commencement or that any other wife of the husband married before such commencement
was alive at the time of the solemnization of the marriage of the petitioner;

PROVIDED THAT in either case no other wife is alive at the time of presentation of the petition; or

(ii) that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality; or

(iii) that in a suit under Sec. 18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), or in a proceeding
under Sec. 125 of the Code of Criminal Procedure, 1973 (2 of 1974) or under the corresponding Sec. 488 of the
Code of Criminal Procedure, 1898 (5 of 1898), a decree or order, as the case may be, has been passed against
the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the
passing of such decree or order, cohabitation between the parties has not been resumed for one year or
upwards; or
(iv) that her marriage (whether consummated or not) was solemnized before she attained the age of fifteen years
and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years.
Explanation:— This clause applies whether the marriage was solemnized before or after the commencement of the
Marriage Laws (Amendment) Act, 1976 (68 of 1976).’’

SECTION 13-A: This Section was incorporated in the Hindu Marriage Act, 1955 by the Marriage Laws
(Amendment) Act, 1976 (68 of 1976), w.e.f. 27-5-1976. Section 13-A runs as follows:—
“Sec. 13-A. Alternate relief in divorce proceedings.— If any proceeding under this Act, on a petition for dissolution of
marriage by a decree of divorce, except insofar as the petition is founded on the grounds mentioned in Clauses (ii), (vi) and
(vii) of sub-section (1) of Sec. 13, the Court may, if it considers it just so to do having regard to the circumstances of the case,
pass instead a decree for judicial separation.”

GROUNDS ON WHICH HINDU WIFE OR HUSBAND CAN SEEK DIVORCE (SN)

Section 13 is the biggest Section in the Hindu Marriage Act, 1955. This Section lays down a detailed
list of grounds to seek the divorce by the aggrieved spouse. The aggrieved spouse may seek a
Decree of Divorce on any one or more grounds mentioned in Section 13. There are three sub
sections, i.e., (1), (1-A) and (2) in Section 13. The grounds mentioned in sub-sections (1) and (1-A) of
Section 13 can be ciaimed by either party of the marriage. The grounds mentioned in sub-section (3)
of Section 13 are meant exclusively for wives only.
IMPORTANT POINTS:

A. Wife, Husband and the Third Person (Adultery): Any marriage solemnized may, on a petition
presented by either the husband or the wife, be dissolved by a Decree of Divorce on the ground that
the other party “has, after the solemnization of the marriage, had voluntary sexual intercourse with
any person other than his or her spouse”. [Sec. 13(1) (i)]
COMMENT: Generally a Hindu wife loves her husband and children more than herself. If a husband
has illicit contacts with any woman, no Hindu wife can tolerate. She quarrels with her husband. It is
a general scene. If the husband does not give up the reiationship with that woman, the wife can file
petition seeking a Decree of Divorce under Section 13 (1) (i).
In the same way, a Hindu husband also loves his wife and children. If his wife has iilegal sexual
relation with any third person, no Hindu husband can tolerate. In the eye of the society, there is a lot of
difference between a Hindu Husband’s sexual relation with another woman and a Hindu wife’s sexual
relation with the third person, in the former case, the society does not interfere, and sees their affair
and does not say anything to the husband. However, in the latter case, the society humiliates the
husband. The husband suffers more psychological sufferance and societal humiliation.

Therefore, in such cases, besides the right to petition for a Decree of Divorce under Section 13(1) (i)
of the Hindu Marriage Act, 1955, the husband is given one more right, i.e., to file a criminal complaint
against the third person under Section 497 (Adultervi of the indian Penal Code, 1860. Similar right
is not given to a Hindu wife. She can not file a criminal case against the woman, with whom her
husband has sexual relations.
 The Family Law - I (The Hindu Law) 55

Any of the parties to the marriage, has sexual contracts with any other person, other than his or her
spouse, is a good ground for obtaining the divorce. A recent Supreme Court Ruling in a case says that
a single instance of such inter-course is not suffice to seek the divorce. A continuous habit is required
to obtain the Divorce under Sec. 13 (1) (i).
Case-Laws:

(a) # Bipinchandra vs. Prabhavati (AIR 1967 SC 1760) (SN)

(Adultery)
Brief Facts: In the year 1942, Bipinchandra married Prabhavati. They lived in a two-room flat in
Bombay along with Bipin’s parents and two unmarried sisters. A son was born to the couple in 1945.
There were no disputes between them until 1946. In 1946, one Mahendra, a retired Armyman, a friend
of the family came to their house and resided for some months. In January, 1947, Bipinchandra went
to England.
While he was in England, Bipin’s father found a letter said to have been written by Prabhavati to
Mahendra expressing the contents that there was an illicit contact between them. On the return of
Bipinchandra, his father handed over the letter to Bipinchandra. He asked his wife. She could not tell
anything, but a day after, she along with her son left for her parent’s home at Jalgaon. Thereafter she
did not return upto November, 1947.
Meanwhile Prabhavathi’s uncle and cousin tried to reconcile the wife and husband, but in vain.
Bipinchandra sent a registered notice served on his wife through his advocate alleging her with adultery
with Mahendra and asking her to send back the child. An information was sent by Prabhavathi’s father
in November 1947 that she was coming to Bombay to join him. On receiving that information,
Bipinchandra sent a telegram to Prabhavathi’s father “Must not send Prabhavathi. Letter posted.”
Prabhavathi did not come to Bombay. In 1951, Bipinchandra filed a petition for divorce on the ground
of wife’s desertion.

JUDGMENT: The trail Court passed the Decree of Divorce in favour of Bipinchandra on the ground
of desertion of Prabhavathi. On appeal by Prabhavathi, the High Court reversed the decision of the
trail Court opining that the wife was ‘technically’ not in desertion. On appeal by Bipinchandra, the
Supreme Court unanimously gave the judgment in favour of Prabhavathi agreeing with the High Court.
The Supreme Court opined that the telegram of the husband to his father-in-law in which he asked him
“not to send Prabhavathi to his house” terminated the state of desertion in which the wife was, as he
frustrated the genuine and sincere efforts of his wife at reconciliation,
(b) Suspicious Husbands: There are certain husbands unnecessarily doubt about the character
of their wives.Such a husband increases suspicious doubt about his wife and tortures her, even
though she does not intend or does not have any illicit relation with any third person. The husband
becomes a psycho. He may commit suicide or murders his wife. Such news regularly comes in
paper. In Siddaqanaaiah vs. Lakshamma (AIR 1968 Mys. 115), the Mysore Bench of Karnataka High
Court held that the imputation of adultery amounts to cruelty,
(c) Vasectomy Operation: PROBLEM: A and B are the wife and husbands. B underwent
vasectomy operation on 1-1-2006. A got pregnancy and delivered a child on 1-1-2008. B filed a
petition for the Decree of Divorce alleging adultery, and submitted the vasectomy operation certificate.
Decide.

SOLUTION: The facts of the problem are identical with case “Chiruthakutty vs. Subramanian
(AIR 1987 Ker. 5).” In that case, the Kerala High Court dismissed the petition of the husband, and
held that vasectomy operations are not cent per cent successful, and the burden of proof lies on the
husband to prove his infertility in or about January, 2006.
(d) Blood Group Tests: To find out the adultery, previously, the Court would order for the blood
group tests. If X, the father, has A-blood group, and Y, the mother has B-blood group, the child must
have either A group or B group or AB group. If the child has C-group, the medical experts and Courts
held that Y did adultery. However, the blood group test is held not conclusive. Still the Courts
search for other corroborative evidence. This Problem was solved by the DNA Tests,

(e) DNA Tests: Now DNA test is final and conclusive. It is more developed than the blood test.
Example: Narayana, an IAS Officer, had maintained the second family and procreated two children,
later neglected the second wife and her children. He had no children with the first wife. She filed for
maintenance and status recognition of her and her children. He argued bluntly that the children were
not born by him. The Court ordered for DNA tests. The result was that the children were born by him
only. Previously it was a decided factor that “maternity is a fact, but paternity is a presumption is
a presumption.” Now this presumption is changed. The paternity can also be decided accurately
with the assistance of modern technology, i.e., the DNATechnoloqy. Recently several cases have
been decided basing on the DNAtechnoioqy.
56
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B. CRUELTY: Any marriage solemnized may, on a petition presented by either the husband or the
wife, be dissolved by a Decree of Divorce on the ground that the other party “fjas, afterthe solemnization
of the marriage, treated the petitioner with cruelty”. [Sec. 13(1) (i-a)]
CASE-LAW:

(a) # Dastane vs. Dastane (AIR 1975 SC 1536) (SN)

(Cruelty to husband)
Brief Facts: This case deals with “Cruelty” as a ground of divorce. Dr. N.G.Dastane married S.
Dastane in 1956. Three children were born. After that, disputes arose between them. Mrs. Dastane
behaved enemically with her husband. She could not bear the cohabitation with her husband. Her
conduct caused annoyance and untolerable situation to the petitioner-husband. He filed a case forthe
divorce alleging that his wife behaved with him “cruelly”. He alleged that she insulted him in the
presence of the guests and neighbours, and she never bothered to give respect to his parents. In her
outbursts of temper she accused falsely “the pleader’s sanad of that old hag ofyour father was forfeited, ’’

“I want to see the ruination of the whole Dastane family’’, “bum the book written by your father and apply
the ashes to your forehead’’, “you are a monster in a human body’’, “I will make you lose yourjob and
publish it in the Poona newspapers, ’’etc. She cut the mangalsutra, locking out the doors when he was
due to return from his office, rubbing chillie powder on the tongue of an infant child, beating a child
mercilessly while in high fever, and switching on the light at night and sitting by the bedside of the
husband merely to nag him were some of the examples averred by her husband in the Court. The
acts were of so grave an order as to imperil the husband’s sense of personal safety, mental happiness,
job satisfaction and reputation. She used to stay in other’s houses for days together. The husband
proved her attitude and behaviour in the Court. The trail Court and the High Court gave judgments
against the husband.
JUDGMENT: The Supreme Court reversed the decision of the High Court and gave judgment in
favour of the husband. The Supreme Court observed that the English decisions on “cruelty” may not
always be a safe guide to the Indian social structure. The English law requires “danger to life, limb or
health”. But Section 10(1) (b) laid down a lower requirement namely, “reasonable apprehension” that
it is harmful or injurious for one spouse to live with the other. This requirement is not satisfied in this
case.

PRINCIPLE LAID DOWN: Cruelty simpliciter is now a ground fordivorce as well as judicial separation.
Prior to the Marriage Laws (Amendment) Act (LXVIll of 1976) cruelty was not a ground fordivorce but
under Section 10 (1) (b) of the 1955 Act prior to the Amending Act of 1976, it was a ground for judicial
separation provided it was such “as to cause” a reasonable apprehension in the mind of the petitioner
that it will be harmful or injurious forthe petitioner to live with the other party. The term “cruelty” has not
been defined by the Legislature. It is neither desirable nor practicable to define the term. Concept of
cruelty is a changing one dependant on the social and economic conditions, status of parties and a
multitude of other considerations. Annoyance or mental disturbance would not amount to cruelty
unless it had affected the health of the petitioner to any extent,
(b) In Siddagangaiah vs. Lakshamma (AIR 1968 Mys. 115), the Mysore Bench of Karnataka High
Court held that the imputation of adultery amounts to cruelty,
(c) In Dharam Pal vs. Pushpa Devi (AIR 2006 P&H 59). the husband tortured the wife alleging that
she had illicit contacts. She went away to her parents’ house. The husband filed a petition for
restitution of conjugal rights. She proved that he tortured her with unfounded allegation of iliidt contacts,
and claimed divorce from him. The High Court held that unfounded allegations of illicit contacts would
be treated as “mental agony” and “cruelty”, and granted divorce to her.
(d) Cruelty to Wives: We read every day that due to cruelty of husbands several wives commit
suicide. Sometimes, the husbands and his relatives inhumanely kill the wives. However, several
protectional provisions have been incorporated in the Indian Penal Code, 1860, viz.. Section 304-B
(Dowry Death), Section 498-A (Matrimonial Cruelty - Husband or relative of husband of a woman
subjecting herto cruelty), etc., and in the Indian Evidence Act, 1872, viz.. Sec. 113-A (Presumption as
to abetment of suicide by a married woman). Sec. 113-B (Presumption as to Dowry Death), etc.
PROBLEM: Arati and Prakash both Hindu are married on 31-12-2004. Prakash starts assaulting
Arati and illtreats her. Arati leaves the house on 2-2-2005 and wants to file immediately legal proceedings
for divorce. Advise her.
(AnI. 2003, P.U.)
SOLUTION: Arati shall first file a criminal complaint under Section 498-A (Matrimonial Cruelty) under
the Indian Penal Code, 1860, or seek relief under the Protection of Women from Domestic Violence
Act, 2005, and then file a petition for Divorce under Section 13 of the Hindu Marriage Act, 1955.
(e) Cruelty to Husbands: Previously there were incidents and cases against the husbands that
they did cruelty against their wives. Now the trend has changed. To-day, newspapers publish the
 The Family Law -1 (The Hindu Law) 57

incidents of cruelty of wives to husbands, and the result that several husbands commit suicides.
However, no protectional provisions are not yet made against the “cruelty to husbands”,
(f) Mental Cruelty: PROBLEM: A and Bare the wife and husband. A does not do house cleaning,
cooking, etc. A cooks for herself eats away. A asks B to eat tiffin, meals, etc., in the hotel. Does it
amount to cruelty?
SOLUTION: The facts of the problem are Identical with “Samar Ghosh vs. Jaya Ghosh (2007)
4 see 511)”, in which the Supreme Court held that the question was not of cooking food, but the
wife’s cooking food only for herself and not for the husband would be a clear instance of causing
annoyance which may lead to mental cruelty,
(g) Epilepsy: The term‘Epilepsy’means “a nervous disease causing convulsions, fits”. Epilepsy is
also one of the causes of ‘Mental Disorder’. A spouse can claim divorce on this ground,
(h) Schizophrenia: It is a disease causing mental disorder. On this ground, a spouse can file a
petition for Divorce.
PROBLEM: X, a chronic schizophrenic, marries B without disclosing his mental disease. What are
the remedies available to B? (AnI. 2003, P.U.)
SOLUTION: B can seek divorce under Section 13 of the Hindu Marriage Act, 1955.
C. DESERTION: Any marriage solemnized may, on a petition presented by either the husband or
the wife, be dissolved by a Decree of Divorce on the ground that the other party "has deserted the
petitioner for a continuous period of not less than two years immediately preceding the presentation
of the petition". [Sec. 13(1) (i-b)]
Case-Laws:

(a) # Bipinchandra vs. Prabhavati (AIR 1967 SC 1760)

[Refer to Point A above “He, She and the Third Person” for brief facts and judgment of this case.]
PRINCIPLES LAID DOWN :

1. This case-law deals with mainly ‘desertion’. What amounts to desertion in law? This case-law
answers that desertion is a continuing offence and it remains inchoate till the petition for the matrimonial
relief is not filed; before that event the deserting spouse can bring the state of desertion to, an end,
inter alia, by making a genuine and sincere offer to return, and if that offer is turned down, the state of
desertion terminates.

2. For the offence of desertion, so far as the deserting spouse is concerned two essential conditions
must exist:—

(i) the factum of separation; and

(ii) intention to bring cohabitation permanently to an end (animus deserendi).
3. In desertion the question is not which spouse left the matrimonial home first. The spouse responsible
for creating the situation in which the other spouse is forced to stay away is guilty of constructive
desertion.

4. If the deserting spouse decides to come back to the deserted spouse and makes bona fide offer in
that behalf before the expiry of the statutory period or even thereafter unless proceedings for divorce
have commenced the desertion would come to an end.

(b) In Patwant Kaur vs. Sarabjit Singh (2006 (3) CCC 267 P&H), there were regular quarrels
between wife and husband. One day, the wife went away to her parents’ house with her son and all
her belongings. The husband made several efforts and mediations to get her back, but in vain. The
Punjab and Haryana High Court held that it was a clear “desertion” from the side of the wife, and
granted the Decree of Divorce,
(c) In Chetan Dass vs. Kamla Devi (AIR 2001 SC 1709) case, the husband had illicit contacts with
several women. The wife could not tolerate it, and went away to her parents’ house. The husband
sent mediators. She answered that she would come to the matrimonial house, if the husband would
leave all illicit contacts. The husband sought divorce alleging that his wife deserted him. The Supreme
Court quashed the husband’s petition stating that the appellant/husband committed the matrimonial
cruelty to his wife, and claimed the divorce on the ground of desertion, which would be wrong.
(d) PROBLEM: A is working in Army. He was posted to Indian border area. Therefore he left his
wife B in her parents’ house. His wife waited for him for three years. Except writing letters to B
intimating his safety, A did not even once visit B. She sued for divorce on the ground of desertion.
Decide. (Dec., 2007, O.U.) (Aug., 2005, S.V.U.)
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SOLUTION: According to Clause (i-b) of sub-section (1-A) of Section 13 of the Hindu Marriage Act,
where defendant has deserted the petitioner for a continuous period of not less than two years
immediately preceding the presentation of the petition, the petitioner is entitled to seek the Decree of
Divorce. Here in the above ^iven Problem, B is legally entitled to seek Divorce.
D. CONVERSION TO ANOTHER RELIGION (SN)
Any marriage solemnized may, on a petition presented by either the husband or the wife, be dissolved
by a Decree of Divorce on the ground that the other party “has ceased to be a Hindu byconversion
to another religion ”. [Sec. 13 (1) (ii)]
Apostacy (conversion from Hindu religion to other religion) is a good ground for divorce. Either party,
if converts from the Hindu religion to other religion, the other party may seek divorce from the former.
PROBLEM: A, a Hindu husband, converts to the Islam, and marries C, a Muslim woman. B, the
Hindu wife of A, files a petition for a Decree of Divorce under Section 13(1) (ii) of the Hindu Marriage
Act, 1955, and also files a criminal case against A, under Section 494 of IPC. Decide.
(June, 2004, B.U.)
SOLUTION: B is guilty of bigamy under Section 17 of the Hindu Marriage Act, 1955, read with Section
494 IPC. In # Sarala Mudaal vs. Union of India fAIR 1995 SC 1531>. # Lilv Thomas vs. Union of
India (AIR 2000 SC 1650) cases, the Supreme Court held that while the first marriage is valid and
subsisting under the Hindu Law, he cannot convert into the Islam. This shows his ill-intention to
escape from the liabilities and punishments.
PROBLEM: A a Hindu, marries another wife with the written consent of his first wife during her life
time. Is he criminally liable for the offence of bigamy?
SOLUTION: No. Permission or release deed obtained from the first wife does not save the husband
who marries second marriage. Similarly, if the husband gives the permission or release deed to his
wife that wife is not entitled to have second marriage. The only solution is that first they should take
legal divorce and later each of them can enter into the second marriage choosing the persons as per
their choice. This rule applies to all the religions, except to the Muslim males.
# Santosh Kumari vs. Surjit Singh (1990 CrLJ 1012 HP)
(Written Permission of the first wife to second marriage)
Brief Facts: In this case, the first wife gave the written permission to her husband for his second
marriage. Both the wife and husband applied for the permission before the District court, which was
accorded by that Court. The proposed second bride came to know it and filed an appeal before the
High Court.
Judgment: The Himachal Pradesh gave the judgment that no Court is authorised to permit a second
marriage without the proper legal divorce even if the first wife made the application. It is against the
law.

E- MENTAL DISORDER. Etc.: If any of the spouses is suffering with mental disorder, or becomes
incurable unsound mind person, and the petitioner is unable to continue cohabitation with the petitioner,
then the divorce may be granted to them.
Any marriage solemnized may, on a petition presented by either the husband or the wife, be dissolved
by a Decree of Divorce on the ground that the other party “has been incurable of unsound mind, or
has been suffering continuously or intermittently from mental disorder of such a kind and to such an
extent that the petitioner cannot reasonably be expected to live with the respondent. ” [Sec. 13(1) (iii)]
PROBLEM: The marriage between A and B was solemnised. After some time, A became insane.
Therefore, B marries C. Is the marriage between B and C valid? (AnI., 2004, P.U.)
SOLUTION: No. The marriage between B and C is not valid. “Mental Disorder” is one of the
grounds mentioned in Section 13. However, mere allegation orfact, one cannot marry another man or
woman. First of all, the aggrieved spouse must file a petition for divorce under the appropriate Court
(the District Court or the Family Court as the case may be). After hearing, the Court decides the
dispute. Depending upon the satisfactory evidence, the Court may grant Decree of Divorce, and it
does not satisfy it may reject the petition. Unless a Decree of Divorce obtained from the Court, and
other conditions relating to appeal are fulfilled, no spouse is entitled to re-marry. In the above given
Problem, B married C, without obtaining the Decree of Divorce. Hence B is liable to be punished for
bigamy under Section 17 of the Hindu Marriage Act, 1955 and also under Section 494 of the Indian
Penal Code, 1860.
Cases:

(a) In Panduranga Shet vs. Smt. S.N. Vijayalaxmi (2003 (6)ALT 28 SC), the husband complained that
the wife was suffering with Schizophrenia and mental disorder. The trail Court found that the
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parties lived together with happy for more than four years, and had two children, and thus dismissed
the husband’s petition. TheA.P. High Court set aside the decision of the trail Court. On appeal, the
Supreme Court up held the trail Court’s decision.
F. LEPROSY: Any marriage solemnized may, on a petition presented by either the husband or the
wife, be dissolved by a Decree of Divorce on the ground that the other party “has been suffering from
a virulent and incurable form of leprosy”. [Sec. 13(1) (iv)]
Comment: The virulent and incurable form of leprosy is a ground for divorce. Leprosy is a
communicable disease. If any one of the spouses has leprosy, immediately it spreads to the other
spouse. Later on it spreads to the children and other family members. The society ridicules that
family and keeps away that family. Even water is not given to that family. Therefore, Section 13(1)
(iv) gives the right to get divorce from the spouse, who has been affected with venereal diseases or
AIDS.

G. VENEREAL DISEASES AND AIDS: Any marriage solemnized may, on a petition presented by
either the husband or the wife, be dissolved by a Decree of Divorce on the ground that the other party
“has been suffering from venereal disease in a communicable form”. [Sec. 13(1) (v)]
Comment: Marriage is dead, if one of the spouses has been suffering with the venereal disease or
AIDS. These are the sexual diseases and are communicable form. The venereal diseases and/or
AIDS spoil the health and life of the person affected. Both of them show the heinous sexual activities
of the person affected. If such a disease is found in one of the spouses, and if the consummation
of marriage continues, it is communicated to the other spouse. Generally the males have sexual
passion and the habit of going to other women, including the debauchers (Vesyas) by paying money.
Thus the venereal diseases and AIDS crept to the innocent house-wives. Even though there is no
fault from the side of the innocent house-wives, they are also affected very badly. If the husband is
affected with AIDS, his wife also is affected immediately. Both the wife and husband die. Who will
take care of their children. The society ridicules that family and keeps away that family. Even water
is not given to that family. Therefore, Section 13 (1) (v) gives the right to get divorce from the spouse,
who has been affected with venereal diseases or AIDS.

H. RENOUNCING THE WORLD: Any marriage solemnized may, on a petition presented by either
the husband or the wife, be dissolved by a Decree of Divorce on the ground that the other party “has
renounced the world by entering any religious order”. [Sec. 13(1) (vi)]
Comment: According to the ancient Hindu Law and Customs, every Hindu has four stages _ (i)
childhood (Balyavasta), (ii) student (Vidyavasta), (iii) family (Gruhastha) and (iv) renouncing the world
(Vanaprastha/Sanyasa) at the old age. There was a strong custom that during the Gruhastha, no one
should renounce the world. During the period of Gruhasta, no one should avoid or avade the family
customs (Gruhastha Dharmas), i.e., earning, feeding the family, educating the children, performing
their marriages, etc. The same concept has been taken in Sec. 13(1) (vi).
If any of the spouses renounces the world and takes Sanyasa, the other spouse is entitled for a
Decree of Divorce under Sec. 13(1) (vi).
I. NOT HEARD FOR SEVEN YEARS/PRESUMPTION AS TO DEATH: Any marriage solemnized
may, on a petition presented by either the husband or the wife, be dissolved by a Decree of Divorce
on the ground that the other party “has not been heard of as being alive fora period of seven years or
more by those persons who would naturally have heard of it, had that party been alive”. [Sec. 13(1)
(vii)]
If a person is not heard for seven years continuously to his wife, relations, friends, residents of the
village and area, the law presumes he might have died. In such an occasion, the other spouse is
entitled to re-marry. However, he or she cannot re-marry immediately after the completion of seven
years. It is only one of the grounds mentioned in Section 13. He/She must file a petition for Decree
of Divorce before the Court. After obtaining the Divorce from the competent Court, then only the
aggrieved person is entitled to re-marry.
PROBLEM-1: A, the wife of B, not having heard of her husband B for 10 years, contracts a second
marriage with C, telling C that she is unmarried. B returns some time later, and wishes to prosecute
A for Bigamy. Advise B. (Sept. 1988 O.U.)
SOLUTION: A committed the offence of Bigamy. Of course, the exception appended to the Section
13f1)(vii) says that if the former husband or wife has been continuously absent for seven years and
not heard of as being alive within that time, A can contract another marriage. According to Section 12
(11 (c). the real state of facts shall be disclosed to the person with whom the second marriage is
contracted. Here A did not disclose the real facts to C. Moreover she told C that she was unmarried.
Hence she is liable for the punishment for the offence of Bigamy.
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PROBLEM-2: A, the wife of B, not having heard of her husband B for 7 years, contracts a second
marriage with C, telling the real facts, A’s second marriage was performed with C. After their
marriage, B returns, and wishes to prosecute A. Advise B.
PROBLEM-3: A married to B, marries again C, 8 years after B absconds, after informing C about the
absence of B. Has A committed Bigamy? (April, 94, B.U.)
SOLUTION-(2&3): The facts in the above problems resemble with the case law of R. vs. Tolson
(1889) 23 QBD168). In that case, the Queen Bench held that Tolson was not guilty of bigamy, as she
told the real facts to the second husband.

J- Decree for Judicial Separation - After One Year: Either party to a marriage, whether solemnized
before or after the commencement of this Act, may also present a petition for the dissolution of the
marriage by a decree divorce on the ground that “there has been no resumption of cohabitation as
between the parties to the marriage for a period of one year or upwards after the passing of a decree
forjudicial separation in a proceeding to which they were parties”. [Sec. 13(1-A) (i)]
Either party to a marriage may present a petition for the dissolution of the marriage on the ground that
there was no resumption of cohabitation between the parties to the marriage for a period of one
year or upwards after the passing of a decree for judicial separation in a proceeding to which they were
parties.

Either party to a marriage may also present a petition for the dissolution of the marriage by a decree of
divorce on the ground that there has been no restitution of conjugal rights as between the parties to the
marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal
rights in a proceeding to which they were parties.
K. Restitution of Conjugal Rights - After One Year: Either party to a marriage, whether solemnized
before or after the commencement of this Act, may also present a petition for the dissolution of the
marriage by a decree divorce on the ground that “that there has been no restitution ofconiuaal
rights as between the parties to the marriage for a period of one year or upwards after the passing
of a decree for restitution of conjugal rights in a proceeding to which they were parties”. [Sec. 13
(1-A)(ii)]
L- PERIOD OF LIMITATION: The period of waiting for divorce to submit a petition is now one
year only. Previously, before the Amendment Act of 1976 it was three years.
❖ ❖

GROUNDS ON WHICH HINDU WIFE CAN SEEK DIVORCE (SN)

There are three sub-sections, i.e., (1), (1-A) and (2) in Section 13. The grounds mentioned in sub
sections (1) and (1 -A) of Section 13 can be claimed by wife or husband of the marriage. The grounds
mentioned in sub-section (3) of Section 13 are meant exclusively for wives only.
IMPORTANT POINTS:

^ ^y other wife living before the commencement of this Act: Awife may also present a petition
for the dissolution of her marriage by a decree of divorce on the ground, “in the case of any marriage
solemnizedbefore the commencementof this Act, that the husband had married again before such
commencement or that any other wife of the husband married before such commencement was alive
at the time of the solemnization of the marriage of the petitioner. Provided that in either case no other
wife is alive at the time of presentation of the petition”. [Sec. 13 (2) (i)]
guilty of rape, sodomy or BESTIALITY: A wife may also present a petition for the
dissolution of her marriage by a decree of divorce on the ground “that the husband has, since the
soiemnization of the marriage, been guilty of rape, sodomy or bestiality”. [Sec. 13 (2) (ii)]
G- MAINTENANCE ORDER: Awife may also present a petition for the dissolution of her marriage
by a decree of divorce on the ground “that in a suit under Sec. 18 of the Hindu Adoptions and
Maintenance Act, 1956 (78 of 1956), or in a proceeding under Sec. 125 of the Code of Criminai
Procedure, 1973 (2 of 1974) or under the corresponding Sec. 488 of the Code of Criminal Procedure,
1898 (5 of 1898), a decree or order, as the case may be, has been passed against the husband
awarding maintenance to the wife notwithstanding that she was living apart and that since the passing
of such decree or order, cohabitation between the parties has not been resumed for one year or
upwards”. [Sec. 13 (2) (iii)]
G- REPUPiATION OF CHILD MARRIAGE: A wife may also present a petition for the dissolution of
her marriage by a decree of divorce on the ground “that her marriage (whether consummated or not)
was solemnized before she attained the age of fifteen years and she has repudiated the marriage after
attaining that age but before attaining the age of eighteen years”. [Sec. 13(2)(iv)]
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Commentary: The phrase “she has repudiated the marriage after attaining that age but before
attaining the age of eighteen years” is not clearly understood. Until a girl completes 18 years, she
can not get majority. The clause dictates that the girl must repudiate the marriage before attaining the
age of eighteen years. How is it possible? How can a minor repudiate and file a divorce petition
during her minority? Some thing is missing in this phrase of clause (iii). Perhaps it might have been
“she has repudiated the marriage after attaining that age but before consummation of marriage”.
PROBLEI\/l-1; A, a Hindu girl, was married before she attained 15 years of age. She repudiated the
marriage before she obtained 18 years of age. She filed the petition for divorce after attaining 19 years
of age. Decide. (Aug., 2005, S.V.U.)
SOLUTION: A can repudiate the marriage under Clause (iii) of Section 5 of HMA, as her marriage
was performed while she was in minority. A can file a petition for a Decree of Divorce under Section
13 of HMA.

PROBLEM-2: A, a girl, aged 16 years, married B. Arepudiated the marriage and filed the petition for
divorce after attaining 19 years of age. Advise A. CanAsucceed?
SOLUTION: Acannot succeed. According to Section 13 (2) (iv), Amust have repudiated the marriage
before she attained 18 years of age.
PROBLEM-3: A, a Hindu girl, was married before she attained 15 years of age. She repudiated the
marriage before she obtained 18 years of age. She filed the petition for divorce after attaining 19 years
of age. Decide. (Dec., 2007, O.U.)
PROBLEM-4: A, a girl, aged 16 years, married B. A repudiated the marriage before she attained 18
years of age, and filed the petition for divorce after attaining 19 years of age. Advise A. Can A
succeed?

SOLUTION 3&4: Yes. Acan succeed. The facts of Problem-1 &2 are identical with case B. Jylaiah
vs. Devamma (AIR 1981 AP 74), in which the High Court of Andhra Pradesh granted the Decree of
Divorce.

E. DOWRY DEMAND: The centuries aged old Hindu jurisprudence/laws and customs were codified
into four important Acts by the Indian Parliament during the years 1955-56. The Hindu Succession
Act, 1956 is one of the important Acts, which has excluded the females from the coparcenary/joint
Hindu family property. This is the root cause and paved the way for “Dowry System”. During the
period of 1900-1950, the custom of “Kanyasulkam” was in prevalence, which means to marry the
bridegroom used to give certain consideration to the father of the bride. After the enactment of the
Hindu Succession Act, 1956, Kanyasulkam disappeared, and in place of it, “Dowry” crept in the
Hindu community. To prevent and control the dowry system, the Indian Parliament enacted “The
Dowry Prohibition Act, 1961”, and gradually incorporated several penal provisions in the Indian Penal
Code, 1860, the Criminal Procedure Code, 1973, the Indian Evidence Act, 1872, etc. However the
dowry is not controlled. Moreover it spread rapidly from Kanyakumari to Kashmir. Surprisingly, it also
spread in other religious communities.
Of course, the Indian Parliament enacted the The Hindu Succession Amendment Act, 2005 (Act No.
39 of 2005) with one of the objects to eradicate the dowry system.
Demanding for dowry is a cruelty to wife. She can take criminal action and proceedings under the
Dowry Prohibition Act, 1961 and the Indian Penal Code, 1860 and under the latest Act ‘The Protection
of Women from Domestic Violence Act, 2005”. Irrespective of the criminal proceedings and action,
an aggrieved woman can also file a Petition for Divorce demanding the divorce from the husband, who
demanded the dowry.
PROBLEM: L and S married and were living in Vishakapatnam. S had gone to USA for special
training for a period of one year. L was staying at her in-laws’ place, Hyderabad. During her stay, the
in-laws demanded additional dowry. She informed her husband about the demand of dowry. S
replied that such demands are common now-a-days. Advise her. (May, 2008, O.U.)
SOLUTION: On the above grounds, L can seek divorce from S. The facts of the above given
Problem are identical with the following case:—
# Shobha Rani vs. Madhukar Reddy (AIR 1988 SC 121)
Brief Facts: Shobha Rani was the appellant. She was post-graduate in biological sciences. Madhukar
Reddywas the respondent. Hewasa doctor. They were married on 19-12-1982. But their happiness
did not last longer. Disputes arose between them. She went to her parents’house. They exchanged
letters with bitter feelings, and accusing each other.
Wife moved the Court for divorce on the ground of cruelty. She produced her evidence one of the
letters written by her husband which narrated his parents had been demanding dowry, and he needed
some money for his personal purposes. Wife’s contention was that demanding dowry was to be
treated as ‘cruelty’. The trial Court gave judgment in favour of the wife.
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Husband appealed to the High Court, contending that demanding dowry could not be treated as ‘cruelty’
as this clause has not been incorporated in Section 13 of the Hindu Marriage Act. 1955 and that he did
not demand dowry. He also contended that she was over sensitive, and had habit of exaggeration,
and she made a mountain out of molehill. The Andhra Pradesh High Court reversed the trial Court’s
judgment. The aggrieved wife appealed to the Supreme Court.

JUDGMENT: The Supreme Court gave judgment in favour of the wife, and confirmed the judgment
of the trial Court.

PRINCIPLES: (i) The demand for dowry is prohibited under the law. Thatby itself is bad enough.
That amounts to ‘cruelty’ entitling the wife to get a decree for dissolution of marriage. Therefore, the
A.P. High Court’s decision is reversed,
(ii) The word ‘cruelty’ has not been defined and could not have been defined. It has been used in
relation to human conduct or human behaviour. It is the conduct in relation to or in respect of matrimonial
duties and obligations. It is a course of conduct of one which is adversely affecting the other. The
cruelty may be mental or physical, intentional or unintentional. There may be cases where the conduct
complained of itself is bad enough and per se unlawful or illegal. Then the impact or the injurious
effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be
established if the conduct itself is proved or admitted,
(iii) There has been a marked change in the life around us. In matrimonial duties and responsibilities,
in particular, there is a vast change. They are of varying degrees from house to house or person to
person. Therefore, when a spouse makes complaint about the treatment of cruelty by the partner in
life or relations, the Court should not search for standard in life. A set of facts stigmatised as cruelty
in
one case may not be so in another case. The cruelty alleged may largely depend upon the type of
life the parties are accustomed to or their economic and social conditions. It may also depend upon
their culture and human values to which they attach importance. The Judges and lawyers, therefore,
should not import their own notions of life. Judges may not go in parallel with them. There may be a
generation gap between the Judges and the parties. It would be better if the Judges keep aside their
customs and manners. It would be also better if Judges less depend upon precedents,
(iv) A new dimension has been given to the concept of cruelty. Explanation to Section 498-A of the
Indian Penal Code, 1860, provides that any wilful conduct which is of such a nature as is likely to drive
a woman to commit suicide would constitute cruelty. Such wilful conduct which is likely to cause
grave injury or danger to life, limb or health (whether mental or physical of the woman) would also
amount to cruelty. Harassment of the woman where such harassment is with a view to coercing her
or
any person related to her to meet any unlawful demand for any property or valuable security would
also constitute cruelty. The cruelty as a ground for dissolution of marriage if not admitted requires to
be proved on the preponderance of probabilities as in civil cases and not beyond a reasonable doubt
as in criminal cases,

(v) This is not a case where the husband requested his wife to give some money for his personal
expenses. The High Court appears to have misunderstood the case. It has evidently proceeded on

a wrong basis. It proceeded on the ground that the husband wanted some money from his wife for his
personal expenses. The wife must extend all help to husband and so too the husband to wife. They
are partners in life. They must equally share happiness and sorrow. They must help each other.
One cannot take pleasure at the cost of the other. But the case on hand is not of a failure on that front.
It has been admitted by the husband himself In letter addressed to the wife that his parents demanded
dowry. But he wrote to the wife that there was nothing wrong in that demand of his parents. This is
indeed curious. He would not have stated so unless he was party to the demand. The wife has
stated in her evidence that there were repeated demands for money from her brother-in-law. Her
evidence cannot be brushed aside on the ground that she has not examined her father. It was not the
case of the wife that the dowry was demanded directly from her father. The evidence of the father
was therefore not material. It Is also not proper to discredit the wife as hypersensitive or prone to
exaggeration. In the instant case, the cumulative effect of all the circumstances and the evidence of
the parties led to the conclusion that the demand of dowry went on with the support of the husband and
the proof of element of harassment was not necessary.
❖ ♦>

PROCEDURE [Ss.13-A,14&15]
IMPORTANT POINTS:

^ ^female relief in divorce proceedings: Divorce is the last and drastic step to a Hindu marriage.
Section 13 empowers an aggrieved Hindu spouse to file a petition for Divorce under the grounds
mentioned in that Section. Still now Our Courts and Legislatures are adhered to the sentiment that
Hindu marriage is sacrament and it should not be broken. Therefore, they try to the maximum extent
 The Family Law - I (The Hindu Law) 63

to re-unite the spouses in the dispute. Section 13-A provides that opportunity to the Court. According
to the provisions of Section 13-A, the Court is empowered to pass alternative relief, i.e., restitution of
conjugal rights or separation, conciliation, etc., instead of passing the Decree of Divorce.
B. LIMITATION TO PRESENT THE DIVORCE PETITION: Section 14 imposes the restriction
that a petition for divorce shall not be presented within one year of marriage. However, in exceptional
and hardship cases, a divorce petition may be filed before one year has elapsed. The Court may use
its discretionary power to admit and decide that case. In disposing of any application under this
Section for leave to present a petition for divorce before the expiration of one year from the date of the
marriage, the Court shall have regard to the interests of any children of the marriage and to the question
whether there is a reasonable probability of a reconciliation between the parties before the expiration of
the said one year.
C. DIVORCE BY MUTUAL CONSENT: Under Section 13-B, divorce may be applied by the mutual
consent of the wife and husband. [Refer to Topic “Divorce by Mutuai Consent”.]
D. DISTRICT COURT: All the matrimonial disputes shall be decided by the District Courts or the
Family Courts established for this purpose.
E. Divorced persons when may marry again: Section 15 lays down that when a marriage has
been dissolved by a Decree of Divorce and either there is no right of appeal against the Decree or, if
there is such a right of appeal, the time for appealing has expired without an appeal having been
presented, or an appeal has been presented but has been dismissed, it shall be lawful for either party
to the marriage to marry again.

3.F. DIVORCE BY MUTUAL CONSENT [Sec. 13-B]

Q.1. Divorce by mutual consent. (SN) (Dec., 2006, B.U.) (June, 2004, B.U.) (AnI., 2004, P.U.) (AnI. 2003, P.U.)
ANSWER;

INTRODUCTION: Divorce between the parties to a marriage means an end to their differences,
difficulties psychologically and physically. Divorce puts an end to marital tie. The Divorce Petition
may be submitted by any one of spouses to the District Court, on anyone of the grounds given in
Section 13. Sometimes, both the spouses decide to separate amicably and peaceably. Hence they
decide to take the divorce on mutual consent. Originally, there were no provisions for Divorce by
Mutual Consent in the original Act of 1955. Thus the provisions for the Divorce by Mutual Consent
were incorporated in Section 13-B by the Hindu Marriage (Amendment) Act 1976 (Act No. 68 of 1976).
“Sec. 13-B. Divorce by mutual consent— (1) Subject to the provisions of this Act, a petition for dissolution of marriage by
a decree of divorce may be presented to the District Court by both the parties to a marriage together, whether such marriage
was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), on the
ground that they have been living separately for a period of one year or more, that they have not been able to live together
and that they have mutually agreed that the marriage should be dissolved.
(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred
to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in meantime, the
Court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been
solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved
with effect from the date of the decree.”

IMPORTANT POINTS:

A. The parties to the marriage must live separately for a period of one year or more.
B. Both the parties must come to a conclusion that they have not been able to live together.
C. Both the parties must agree that the marriage should be dissolved.

D. The Divorce Petition by mutual consent shall be submitted to the District Judge.
E. Both the parties must apply to the District Court not earlier than six months of the presentation
of the Petition and not later than 18 months after that date that the petition may be heard and the
Decree of Divorce dissolving the marriage may be granted.
F. Audi Alteram Partem (Hear the other side): It is a natural principle of law. The Court must
hear both the parties. The Court may make such inquiry into the correctness and genuineness of the
grounds of the petition.
G. Case-Law:

# Ashok Hurra vs. Rupa Hurra (1997 SC)

INTRODUCTION: It is a general principle of Section 13-B that there must be mutual consent of
wife and husband, and who should submit their Petition to the Court. After submission of petition, if
any one of the spouses withdraws the consent, the Court will not sanction Divorce on the Petition
before it. This basic principle had been followed by the Indian Courts until 13.3.1997. The Supreme
Court rejected this principle and pave a new and radical decision.
64 The Family Law -1 (The Hindu Law)

Brief Facts: Ashok Hurra and Rupa Hurra were Husband and Wife. Due to differences arisen
between them, they mutually agreed to separate and filed Divorce Petition under Section 13-B. After
18 months, Rupa Hurra-Wife withdrew her consent to Divorce. The trial Court rejected to grant
Divorce, even though the evidence were in favour of the husband. The High Court granted the Divorce.
JUDGMENT: The Supreme Court gave the judgment on 13.3.1997 confirming Divorce Decree.
PRINCIPLE: Where wife and husband file Divorce Petition under Sec. 13-B (Divorce by Mutual
Consent), and one of them withdraws his/her consent thereafter, the Court has the discretionary
power to proceed the case to and to grant or reject the Divorce Decree.

3.G. CHANGES BROUGHT BY AMENDMENT ACT No. 68 OF 1976

0.1. Explain the significance of the Marriage Laws Amendment Act, 1976. Do you agree with the changes brought about by the Act in
the Hindu Divorce Law? (AnI., 2004, K.U.)
Q..?. Examine critically the changes brought about by the Marriage Laws Amendment Act, 1976.
Q.L The Hindu Marriage (Amendment) Act, 1976 marked the end of the Sastraic taw of marriage and the beginning of a secular law
of marriage.’' Elucidate. Point out briefly the changes brought about by the Hindu Marriage (Amendment) Act of 1976 in the law
relating to Divorce.

ANSWER:

CHANGES BROUGHT BY THE HINDU MARRIAGE (AMENDMENT) ACT, 1976

Divorce Law before Amendment Divorce Law after Amendment

1. The other party has been incurably of unsound
mind for a continuous period of not unsound
mind, or has been suffering iess than 3 years,
immediately preceding the continuously or
intermittently from mental presentation of the
petition disorder of such a kind and to such an
extent that the petitioner cannot reasonably be
expected to live with the respondent. (The period
of 3 years has been removed.) Section 13-B " by
Act No.68 of 1976.
2. Divorce by Mutual consent” has been
incorporated newly. There was no arrangement
of getting divorce by mutual consent.
3. The other party has been suffering from a
virulent and incurable form of leprosy for a
period of not less than 3 years immediately
preceding the presentation of the petition.
(Sec. 13).
4. The other party has been suffering from venereal
disease in a communicable form “for a period of
not less than 3 years immediately preceding the
presentation of the petition.” (Sec.13).
5. 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, or (See Sec.13(1)
(vii).
6. Sub-Section (viii) of Section 13(1) ran as
follows : “has not resumed cohabitation for a
space of two years or upwards after the passing
of a decree for judicial separation against the
party, or”.
7. Sub-Section (ix) of Sec.13(1) ran as follows :
“has failed to comply with a decree for restitution
of conjugal rights for a period of two years or
upwards after the passing of the decree”.
8. Sub-Section(ii) of Sub-Section 1-A of Sec.13
runs as follows: “That there has been no
restitution of conjugal rights as between the
parties to the marriage for a period of two years
or upwards after passing of a decree for
restitution of conjugal rights in a proceeding to
which they were parties.
1. The other party has been incurably of unsound
mind, or has been suffering continuously or
intermittently from mental disorder of such a kind
and to such an extent that the petitioner cannot
reasonably be expected to live with the
respondent. (The period of 3 years has been
removed ).
2. Section 13 B “Divorce by Mutual Consent “ has
been incorporated newly by Act No. 68 of 1976.
3. The period of limitation i.e. “for a period of not
less than 3 years immediately preceding the
presentation of the petition” has been omitted by
Act NO.68 of 1976 (Sec.13).
4. The period of limitation, i.e. the words “for a
period of not less than three, years immediately
preceding the presentation of the petition” have
been omitted by Act NO.68 of 1976. (Sec.13).
5. The words “or” has been omitted by the Act of
68 of 1976. Further, the Explanation has been
inserted to the Sub-section (vii) of Section .13 (1)
by the Act of 68 of 1976. (Refer topic 2-E).
6. Sub-Section (viii) has been completely omitted
by the Act of 68 of 1976.
7. Sub-Section (ix) of Sec. 13(1) has been
completely omitted by the Act N0.44 of 1964.
8. ‘Two years” limitation has been substituted by
“one year" by the Amendment Act NO.68 of
1976.
 The Family Law -1 (The Hindu Law) 65

9. Sub-Section (ii) of Sub-Section 2 of Section 9. The words “bestiality, or” have been
13 runs as follows : “bestiality, or”. substituted as follows” (ii) “that the husband
has, since the solemnization of marriage, been
guilty of rape, sodomy, or bestiality; or'.
10. Previously there was no such clause. 10. Sec.13(2)(iii) has been incorporated by the Act
68 of 1976.
11. Previously, before the amendment, a divorce 11. Now the period has been decreased from 3
petition can only be filed after 3 years after the years to 1 year. A divorce petition can, now be
marriage. filed after 1 year after marriage.
12. No such grounds were given to Hindu wife to 12. Some new grounds have been given to Hindu
obtain divorce. Wife to obtain divorce. (Sec.13(2)) viz. (a)
Cruelty on the part of the husband; (b) Desertion
by the husband for 2 years; (c) Repudiation of
child marriage; etc.
CONCLUSION :

The Hindu Marriage is a sacrament. It is not a contract. The Hindu Marriage is the result of Mantras +
customs. It is rather a Sastriac law of marriage. The marriage is performed by pronouncing the sacred
Mantras. What was the effect, if marriage failures? The Commentators of Sastras did not expect the
dissolution of the marriage in those days. Hence no “divorce” mantras are available. The old Hindu
jurisprudence did not know about the dissolution or divorce of marriage. These are the laws of English.
As the English ruled our country, gradually the English justices injected their principles of law. The
principles of justice, equity and good conscience have been adopted in Hindu law also. The British,
rulers prepared several Acts for the welfare of the Hindus. After Independence, the Government of
India codified the Hindu Law and brought four important acts, and the Hindu Marriage Act, 1955 is one
of them. Sections 9 to 13 of the Act of 1955 give the matrimonial reliefs. Out of them Section. 13 is the
most important one, which explains about “Divorce”. The Section has been amended two times - once
in 1964 and second time in 1976 by Amendment Act 68/1976. The Amendment Act 68 of 1976 brought
several changes. The day-to-day life of Hindu has been changed. Due to modernization, urbanization,
industrialisation, the life of Hindu has been changed. Their social, economic style has been changed.
In keeping view of these changed circumstances, the Hindu Marriage (Amendment) Act 1976 marked
the end of the Sastriac law of marriage and the beginning of a secular law of marriage.

3.H. LEGITIMACY OF CHILDREN OF VOID AND

VOIDABLE MARRIAGES [Sec. 16]
0.1. Discuss the status of children of void and voidable marriages before and after the Hindu Succession (Amendment) Act, 2005.
Q.2. Legitimacy of children of void and voidable marriages. (SN)
ANSWER:

Bernard Shaw said: “There can be no illegitimate children. There can only be illegitimate parents. ”
SCOPE: Section 16 of the Hindu Marriage Act, 1955 which has been subsequently amended by the
Marriage Laws (Amendment) Act, 1976 provides the status of children of void and voidable
marriages, with retrospective effect.
SECTION 16:

“Sec. 16. Legitimacy of children of void and voidable marriages.— (1) Not withstanding that a marriage is null and void
under Section 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be
legitimate, whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68
of 1976), and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the
marriage is held to be void otherwise than on a petition under this Act.

(2) Where a decree of nullity is granted in respect of a voidable marriage under Section 12, any child begotten or conceived
before the decree is made, who would have been the legitimate child of the parties to the marriage if at the date of the decree
it had been dissolved instead of being annulled, shall be deemed to be their legitimate child notwithstanding the decree of
nullity.

(3) Nothing contained in sub-section (1) or sub-section (2) shall be construed as conferred upon any child of a marriage
which is null and void or which is annulled by a decree of nullity under Section 12, any rights in or to the property of any
person, other than the parents, in any case where, but for the passing of this Act, such child would have been incapable of
possessing or acquiring any such irghts by reason of his not being the legitimate child of his parents.”

IMPORTANT POINTS:

A. It is the general rule of law that a child born out of a lawful wedlock is called a legitimate child.
Such legitimate child is entitled to inherit the properties of his parents of a lawful wedlock. Then what
will be the position of a child born out of a void or voidable marriage. Section 16 narrates the position
of such a child. Certain changes were brought in Section 16 by the Amending Act of 1976. This
Section contains three sub-sections.
66 The Family Law -1 (The Hindu Law)

B. Children of a void marriage (Sec. 16 (1): According to sub-section (1) of Section 16, the
children born out of a void marriage under Section 11, regardless of whether any decree of nullity of
marriage has been granted in any proceeding under theAct or otherwise, is protected and is considered
as legitimate child. The protection is given to the child in case of any such marriage is complete as
laid down in the sub-section, subject to the rule enacted in sub-rule (3).
PROBLEM: X, a Hindu husband, have two wives, Y and Z. Both the wives have children. During the
lifetime of X, none of the wives challenged. X dies. Are the children of the second wife-Z entitled to
inherit the properties of X. Decide.
SOLUTION: Yes. The children of the second wife are entitled to inherit the properties of X. The
facts of the Problem are identical with “Bhogadi Kannababu and others vs. Vuggina Pydamma
and others (2006 (6) SCJ 414)”, the Supreme Court gave judgment that the respondents-the children
born out of the second marriage are entitled to inherit the property along with the first wife and her
children.

PROBLEM: A was the sole and last coparcener of a coparcener family. There were coparcenary
properties and self acquired properties. A had no children in his first marriage. A son was born in his
second marriage. During the life time of A, the first wife did not challenge the second marriage. A
died. The son of the second marriage claimed the share in the coparcenary property and self acquired
property of A. The first wife challenges contending that he has no right being an illegitimate child of A
Decide.

SOLUTION: The facts of the Problem are identical with “Chikkamma vs. N. Suresh (2001 (1) ALT
10 AP), in which the Andhra Pradesh High Court held that under Section 16 of the Hindu MarriagesAct,
1955, the child of void marriage is entitled for the share of his deceased father, and dismissed the
appeal of the first wife.
C. Children of voidable marriage (Sec. 16 (2): According to sub-section (2) of Section 16, a
child born of voidable marriage would undoubtedly be legitimate. Avoidable marriage can only be
challenged at the instance of either party to the marriage, and cannot be challenged after the death of
one of the parties to the same. If a marriage, though voidable, was not challenged during the lifetime
of a spouse, thereafter it cannot be challenged. Therefore, the issue of such marriage would be
legitimate, and no question would arise.
PROBLEM: Awasan employee of X, a Public Corporation. Amarried B, to whom no children born.
A married C, and got a daughter. A died. B and C consented in LokAdalat to share the retirement
benefits equally, and the job offered by X on compassionate appointment shall be given to the daughter
of C. The daughter of C applies for the compassionate appointment. X rejects saying that she is not
legitimate child of A, being born of second and void marriage. Decide.
SOLUTION: The facts of the problem are identical with “Board of Trustees of the Port of
Visakhapatnam vs. Presiding Officer, Permanent, Lok Adalat-cum-Secretary, District Legal Services
Authority, Visakhapatnam and another (2000 (5) ALT 577) case, the High Court held the Board has no
authority to decide the legality or illegality of child of the employee, when once it was decided by the Lok
Adaiat, and the decision of the LokAdalat is equal to the Decree of a Civil Court, and that the child born
of second marriage becomes legitimate under Section 16, therefore objections of the Board are not
valid, and to appoint the daughter of the deceased employee on compassionate grounds.
D. Status of the children of void or voidable marriage (Sec. 16 (3): According to sub-section (3)
of Section 16, it is clear that even though a marriage is void or voidable under this Act, the children of
any such marriage have the status of legitimate children.
PROBLEM: Can an illegitimate son have a right in the Joint Hindu family property?
SOLUTION: Yes. In “Goverdhan Singh vs. Hiraman Singh (1980 (2) ALT 210)”, the Andhra
Pradesh High Court held that the illegitimate sons born out of unlawful wedlock and adulterous
intercourse, though such marriage is void, but such illegitimate sons have a right in the joint Hindu
family properties,
in “Rasala Surya Prakasa Rao vs. Rasala Venkateswara Rao (1992 (1) ALT 33 NRC D.B.)”, the
Court held that illegitimate sons can be equated with natural sons and treated as coparceners for the
properties held by their father. However, the illegitimate sons have no right to claim partition during the
life time of the father. They can seek the same only after the death of the father.
E. MAINTENANCE OF LEGITIMATE AND ILLEGITIMATE CHILDREN: According to Section 20
of the Hindu Adoptions and Maintenance Act, 1956 & Section 125 of the Criminal Procedure Code,
1973, a Hindu is bound during his or her lifetime, to maintain his or her legitimate or illegitimate children.
 The Family Law - / (The Hindu Law) 67

3.1. (i) THE FAMILY COURTS ACT, 1984,

(ii) THE PROTECTION OF WOMEN FROM DOMESTIC
VIOLENCE ACT, 2005 &
(ill) IMPORTANCE OF CONCILIATION
Q.1. Write a brief, but critical note on the Family Courts under the Family Courts Act, 1984.
Q.2. “The Family Courts Act, 1984 is a progressive legislation." — Comment.
Q.3. Explain the importance of the Protection of Women from Domestic Violence Act, 2005.

Q.4. Narrate the role and importance of Conciliation in resolving the matrimonial disputes amicably.
Q.5. The Family Courts Act, 1984. (SN)
Q.6. The Conciliation Proceedings by the Family Courts. (SN)
Q.7. Proceedings in Camera. (SN) (Dec., 2006, B.U.) (AnI., 2004, P.U.) (Anl., 2003, K.U.)
ANSWER:

(i) THE FAMILY COURTS ACT, 1984 (SN)

INTRODUCTION: Before 1984, the family disputes were settled in the Civil and Criminal Courts,
which are heavily burdened. Family disputes arise in the families due to psychological, social,
economical and emotional feelings. The Civil and Criminal Courts could not concentrate on the family
issues. Each of the problem is required to be treated separately and amicably rather than to be
settled in the Civil and Criminal Courts. Hence several social and women organizations, jurisprudents.
Judges urged the Government to make special Acts to deal with family matters. The Law Commission
of India in its Reports 54 and 59 (1974) had recommended to enact a Special Act to deal with the
family matters.

As a result, the Indian Parliament enacted “THE FAMILY COURTS ACT. 1984” (Act No. 66 of 1984),
which came into force with effect from from 14-09-1984. The Act enabled to establish “The Family
Courts” in India. Several States adopted this Act on various dates. The States and High Courts are
given Rule making power. Accordingly, the Andhra Pradesh Government rpade the Rules The Andhra
Pradesh Family Courts (High Court) Rules. 1995”. In the initial stage, the Act did not receive the
required attention. Later, it attracted the attention of the State Governments, jurists, justices, advocates
and women associations. Now, it is known to every corner of the country. In practice, it is well
received by the aggrieved people, especially women. Therefore, this Act is now called as “a progressive
legislation”. This Act contains 23 Sections.
OBJECTS: The Act aims to achieve several objects at a time. They are:—
1. The aggrieved parties are generally women, who are half of the population. They are mostly
illiterates, poor, lacking independence. The Family Courts give moral and legal support to them.
2. The family disputes arise from the human life, that too from the family life. They arise due to
different psychological, social, economical, emotional and sensitive matters. These matters cannot
be dealt in ordinary Courts. The Family Courts meet this requirement.
3. In the ordinary Courts, rigid rules of practice pertaining to evidence are followed. In the Family
Courts this rigidity is lessened. There is no need to take the assistance of advocates. The parties
can plead their grievances themselves. However, on the request of the parties the advocates are
permitted.
4. Conciliation: The Family Courts promote conciliation and secure speedy settlement the disputes
relating to marriage and family affairs and the matters connected therewith. (Preamble of the Act).
5. Every suit or proceeding in the Family Courts, may be held in camera if either party so desires.
(Section 11).
IMPORTANT POINTS:

A. Nature of the disputes: Section 7 of the Act clearly enunciates the nature of the disputes to be
settled in the Family Courts. They are:—
(a) a suit or proceeding between the parties to a marriage for a decree of nullity of marriage (declaring
the marriage to be null and void, or, as the case may be annulling the marriage) or restitution of
conjugal rights or judicial separation or dissolution of marriage;
(b) a suit or proceeding for a declaration as to the validity of marriage or as to the matrimonial status
of any person;
(c) a suit or proceeding between the parties to a marriage with respect to the property of the parties
or of either of them;
68 The Family Law -1 (The Hindu Law)

(d) a suit or proceeding for an order or injunction in circumstances arising out of a marital relationship:
(e) a suit or proceeding for a declaration as to the legitimacy of any person;
(f) a suit or proceeding for maintenance;
(g) a suit or proceeding in relation to the guardianship of the person or the custody of, or access to,
any minor.
B. JURISDICTION: A Family Court is a Civil Court. It shall have and exercise all the jurisdictions
exercisable by any District Court or any Subordinate Civil Court under any law for the time being in
force in respect of suits and proceedings of the nature referred in the Explanation] and be deemed, for
the purposes of exercising such jurisdiction under such law, to be a District Court or, as the case may
be, such Subordinate Civil Court for the area to which the jurisdiction of the Family Court extends.
(Section 7)
A Family Court is equal to the District Court, and is only subordinate to the High Court. The High Court
has original and appellate jurisdiction over the Family Courts. The Hindu Marriage Act, 1955 clearly
enunciates that all matrimonial cases shall be heard by the District Court. The same jurisdiction is
given to the Family Court. Generally Woman is appointed as the Judge of the Family Court, provided
that she must possess other legal qualifications.
A Family Court shall also have and exercise,—
(a) the jurisdiction exercisable by a Magistrate of the First Class under Chapter-IX (relating to
order for maintenance of wife, children and parents) of the Code of Criminal Procedure, 1973 (2 of
1974): and
(b) such other jurisdiction as may be conferred on it by any other enactment. (Section 7)
MUSLIMS: The Family Court cannot entertain an application under Section 3 of the Muslim Women
(Protection of Rights on Divorce) Act, 1986. Hence the Muslims are excluded from the jurisdiction of
Family Courts.
The Hindu Succession, etc.: The Family Courts Act, 1984 clearly mentions the nature of the disputes
to be settled in the Family Courts, in the Explanation to Section 7. The Family Court has no authority
to interfere in the other matters, except in the matters explained in Section 7. Therefore, it cannot
grant a succession certificate. It cannot entertain the matters under Section 9 (4) of the Hindu
Adoptions and Maintenance Act, 1956, etc.
The Family Court exercises the jurisdiction over Section 125 Cr.P.C. After the establishment of a
Family Court, the Judicial First Class Magistrate loses his jurisdiction under this Section, and any
proceeding pending before him on the date of establishment of the Family Court shall have to be
transferred to the Family Court, and he cannot pass the final orders. It was decided by the Supreme
Court in Case No. 4220/1995.

Where a Family Court is established the District Court or any Subordinate Civil Court ceases its
jurisdiction over the matters explained in Section 7.
C. PROCEDURE: Sections 9 to 18 of the Family Courts Act, 1984 clearly state the procedure to ho
followed by the Family Courts, and their powers and duties,

(a) Duty of Family Court to make efforts for settlement: Section 9 imposes the duty on the
Family Court to take the necessary efforts for settlement.
Sec. 9. Duty of Family Court ot make efforts for settlement: (1) In every suit or proceeding, endeavour shall be made
by the Family Court in the first instance, where it is possible to do so consistent with the nature and circumstances of the
case to assist and persuade the parlies in arriving at a settlement in respect of the subject matter of the suit or proceeding
and for this purpose a Family Court may, subject to any rules made by the High Court, follow such procedure as it may deem
fit.

(2) If, in any suit or proceeding, at any stage, it appears to the Family Court that there Is a reasonable possibility of a
settlement between the parties, the Family Court may adjourn the proceedings for such period as it thinks fit to enable
attempts to be made to effect such a settlement.

(3) The power conferred by sub-section (2) shall be in addition to, and not in derogation of, any other power of the Family
Court to adjourn the proceedings,

(b) General Procedure : Section 10 of the Act explains the procedure to be followed generally.
Sec. 10. Procedure generally.— (1) Subject to the other provisions of this Act and the rules, the provisions of the Code
of Civil Procedure, 1908 (5 of 1908) and of any other law for the time being in force shall apply to the suits and proceedings
(other than the proceedings under Chapter - IX of the Code of Criminal Procedure, 1973 (2 of 1974), before a Family Court
and for the purposes of the said provisions of the Code, a Family Court shall be deemed to be a Civil Court and shall have all
the powers of such Court.
(2) Subject to the other provisions of this Act and the rules, the provisions of the Code of Criminal Procedure, 1973 (2 of
1974) or the rules made thereunder shall apply to the proceedings under Chapter-IX of that Code before a Family Court.
(3) Nothing in sub-section (1) or sub-section (2) shall prevent a Family Court from laying down its own procedure with a
view to arrive at a settlement in respect of the subject matter of the suit or proceedings or at the truth of the facts alleged by
one Party and denied by the other.
 The Family Law - / (The Hindu Law) 69

(c) In Camera Proceedings: The matters and disputes to be settled by the Family Court involve
very emotional, sensitive human feelings, especially honour and integrity of women. The wives cannot
express their opinions, incidences, innermost secrets before all the people. Therefore, Section 11 of
the Act gives them an opportunity that every suit or proceeding in a Family Court may be held in
camera if the Family Court so desires and shall be so held if either party so desires. It preserves the
integrity of the women.
(d) Assistance of Medical and Welfare Experts: This Act is not limited to solve the legal issues.
There are other objects and intentions in the minds of the framers. Welfare of the society is inherent
in the proceedings of this Court. To settle the disputes amicably by conciliation, and to look into the
matter with the eyes of social and welfare considerations. Section-12 thus enacts “In every suit or
proceedings, it shall be open to a Family Court to secure the services of a medical expert or such
person (preferably a woman where available), whether related to the parties or not, including a person
professionally engaged in promoting the welfare of the family as the Court may think fit, for the purposes
of assisting the Family Court in discharging the functions imposed by this Act.”
(e) Advocates: As a matter of fact, the framers of the Act did not want the appearance and interference
of Advocates in the settlement of family matters, which involve more sensitive and innermost secrets.
The Advocates see the matters only in the eyes of the law. They do not interpret the issues considering
the social, economic and psychological matters. Further there are chances the issues may become
more rigid than previous. Therefore, Section 13 imposes the restriction that no party to a suit or
proceeding before a Family Court shall be entitled, as of right, to be represented by a legal practitioner.
However, the proviso of the same Section relaxes: “Provided that if the Family Court considers it
necessary in the interest of justice, it may seek the assistance of a legal expert as amicus curiae.”
(f) Evidence: The primary object of the Family Courts Act is to solve the disputes in an amicable
settlement and in speedy disposal. Therefore, the application and rigidity of rules of evidence are
diluted in the matters of the Family Courts. That is why the advocates are also excluded. Sections
14,15 and 16 of the Act explain the “Rules of Evidences” in the Family Court. Section 14 says that
the Family Court should not go into the detailed technicality of rules of evidence and it is sufficient to
take a decision on the material before it in a broad-based manner. The Family Courts Act, 1984 is a
special legislation, and brought abundant welfare changes in the community. The Rajasthan High
Court, disposing Crl. App. 98 of 1991 opined that Section 14 of the Family Courts Act is a special
legislation and the principles of admissibility of documents as provided under Section 6 (e) of Evidence
Act are not relevant in these cases.

Section 15 lays down that in suits or proceedings before a Family Court, it shall not be necessary to
record the evidence of witnesses at length, but the Judge, as the examination of each witness proceeds,
shall record or cause to be recorded, a memorandum of the substance of what the witness deposes,
and such memorandum shall be signed by the witness and the Judge and shall form part of the
record.

Section 16 lays down that the evidence of any person where such evidence is of formal character,
may be given by affidavit and may, subject to all just exceptions, be read in evidence in any suit
proceeding before a Family Court,
(g) Judgment: Section 17 lays down that judgment of a Family Court shall contain a concise
statement of the case, the point for determination, the decision thereon and the reasons for such
decision,

(h) Execution of decrees and orders: Section 18 lavs down that a decree or an order (other than
an order under Chapter-IX of the Code of Criminal Procedure. 1973 (2 of 1974), passed by a Family
Court shall have the same force and effect as a decree or order of a Civil Court and shall be executed
in the same manner as is prescribed by the Code of Civil Procedure, 1908 for the execution of decrees
and orders. An order passed by a Family Court under Chapter-IX of the Code of Criminal Procedure,
1973 shall be executed in the manner prescribed for the execution of such order by that Code. A
decree or order may be executed either by the Family Court which passed it or by the other Family
Court or ordinary Civil Court to which it is sent for execution.
D. APPEAL AND REVISIONS: A Family Court is subordinate to the High Court. An appeal or
revision from a Family Court can be exercised by the High Court both on facts and law. The limitation
for an appeal or revision is 30 days. The High Court may, of its own motion or otherwise call for and
examine the record of any proceeding of the Family Court, for the purpose of satisfying itself as to the
correctness, legality or propriety of the order, not being an interlocutory order, and as to the regularity
of such proceeding. (Section 19)
70
The Family Law -1 (The Hindu Law)

(ii) THE PROTECTION OF WOMEN FROM

DOMESTIC VIOLENCE ACT, 2005
(Act No. 43 of 2005)
INTRODUCTION: The Vienna Accord of 1994 and the Beijing Declaration and the Platform for Action
(1995) have acknowledged that domestic violence is undoubtedly a human rights issue. The United
Nations Commission on Convention on Elimination of All Forms of Discrimination Against Women in
its General Recommendations has recommended that State parties should act to protect women
against violence of any kind, especially that occurring within the family. The phenomenon of domestic
violence in India is widely prevalent but has remained invisible in the public domain. The civil law does
not address this phenomenon in its entirety. Presently, where a woman is subjected to cruelty by her
husband or his relatives, it is an offence under Section 498-A of the Indian Penal Code. In order to
provide a remedy in the civil law for the protection of women from being victims of domestic violence
and to prevent the occurrence of domestic violence in the society the Protection of Women from
Domestic Violence Act, 2005 was enacted by the Parliament. This Act is applicable to all religious
women.

STATEMENT OF OBJECTS AND REASONS: Domestic violence is undoubtedly a human rights

issue and serious deterrent to developm^t. The Vienna Accord of 1994 and the Beijing Declaration
and the Platform for Action 1(1995) have acknowledged this. The United Nations Committee on
Convention on Elimination of All Forms of Discrimination Against Women (CEDAW) in its General
Recommendation No. XII (1989) has recommended that State parties should act to protect women
against violence of any kind especially that occurring within the family.
2. The phenomenon of domestic violence is widely prevalent but has remained largely invisible in the
public domain. Presently where a woman is subjected to cruelty by her husband or his relatives, it is
an offence under Section 498-A of the Indian Penal Code. The civil law does not however address this
phenomenon in its entirety.
3. It is, therefore, proposed to enacta law keeping in view the rights guaranteed under Articles 14,15
and 21 of the Constitution to provide for a remedy under the civil law which is intended to protect the
woman from being victims of domestic violence and to prevent the occurrence of domestic violence in
the society.
4. The Bill, inter alia, seeks to provide for the following:—
(i) It covers those women who are or have been in a relationship with the abuser where both parties
have lived together in a shared household and are related by consanguinity, marriage or through
a relationship in the nature of marriage or adoption. In addition, relationships with family members
living together as a joint family are also included. Even those women who are sisters, widows,
mothers, single women, or living with the abuser are entitled to legal protection under the proposed
legislation. However, whereas the Bill enables the wife or the female living in a relationship in the
nature of marriage to file a complaint under the proposed enactment against any relative of the
husband or the male partner, it does not enable any female relative of the husband or the male
partner to file a complaint against the wife or the female partner,
(ii) It defines the expression “domestic violence” to include actual abuse or threat or abuse that is
physical, sexual, verbal, emotional or economic. Harassment by way of unlawful dowry demands
to the woman or her relatives would also be covered under this definition.
(iii) It provides for the rights of women to secure housing. It also provides for the right of a woman to
reside in her matrimonial home or shared household, whether or not she has any title or rights in
such home or household. This right is secured by a residence order, which is passed by the
Magistrate,
(iv) It empowers the Magistrate to pass protection orders in favour of the aggrieved person to prevent
the respondent from aiding or committing an act of domestic violence or any other specified act,
entering a workplace or any other place frequented by the aggrieved person, attempting to
communicate with her, isolating any assets used by both the parties and causing violence to the
aggrieved person, her relatives or others who provide her assistance from the domestic violence,
(v) It provides for appointment of Protection Officers and registration of non-governmental
organisations as Service Providers for providing assistance to the aggrieved person with respect
to her medical examination, obtaining legal aid, safe shelter, etc.
(Vi) The Bill seeks to achieve the above objects.”
PREAMBLE OF THE ACT: ‘An Act to provide for more effective protection of the rights of women
guaranteed under the Constitution who are victims of violence of any kind occurring within the family
and formatters connected therewith or incidental thereto.
”
 The Family Law -1 (The Hindu Law) 71

STRUCTURE OF THE ACT: There are 37 Sections, housed in Five Chapters. Chapter-I (Ss. 1 &2)
“Preliminary”. Chapter-ll (S. 3) contains “Definition of Domestic Violence”. Chapter-Ill (Ss. 4-11)
narrates the provisions about “Powers and Duties of Protection Officers, Service Providers, etc.”.
Chapter-IV (Ss. 12-29) narrates the provisions about “Procedure for obtaining Orders of Reliefs”.
Chapter-V (Ss. 30-37) narrates the miscellaneous provisions.

(iii) IMPORTANCE OF CONCILIATION (SN)

MEANING:

conciliator, (n.) = One who brings the opponents into harmony,

conciiiate. (v.t.) = to bring the opponents into harmony; to win over by hospitality over hostility; to
win by generality; to unite men’s affections and to remove enemity between them,
conciliation, (n.) = bringing the opponents into harmony; win over by hospitality over hostility; win
by generality; making efforts to unite human beings affections in place of enemity; reconcilement; a
voluntary (and not legally binding) attempt by parties to a family dispute to reach agreement without
dissolution of marriage.
Counsellor, (n.) = A person, who counsels or advises; an adviser, especially a legal adviser, at an
embassy or legation, a legal adviser who may conduct a case in court for his client, an academic
adviser,

settle, (v.t.) = to cease to move around and come quietly or gently to rest,
settlement, (n.) = In the family disputes, if the spouses decide to settle the issues and to live
together amicably by the discussions, mediators and conciliators, it is called settlement. It is the first
duty of the Judge of the Family Court tries to settle the dispute between the spouses in an amicable
manner encouraging the conciliation and finally settlement.
OBJECT: As the name itself indicative, conciliation is the means to reconcile the affections in place
of hostility. It avoids litigation between the parties. Thus peace prevails in the families. Indirectly it is
also helpful to the country, as the number of litigations are expected to decrease. “Sallus populi
suprema /ex” (The welfare of the people is the supreme law). It is the main and also inherent object
of the conciliation. If some of the problems and disputes are resolved by way of conciliation, it causes
the decrease of number of suits.

Conciliation and mediation are not the new concept to the Hindu community. It has been in regular
practice in the land disputes, family disputes, etc., in the villages.
The concept of conciliation has been used in the industries. There are certain provisions in the
Industrial Disputes Act, 1947 regarding the Conciliation between the employees and employer.
Conciliation under the 1947 Act is “statutory conciliation”.
THE ROLE OF CONCILIATION IN THE FAMILY DISPUTES

The concept of Divorce itself does not belong to the Hindu Laws and customs. The ancient Hindus
did not know it. In the ancient time also there weredisputes between the spouses. However, the
disputes were settled by the elders by way of mediation and conciliation. The Joint family system
helped in those days. The young gave respect to the elders. The Karta, the caste and village elders
used to subside the disputes between the wife and husband. In those days, in such circumstances,
the wife also could not come out of the matrimonial house, due to illiteracy, no income, etc. Even the
parents of the wife did not support her. No doubt several wives faced troubles. The family elders
used to mediate and conciliate between the wife and husband, whenever the disputes arose.

Now this is not the position. Entire joint Hindu family system was collapsed. Now there are no elders.
Even parents have become burdensome to the new couple. The new couple are migrating to the
cities and foreign countries. All are in rupee and dollar dream. Thus as soon as the marriage
performed, the new couple separates from their parents. If any dispute arises, who will mediate and
conciliate such couple? This is the present trend and situation.
The Divorce System, Judicial Separation, etc., are imported from the English Law. Literacy, employment,
individuality, etc., also increased. The joint Hindu family system is almost all collapsed. This affected
on the family relations between wife and husband. Nullity of Marriage and Divorce are the drastic,
steps in a family. They put an end to the marriage.
For small causes, either of the spouses is approaching the Court of Law. This has increased the
burden of the Civil and Criminal Courts during the period of 1960-2000. The Civil and Criminal Courts
were over-burdened. This position had been recognised by the Law Commission of India, and
72
The Family Law -1 (The Hindu Law)

recommended to enact a special Act, and to ensue special provisions for the conciliation and mediation
in such law. Thus accordingly, the Indian Parliament enacted the Family Courts Act, 1984. After this,
the Indian Parliament enacted the latest Act, known as “The Protection of Women from Domestic
Violence Act, 2005”.

The object of these two Acts is not only to settle the disputes between wife and husband, but also to re
establish the amicable relationship between the parties. Thus before deciding the case, the Family
Court, first tries to conciliate the parties.
According to Section 9 of the Family Courts Act, 1984, it is the duty of the Family Court to make
efforts for settlement.

“Sec. 9. Duty of Family Court to make efforts for settlement:— (1) In every suit or proceeding, endeavour shall
be made by the Family Court in the first instance, where it is possible to do so consistent with the nature and circumstances
of the case to assist and persuade the parties in arriving at a settiement in respect of the subject matter of the suit or
proceeding and for this purpose a Family Court may, subject to any rules made by the High Court, foiiow such procedure as
it may deem fit.
(2) If, in any suit or proceeding, at any stage, it appears to Famiiy Court that there is a reasonabie possibiiity of a settlement
between the parties, the Famiiy court may adjourn the proceedings for such period as it thinks fit to enabie attempts to be
made to effect such a settlement.

(3) The power conferred by sub-section (2) shaii be in addition to, and not in derogation of, any other power of the Famiiy
Court to adjourn the proceedings.”
IMPORTANT POINTS:

A. Difference between Family Courts and other Courts: The facts of ordinary civil and criminal
cases, and that of family disputes are quite different. Thus a Judge of the Family shall not function like
a Judge of the Civil Court or Criminal Court. The reason is that in the civil and criminal cases, the
Court cannot favour both the parties. One party succeeds and another party fails, depending upon the
evidence produced. In the family disputes cannot be treated in that way. Here both the parties are
equal in the eye of the marriage institution, society and the court, and particularly in the eye of the Hindu
family system.
B. Difficult to obtain divorce: In the western countries, to get a divorce is very easy. The next day
of the marriage, the spouses may divorce, if any small or big habit of one of the spouses is not suited
to other spouse. In the Islamic law, Talaq is very easy (for males). The real fact is that in the
ancient Hindu marriages, there was no place for the judicial separation and divorce. As the codified
law introduced in India based upon the English Law, the judicial separation, restitution of conjugal
rights, divorce, etc., have been introduced. Still the Indian Courts adhere to the concept of the Hindu
marriage institution. They try to unite the spouses in dispute by adjourning the case for months
together. That is why in India it is very difficult to obtain a divorce.
C. Proceedings in camera: Section 11 of the Family Courts Act. 1984 states that the proceedings
of the Court shall be held in camera. It means that a family dispute is enquired by the Court, other
parties and advocates are not allowed. Only the Judge and the parties, if the permission is given their
advocates can present in the court. The proceedings should not be published in the Courts. The
reason is that there are only secrets, hopes, incidents, etc., occur between the spouses, due to which
the disputes might have arisen. The dignity of family will be degraded in the society.
D. Efforts for settlement: According to Section 9. it is the duty of the Family Court to make efforts
for settlement between the parties. It means it is not the first duty of the Family Court to decide the
case on the evidence and to separate the spouses by issuing a Decree of Divorce. If the Family Court
grants or refuses any divorce, as early as possible, the problem does not solve in its entirety. The
number of cases will certainly be increased. For the smallest causes, the spouses approach the
Courts like in western countries. It leads to social unrest. Therefore, Section 9 imposes the duty
upon the Family Court to make all necessary efforts for settlement, but not to grant the divorce or
judicial separation immediately.
E. Conciliation: Depending upon the nature of the case, the Family Court is empowered to direct
the parties to approach the Conciliation, and for this purpose, if necessary and the Court thinks that the
disputes will be solved between the spouses by the conciliation, the Court adjourns the case for
months together.
F. Association of Social Welfare Agencies, etc.: Section 5 states that the State Government mav.
in consultation with the High Court, provide, by rules, for the association, in such mannerand for such
purposes and subject to such conditions as may be specified in the Rules with a Family Court of,—
(a) institutions or organisations engaged in Social Welfare or the representatives thereof;
(b) persons professionally engaged in promoting the welfare of the family;
(c) persons working in the field of social welfare; and
(d) any other person whose association with a Family Court would enable it to exercise its jurisdiction
more effectively in accordance with the purposes of the Family Courts Act, 1984.
 The Family Law -1 (The Hindu Law) 73

G. Appointment of Counsellors, officers and other employees of Family Court: Section 6 of

the Family Court empowers the State Government to appoint the Counsellors, officers and other
employees required to assist a Family Court in the discharge of its functions and provide the Family
Court with such counsellors, officers and other employees.
H. Counselling Centres: The Family Courts Act, 1984 empowers the State Government to
establish the “Counselling Centres” in each city, town or other area to be known as “The Counselling
Centre of the Family Court at ', and to appoint the Counsellors for conciliation between
the parties. Generally, the Counseller must possess a Master’s Degree in social work with minimum
experience of certain years in family counselling. Such a Counsellor must present in the Family Court
in the concerned case and must explain his efforts to conciliate the parties in disputes to the Court.
I. Functions of the Counsellor: The Counsellor entrusted with any petition shall assist and advice
the parties regarding the settlement of the subject-matter of dispute between the parties or any part
thereof. The counsellor shall also help the parties in arriving at reconciliation. The counsellor in the
discharge of his duties is entitled to visit the homes of any of the parties, and to interview the relatives,
friends and acquaintances of parties or any of them. The counsellor may seek any information
required to settle the dispute from the employer of any of the parties. The Counselor may refer the
parties to an expert in any other area such as medicine or psychiatry. On the advice of the Counselor,
the Family Court may prepare a panel of the experts.
J. List of Institutions, agencies, etc.: The Family Court shall prepare a list of institutions,
organisations or agencies working in the area of family welfare, child guidance, employment, or in any
other area that it may deem fit in order to enable a counsellor or parties to obtain the assistance of
such an institution, organisation or agency.
K. Confidentiality: It is the duty of the Conciliator/Counsellor not to disclose the information gathered
from the spouses and other relatives to the Court, except with the consent of both the parties.
L. Evidence: The Counsellor shall submit a report, information, or any thing required in the dispute
to the Family Court, but he shall not be permitted to give evidence or cross examined in any Court
in respect of this information, settlements, notes or report.
M. Settlement before Conciliator/Counselor: When the parties arrive a settlement before the
Counsellor/conciliator relating to the dispute or any part thereof, such settlement shall be reduced to
writing and shall be signed by the parties and countersigned by the counsellor/conciliator. Basing
upon such settlement, the Family Court pronounce a Decree or Order in terms thereof, unless the
Court considers the terms of the settlement unconscionable or unlawful.

N. Counsellor/Conciiiator’s Duty to supervise custody of children: The Conciliator/Conciliator

will be entitled to supervise the placement of children in custody of a party and will be entitled to pay
surprise visits to the home where the child resides. In the event of the counsellor/conciliator coming
to a conclusion that any alterations is required in the arrangement relating to custody of a child and/or
children, the counsellor/conciliatorwill make a report to the Family Court in that conclusion. Thereupon
the Court may, after notice to the parties, pass such orders in that connection as the Court may deem.
O. Counsellor’s/Conciliator’s right to supervise reconciliation: The Counsellor/Conciliator will
also be entitled to supervise/guide and/or assist reconciled couples, although the matter is longer
pending in Court.
P. Cohabitation during Conciliation: Cohabitation between the spouses in the course of conciliation
proceedings before the counsellor/conciliatorwill not be deemed to be condonation of the matrimonial
offence.

/?
NOTE

While revising Suiatha Law Series Notes, I am also compiling the Bare Acts
for the Criminal Major Acts keeping in view of the students requirements or
the Internal, Problems and Notes. Within a short period, I would like to the

Criminal Major Acts for Advocates, incorporating the Ingredients, latest

and leading case-laws, etc. which can be useful in the Courts.

GADE VEERA REDDY

 74
The Family Law - / (The Hindu Law)

3.J. EFFECTS AND AFTER CONSEQUENCES OF

THE NULLITY OF MARRIAGE/DIVORCE
[Ss.15,16, 23-A, 24,25,26, 27, 28-A]
Q.l. What are the effects and after consequences of the a decree of nullity of marriage or divorce is passed by a Court upon the
spouses and their children?
Q.2. Custody of Children.
(SN)
Q.3. Maintenance pendente lite and expenses of proceedings. (SN)
Q.4. Disposal of Property. (SN)
ANSWER:

IMPORTANT POINTS:

^ Divorced persons when may marry again: SectionjIS lays down that when a marriage has
been dissolved by a Decree of Divorce and either there is no right of appeal against the Decree or, if
there is such a right of appeal, the time for appealing has expired without an appeal having been
presented, or an appeal has been presented but has been dismissed, it shall be lawful for either party
to the marriage to marry again.
Relief for respondent in divorce and other proceedings: Section 23-A. (inserted by Act 68
of 1976, w.e.f. 27-5-1976), says that in any proceeding for divorce or judicial separation or restitution of
conjugal rights, the respondent may not only oppose the relief sought on the ground of petitioner’s
adultery, cruelty or desertion, but also make a counter-claim for any relief under this Act on that ground;
and if the petitioner’s adultery, cruelty or desertion is proved, the Court may give to the respondent any
relief under this Act to which he or she would have been entitled if he or she had presented a petition
seeking such relief on that ground.
D- Maintenance pendente lite and expenses of proceedings: Section 24 of the Hindu Marriane
Act, 1955 lays down that where in any proceeding under this Act it appears to the Court that either the
wife or the husband, as the case may be, has no independent income sufficient for her or his support
and the necessary expenses of the proceeding, it may, on the application of the wife or the husband,
order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the
proceeding such sum as, having regard to the petitioner’s own income and the income of the respondent,
it may seem to the Court to be reasonable. Provided that the application for the payment of the
expenses of the proceeding and such monthly sum during the proceeding, shall, as far as possible, be
disposed of within sixty days from the date of service of notice on the wife or the husband, as the case
may be.
D- Permanent alimony and maintenance: Section 25 of the Hindu Marriage Act, 1955 lays
down that any Court exercising jurisdiction under this Act may, at the time of passing any decree or at
any time subsequent thereto, on application made to it for the purpose by eitherthe wife orthe husband,
as the case may be, order that the respondent shall pay to the applicant for her or his maintenance and
support such gross sum or such monthly or periodical sum for a term not exceeding the life of the
applicant as, having regard to the respondent’s own income and other property if any, the income and
other property of the applicant the conduct of the parties and other circumstances of the case, it may
seem to the Court to be just, and any such payment may be secured, if necessary, by a charge on the
immovable property of the respondent.
If the Court is satisfied that there is a change in the circumstances of either party at any time after it
has made an order, it may at the instance of either party, vary, modify or rescind any such order in such
manner as the Court may deem just.
If the Court is satisfied that the party in whose favour an order has been made under this Section has
re-married or, if such party i- the wife, that she has not remained chaste, or, if such party is the
husband, that he has had sexual intercourse with any woman outside wedlock, it may at the instance
of the other party vary, modify or rescind any such order in such manner as the Court may deem just.
E- Custody of Children: Section 26 lays down that in any proceeding under this Act, the Court
may, from time to time, pass such interim orders and make such provisions in the decree as it may
deem just and proper with respect to the custody, maintenance and education of minor children,
consistently with their wishes, wherever possible, and may, after the decree, upon application by
petition for the purpose, make from time to time, all such orders and provisions with respect to the
custody, maintenance and education of such children as might have been made by such decree or

interim orders in case the proceeding for obtaining such decree were still pending, and the Court may
also from time to time revoke, suspend or vary any such orders and provisions previously made.
Provided that the application with respect to the maintenance and education of the minor children,
pending the proceeding for obtaining such decree, shall, as far as possible, be disposed of within sixty
days from the date of service of notice on the respondent.
 The Family Law - / (The Hindu Law) 75

F. Disposal of Property: Section 27 of the Hindu Marriage Act, 1955 lays down the provisions of
“Disposal of Property”. Section 27 lays down that in any proceeding under this Act, the Court may
make such provisions in the decree as it deems just and properwith respect to any property presented,
at or about the time of marriage, which may belong Jointly to both the husband and the wife.
COMMENT: At the time of marriage, presents are given to bride and bridegroom. Dowry is given to
the son-in-law. In certain castes Kanyasulkam (Price of the bride) is given by the bride-groom to his
father-in-law.

If the marriage is happy one, there is no problem. However, the greediness of the father-in-laws and
mother-in-laws harasses the wives. They play several tricks to gain more and more from the bride’s
parents. It ends in miserableness. The Dowry Prohibition Act, 1961 prohibits the dowry at the time
of the marriage or its subsequent. However, the statute has become dead-letter statute. In practice
the evil dowry system has crept in the corner villages and other religions also.
The question arises when a problem between wife and husband arises in family. At last they will cpme,
to an end by desertion or divorce. At that juncture, the another important question arises for the refund
of the dowry or stridhana. This important problem was solved in the famous case-law “Pratibha Rani
Vs. Suraj Kumar.
# Pratibha Rani vs. Suraj Kumar (AIR 1985 SC 628)
(Refund of wife’s Jewellery/dowry)
Brief Facts: The marriage between Pratibha Rani and Suraj Kumar took place on 4-2-1972. At the
time of the marriage, as per the demands of Suraj Kumar, his father and his brothers, the father of
Pratibha Rani gave jewellery worth Rs. 60,000/-. After the marriage, Suraj Kumar and-his parents and
his other family members began to harass Pratibha Rani, to the extent that they did not give any food
to her. Two children were born. In 1977, she could not bear their teasing, and harassment, and she
was driven out of the matrimonial house. After Caste Panchayath conducted, reconciliation took
between them. However, there was no improvement in their relations. She filed a maintenance
petition under Section 125 of the Criminal Procedure Code, 1973. She also filed a complaint under
Secs. 405 & 406 of the refund of her gold ornaments Indian Penal Code for criminal breach of
trust and demanded for the given at the time of the marriage. Respondents argued that the gold
ornaments were part and parcel of their property under Section 27 of the Hindu Marriage Act, 1955
and they were utilised for the maintenance of the family.
JUDGMENT: The High Court of Punjab and Haryana held that the remedy of the wife to obtain the
refund of her gold ornaments was only a civil remedy under Section 27 of the Hindu Marriage Act,
1955 and quashed the petition of the wife under Sections 405 & 406 of the Indian Penal Code, 1860.
On appeal, the Supreme Court reversed the judgment. The Supreme Court held that the gold
ornaments were clearly misappropriated by her husband and in-laws. The Supreme Court directed
the lower Court should proceed with the criminal case against her husband and his parents.
PRINICIPLE LAID DOWN: The amount of dowry or gold ornaments or any valuables given to a bride
or to a bridegroom at the time of the marriage, or its subsequent dates, if appropriated by the in-laws
or husband, it amounts to criminal misappropriation. The wife has civil remedy under Section 27
of the Hindu Marriage Act, 1955. Besides it, she can also institute criminal proceedings against her
husband or/and her in-laws under Sections 405 & 406 of the Indian Penal Code, 1860.

G. Enforcement of decrees and orders: Section 28-A, inserted by Act No. 50 of 2003, with effect
from 23-12-2003, lays down that all Decrees and Orders made by the Court in any proceeding under
this Act shall be enforced in the like manner as the Decrees and Orders of the Court made in the
exercise of its original civil jurisdiction for the time being are enforced.
H. Legitimacy of children of void and voidable marriages: [Referto Topic “Legitimacy of children
of void and voidable marriages”.

rCADE Veera Reddy I

LL.M. ENTRANCE TEST I
I
(Multiple Choice Questions with Answers)
I
(Also useful for U.P.S.C., A.P.P.S.C., Civil Prelims, etc.)

JNo. of Pages : 444 No. of Bits : 2393

Cost: Rs. 450/-J
 Unit-IV

4, THE HINDU ADOPTIONS & MAINTENANCE ACT,^I^

4.A. CONCEPT OF ADOPTION - LAW OF ADOPTION
SECULAR OR SPIRITUAL

Q.1. Explain the concept of Adoption under the Hindu Law.

(May, 2008, O.U.)
Q.2. What is the purpose and object of adoption under the Hindu Law? Explain the Rules of Adoption.
(August, 2006, O.U.) (AnI., 2004, K.U.)
[The student should as many points as he can from the remaining Topics.]
Q.3. What are the important changes brought about in the Hindu Minority and Guardianship Act, 1956? (June, 2004, B.U.)
Q.4. Adoption. (SN) (Dec., 2007, O.U.)
ANSWER:

INTRODUCTION: Mayne, the famous Jurist, says: “The whole Sanskrit law of adoption is evolved
from two texts and a metaphor. ”
MEANING:

Text, (n.) = textbook; subject; topic; theme.

Metaphor, (n.) = A figure of speech in which a comparison is implied. The two texts are those of
*Manu’ and *Vasishta* and the metaphor is that of *Sanuka\
TWO TEXTS

1. MANU»S TEXT: Manu says: “He whom his father or mother gives to another as his son.
provided that the donee has no issue, if the boy be of the same class, and affectionately disposed, is
considered as a son given, the gift being confirmed by pouring water. ”
2. VASISHTA’S TEXT: Vasishta says: “Asonformedof sexual fluids and of blood, proceeds from
his father and mother as an effect from its cause. Both parents have power to sell, or to desert him.
But let no man give, oraccept, anonlyson, since he must remain to rise up a progeny for the obsequies
of ancestors. Nor let a woman give oraccept a son unless with the assent of her lord. He who means
to adopt a son must assemble his kinsman, give humble notice to the kind and then having made an
oblation to ifre with words from the Veda, in the midst of his dwelling house, he may receive, as his son
by adoption, a boy neatly allied to him, or on failure of such, even one remotely allied. But if doubts
aiise let him treat the remote kinsman as a Sudra. The class ought to be known, for through one son
the adopter rescues many ancestors. ”
METAPHOR: The Metaphor of Sanuka is that “the adopted son must be ‘Putrachayavaha’ \.e., the
reflection of son.”

EFFECT OF THE TWO TEXTS AND THE METAPHOR ON THE EVOLUTION OF

THE LAW OF ADOPTION

The two texts and the metaphor have given rise to numerous rules for observance in the case of a
valid adoption. ‘Dattaka Mimamsa* of Nanda Pandita and ‘Dattaka Chandrika* of Devanda Bhatta
are the two treatises on particular subject of adoption, and are the chief authorities governing questions
of adoption, Dattaka Chandrika and Dattaka Mimamsa have elaborated the law of adoption on the
basis of two texts and the metaphor. Though when they differ, the doctrine of latter is adhered in
Bengal and by the Southern Jurists, while the former is held to be an infallible guide in the Mithila and
Benaras Schools. Southerland, the English Jurist, translated two books “Dattaka Chandrika” and
“Dattaka Mimamsa” into English.
Nanda Panditha in his “Dattaka Chandrika” deduced from the Metaphor of Sanuka the rule that a
person cannot adopt his brother, uncle, daughter’s son, or sister’s son. This is because they could
not have been procreated by the adopter by the practice of Niyoga.
Southerland says that the adopter should be so related that he could have procreated by Nivoaa or
marriage.

Privy Council also followed the Metaphor of Saunaka. It opined in the case ‘Bhaaawan Sinah vs.
Bhagawan Singh’ that “no one could be adopted whose mother the adopter could not have married in
her maiden state.”

CONCLUSION: Several of the principles and judicial decisions were the result basing on the two
texts and the metaphor. Even the Hindu Adoptions and Maintenance Act, 1956 also adopted the
number of good principles from the Two Texts and the Metaphor. Thus we can conclude that “the
whole law of adoption is evolved from two texts and a metaphor.”

-76-
 The Family Law - / (The Hindu Law) 77

4.B. LAW OF ADOPTION - SECULAR OR SPIRITUAL

Q.1. “Adoption is a legal fiction. Doctrine of Relation back is a fiction upon fiction.” —Elucidate.
Q.2. “The Hindu Adoptions and Maintenance Act, 1956 has made profound changes in the Law of Adoption.” — Elucidate the statement.

Q.3. “Adoption is nothing but a legal fiction.” — Explain. Examine the utility of the institution of adoption in the modern Hindu society
in view of the altered conditions and fast changing values of life.
Q.4. lllatom Adoption.

ANSWER:

INTRODUCTION: In Sanskrit, the Hell is called “Put”, and the son is called “Putra”. The Hindu
believes that after the death, he would escape from the Hell by his putra.Right from the Vedic age
to this date, the Hindus have always desired to have an aurasa (natural born legitimate son), for the
spiritual benefit and the continuation of the family tree (Vamsavruksham).

The Hindu Jurisprudence provided the adoption, when a Hindu has no aurasa son to fulfil the spiritual
purpose. Adoption is one of those fictions of the law which have been marshalled for furtherance
of the individual interest. The law of adoption enables a childless person to make somebody else child
as his own. The Hindus foresaw this at the dawn of their civilization. The adopted son ceases all his
relations with his natural parents and establishes the son-ship with his adoptive parents. The primary
purpose and object of aurasa son or adopted son were only spiritual in the olden Hindu Law.
There were several defects in the olden system. The Hindu Adoptions and Maintenance Act. 1956
made several changes in the old procedure of adoption. Now after the Act of 1956, the objects of
adoption are two folds:—purpose of
religious to secure to the adopter and his ancestors by having a son for the
(a) The first one is offering funeral cakes {Pindas) and libations of water (Ja/a Tarpanam) to the
manes of the adopter and his ancestors,
(b) The second one is secular, to secure an heir, and perpetuate the adopter’s name.
However, secularization of adoption does not mean that the new law of adoption makes a total departure
from the old law. The Supreme Court has expressed the view that the validity of an adoption is to be
determined by spiritual rather than temporal considerations and that devolution of property is only
secondary importance.
Material and important alterations and modifications in the law relating to adoptions have been brought
about by the Indian Parliament in the Hindu Adoptions and Maintenance Act, 1956. Section 4 of the Act
of 1956 explains the overriding effects of the Act, which runs:
“Sec. 4. Overriding effect of Act:— Save as otherwise expressly provided in this Act,—
(a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law In force immediately before the
commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act;
(b) any other law In force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it

is inconsistent with any of the provisions contained in this Act."

PROFOUND CHANGES BROUGHT BY HINDU ADOPTIONS AND MAINTENANCE ACT 1956

IN THE LAW OF ADOPTION

Old Hindu Law of adoption New Law of adoption (Hindu Adoptions and
Maintenance Act, 1956)
1. Caste: Under old Hindu law the adopted son 1. Caste: Any Hindu can adopt a child from any
and adoptive father must belong to the same caste. This law of adoption has thus been
caste. secularised.
2. Ceremonies: Under old Hindu law certain 2. Ceremonies: Under the new law, the
ceremonies like “Datta Homam” should have ceremonies need not be performed, The
been performed. religious ceremonies have been dispensed with
so as to secularise the adoption.
3. Female: Under old Hindu law, a male can only 3. Female: Now the law has been changed and
adopt a child. After his death, his widow can secularised. A female can adopt a child
adopt only to her husband and on his prior exclusively for herself. A widow can adopt a
permission obtained while he was alive. A child exclusively for herself. An unmarried
female has no authority to adopt exclusively to woman can also adopt a child. She need not
herself. get prior permission from her husband.
Therefore, the law of adoption has thus been
secularised. An unmarried woman can also
adopt a child.
4. Only son: Under old Hindu law of adoption 4. Only son: Under new law, there Is no such
only a son can be adopted. distinction. A son or a daughter can be
adopted. This clearly proves that the law of
adoption has been secularised.
78 The Family Law - / (The Hindu Law)

Old Hindu Law of adoption New Law of adoption (Hindu Adoptions and
Maintenance Act, 1956)
5. Doctrine of Relation Back: Under old Hindu 5. Doctrine of Relation Back: Due to the
law, there was a system of Doctrine of Relation Doctrine of Relation Back, some speculative
Back. Example; W and H were Hindu wife litigations arose. It caused obstruction of long
and husband, and childless. During his life standing titles. The new Act abolished the
time, H told W to adopt a child for him. Later Doctrine of relation back, Therefore, an
he died on 10-8-1940. W adopted a son on 1- adoption does not divest any vested rights
8-1945. The adopted child was treated as an under the new law.
aurasa son with effect from 10-8-1940 from the
date of death of the adoptive father and also
the adopted child should have been treated as
a “Posthumous son ” (born after the death of
the father). This was called “the Doctrine of
Relation Back”.

6. Consent of wife: Under the old law, a Hindu 6. Consent of wife: Under the new law, a Hindu
husband need not take the consent of his wife. husband can not adopt a child without his wife’s
He can adopt a child even against the will of his consent.
wife.

7. Prohibition by husband: In old law, a Hindu 7. Prohibition by husband: Now, the law has
husband can prohibit his wife to take adoption been changed and secularised, A Hindu
after his death. Under such circumstances a husband cannot prohibit his wife to take
Hindu wife cannot adopt a child. adoption after his death. After his death; his
widow can adopt a child according to her own
will and convenience.
8. Who may give in adoption: Under the old 8. Who may give in adoption: The law of
law only the father or mother could give a child adoption has been secularised, An orphan
in adoption. also can be given in adoption by the guardian
or any person appointed as guardian by the
Court.
9. *Maternal affiliation: In Old Hindu law, some 9. Maternal affiliation: First of all in Hindu law,
times difficulties arose regarding the maternal bigamy and polygamy have been prohibited by
affiliation, when a Hindu had more than one the Hindu Marriage Act, 1955. Hence the
wife. Under such circumstances who will be circumstances before the Act are not present
the adoptive mother? It created too much now. Further, Section 14 of the Hindu
difficulties to determine the maternal affiliation. Adoptions and Maintenance Act 1956 clearly
shows the solution even in such circumstances.
Now not only a widow, a divorcee or a sing
woman without marriage is entitled to adopt a
girl or son. This is one of the secularistic
feature of the new law.
10. Unmarried woman: Under the old law, an 10. Unmarried woman: Under the new law, an
unmarried woman {Kanya) can not adopt a unmarried woman (Kanya) can adopt a child for
child. herself.
11. Widow: Under the old' law widow had no 11. Widow: Now there is no such condition. A
power to adopt a child to herself. She could widow can adopt a child according to her will
adopt a child only on the saying of husband and and convenience.
exclusively for him only, with the consent of
Sapindas, and with the genuine authority from
the husband.

12. Illatam Adoption: Prior to the Hindu Adoption 12. Illatam Adoption: The Hindu Adoption and
and Maintenance Act, 1956, there was a Maintenance Act, 1956 does not recognise
custom of “Illatam adoption” in Andhra area “Illatam adoption”. But exception is given to
among the Kamma, Kapu, Reddy, etc. “Ilatom the customs and usages.
adoption” means adopting “Son-in-law” as the
“adoptive son”.
13. Dwamushyavana adoption: Under old Hindu 13. Dwamushyavana adoption: The Hindu
law, there was a system of “Dwamushyayana Adoption and Maintenance Act, 1956 abolished
adoption” according to which the natural father the “Dwamushyayana adoption” system.
would continue as the father of the child even
after giving him in adoption.
14. Putrika Putra. In old Hindu law, when Hindu 14. Putrika Putra: The Hindu Adoption and
had only daughters, he could adopt the son of Maintenance Act, 1956 abolished the system of
his daughter as his adopted son. (Putrika. = adoption of “Putrika Putra”.
daughter) (Putra. = son).

Habituate newspaper reading every day. Coiiect the information, any statistics, judgments of the Supreme Court,
or the concerned State High Court, incidents, etc., and record in the concerned subject book, SLS, or in a separate
book, if you anaiyse and write the iatest issue in any answer, it enhances the vaiidity and marks.
 The Family Law -1 (The Hindu Law) 79

*Section 14 of The Hindu Adoptions and Maintenance Act, 1956:

“Sec. 14. Determination of adoptive mother in certain cases:— (1) Where a Hindu who has a wife iiving adopts a

child she shall be deemed to be the adoptive mother.

(2) Where an adoption has been made with the consent of more than one wife, the senior most in marriage among them shall
be deemed to be the adoptive mother and the others to be stepmothers.

(3) Where a widower or bachelor adopts a child, any wife whom he subsequently marries shall be deemed to be the

stepmother of the adopted child.

(4) Where a widow or an unmarried woman adopts a child, any husband whom she marries subsequently shall be deemed
to be the stepfather of the adopted child.”

CONCLUSION: Now the law of adoption has been drastically changed. It has been secularised.
Now the object of adoption is (i) religious and (ii) secular. The Hindu Adoption and Maintenance Act,
1956 keeps in view of both these objects. But it seems it has given a little more importance to
secularise the law of adoption and simplified it. Now it seems “adoption is nothing but a legal fiction”.
At the same time, the two objects are served. The codified Hindu Laws, i.e.. The Hindu Marriage Act,
1955; The Hindu Succession Act, 1956; The Hindu Minority & Guardianship Act, 1956 and Hindu
Adoptions and Maintenance Act, 1956 have been enacted to facilitate the equal legal rights to women
and to uplift them in every legal aspect. It is seen in every Act.

4.C. ESSENTIALS OF VALID ADOPTION [Ss. 6-17]

Q.1. Discuss the effects of valid adoption under the Hindu Adoptions and Maintenance Act, 1956. (May, 2008, O.U.) (AnI. 2003, P.U.)

Q.2. Who may be adopted? Can a female Hindu adopt a chil. (Feb., 2008, Burdwan U., W.B.)d? Discuss relevant provisions of the
Hindu Adoptions and Maintenance Act, 1956.

Q.3. What are the conditions of a valid adoption? What are the legal affects of a valid adoption? (Feb., 2006, O.U.) (Dec., 2006, B.U.)
(Dec., 2005, G.U.) (Aug., 2005, S.V.U.) (Dec., 2004, O.U.)(Jan., 2003, O.U.) (AnI., 2003, K.U.) (Dec., 2001, S.V.U.)
[Also refer to Topic “Effect of Adoption”.]

Q.4. What do you understand by ‘adoption’? What are the requisites of a valid adoption? (Feb., 2005, O.U.)

[Also refer to other Topics of Adoption.]

Q.5. Who may be given and taken in adoption? Explain. (Dec., 2005, B.U.)

Q.6. What are the powers of a female Hindu to give or adopt a child? (Feb., 2004, O.U.)

Q.7. What are the requisites of a valid adoption? (AnI., 2004, P.U.) (Apr., 2002, O.U.)

Q.8. Explain the capacity of an adopter and the adoptive under the Hindu Adoption and Maintenance Act, 1956. (June, 2004, B.U.)

Q.9. Chandrasekhara vs. Kulandaivelu (AIR 1963 SC 185). (SN) (Dec., 2006, B.U.)

Q.10. Laxman Singh Kothari vs. Smt. Rup Kanwar (AIR 1961 SC 1378). (June, 2004, B.U.)

ANSWER:

SCOPE: The Law of Hindu adoption is regulated by the Chapter-ll of the Hindu Adoptions and
Maintenance Act, 1956. There are 13 Sections (Ss. 5-17) in this Chapter regulating the adoption of a
son or daughter in the Hindu community. Section 5 lays down that the Hindu adoptions shall be made
in accordance with the provisions of Chapter-ll.
Section 6 deals with the requisites of a valid adoption. Section 7 explains about the capacity of a
male Hindu to take in adoption. Section 8 explains about the capacity of female Hindu to take in
adoption. Section 9 provides that who are the persons capable of giving in adoption. Sec. 10 deals
with the persons who may be adopted. Section 11 explains about the other conditions for a valid
adoption. Section 12 explains the “Effects of Adoption”. Section 13 says that an adoption does not
deprive the adoptive father or mother of the power to dispose of his or her property by transfer inter
vivos or by will. Section 14 lalys down the provisions about “Determination of Adoptive Mother in
certain Cases”. Section 15 narrates that a valid adoption made can not be cancelled. Section 16
gives “Presumption as to registered documents relating to adoptions”. Section 17 prohibits certain
payments in connection with an adoption.
Requisites of a valid Adoption:—

A. Requisites of a valid adoption: Section-6 explains about the requisites of a valid adoption:—
“Sec. 6. Requisites of a valid adoption:— No adoption shall be valid unless,—

(i) the person adopting has the capacity, and also the right, to take in adoption;

(ii) the person giving in adoption has the capacity to do so;

(iii) the person adopted is capable of being taken in adoption; and

(iv) the adoption is made in compliance with the other conditions mentioned in this Chapter."
80
The Family Law - / (The Hindu Law)
IMPORTANT POINTS:

a. The person adopting must have the capacity to adopt the child.
b.
The person giving in adoption must have the capacity to do so.
c. The person adopted must be capable of being taken in adoption.
d.
The adoption must take according to the law Chapter-ll of Hindu Adoptions and Maintenance Act,
1956.

e. In M. Gurudas vs. Rasaranjan (AIR 2006 SC 3275), the Supreme Court held: “To prove valid
adoption, it would be necessary to bring on records that there had been an actual giving and
taking ceremoney. Performance of ‘Datta Homam’was imperative, subject to Just exceptions.
Above all, as noticed hereinbefore, the question would arise as to whether adoption of a daughter
was permissible in law.
In Mulla’s Principles of Hindu Law. 17th Edition, page 710. it is stated:
“488. Ceremonies relating to adoption (1) the ceremonies relating to an adoption are,—
(a) the physical act of giving and receiving with intent to transfer the boy from one family into another;
(b) the datta homam, that is, oblations of clarified butter to fire; and
(c) other minor ceremonies, such as putresti jag (sacrifice for male issue).
(2) The physical act of giving and receiving is essential to the validity of an adoption;
as to the datta homam it is not settled whether its performance is essential to the validity of an adoption in every case,
as to the other ceremonies, their performance is not necessary to the validity of an adoption.
(3) No religious ceremonies, not even datta homam, are necessary in the case of Shudras. Nor are religious ceremonies
necessary amongst Jains or in the Punjab.”

f. PROBLEM: A, was sent by his father X, to his brother-Y’s house for education. A was educated
in the house of Y. Y has no children. A claims that he is the adoptive son of Y, as he was educated by
Y. It is a valid adoption?
SOLUTION: No. For a valid adoption, there must be “intention”, and “giving and taking the
child” between the natural father and adoptive father. In the above given problem, there was no
intention, and there was no “giving and taking the child” between X and Y. Hence it is not a valid
adoption. The facts of the above given Problem are identical with the following case:—
# Laxman Singh Kothari vs. Smt. Rup Kanwar (AIR 1961 SC 1378)
(Giving and taking the adoptive boy is essential in adoption)
Brief Facts: Aman Singh was the ancestor. He had two sons - (i) Sujan Singha and (ii) Sobhag
Singh. Moti Singh was the son of Sujan Singh. Zalim Singh was the son of Sobhag Singh. Smt. Rup
Kanwar was the wife of Moti Singh. Laxman Singh was the son of Zalim Singh. Moti Singh and Rup
Kanwar had no children. In the year 1923, Sujan Singh was aged about 70 years, and Moti Singh was
about 50 years. Smt. Rup Kanwar was aged about 45 years.
On 14-02-1923, Laxman Singh was brought from his father’s house to the house of Sujan Singh’s
house in Ajmer and left there. On 03-28-1923, the plaintiff was admitted as a student in an instituted
called Gurukul Kangri. He was educated in that institute from the year 1923 to 1936. On March 19,
1936, after completing his studies in the Gurukul, the plaintiff came back to Moti Singh’s house.
Then the question was arisen whether Laxman Singh Kothari was the adopted son of Moti Singh. Moti
Singh contended that Laxman Singh Kothari was not his adopted son and that he was not his adoptive
father. After the death of Moti Singh, his wife Rup Kanwar brought on record.
JUDGMENT: The Supreme Court gave judgment that the appellant was not the adopted son of
Moti Singh and Rup Kanwar. aS there was no “taking or giving in adoption” between the adoptive
father and natural father.

PRINCIPLES: Under the Hindu Law, whether among the regenerate caste or among Sudras, there
cannot be a valid adoption unless the adoptive boy is transferred from one family to another and that
can be done only by the ceremony of giving and taking. The object of the corporeal giving and receiving
in adoption is to secure due publicity. To achieve this object it is essential to have a formal ceremony.
No particular form is prescribed for the ceremony, but the law prescribed for the ceremony, but the law
requires that the natural parent shall had over the adoptive boy and the adoptive parent shall receive
him. The nature of the ceremony may vary depending upon the circumstances of each case. But a
ceremony there shall be, and giving and taking shall be part of it. The exigencies of the situation
arising out of diverse circumstances necessitated the introduction of the Doctrine of Delegation; and
therefore, the parents, after exercising their volition to give and take the boy in adoption, may both or
either of them delegate the physical act of handing over the boy or receiving him, as the case may be,
to a third party.
 The Family Law -1 (The Hindu Law) 81

B. CAPACITY OF A MALE HINDU: Capacity of a male Hindu to take in adoption is explained in

Section 7 of Hindu Adoptions and Maintenance Act, 1956:
“Sec. 7. Capacity of a male Hindu to take in adoption:— Any male Hindu who is of sound mind and is not a minor has
the capacity to take a son or a daughter in adoption:

Provided that, if he has a wife living, he shall not adopt except with the consent of his wife unless the wife has completely
and finally renounced the world or has ceased to be a Hindu or has been declared by a Court of competent jurisdiction to be
of unsound mind.

Explanation:— If a person has more than one wife living at the time of adoption, the consent of all the wives is necessary
unless the consent of anyone of them is unnecessary for any of the reasons specified in the preceding proviso.”

IMPORTANT POINTS:

(a) Any male Hindu can adopt a son or daughter subject to the following conditions:—
(i) he must be of a sound mind;
(ii) he is not a minor;
(iii) if he has a wife living, he must get the consent of his wife; except under certain circumstances
1 her consent is not necessary (i.e., if she has become of unsound mind, sanyasin, etc.);

)
(iv) if he has more wives living, he must get the consent of all the wives,

(b) A bachelor or widow or widower can take in adoption without the consent of anyone else.
C. CAPACITY OF AFEMALE HINDU: Capacity of a female Hindu to take in adoption is explained in
Section 8 of HAMA, 1956:—
“Sec. 8. Capacity of a female Hindu to take in adoption;— Any female Hindu,

(a) who Is of sound mind,

(b) who is not a minor, and
(c) who is not married, or if married, whose maniage has been dissolved or whose husband is dead or has completely
and finally renounced the world or has ceased to be a Hindu or has been declared by a Court of competent Jurisdiction
to be unsound mind, has the capacity to take a son or daughter in adoption.”

IMPORTANT POINTS OF SECTION- 8 :

(a) Any female Hindu can adopt a son or daughter subject to the following conditions:—
(i) She must be of a sound mind;
(ii) She is not a minor;
(iii) She is not married, or if married, whose marriage has been dissolved or whose husband is
dead or has completely and finally renounced the world or has ceased to be a Hindu or has
been declared by a Court of competent jurisdiction to be of unsound mind,
(b) Before the enactment of the Hindu Adoptions and Maintenance Act. 1956, it was necessary to get
the husband’s permission and the Sapindas’ assent to adopt a son by a widow. The drastic
changes have been introduced in HAI\M that a widow can now adopt a son or daughter with her
own will and pleasure. Now she does not require anybody’s assent or consent. Even her late
husband’s consent or sapindas’assent is not required.
PROBLEM-1: Sudha an unmarried Hindu lady who is thirty years old adopts a twelve years old boy.
Is the adoption valid? (AnI. 2003, P.U.)
PROBLEM-2: Whether a woman can make an adoption independently? (Dec., 2005, G.U.)
SOLUTION-1 &2: Yes. A woman can make an adoption independently, subject to the conditions
mentioned in Section 8 of The Hindu Adoptions and Maintenance Act 1956.

(c) It is the result of secularising the law of adoption,

(d) Before the Hindu Adoptions and Maintenance Act, 1956, the Doctrine of Relation Back was in
existence. It was now abolished.

D. PROBLEM: A-a Hindu dies leaving behind his widow, son and grandson. Later son and grandson
die.Grandson leaves behind a widow. Can widow of A has the power of adoption?

SOLUTION: Before the Hindu Adoptions and Maintenance Act, 1956, the widow of A had no power to
adopt. But now, i.e., after enacting the Hindu Adoptions and Maintenance Act, 1956, the law has been
changed and secularised. The widow of A can now adopt a son or daughter for her own.
D. PERSONS CAPABLE OF GIVING IN ADOPTION: Section 9 of the Hindu Adoptions and
Maintenance Act, 1956, provides about the persons capable giving in adoption.
of
“Sec. 9. Persons capable of giving in adoption:— (1) No person except the father or mother or the guardian of a

child shall have the capacity to give the child in adoption.

 82
The Family Law -1 (The Hindu Law)
(2) Subject to the provisions of sub-section (3) and sub-section (4), the father, if alive, shall alone have the right to give
in adoption, but such right shall not be exercised save with the consent of the mother unless the mother has completely and
finally renounced the world or has ceased to be a Hindu or has been declared by a Court of competent jurisdiction to be of
unsound mind.

(3) The mother may give the child In adoption If the father is dead or has completely and finally renounced the world or

has ceased to be a Hindu or has been declared by a Court of competent jurisdiction to be of unsound mind.
(4) Where both the father and mother are dead or have completely and finally renounced the world or have abandoned
the child or have been declared by a Court of competent jurisdiction to be of unsound mind or where the parentage of the
child is not known, the guardian of the child may give the child in adoption with the previous permission of the Court to any
person including the guardian himself.
(5) Before granting permission to a guardian under sub-section (4) the Court shall be satisfied that the adoption will be
for the welfare of the child, due consideration being for this purpose given to the wishes of the child having regard to the age
and understanding of the child and that the applicant for permission has not received or agreed to receive and that no person
has made or given or agreed to make or give to the applicant any payment or reward in consideration of the adoption except
such as the Court may sanction.
Explanation:— For the purposes of this Section,—
(i) the expressions "father” and “mother” do not include an adoptive father and an adoptive mother

(i-a) “guardian” means a. person having the care of the person of a child or of both his person and property and
includes,— .

(a) a guardian appointed by will of the child’s father or mother; and

(b) a guardian appointed or declared by a Court; and
(ii) “Court” means the city civil Court or a district Court within the local limits of whose jurisdiction the child to be adopted
ordinarily resides.

IMPORTANT POINTS ON SECTION-9:

(a) The father or mother or the guardian of a child shall have capacity to give the child in adoption.
(b) The father is a competent person to give his child in adoption, but he can do so with the permission
of his wife. The wife’s consent is not necessary - (i) if she renouncedthe world; or (ii) if she converted
from Hindu to other reiigion; or (iii) if she has been declared by a Court to be of unsound mind,
(c) The mother can give the child in adoption subject to the following conditions, i.e.,
(i) ifthe father is dead; or
(ii) if the father renounced the world;
(iii) if the father has ceased to be a Hindu;
(iv) if the father has been deciared as unsound mind person by a Court,
(d) The guardian may give the chiid in adoption subject to the following conditions:—
(i) if both the parents died; or
(ii) if both the parents renounced the world; or
(iii) if both the parents abandoned the child; or
(iv) if both the parents have been declared by a competent Court to be the persons of unsound
mind;

(v) where the parentage of the child is not known.

E. ORPHAN: Under the old law, an orphan cannot be given in adoption, and the child must belong to
the same caste. But the Hindu Adoptions and Maintenance Act, 1956 permits an orphan can be given
in adoption by a guardian with the permission of the Court.
F. Mother’s power during her husband’s life period: The mother could not give her son or
daughter in adoption so long as her husband is alive.
G. The guardian must obtain the permission from the Court.

H. The Court shall be satisfied that the adoption will be for the welfare of the child. Then only it shall
give the permission for the adoption.
I. The guardian may take the child in adoption to himself with the permission of the Court.
J. Under the old law, the father can give his son in adoption irrespective of the willingness of the
mother. But now, the father can not give his child in adoption without his wife’s consent, It is a
condition precedent.
K. The adoptive father or adoptive mother can not givy away the adoptive child in adoption to some
one else.

L. Awidow or widower can give her child in adoption.

 The Family Law - I (The Hindu Law) 83

M. An unmarried woman, who has given birth to a child, can give her child in adoption.
N. A step-mother or a step-father cannot give a child in adoption.
5. Persons who may be adopted: Section 10 provides the persons who may be adopted.

Sec. 10. Persons who may be adopted— 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 years, unless there is a custom or usage applicable to the parties which
permits persons who have compieted the age of 15 years being taken in adoption.

6. Other conditions for a valid adoption: Sec. 11 explains other conditions of a valid adoption.
Sec. 11. Other conditions for a valid adoption:— In every adoption, the following conditions must be complied with,—

(i) if any adoption is of a son, the adoptive father or mother by whom the adoption is made must not have a Hindu son,
son’s son or son's son’s son (whether by legitimate blood relationship or by adoption) living at the time of adoption;

(ii) if the adoption is of a daughter, the adoptive father or mother by whom the adoption is made must not have a Hindu
daughter or son’s daughter (whether by legitimate blood relationship or by adoption) living at the time of adoption;

(iii) if the adoption is by a male and the person to be adopted is a female, the adoptive father is at least 21 years older than
the person to be adopted;

(iv) if the adoption is by a female and the person to be adopted is a male, the adoptive mother is at least 21 years older than
the person to be adopted;

(v) the same child may not be adopted simultaneously by tv/o or more persons;

(vi) the child to be adopted must be actually given and taken in adoption by the parents or guardian concerned or under
their authority with intent to transfer the child from the family of its birth or in the case of an abandoned child or a child
whose parentage is not known, from the place or family where it has been brought up to the family of its adoption:

Provided that the performance of datta homam, shall not be essential to the validity of an adoption.

PROBLEM: W, a Hindu widow, aged 33 years adopted S, a boy aged 14 years, in 1986. The
Sapindas objected it contending that the adoption was null and void as the deceased husband did not
authorise her to adopt a son, and they also had not given their consent. Decide.
SOLUTION: Giving the authorization by a husband to his wife for the adoption of a child and adopting
a child after his death, is a past thing. It was the Doctrine of Relation Back. This system has been
abolished by the Hindu Adoptions and Maintenance Act, 1956. Now for a widow to adopt a child such
authorization from her husband or the assent from the Sapindas is not necessary. A widow can adopt
a child with her own consent, wiil and pleasure. (Refer to Sec. 8 of HAMA above given.)
Coming to the another point, the adoption took place in the year 1986. At that time, the widow’s age
was 33 years and the child S’s age was 14 years. The difference of the ages between ‘W’ and ‘S’ is
19 years. Whereas according to the provisions of Section 11 clause (iv) the adoptive mother is at
least 21 years olderthan the adopted son. Here the difference of age is 19 years. The condition in the
Section 11 (iv) is not satisfied. Hence the adoption is void.
PROBLEM; A adopts B as his son. A has a son of a predeceased son at the time of adopting B. Is
this adoption valid? (Dec., 2004, B.U.)
SOLUTION: No. The adoption is not valid, as A has a son of a predeceased son at the time of
adopting B.
PROBLEM: A and B are Hindu couple with two children, boy and girl. Their nearest relative requested
them to give their daughter for adoption. The parents agreed to give their daughter in adoption. As an
advocate advise them. (May, 2008, O.U.)
SOLUTION: It is the general usage in the Hindu community that where the parents have more than
one son, they may give one of the sons in adoption. In the similar way, where the parents have more
than one daughter, they may give one of the daughters in adoption. Afterthe Family Planning programme
implementation, the majority couples have one son and one daughter. Generally, the majority of the
couples does not want to give either their only son or only daughter. The old Hindu jurisprudence
discarded such adoptions. Legally, there is no bar in giving the only son or daughter in adoption to
others.

Coming to the problem, the contents of the problem are not given clearly. The nearest relative’s
relation to the parents is not exhibited.
Any how, there is no apparent bar or limitation in giving or taking the daughter in adoption.
 84
The Family Law -1 (The Hindu Law)

PROBLEM: Can an adoption be cancelled?

SOLUTION: f
No. A valid adoption cannot be cancelled. Section 15 of Hindu Adoptions and
Maintenance Act, 1956 enacts as follows:—
Sec. 15. Valid adoption not to be cancelled:— No adoption which has been validly made can be cancelled by the
adoptive father or mother or any other person, nor can the adopted child renounce his or her status as such and return to
the family of his or her birth.

Under Hindu Law, the adoption takes place under “status", not under the “contract”. A contract may
be cancelled under the Indian Contract Act, 1872. But an obligation created under “status” can not be
cancelled. “Status” means a bundle or rights and liabilities which are created by the irrespective of
the volition of the parties. Thus adoption is essentially a matter of status and not of a contract. The
adoptive son changes his gotra from his natural father’s gotra to adoptive father’s gotra. Therefore, a
valid adoption can not be cancelled later.
PROBLEM: Aand B were wife and husband. They had given birth to C,daughterandD, son. While
the children were at tender age, B, husband, died. A re-married X. A and X, the second husband,
nourished C and D. X performed D’s marriage. After becoming majority, D sued against his uncles
(As brothers) claiming a share in the coparcenary property held by As father, who also died. D’s
uncles contended that X had become adoptive father, by marrying A, and performed C’s marriage as
a father, hence D was not a coparcener of their family. Decide.
SOLUTION: No. X cannot be considered as the adoptive father. Still D is a coparcener of As family,
and As father was the common ancestor, Thus D has coparcenary rights in the As ancestral/
coparcenary property. The facts of the above Problem are identical with the following case:—
# Ram Das @ Ram Sura] (Appellant) vs. Smt. Gadiabai and others (Respondents)
(AIR 1997 SC 1563)
(Legitimacy, Valid Adoption, Coparcenary Property)
Brief Facts: This case-law explains about legitimacy of the children born during the marriage, concept
of a valid adoption and coparcenaryrights of the children in a coparcenary property.
One Baibhaddar (died in 1911) had two sons, namely Ram Prasad and Prayag. Ram Prasad married
Kusumbai. During their married life one daughter (Tulasi Bai) and one son Ram Das @ Ram Sura]
(the Plaintiff in the original suit and appellant in the Appeal).
When Ram Das was a six months child. Ram Prasad died. After some months, Kusumbai married
Ram Charan. Ram Charan nourished Tulasi Bai and Ramdas, and performed the marriage of Tulasi
Bai.

After acquiring majority. Ram Das filed a suit against his uncle Prayag seeking partition of the properties
devolved from Baibhaddar, treating that he (Ram Das) would be the coparcener of the joint family of
Baibhaddar.

The original suit was opposed by Prayag. During the pendency of the case, Prayag died, and in his
place his wife and his heirs were impleaded as the defendants. The contention of the defendants was
based on three grounds, viz., (i) the suit was time-barred; (ii) the properties were in the adverse
possession of the defendants; (iii) and finally that Ram Das was not a coparcener of Baibhaddar
(ancestor), as his mother married Ram Charan after the death of Ram Prasad, and that Ram Charan
adopted and nourished and performed the marriages of Tulasi Bai and Ram Das.
The trial Court dismissed the suit in favour of the defendants holding that there was no valid adoption
by Ram Charan, and also ruled that mere nourishment and performing marriages would not be treated
as valid adoption. For a valid adoption, the requisites of physicallytaking and giving, intention, etc., are
necessary. The Appellate Court and the High Court also confirmed the decision of the trial Court.
Finally the case reached the Supreme Court.
JUDGMENT: The Supreme Court gave the judgment in favourof the plaintiff-appellant, and set aside
the judgment and decree of dismissal of plaintiff’s suit as passed by the Trial Court and as confirmed
by the First Appellate Court as well as by the High Court.
PRINCIPLES: (i) Regarding the question of adoption of step-son, plaintiff, the allegation that the
expenditure by step-father for the marriage of step-daughter, nourishing the step-son and step-daughter
could not be considered as valid adoption. Plaintiff’s mother having plaintiff and his sister as children
from plaintiff’s father, first husband, at the time of re-marriage with step-father of plaintiff, on re-marriage,
plaintiff’s mother along with her two children went and stayed with step-father. In this situation, if step
father spent money on upkeep of children and on marriage, it would not mean that step-son was
adopted by step-father. It cannot be said that any material evidence having direct impact on decision
of case on merits was ignored.
 The Family Law -1 (The Hindu Law) 85

(ii) Unless the step-father adopts legally as per the requirements of the Hindu Adoptions and
Maintenance Act, 1956, the adoption could not be presumed,
(ill) Even though the plaintiff and his sister were nourished by their step-father, still they were the
coparceners of the joint family of Baibhaddar (the ancestor). The re-marriage between Tulasi Bai and
Ram Charan should not destroy the rights of the plaintiff.
[Note: The above case-law can be cited in the Topics of “The Hindu Succession Act”, particularly relating to the rights of coparceners,
re-marriage of widow, partition, etc.]

PROBLEM: X and Y are Hindu couple. They have a daughter D. When D has been married off, X
and Y decide to adopt a boy B. B, after having attained majority age, filed a suit against D to give back
the property, she has received as gift from her parents at the time of her marriage. On the other hand,
D contended that adoption of B is illegal. Decide the respective contentions of B and D.
(Dec., 2007, O.U.)
SOLUTION: Here there are two Questions of Law. (i) the Adoption of B and, (ii) B’s claim against D
to give back the property, she has received as gift from her parents at the time of her marriage.
For the first question: The adoption of B is valid.
For the second question: According to the old Hindu Law and Section 14 of the Hindu Succession
Act, 1956, B’s claim fails. Because the gift was given by her father as a Karta during the marriage
towards “Pasupu Kumkuma”, a Hindu custom.
Alienation of property by father, as a Karta, as a gift to a daughter during the marriage is valid, legal and
custom. When once the property was passed on to the donee, here the daughter, it cannot be
revoked either by law or by sentiment. It is the custom that 99% of the Hindu brothers shall not claim
back the property given to their sisters during their marriage.
PROBLEM: A, a widow, sought the consent of sapindas forthe adoption of a child for her husband for
religious purposes. Some of the Sapindas gave consent, and some of them refused. A adopted a
child. Is it valid?

SOLUTION: Yes. It is valid. This is solved in the following case:—

# Chandrasekhara vs. Kulandaivelu (AIR 1963 SC 185)

(Validity of adoption with out the consent of Sapindas)
Brief Facts: Shanmugha, Subramania and Kulandaivelu, consisting a Joint Hindu Family, belonging
to Dravida School, partitioned the properties in 1878. Kulandaivelu died childless in 1912, leaving his
widow Guruvammal Anni. In 1951, Guruvammal Anni wanted to adopt a son for religious purposes
and to do karmas for her husband and herself, and sought the consent of the Sapindas, i.e., Shanmugha
and Subramania and their sons. They refused to give consent, opining that if they would give consent,
they would lose their reversionary rights. But some of the sapaindas gave consent. Guruvammal
Anni adopted a child named him Kulandaivelu Mudaliar (Jr.) in 1951 and died in Feb., 1952.
Chandrasekhara (Son of Subramania) and others filed a suit against Kulandaivelu (Jr.) praying the
Court that the adoption was in vaiid.
JUDGMENT: The Supreme Court gave judgment that the adoption was valid in view of the religious
purposes, and dismissed the appeal of Chandrasekhara and other reversioners.
PRINCIPLES: (i) In a case, where the last male-holder is a divided member of the family, his widow
can make an adoption with the consent of a remoter sapinda if a nearer sapinda or sapindas improperly
refused to give consent to the adoption. An adoption of a boy by a widow outside the class of sapindas
is valid,

(ii) A widow adopts a boy to her deceased husband and nobody except a widow can make an
adoption to her husband. The reason is that Hindu law recognizes her not merely as an agent of her
husband but to use the felicitous Hindu metaphor as his surviving half. A Hindu widow in making an
adoption exercises a power which she alone can exercise, though her competency is conditioned by
other limitations. Whether she was authorised by her husband to take a boy in adoption or whether
she obtained the assent of the sapindas, her discretion to make an adoption, or not to make it, is
absolute and uncontrolled. She is not bound to make an adoption and she cannot be compelled to do
so. But if she chooses to take a boy in adoption there is an essential distinction between the scope of
the authority given by her husband and that of the assent given by the sapindas. In essence the
adoption is an act of the widow and the role of the sapindas is only that of advisers,
(iii) The substitution of a son of the deceased for spiritual reasons is the essence of adoption and the
consequent devolution of property is mere accessory to it. The validaty of an adoption has to be
judged by spiritual rather than temporal considerations and devolution of property is only of secondary
importance.
 86 The Family Law -1 (The Hindu Law)

After the Hindu Succession Amendment Act, 2005: According to the provisions of the Hindu Succession
Act, 2005, a daughter has become a coparcener in the coparcenary property. Before this Act, only
males were regarded as coparcener. The adopted son and aurasa daughter both are entitled to
devolve the shares @ 50% to son and 50% to daughter.
[Note: Sections 6-17 of the HAMA, 1956 explains the essenfal conditions of a valid adoption. Out of Ss. 6-17, Ss. 6-11 are explained
in this Topic. Sections 12 to 17 are explained in the subsequent Topics. The student must be thorough these conditions. Probiems
are asked basing on the conditions.]

4.D. EFFECTS OF ADOPTION [Sec. 12]

Q.1. Briefly discuss the effect of adoption as provided in Section 12 of the Hindu Adoptions and Maintenance Act, 1956.
(Feb., 2008, Burdwan U., W.B.)
Q.2. Expiain the effects of adoption in the following cases:—

(a) The undivided interest of a son in the Joint Family property of his natural father that at the time of adoption,
(b) Ancestral property in the hands of adoptive father. (Dec., 2005, B.U.)
ANSWER:

SCOPE: Section 12 of the Hindu Adoptions and Maintenance Act explains about the effects of the
adoption in the adoptive family and natural family.
“Sec. 12. Effects of adoptions:— An adopted child shall be deemed to be the child of his or her adoptive father or mother
for ail purposes with effect from the date of the adoption and from such date all the ties of the child in the family of his or her
birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family:
Provided that,—

(a) the child cannot marry any person whom he or she could not have married if he or she had continued in the family of
his or her birth;

(b) any property which vested in the adopted child before the adoption shall continue to vest in such person subject to the
obligations, if any, attaching to the ownership of such property, including the obligation to maintain relatives in the family
of his or her birth;

(c) the adopted child shall not divest any person of any estate which vested in him or her before the adoption."
IMPORTANT POINTS:

A. The Doctrine of Relation Back was abolished by Section 12. From the date of the adoption, the
adopted child shall be deemed as aurasa son of the adoptive parents.
B. The adoptive child severs all the ties from his natural family.
C. The adoptive child cannot marry any person whom he or she could not have married if he or she
had continued in the family of his or her birth.
D. Any property which vested in the adopted child before the adoption shall continue to vest in such
person subject to the obligations, if any, attaching to the ownership of such property, including the
obligation to maintain relatives in the family of his or her birth.
E. The adopted child shall not divest any person of any estate which vested in him or her before he
adoption.

F. PROBLEM-1; A son is adopted by a widow after several years of the death of her husband.
Would he be the son of the widow alone or as well as of her husband? (May, 2008, O.U.)
PROBLEM-2: A, a Hindu died in 1948 without children. His widow acquired A’s properties. The
widow gifted the properties to her grand-niece in 1954. X, a Presumptive Reversioner of A, fiied a suit
against the widow challenging that the widow, being a limited owner, could not gift A’s properties.
While the case was in pending, in 1959, the widow adopted the son of her grand-niece. Decide.
SOLUTION-1 &2: The facts of the Problem are identical with the following case, in which the Supreme
Court held that the adoption was valid and the adopted son would inherit A.

# Sawan Ram vs. Smt. Kalawanti (AIR 1967 SC 1761)

(Adoption - Presumptive Reversioner)
Brief Facts: A-a Hindu died in 1948 leaving behind his widow-W without children. Widow took her
husband’s properties as a limited Owner. In 1954, the widow-W made a gift of certain lands of her
husband’s properties to her grand-niece-G. X-a collateral of the deceased-A was a presumptive
Reversioner. (Presumptive Reversioner means after the widow’s limited ownership ends, i.e., after
the death of the widow-W, the Presumptive Reversioner succeeds the properties of the deceased
male Hindu, i.e., here A). X challenged the alienation by way of gift by W to G under a suit for the
declaration that the gift to G was not binding on him. The trial Court granted the declaration in favour
ofX. Gappeaied. Whiie the appeal was pending, in 1959 W-widow of A, adopted G’sson-GS. After
 The Family Law -1 (The Hindu Law) 87

taking in adoption, in the same year W died. The important question arose whether the adoption ofW
adopting GS was vaiid ?, if vaiid, GS wouid be a preferabie heir than X, and he wouid be deemed as
the adopted son of A.
JUDGMENT; The Supreme Court heid that the adoption of GS by W (the widow of A) was vaiid, and
GS was a preferabie heir of A when compared with X.
Principle laid down: The Supreme Court gave the judgment in a wider proposition in this case that
an adoption made by widow in every case becomes the adopted son of her deceased husband and
therefore would divest any person of the property vested in him after the death of his adoptive mother’s
husband. It was held that the adoption did not relate back to the date of the death of husband and
alienation made by the mother after the adoption was valid unless her power has been restricted by
ante-adoption agreement. The Supreme Court observed: “It is well-recognised that, after a female is
married, she belongs to the family of her husband. The child adopted must also, therefore, belong to
the same family. On adoption by a Hindu female who has been married, the adopted son will, in effect
be the adopted son of her husband also. ”
G. PROBLEM: Can an adopted child retain his coparcenary right in his genitive family?
SOLUTION: Yes. This right of the adopted child is not affected by the adoption. In other words, his
interest in the coparcenary property will after the adoption continues as property of the adoptive family.
This question of law was answered by the Andhra Pradesh High Court in the following case:—
# Yarlagadda Nayudamma vs. State of Andhra Pradesh (AIR 1981 AP19)
(Rights of coparcenary rights of an adopted child in his genitive family)
Brief Facts: A was a coparcener in a joint Hindu family. He was given in adoption. After attaining
puberty, he sued for his coparcenary interest in the joint family, i.e., genitive family. The important
question arose could he lose his coparcenary interest and right in the genitive family.
JUDGMENT: The Andhra Pradesh High Court gave the judgment in favour of the adoptive son,
opining that he would not lose his coparcenary rights in the genitive family, although he was given in
adoption to another family.
Principle laid down: The Andhra Pradesh High Court observed; “According to the pre-Act law he
would lose all his interests in the genitive family. But under the proviso to Section 12 of the Hindu
Adoptions and Maintenance Act, 1956 vested rights are not affected. The coparcenary right is a
vested right as it can now be disposed of by transfer inter vivos or by wili and it is aiso inheritable. So
this right of A is not affected by the adoption. In other words, his interest in the coparcenary property
wiil after the adoption continues as property of the adoptive famiiy. ”
H. PROBLEM: A and B were brothers of a coparcenary family, both having no children. A died
surviving C-wife. After the death of A, C had illegal contact with B, anc gave birth to X (an illegitimate
son). After the Hindu Adoptions and Maintenance Act, 1956 came into effect, C adopted Z. B wrote
a will bequeathing all the properties to his illegitimate son-X. B died. The dispute arose between X
and Z. Who will inherit the coparcenary properties? Decide.
SOLUTION: The facts of the above problem are identical with the following case:—
# Sita Bai vs. Ramachandran (AIR 1970 SC 345)
(Illegitimate son and adopted son)
Brief Facts; Bhagirath and Dulipchand were brothers. They had a joint family property. Bhagirath
died. Sitabai, wife of Bhagirath, started living with illicit contract with Dulipchand, and begotten
Ramachandran (Illegitimate Son). Sitabai adopted a boy named Suresh Chandar. Later Dulipchand
died. Dulipchand wrote a will according to which Ramanchadran (illegitimate son) got the house,
and also occupied the self-acquired land of Dulipchand claiming to be his heir. Suresh Chandar-the
adopted child of Sitabai sued for the share in the property.
JUDGMENT: The Supreme Court gave the judgment that Suresh Chandar, the adopted son, acquired
the coparcenary irghts in the adoptive family. He became the son of Bhagirath by adoption, and so a
coparcener in the joint family. On the death of Dulipchand, he is the sole surviving coparcener. Dulip
Chand’s ‘will’ cannot affect the right of Suresh Chandar in the joint family property. As regards the
lands, Suresh as brother’s son is preferable to Ramachandran who is only an illegitimate son. So the
lands go in their entirely by inheritance to the adoptive son.
I. ADOPTED SON AND AFTER BORN AURASA SON

PROBLEM: Sometimes it happens. The adoptive parents wait for a long time for begetting the child.
When they lost hope, then they decide to adopt a son or daughter, and adopt according to their
convenience. After adopting the child, the adoptive parents may beget a natural child, who is called
88 The Family Law - I (The Hindu Law)

“After born aurasa son”. What is the position of the “adoptive child” and “After born aurasa son
in that circumstance?

SOLUTION: The adopted child is treated as an aurasa son. Adoption imitates nature. Before
the Act of 1956, the adopted son’s position was degraded and his right of share in the adoptive property
was decreased, and he would get only 1/4th or 1/5th share of the whole estate of the adoptive father
depending upon the different schools. But now the law has been changed. The adopted son is
treated equally with after born aurasa son, and both of them get equal shares, in the joint family
property of adoptive family. Suppose there is one adopted son and one after bom aurasa son. Each
of them gets 1/2 share of the property of the adoptive father (after the death of the adoptive parents).
J. PROBLEM; Partition between the father, adopted son and, subsequently born aurasa son. What
is each share?

SOLUTION: Under the present law, each would get 1/3rd share of the estate. Now this principle
applies now in all castes and in all schools.
K. FACTUM VALET iSH)
The adopted son severs all connections with his natural family. He changes his “gotra”. He gets
new “gotra” of his adoptive family. The adopted child becomes the aurasa son of his adoptive
parents. So, he loses his right to perform “Sradha”, “Pinda Karma” of his natural family. This is the
position of the law.

But what is the position if there are no competent persons in the natural family to perform the “Sradha ”,
““Pinda Karma”, “ Kanyadan”, etc. The present Act is silent in this regard. Manu Pharma Sastra
and other subsequent Sastras permit the adoptive son to perform “ Sradha Karma", “ Pinda Karma ”
or “Kanyadan”. This is known as “Factum Valet”.
“Quod fieri non debris factum valet”\s the famous maxim. The meaning of the maxim is “What ought
not to be done, is valid when done.” The maxim applies to the Hindu marriages and also the
adoptions. As far as concerning with adoptions, as per the Sastraic law, the adoptive son severs all
connections with his natural family. But in fact, when there are certain circumstances exist, the
adoptive son has to perform certain religious functions in the natural family such as “ Sradha”,
“ Kanyadana ” or “ Pinda Karma ”. This doctrine, thus means, the law imposes certain conditions, but
when the conditions are violated, such violation is also treated as correct for time being. Afact cannot
be changed by a hundred texts. This shows that custom is more stronger than the law. This is
called “Factum valet”.

L. PROBLEM: A has two sons X and Y. A has given his son X in adoption to L. L hasa daughter-
D. Can Y marry D?
SOLUTION: No. Y cannot marry D. Since Y is brother of X, he also becomes the brother of D.
Thus Y is within the prohibited degrees of relationship and so Y cannot marry D. Neither X nor Y can
marry D. She becomes the sister to both X and Y.

M. PROBLEM: Explain the position and effect of an adoption of a son in case of: (i) the undivided
interest of the son in the joint family property of his natural father at the time of adoption; (ii) the
ancestral property in the hands of the adoptive father.
SOLUTION: Ujider the Hindu Adoptions and Maintenance Act, 1956, the adoption does not affect any
vested rights.. The adoptee retains what had been vested in him in the natural family priorto adoption.
He will acquire rights in the adoptive family, subject to the condition that he does not divest any rights
vested in others as to such property priorto his adoption.

NOTE

While revising Suiatha Law Series Notes, I am also compiling the Bare Acts
for the Criminal Major Acts keeping in view of the students requirements or
the Internal, Problems and Notes. iWthin a short period, I would like to the
Criminal Major Acts for Advocates, incorporating the Ingredients, latest
and leading case-laws, etc. which can be useful in the Courts.
GADE VEERA REDDY

Vi
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The Family Law -1 (The Hindu Law)

I
89

4.E. ANTE ADOPTION AGREEMENT [Sec. 13]|

Q.1. What is an ante-adoption agreement? How far is it valid when the adoptee is a minor?
Q.2. Ante Adoption Agreement. (SN)
ANSWER:

MEANING:

Ante-adoption agreement. = An agreement made before the adoption.

Ante, (adv., adj.) = before.
The natural parents give their child to the adoptive parents. The effect of the adoption is that the child
ceases all the relations from the natural family. He becomes the aurasa son of the adoptive family.
Before the adoption, the natural father or mother may come to an agreement with the adoptive father
or mother in the interests of the child. Sometimes in the interests of the natural father or mother,
some separate provisions may be made in the shape of an agreement. Such an agreement made
before the adoption is called “Ante-adoption Agreement”.
SCOPE: Section 13 of the Hindu Adoptions and Maintenance Act, 1956 provides about the ante-
adoption agreement.
SECTION 13:

Sec. 13. Right of adoptive parents to dispose of their properties:— Subject to any agreement to the contrary, an
adoption does not deprive the adoptive father or mother of the power to dispose of his or her property by transfer inter vivos
or by wiil.

OBJECT: An Ante-Adoption Agreement is held valid. It protects the interests of the child and as

well as of the adoptive family. It removes the conflicts between the adoptive family and adopted child
and also natural family. It also shows the ‘foresequences’ in the property, for which both the parties
agreed in anticipation.
IMPORTANT POINTS:

A. Section 12 of the Hindu Adoptions and Maintenance Act, 1956 shows the effects of the adoption.
From the date of adoption, the adoptive son ceases all the relations from his natural family. He loses
his rights and duties from his natural family.
B. Section 13 of the Hindu Adoptions and Maintenance Act, 1956 lays down that the adopted child
shall not divest any person of any estate which vested in him or her before the adoption. The adoptive
father may be the sole surviving coparcener. Then he can alienate the property by will or by a transfer
inter vivos, before the adoption. But he could not do so, after the adoption. Because the adopted son
shall become the coparcener of that property. If there is an ante-adoption agreement, that the father
can alienate the property by will, then he can do. The ante-adoption agreement, between natural
father and adoptive father giving the power to adopted father to alienate the property shall be held valid.
C. Consideration is not valid: If the adoptive parents agree to pay any consideration to the natural
parents, it is not valid. Such an agreement is void.

4.F. FACTUM VALET

Q.l. Quod fieri non debris factum vaiet." (What ought not to be done is valid when done.) Discuss this maxim in the application of the
Hindu Marriage and Adoptions?
Q.2. Factum Valet in Law of Adoption. (SN)
Q.3. Factum Valet.
(SN) (AnI., 2004, K.U.)
ANSWER:

MEANING:

Factum Valet. = What ought not to be done, is valid when done.

“Quod fieri non debris factum Valef is the famous maxim and is simply known as “Factum valef’.
SCOPE: The maxim factum valet is invoked in the Hindu Marriage Act, 1955. Even it is applicable to
the Mohammedan law. The Hindu Marriage Act, 1955 prohibits the child marriages. If a child marriage
occurred, there are penal consequences attracted. Even then the marriage is considered as valid.
Section 13 (Clause iv) of the Hindu Marriage Act, 1955 confers upon a bride below the age of 15 years
the right of repudiation after attaining the age of majority. The similar right “Option of Puberty” under
the Mohammadan Law has been given to the minor bride. The Full Bench of the Supreme Court
opined that a child marriage is not void, but it can only be voidable on the option of the one of the
parties. This is called “Factum Valef.
90 The Family Law -1 (The Hindu Law)

Similarly the Doctrine of Factum Valet is invoked in the law of adoption. The Mitakshara Law forbids
the following adoptions:—
1. An only son should not be given in adoption.
2. The eldest son should not be given in adoption.
In these cases, the infirmities can be cured by the application of the Doctrine of “Factum Valet'. The
Privy Council considered this doctrine shall be applicable only to direct texts. It is inapplicable to the
mandatory texts. If the text in question is only recommendatory, then this maxim may be applied
applied the adoption can be upheld. The Priyy Council held that the text was only directory, not
mandatory. So the adoptions in the above circumstances were held to be valid notwithstanding the
prohibitory text of the Mitakshara.
CONCLUSION: The Doctrine of Factum Valet is applicable only in case of the Directory Texts. It
is not applicable in case of the Mandatory Texts. Further the adoptive child loses all his connections
from his natural family. In fact, he changes his “gotra” and “Surname” from the natural family to
adoptive family. “Sradha Karma”, “Pinda Karma” and “Kanyadanam” etc., have to be performed in
the natural family by any other appropriate member of the natural family. If any such other appropriate
person is not available, then the adoptive person can perform such religious acts “Sradha Karma”,
“Pinda Karma” and “Kanyadanam”, etc., in the natural family. This is called the “Factum Vaiet”.
The Hindu Adoptions and Maintenance Act, 1956 clearly gives the requisite qualifications, and conditions
for the adoption in Sections from 6 to 17. These are mandatory. These conditions/qualifications can
not be breached. The Doctrine of Factum Valet can not be applied to cure an infirmity in the law of
adoption, if any caused. To such matters, which do not affect the essence of adoption, the Doctrine
of Factum \/a/ef would undoubtedly apply on general grounds of justice, equity and good conscience
and irrespective of authority of any text in the Hindu law itself. Manu Pharma Sastra and other
subsequent Sastras permit the adoptive son to perform such acts in the adoptive family. The Hindu
Adoptions and Maintenance Act, 1956 is silent in this regard. In these cases, the Doctrine of Factum
Valet can be invoked.

Collector of Madura vs. Mootoo Ramalinga Sethupathy (Ramanad Case)

[Refer to Topic 1 .C. for the Brief facts and Principles.]

4=G. DOCTRINE OF RELATION BACK

Q.l. Explain the Doctrine of Relation Back with reference to adoption. (Aug., 2004, O.U.)
Q.2. Doctrine of Relation Back. (SN) (Aug., 2005, S.V.U.)
ANSWER:

MEANING: When a widow adopts a son for her husband after her husband’s death after the property
has vested in the collaterals or heirs and successors of the husband. In the eye of the law, it would be
deemed that the adoption took place during the life-time of the husband and the adopted child was
present at the time of husband’s death. Hence the adoption will relate back to the time of the death of
the husband. Under such circumstances the adopted child shall have a right to inherit the property of
his adoptive father. If the property has vested in other heirs of the husband, the adopted son shall
divest them of the property.
EXAMPLE: A, a Hindu, died childless on 1 -5-1950. Before his death, he instructed his wife to adopt
a child for him. The widow adopted a child according to her husband’s wishes on 10-8-1950. The
adoption took place on 10-8-1950. But the adoption was deemed to be in force with effect from 1 -5-
1950, i.e., from the date of death of the adoptive father. The adopted child was treated as
“Posthumous child”. This is called the “Doctrine of Relation Back”.

OBJECT: The theory on which the Doctrine of Relation Back based is that there should be no haitus
in the continuity of the line of the adoptive father. The ground on which an adopted son is held entitled
to take in defeasance of the rights acquired prior to his adoption is that in the eyes of the law his
adoption relates back, by a legal fiction, to the date of his adoptive father, he being put in a position of
a posthumous son.
EXCEPTIONS; The Doctrine of Relation Back has two exceptions: (i) The first is that it does not
apply to the case of succession to a collateral’s property; and (ii) the second is that it does not divest
a person who has taken the property not by intestate succession but by transfer inter vivos or by will of
the father or other preferential heir who had taken the estate in the meanwhile.
Abolition of the Doctrine: Due to the doctrine, several litigations arose. There were huge speculative
litigations launched to upset long-standing titles, and ruinous litigations were continued. The
 The Family Law - / (The Hindu Law) 91

consequence of this doctrine was divestment of estates vested in by a legal fiction. The Law
Commission suggested for the abolition of the Doctrine of Relation Back. Accordingly, the system of
relation back has been abolished by the HinduAdoptions and Maintenance Act, 1956. TheAct, 1956
brought several changes and has given equal rights to the Hindu woman along with the Hindu man.
Due to the changes brought now there is no necessary of this doctrine.
Collector of Madura vs. Mootoo Ramalinga Sethupathy (Ramanad Case)
[Refer to Topic 1 .C. for the Brief facts and Principies.]

MAINTENANCE UNDER THE HINDU ADOPTIONS

AND MAINTENANCE ACT, 1956
4.H. MAINTENANCE OF WIFE [Sec. 18]

Q.1. What are the conditions under which a Hindu wife is entitied to maintenance and separate residence? (Dec., 2007, O.U.)
Q.2. Who are entitled for maintenance under the Hindu Adoptions and Maintenance Act, 1956? (Feb., 2004, O.U.)
Q.3. When can a wife claim maintenance under the Hindu Adoption and Maintenance Act, 1956? Can her husband refuse to pay
maintenance for her

Q.4. What are the conditions under which a Hindu wife is entitied to maintenance against her paramour and his estate?
(AnI., 2003, K.U.)
Q.5. Expiain the provisions of the Hindu Adoptions and Maintenance Act, 1956 dealing with the maintenance of a Hindu wife. When can

her claim be forfeited?

Q.6. Examine the rights of maintenance of a concubine and her children in the Hindu Law of Maintenance. (SN) (May, 2008, O.U.)
0.7. Maintenance and their children on the plea that all the necessary ceremonies were not performed to validate their marriage?
(Dec., 2001, O.U.)

Q.8. Alimony. (SN) (Aug., 2005, S.V.U.)

Q.9. Avarudha Stri. (SN)

Q.10. Concubine. (SN) (AnI., 2004, K.U.)

ANSWER:

INTRODUCTION: It is the duty of the husband to give protection and maintenance to his wife. It is
the duty of the wife towards her husband to submit herself obediently to his authority and to remain
under his roof and protection. As a rule the wife is not entitled to separate residence and maintenance
from her husband. But Section 18 of HinduAdoptions and Maintenance Act 1956 provides that under
certain circumstances, the Hindu wife is entitled for separate residence and maintenance. (Chapter-Ill
of Hindu Adoptions and Maintenance Act, 1956).
MEANING:

Maintenance, (n.) = The supply of the necessaries of life for a person. A maintenance clause in a
deed of settlement is the provision of income for such a purpose. On a petition for divorce, nullity of
marriage or judicial separation, either party to the marriage, may be ordered to make periodical payments
for the maintenance of the other from the presentation of the petition to the determination of the suit.
After the decree permanent financial provision may be ordered to be made.
Alimony, (n.) = Alimony was the term used to describe the allowance to a married woman when she
was under the necessity of living apart from her husband. The term is no longer used in matrimonial
causes and is replaced by maintenance pending suit and permanent financial provision thereafter.
SCOPE: Chapter-Ill of the Hindu Adoptions and Maintenance Act, 1956 contains the provisions
relating to “MAINTENANCE”. This Chapter contains Sections from 18 to 28. Section 18 narrates
the provisions about “Maintenance of Wife”. Section 19 narrates the provisions about “Maintenance
of Widowed Daughter-in-law”. Section 20 lays down the provisions for the “Maintenance of Children
and aged Parents”. Section 21 defines “Dependants”. Section 22 explains about “Maintenance of
Dependants”. Section 23 narrates about the provisions about “Amount of Maintenance”. Section
24 dictates that “claimant to maintenance should be a Hindu”. Section 25 empowers the Court to
“alter the maintenance on change of circumstances”. Section 26 gives priority to “Debts”. Section
27 provides that “Maintenance as a Charge in certain circumstances”.

“Sec. 18. Maintenance of wife:— (1) Subject to the provisions of this Section, 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.

(2) A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance,—

(a) if he is guilty of desertion, that is to say, of abandoning her without reasonable cause and without her consent
or against her wish, or of wilfully neglecting her;
(b) if he has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful
or injurious to live with her husband;
 92
The Family Law -1 (The Hindu Law)
(c) if he is suffering from a'virulent form of ieprosy;
(d) if he has any other wife living;
(e) if he keeps a concubine in the same house in which his wife is living or habitually resides with a concubine
elsewhere:

(f) if he has ceased to be a Hindu by conversion to another religion;

(9) if there is any other cause justifying her living separately;
(h) A Hindu wife shall not be entitled to separate residence and maintenance from her husband if she is unchaste
or ceases to be Hindu by conversion to another religion.”

IMPORTANT POINTS ON SECTION-18 :

A. The grounds which are given in Section 18 of the Hindu Adoptions and MaintenaneeAct, 1956for
the separate residence and maintenance of a Hindu wife are equal with those grounds given in Section
13 (Divorce) of the Hindu Marriage Act 1965.
B. According to Section 18. the grounds are:—
(a) Desertion by the husband:
(b) Cruelty by the husband:
(c) Husband suffering from virulent form of leprosy:
(d) Husband having another wife living:
(e) Husband keeping a concubine:
(f) Husband is habitually in debaucher:
(g) He converted his religion: or
(h) Any other justifying causes.
C. Circumstances under which a Hindu wife shall not be entitled to separate residence and
maintenance:— Sub-section (2) of Section 18 enunciates the circumstances under which a Hindu
wife shall be entitled to separate residence and maintenance. There are seven grounds mentioned
therein. Sub-section (3) of Section 18 enunciates the circumstances under which a Hindu wife shall
not be entitled to separate residence and maintenance. They are:—
(i) Unchastity:
(ii) Ceasing to be a Hindu by conversion of religion from Hindu religionto any other religion.
D. AVARUDHA STRI (SN)
MEANING:

Avarudha Stri. Concubine.

In the olden days, concubine was given respect in the Hindu society. The Hindu jurisprudence
accepted the “Bigamy” (having two wives at a time) and “Polygamy” (having several wives at a time).
Besides it, keeping concubine was regarded as the symbols of dignity and high society. The time
has been changed. After independence, the Indian Government codified the Hindu laws. The Hindu
MarriageAct, 1955 prohibited polygamy. The Hindu Adoptions and MaintenaneeAct, 1956 has taken
a more puritanical view than the old Hindu law. Neither the Hindu MarriageAct nor the Hindu Adoptions
and MaintenaneeAct, 1956 recognises the bigamy, polygamy or concubineship. Both theActs do not
recognize “Avarudha Stri” at all. Moreover having “Avarudha Stri” is a good ground for the Hindu
wife for asking separate residence and maintenance, or judicial separation, or divorce. Further, it is
an offence attracting penal provisions under Sec. 494 and Sec. 495 of the Indian Penal Code, 1860.
Thus the question of maintenance for the concubine does not arise.
E. CHILDREN OF AVARUDHA STRI (SN)
The children of “Avarudha Stri” (Concubine) are treated as illegitimate children Section 20 of the
Hindu Adoptions and MaintenaneeAct, 1956 clearly admits that the Hindu husband has the liability to
maintain her children (Illegitimate children of Avarudha Stri), but not her. Section 125 of the Criminal
Procedure Code, 1973 also says the same. The illegitimate children bom to Avarudha Stri
(Concubine) can claim maintenance from their father so long the children are minors. But they can
not claim a share from the property of their illegitimate father. However, Section 16 of the Hindu
Marriage Act, 1955 empowers such children to have a share from the properties of their father.
Therefore, the illegitimate son has a right to maintenance and nothing more even after the putative
father’s death. [Referto Case: Sitabai vs. Ramachandran -Topic4.D. & also Referto Section 16 of
the Hindu MarriageAct, 1955.]
 93
The Family Law - / (The Hindu Law)
F. Provisions of Maintenance of a Hindu wife under other laws: The right to maintenance and
a separate residence to a Hindu wife is given under Section 16 of the Hindu Adoptions and Maintenance
Act, 1956. Besides it, there are other laws providing maintenance to a Hindu wife. They are:—

(i) Section 125 of the Criminal Procedure Code, 1973;

(ii) Section 24 of the Hindu Marriage Act, 1955; and
(iii) The Protection of Women from Domestic Violence Act, 2005.

Gl PROBLEM: Can a Hindu husband refuse to pay maintenance for his wife and their children on
the plea that all the necessary ceremonies were not performed to validate their marriage?
(Dec., 2001, O.U.)
SOLUTION: No. A Hindu husband cannot refuse to pay maintenance for his wife and their children
on the plea that all the necessary ceremonies were not performed to validate their marriage. First, the
Hindu husband has file a case for nullity of marriage proving that his marriage was not solemnised
according to the conditions and ceremonies. If the Court believes his evidence beyond the reasonable
doubts, then it may grant the decree of nullity of marriage. However, still the wife and children are
entitled to maintenance under the Hindu Adoptions and Maintenance Act, 1956, the Hindu Marriage Act,
1955, Section 125 of the Criminal Procedure Code, 1973 and the Protection of Women from Domestic
Violence Act, 2005. The provisions of these Acts lay down that the children, whether legitimate or
illegitimate, are entitled to claim maintenance.

4.I. MAINTENANCE OF DAUGHTER-IN-LAW [Sec. 19]

Q.1. Explain the law relating to maintenance of wife by her father-in-law under the HAMA, 1956.
Q.2. “An obirgaiion to maintain another though morai in its inception may irpen into a iegal one.” state
■' and discuss the cases in which
this happens.

ANSWER:

SCOPE: Section 19 of the Hindu Adoptions & Maintenance Act, 1956 provides about the maintenance
of widowed daughter-in-law under certain circumstances.
“Sec. 19. Maintenance of widowed daughter-in-iaw:— (1) A Hindu wife, whether married before or after the
commencement of this Act, shall be entitled to be maintained after the death of her husband by her father-in-law.
where she has
Provided and to the extent that she is unable to maintain herself out of her own earnings or other property or,
no property of her own, is unable to obtain maintenance,—
(a) from the estate of her husband or her father or mother, or

(b) from her son or daughter if any, or his or her estate.

(2) Any obligation under sub-section (1) shall not be enforceable if the father-in-law has not the means to do so from any
coparcenary property in his possession out of which the daughter-in-law has not obtained any share, and any such
”

obligation shall cease on the remarriage of the daughter-in-law.

IMPORTANT POINTS ON SECTION-19 :
A. A widowed daughter-in-law can claim maintenance from her father-in-law after the death of her
husband in the following circumstances: —
(a) if she is unable to maintain herself out of her own earnings or other property, or

(b) if she has no property of her own;

of
(c) if she is not obtaining maintenance from the estate
(i) her husband; or
(ii) her father; or
(iii) her mother,
(d) if she is not getting maintenance from her son or daughter, if any, or his or her estate.
B. PROBLEM: When the widowed daughter-in-law is not entitled to get maintenance from her
father-in-law?

SOLUTION: The obligation of the father-in-law to maintain his widowed daughter-in-law is not primary
or secondary, but it is remote, and is subject to certain
conditions. The father-in-law is not under an
obligation to maintain his daughter-in-law, if,—
(a) he has not the means to maintain from the coparcenary property in his possession;
(b) she has obtained any share in coparcenary property;
(c) she remarries.
 94
The Family Law - I (The Hindu Law)

C. Legal Liability: The obligation is not personal but moral. This moral obligation becomes legal
obligation on his death for those who inherit the property of the deceased father-in-law.
D. PROBLEM: In a joint Hindu family, the father-Karta had joint property in his hands. A widowed
daughter-in-law sued the father-Karta for her maintenance under Section 19 of the HAMA Is he
liable?

SOLUTION: Yes. The father-in-law is liable, The facts of the Problem are identical with the
following leading and prescribed case:—
# T.A. Lakshmi Narasamba vs. Sundaramma (AIR 1975)
(Maintenance of daughter-in-law)
Brief Facts: The father-in-law Kamaraju died in 1954. Before his death, his son died leaving his
widow. Kamaraju had two sons - (1) Satyanarayana and (2) Rama Rao. Satyanarayana died in
1933. Rama Rao died pending the suit. The 1st Defendant-Rama Rao was given in adoption to
Surya Prakash Rao, brother of Kamaraju. There was a partition on 30-11-1923, between Kamaraju
and his brothers. Satyanarayana and Kamaraju continued as members of the undivided joint family.
Later Satyanarayana executed a registered relinquishment deed in favour of his father on 21 -9-1924,
through which he gave up all his rights in all movable and immovable properties to which he was
entitled. As a consideration thereof, Kamaraju agreed to pay Rs. 1500/- to the Plaintiff as Satyanarayana
(Plaintiffs husband) had taken the jewels of that value belonging to his wife for his personal needs.
Kamaraju discharged Satyanarayana’s debts amounting to Rs. 2,200/-. After relinquishment deed,
Kamaraju was enjoying the entire property as his separate property. Thereafter Kamaraju executed a
registered will on 23-5-1936, whereby he gave estate to his widow Lakshmi Narasamba in all the
properties and the remainder to his natural son, the 1 st Defendant, who had gone in adoption. After
the death of Kamaraju, Lakshmi Narasamba by a registered relinquishment deed dated 5-10-1961 in
favour of her son Rama Rao the 1 st Defendant, who became absolute owner of the entire estate.
The Plaintiff, i.e., wife of Satyanarayana filed the suit for the maintenance at Rs. 100/- per month under
Section 19 of HAMA. It was dismissed by the Trial Court. It was appealed.
JUDGMENT: The Full Bench gave the judgment that the moral obligation of a father-in-law possessed
of separate or self-acquired property to maintain the widowed daughter-in-law ripens into a legal
obligation in the hands of persons to whom he has either bequeathed or made a gift of his property.
The defendants were held liable of the maintenance of the daughter-in-law.
Cpparcenaiy Property: The father-in-law should have the means to do so from coparcenary
k^^aw"^ coparcenary property, he has no personal obligation
to maintain the daughter-

F. Section 19 is equally applicable to the “Mitakshara Law” and “Dayabhaga Law”. The only
difference between these two laws is that in a Mitakshara Joint family, the daughter-in-law’s claim to
maintenance exists only, when there is joint family property and is not enforceable against self-acquired
property. But in a Dayabagha joint family, it is enforceable against the self-acquired prooertv of the
father-in-law. t' j

G. PROBLEM: A widow sues her father and father-in-law for maintenance. Does she succeed?
SOLUTION: It is only moral obligation of a father to maintain his widowed daughter. There is no
personal liability or legal liability on the father. Of course, after his death, the widowed daughter can
claim a share from his property, if he dies leaving the seif acquired property without writing any will
Further there shall be a legal obligation against his estate in the hands of his heirs
Regarding the liability to father-in-law to maintain daughter-in-law, the law has been explained in
i
Section 19 of the Hindu Adoptions and Maintenance Act, 1956 that if he has coparcenary property in
i
his hand, then only he is liable to maintain her daughter-in-law .

Gade Veera Reddy n

I
LL.M. ENTRANCE TEST I
I
(Multiple Choice Questions with Answers)
I
(Also useful for U.P.S.C., A.P.P.S.C., Civil Prelims, etc.)
I
^No. of Pages : 444 No. of Bits : 2393
Cost: Rs. 450/-J
 The Family Law -1 (The Hindu Law) 95

4.J. MAINTENANCE OF DEPENDANTS [Secs. 20 & 21]

Q.1. Write an essay on the provisions of the Hindu Adoptions and Maintenance Act relating to maintenance of children and aged parents.
(AnI., 2004, K.U.)
Q.2. Maintenance of dependants. (SN) (Dec., 2005, B.U.)
ANSWER:

SCOPE: Section 20 of the HAMA, 1956 deals with the maintenance of children and aged parents and
the obligation of a Hindu to maintain them. Section 21 defines who are the dependants.
SECTiON 20:

“Sec. 20. Maintenance of children and aged parents:— (1) Subject to the provisions of this Section, a Hindu is
bound, during his or her lifetime, to maintain his or her legitimate or illegitimate children and his or her aged or infirm parents.
(2) A legitimate or illegitimate chiid.may claim maintenance from his or her father or mother so long as the child is a minor.
(3) The obligation of a person to maintain his or her aged or infirm parent or daughter who is unmarried extends insofar as
the parent or the unmarried daughter, as the case may be, is unable to maintain himself or herself out of his or her own
earnings or other property.
Explanation:— In this Section “parent” includes a childless stepmother.”
IMPORTANT POINTS ON SECTION-20:
A. A Hindu is bound to maintain his or her legitimate or Illegitimate minor child. It is a personal
obligation.

B. The Hindu is bound to maintain his or her aged or infirm parent. It is also a personai obiigation.
C. The Hindu is bound to maintain a daughter until she marries. It is also a personal obligation.
Regarding the maintenance of a daughter, the question of “Minor” or “Major” does not arise. The only
question is whether she is married or unmarried. Maintenance of a daughter includes a reasonable
provision for her marriage.
D. After the father’s death she is to be maintained out of the separate properties of her father. The
obligation ceases on her marriage. The father has the obligation to maintain his widowed daughter,
subject to certain conditions.
E- The illegitimate daughter is entitled to claim maintenance against both her putative father and
natural mother, but only during minority.
F. The Hindu is not bound to maintain anyone of the above mentioned dependants, if he/she has the
means of maintenance or property.
G. “Parent” includes a childless step-mother.
H. Regarding the maintenance of a minor child, the Hindu Adoptions and Maintenance Act, 1956 does
not distinguish between a “legitimate minor child” and “an illegitimate minor child”. Similarly, Section
20 of the HAMA gives equal right of maintenance to them. But the illegitimate son has only a right to
maintenance under the HAMA. However, under Section 16 of the Hindu Marriage Act, 1955, he is
also entitled to share in the property after the putative father’s death.
I. PROBLEM: Who are the persons under a personal obligation to maintain others?
SOLUTION: Section 18 of the HAMA lays down that the Hindu husband is under the personal
obiigation to maintain his wife. Section 19 provides that the father-in-law is under moral obligation
(not personal obligation) to maintain his daughter-in-law, subject to certain conditions laid down in
Sec. 19. Section 20 provides the Hindu is bound to maintain his or her legitimate or illegitimate
children and his or her aged or infirm parents. It is a personal obligation. Section 21 defines who
are the dependants to be maintained.
J- Section 125 of the Criminal Procedure Code. 1973: UnderSection 125 of the Cr.P.C., a Hindu
is liable to maintain wife (whether divorced or not), his legitimate and illegitimate children and parents.
K. The Maintenance and Welfare of Parents and Senior Citizens Act. 2007: This is a latest Act
to provide for more effective provisions for the maintenance and welfare of parents and senior citizens
guaranteed and recognised under the Constitution and for matters connected therewith or incidental
thereto.

Statement of Objects and Reasons: Traditional norms and values of the Indian society laid stress
on providing care for the elderly. However, due to withering of the joint family system, a large number
of elderly are not being looked after by their family. Consequently, many older persons, particularly
widowed women are now forced to spend their twilight years all alone and are exposed to emotional
neglect and to lack of physical and financial support. This clearly reveals that ageing has become a
major social challenge and there is need to give more attention to the care and protection for the older
persons. Though the parents can claim maintenance under the Code of Criminal Procedure, 1973,
the procedure is both time-consuming as well as expensive. Hence, there is a need to have simple,
inexpensive and speedy provisions to claim maintenance for parents.
96 The Family Law -1 (The Hindu Law)

The Bill proposes to cast an obligation on the persons who inherit the property of their aged relatives to
maintain such aged relatives and also proposes to make provisions for setting-up old age homes for
providing maintenance to the indigent older persons.
The Bill further proposes to provide better medical facilities to the senior citizens and provisions for
protection of their life and property.
The Bill, therefore, proposes to provide for,—
(a) appropriate mechanism to be set up to provide need-based maintenance to the parents and
senior citizens;

(b) providing better medical facilities to senior citizens;

(c) for institutionalisation of a suitable mechanism for protection of life and property of older persons;
(d) setting up of oldage homes in every district.”
STRUCTURE OF ACT OF 2007: There are 32 Sections housed in Seven Chapters.

4.K. AMOUNT OF MAINTENANCE [Ss. 23-25]

Q.1. What are the Rules of Maintenance and how is it assessed by the Courts? (AnI., 2004, K.U.) (July, 2003, O.U.)
Q.2. What factors are taken into account while fixing the quantum of maintenance?
[Also refer to other Topics of Maintenance.]
ANSWER:
SCOPE: Section 23 of the Hindu Adoptions and Maintenance Act, 1956 explains the mode of
determining the amount of maintenance, if any, to be awarded to a wife, children or aged or infirm
parents.
AMOUNT OF MAINTENANCE: Section 23 lays down that it shall be in the discretion of the Court
to determine whether any, and if so what maintenance shall be awarded under the provisions of this
Act, and in doing so the Court shall have due regard to the considerations before it.
In determining the amount of maintenance, if any, to be awarded to a wife, children or aged or infirm
parents under this Act, regard shall be had to,—
(a) the position and status of the parties;
(b) the reasonable wants of the claimant;
(c) if the claimant is living separately, whether the claimant is justified in doing so;
(d) the value of the claimant’s property and any income derived from such property, or from the
claimant’s own earnings or from any other source;
(e) the number of persons entitled to maintenance under this Act.
In determining the amount of maintenance, if any, to be awarded to a dependant underthisAct, regard
shall be had to,—
(a) the net value of the estate of the deceased after providing for the payment of his debts;
(b) the provision, if any, made under a will of the deceased in respect of the dependant;
(c) the degree of relationship between the two;
(d) the reasonable wants of the dependants;
(e) the past relations between the dependant and the deceased;
(f) the value of the property of the dependant and any income derived from such property, or
from his or her earning or from any other source;
(g) the number of the dependants entitled to maintenance underthisAct.

Section 24 imposes that the claimant to maintenance should be a Hindu. No person shall be entitled
to claim maintenance under this Chapter if he or she ceased to be a Hindu by conversion to another
religion.
Section 25 gives the discretion to the Court to alter the amount of maintenance on changed
circumstances.

Permanent Alimony and Settlement: It depends upon the status and economical position of the
parties. For example, there was a dispute betweenn Pawan Kalyan and Nandini. Nandini filed
cases against Pawan Kalyan, a famous cinestar under Section 494 IPC, and also for maintenance,
etc. Finally there was an amicable agreement between wife and husband. Accordingly Pawan Kalyan
paid Five Crore Rupees by way of Banker’s Cheque in favour of Nandini towards permanent Alimony
and Nandini withdrew all cases. The case was decided on 12-08-2008.
 Unit - V

5. THE HINDU MINORITY & GUARDIANSHIP ACT, 1956

(Act 32 of 1956)
5.A. CHANGES BROUGHT BY ACT 32 OF 1956
Q.1. Explain the changes brought about by the Hindu Minority and Guardianship Act, 1956.
ANSWER:

SCOPE: Section 3 of The Indian Majority Act 1875 defines; “Every person domiciled in India
shall be deemed to have attained his majority when he shall have completed his age of eighteen
years, and not before.”
Therefore, a child, who has not completed his age of eighteen years, is a minor. According to The
Indian Contract Act, 1872, a minor is not a competent person to contract, if a minor contracts, such
a contract becomes void ab initio. (Mohoribibi vs. Dharmodas Ghose (1903 PC 30 Cal. 539)
The Child Marriage Restraint Act, 1929 imposed restriction on the chiid marriages, and it had fixed the
eighteen years” for a bridegroom and “fifteen years” for a bride. However, the age restriction has
been enhanced to “twenty one years” for a bridegroom and “eighteen years” for a bride by the Act
2 of 1978, with effect from 2-10-1978.
During the Hindu marriages, the father gives gift {Kanyadanam). If the father dies, the Karta of the
joint family or near Sapanda gives gift. The Hindu wife had not been given such power.
In a coparcenary family, if father died, mother used to act as a guardian for the properties inherited by
her son. In such a case, she was only “limited owner”.
The Parliament enacted the Hindu Marriages Act in 1955. Upto 1956, the Hindu Law on Minority and
Guardianship had several defects. Due to enforcement of the 1955 Act, it became necessary to enact
The Hindu Minority and Guardianship Act, 1956 removing the defects in the ancient Hindu Law of
minority and guardianship. The Hindu Minority and Guardianship Act, 1956 is a small Act having only
13 Sections.

Changes brought by the Hindu Minority and Guardianship Act, 1956 in the law of minority and
guardianship;
Old Hindu Law on Minority and The Hindu Minority and
Guardianship Guardianship Act, 1956
NATURAL GUARDiANS:

1. The natural guardian did not cease the
guardianship of the minor, on change of religion.
2. The natural guardian did not lose the
guardianship, if he renunciated the world by
becoming Vanaprastha {Sanyasi)
3. The natural guardian could claim the custody of
his children irrespective of their age.
4. The minor husband was the natural guardian of
the minor wife.
1. The natural guardian ceases to be the guardian
of the minor, as a result of conversion of
religion.
2. The natural guardian ceases to be guardian of
the minor, if he renunciates the world by
becoming Vanaprastha {Sanyasi)
3. The Act 32/1956 allows the children below age
of 5 years under the custody of mother only.
4. The position is clear now. The Child Restraint
Marriage Act, 1929 and the Hindu Marriage Act,
1955 clearly prohibited the child marriages.
Even if under the Doctrine of Factum Valet, the
marriage takes place between the minors, the
minor husband cannot become the natural
guardian of the minor wife. Sec. 10 of the Act of
32 of 1956 clearly says: “No minor can himself
be a guardian of the person or property of the
another minor.”

5. The natural guardian enjoyed more freedom,
liberty and privileges in alienating the minor’s
property. In this connection, the Principles
laid down in Hanuman Prasad case were
prevailing.
6. There are no such clear provisions for the
guardianship of illegitimate children in the old
law.
5. The powers of the natural guardian are seriously
restricted by the Section 8 of the Act.
6. The HMGA clearly provides that the natural
guardianship of an illegitimate child shall be
vested in the mother. After the mother, the
father occupies the natural guardianship of the
illegitimate children.

-97-
98 The Family Law -1 (The Hindu Law)

TESTAMENTARY GUARDIANS;
7. Under the old law, the testamentary guardian 7. The Act 32/1956 clearly provides that the
appointed by the father v^as given priority, even testamentary guardian appointed by the will of
though the mother was alive. the father shall not function, if the mother is
alive. Even it is more clear, that if widow
appoints a testamentary guardian, after her
death, her appointed testamentary guardian
shaii oniy function. The testamentary guardian
appointed by the father wiii not function, if the
widow does not appoint testamentary guardian,
then the testamentary guardian appointed by
father’s wiii function as guardian from the date of
death of the widow.

8. Under the oid law, the law was not clear in this 8. For the iilegitimate children, it is only the mother
respect. who can appoint a testamentary guardian. The
testamentary guardian wiii start the function after
the death of the mother, even though the
putative father is aiive.
9. Under the old law, only father had the power of 9. Under the new Act, the mother is given
appointing the testamentary guardian. testamentary power for the appointment of her
own testamentary guardian, after the death of
the father.

DE FACTO GUARDIAN:

10. Under the old law, the de facto guardian was 10. Sec. 11 of the Act 32/1956 abolishes the de
recognised. facto guardian.
11. There were no such express provisions in the 11. The Act 32 of 1956 laid down the express
old law. provision for the removal of the guardianship
whether he is a naturai guardian or testamentary
guardian, on the grounds:—
(a) Conversion of religion from Hindu to other
religion:
(b) Renunciation the world by becoming the
VanaprasthalSanyasa.

5.B. NATURAL GUARD3ANS [Ss. 6-8]

Q.l. What are the different classes of guardians under the Hindu Minority and Guardianship Act, 1956? State the powers of a naturai
guardian under the above Act. (Feb., 2008, Burdwan U., W.B.)
Q.2. Expiain various kinds of guardians, their powers and functions under the Hindu Law. (May, 2008, O.U.) (Ani., 2004, K.U.)
[Also write the contents from the Topics “Testamentary Guardians" and “De Facto Guardians”.]
Q.3. Who is a Naturai Guardian? Expiain the ruiing given by the Supreme Court in Geeta Hariharan vs. Reserve Bank of India.
(Sept., 2005, O.U.)
Q.4. Expiain the powers of the Naturai Guardian under the Hindu Minority and Guardians Act, 1956.
(Feb., 2005, O.U.) (Apr., 2002, O.U.)
Q.5. Who is a Naturai Guardian? Distinguish between De Jure and De Facto guardian. (Dec., 2005, B.U.)
Q.6. Examine the powers and functions of natural guardian. (Dec., 2005, G.U.)
Q.7. Who is a guardian? What are the powers of a guardian? (Dec., 2006, B.U.) (Aug., 2004, O.U.)
[Aiso refer to Topics “Testamentary Guardian” & “De Facto Guardian”.

Q.8. Whether the guardians can aiienate the properties of minors? (Dec., 2005, B.U.)
Q.9. Hanooman Prasad Pandey vs. Babooee Munraj Koonwaree (1856 6 M.I.A. 393). (SN) (Dec., 2004, B.U.)
0.10. Powers of a Hindu naturai guardian. (SN) (Anl., 2003, P.U.)

ANSWER:

SCOPE: Section 6 of the Hindu Minority and Guardianship Act, 1956 defines who are the naturai
guardians of Hindu minor. Section 7 provides that the adoptive father or mother shaii become the
natural guardians of the adopted son. Section-8 provides the powers of natural guardians.
DEFINITION: Section 4 (a) of HMGA defines: “Minor” means a person who has not completed the
age of eighteen years.”
Section 4 (b) of HMGA defines: “Guardian” 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,—
(i) a natural guardian,
(ii) a guardian appointed by the will of the minor’s father or mother,
 The Family Law - / (The Hindu Law) 99

(ill) a guardian appointed or declared by a Court, and

(iv) a person empowered to act as such by or under any enactment relating to any Court of
Wards.

Section 4 (c) of HMGA defines:

it

Natural guardian” means any of the guardians mentioned in

Section-6.”

NATURAL GUARDIANS OF A HINDU MINOR

Section 6 of the HMGA explains who will be the “natural guardians of a Hindu minor”:—
“Sec. 6. Natural guardians” of a Hindu minor:— The natural guardians 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 the 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 the five years shall ordinarily be with the mother;

(b) in the case 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 provisions of the 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 (yanaprastha) or an ascetic (yaf; or

sanyasi).

Explanation:— In this Section, the expressions ‘father’ and ‘mother’ do not include a step-father and a step
mother."

POWERS OF NATURAL GUARDIAN

Section 8 of the Hindu Minority and Guardianship, Act, 1956 provides the powers of natural guardian.
“Sec. 8. Powers of natural guardian:— (1) The natural guardian of a Hindu minor has power, subject to the provisions
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 five years or 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 or any person claiming under him.

(4) No Court shall grant permission to the natural guardian to do any of the acts mentioned 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 apply to and in respect of an application for obtaining the permission of
the Court under sub-section (2) in all respects as if it were an application for obtaining the permission of the Court
under Section 29 of that Act, and in particular,—

(a) proceedings in connection with the application shall be deemed to be proceedings under that Act within the

meaning of Section 4-A thereof;

(b) the Court shall observe the procedure and have the powers specified in sub-sections (2), (3) and (4) of Sec.
32 of that Act; and

(c) an appeal shall lie from an order of the Court refusing permission to the natural guardian to do any of the acts
mentioned in sub-section (2) of this Section to the Court to which appeals ordinarily lie from the decisions of that
Court,

(6) in this Section, “Court” means the City Civil Court or a District Court or a Court empowered under Section 4-A of the
Guardians and Wards Act, 1890, within the local limits of whose jurisdiction the immovable property in respect of
which the application is made is situate, and where the immovable property is situate within the jurisdiction of more
than one such Court, means the Court within the local limits of whose jurisdiction any portion of the property is situate.’’

IMPORTANT POINTS:

A. A natural guardian is one who by virtue of his or her relationship to the child has a claim to be its
guardian. The father’s right to be the guardian of the person and property of the minor is paramount
and comes first, and the right of the mother to the guardianship comes next.
B. When the child is given in adoption, the natural father ceases to be the natural guardian. The
adoptive father steps into the shoes of the natural father for the purpose of natural guardian (cfe jure
guardian). If the natural father continues to manage the property of the minor, even after the adoption,
he becomes to the position of de facto guardian.
C. A natural guardian can do all acts which are reasonable and necessary for the protection of the
minor’s property. The welfare of the minor shall be the paramount consideration.
D. The mother is not a co-ordinate guardian with the father so long as the father is alive or has not
been removed by competent Court from guardianship, the mother’s position will be that of a de facto
guardian.
 100 The Family Law -1 (The Hindu Law)

E. If the father is alive, and he does not like to act as natural guardian, then the mother can act as the
natural guardian.
F. The mother is the natural guardian of her minor legitimate children only if the father is dead or
otherwise incapable of acting as guardian.
G. PROBLEM: The wife takes divorce from her husband. They have a minor child aged 3 years.
Who can have the custody of the child. (AnI., 2004, P.U.)
SOLUTION: According to clause (a) of Section 7 of the Hindu Minority and Guardianship Act, 1956,
in the case of a boy or an unmarried girl, the father and after him the mother is the natural guardian, but
if the child has not completed five years, the mother is entitled to the custody of that.
H. Under some circumstances and customs, the husband is considered to be natural guardian of his
minor wife.

I. For the benefit of the minor, the natural guardian may alienate the property of the minor, with the
permission of the Court. (Sec. 8 sub-section 2).
J. The natural guardian shall have the powers of the “Doctrine of necessity or benefit” as laid down in
Hanooman Prasad’s case.

K. The natural guardian has no power to impose a personal obligation upon the minor or his estate by
an unconditional undertaking to pay a debt or loan not contracted for legal necessity or benefit of minor.
L. It is not within the competence of a guardian of a minor to bind the minor’s estate by a contract for
the purchase of immovable property for the minor. As the minor is not bound by the contract, the
minor cannot claim specific performance of the contract.
M. The natural guardian is competent and can enter into a compromise on behalf of his ward, but
there must be the welfare of the child.

N. The natural guardian of a minor has the power to acknowledge a debt or to pay interest on a debt
so as to extent the period of limitation provided that the act was for the protection or benefit of the
minor’s property. He had no power to revive a debt which was barred by limitation.
O. Rights of the guardian:
(i) Right to custody of the person and property of the minor;
(ii) Right to determine the religion of children;
(iii) Right to control education;
(iv) Right to control movement; and
(v) Right to reasonable chastisement
P.
# Hanooman Prasad Pandey vs. Babooee Munraj Koonwaree (1856 6 M.I.A. 393)
(Natural Guardian’s Power to mortgage the properties of the
minor’s properties for his necessities)
Brief Facts: Inderdowun Singh, a minor, was the proprietor of the Raj of Porgunna Munsoor Mugger
Bustee. On behalf of him, his mother Rani Degumber Koommaree maintained the estate. As a
natural guardian, she executed certain documents in favour of Hanooman Prasad Pandey, the creditor,
on several dates. Inderdowun Singh, after attaining majority, sued the creditor-Hanooman Prasad
Pandey, and alleged that his mother Rani Degumber Koommaree signed the documents without seeing
them being she was a pardanasin lady, and under the fraud and collusion of the creditor/appellant/
Hanuman Prasad Pandey. He also contended that the mortgage deeds and other documents executed
by his mother in favour of the creditor during his minority were null and void. During the trial, Inderdowun
Singh died. His minor son Lai Seetia Bux Singh, under the guardianship of his mother-Babooee
Munraj Kunwaree continued the proceedings. The trial of the case was conducted by the Sadar
Ameen of Gorakhpore, who decided in favour of the appellant-cred itor. On appeal, Sadar
Court reversed the decision of the trial Court, and gave the judgment in favour of the minor. The
creditor-appellant appealed to the Privy Council.
JUDGMENT: The Privy Council gave the judgment that Rani Degumber Koommaree executed the
documents only in her capacity as guardian, and those documents were valid in the eye of the law.
PRINCIPLES LAID DOWN: This was the most important case-law. Prior to enacting the Hindu
Minority and Guardianship Act, 1956, the Courts followed the principles laid down in this case. The
powers of the guardians of a minor’s property were governed by the Rules in Hanooman Prasad
Pandey’s case. The important principles laid down in this case-law were:—
1. The guardian of a minor can exercise the power to charge an estate of minor. However, it can
only be exercised rightly in cases of need or for the benefit of the estate.
 The Family Law -1 (The Hindu Law) 101

2. The bona ifde creditor was not affected by the precedent mismanagement of the estate.
3. If the property of the minor mismanaged, and the creditor was one of the parties in that
mismanagement, he was not allowed to take advantages from that mortgage or charge of the
said properties.
4. The creditor had to enquire into the necessities for the loan and should satisfy the genuineness of
the loan.

5. The creditor was not bound to see the application of the money advanced unless he entered in
the management.
6. It was the son’s pious obligation to discharge the father’s debt. The Courts had to enquire the
nature of the debt, and not to the nature of the estate.
Q. PROBLEM: Can a Hindu wife act as a natural guardian, while husband lives, and have good
family relations?
SOLUTION: Yes. The Hindu wife can act as a natural guardian. This is solved by the Supreme
Court in the following case:
# GITA HARIHARAN (Mrs.) and another (Petitioners) vs. Reserve Bank of India and

another (Respondents) (1999) 2 SCO 228 = AIR 1999 SC 1149)

Brief Facts: The first petitioner and her husband, the second petitioner, jointly applied to the Reserve
Bank of India, the first respondent, for the issue of Relief Bonds in the name of their son. They stated
expressly that both of them agreed that the mother of the child, Le., the first petitioner would act as the
guardian of the minor for the purpose of investments made with the money held by their minor son. In
the prescribed form of application, the first petitioner signed as the guardian of the minor.
Reserve Bank of India, rejecting the application, advised them either to produce the application form
signed by the father of the minor or a certificate of guardianship from a competent authority in favour of
the mother. RBI further held that the mother is not the natural guardian of a minor and it is also so
stated in Section 6(a) of the Hindu Minority and Guardianship Act, 1956.
Aggrieved by the decision of the RBI, the petitioners filed a Writ Petition under Article 32 with prayers to
strike down Section 6(a) of Hindu Minority and Guardianship Act, 1956 and Section 19(b) of the Guardians
and Wards Act, 1890 as violative of Articles 14 and 15 of the Constitution and to quash and set aside
the decision of RBI refusing to accept the deposit from the petitioners and to issue a mandamus
directing the acceptance of the same after declaring the first petitioner as the natural guardian of the
minor.

JUDGMENT: The Supreme Court gave judgment in favour of the petitioners upholding the right of the
petitioner-mother to act as natural guardian during the lifetime of the father in the stated circumstances.
PRINCIPLES:

(i) The expression ‘natural guardian’ is defined in Section 4 (c) of the HMG Act as any of the
guardians mentioned in Sec. 6. The term ‘guardian’ is defined in Sec. 4 (b) of the HMG Act as a
person having the care of the person of a minor or of his property or of both, his person and property,
and includes a natural guardian among others. Thus, it is seen that the definitions of ‘guardian’ and
‘natural guardian’ do not make ‘any discrimination against mother and she being one of the guardians
mentioned in Sec. 6 would undoubtedly be a natural guardian as defined in Section 4 (c). The only
provision to which exception is taken is found in Section 6(a) which reads ‘the father, and after him,
the mother’. That phrase, on a cursory reading, does give an impression that the mother can be
considered to be the natural guardian of the minor only after the lifetime of the father. In fact, that
appears to be the basis of the stand taken by the RBI also. It is not in dispute and is othenvise well
settled also that the welfare of the minor in the widest sense is the paramount consideration and even
during the lifetime of the father, if necessary, he can be replaced by the mother or any other suitable
person by an order of the Court, where to do so would be in the interest of the welfare of the minor,
(ii) Whenever a dispute concerning the guardianship of a minor, between the father and mother of the
minor is raised in a Court of law, the word ‘after’ in the section would have no significance, as the
Court is primarily concerned with the best interests of the minor and his welfare in the widest sense
while determining the question- as regards custody and. guardianship of the minor. The question,
however, assumes importance only when the mother acts as the guardian of the minor during the
lifetime of the father, without the matter going to the Court, and the validity of such an action is challenged
on the ground that she is not the legal guardian of the minor in view of Sec. 6(a).
(iii) Is that the correct way of understanding the section and does the word ‘after’ in the section mean
only ‘after the lifetime’? If this question is answered in the affirmative, the section has to be struck
102 The Family Law - / (The Hindu Law)

down as unconstitutional as it undoubtedly violates gender equality, one of the basic principles of our
Constitution. The HMG Act came into force in 1956, ie. six years after the Constitution. Did Parliament
intend to transgress the constitutional limits or ignore the fundamental rights guaranteed by the
Constitution which essentially prohibits discrimination on the grounds of sex? In our opinion — No.
(iv) We are of the view that Sec. 6(a) is capable of such construction as would retain it within the
constitutional limits. The word ‘after’ need not necessarily mean ‘after the lifetime’. In the context in
which it appears in Sec. 6(a), it means ‘in the absence of, the word ‘absence’ therein referring to the
father’s absence from the care of the minor’s property or person for any reason whatever. If the father
is wholly indifferent to the matters of the minor even if he is living with the mother or if by virtue of
mutual understanding between the father and the mother, the latter is put exclusively in charge of the
minor, or if the father is physically unable to take care of the minor either because of his staying away
from the place where the mother and the minor are living or because of his physical or mental incapacity,
in all such like situations, the father can be considered to be absent and the mother being a recognized
natural guardian, can act validly on behalf of the minor as the guardian. Such an interpretation will be
the natural outcome of a harmonious construction of Sec. 4 and Sec. 6 of the HMG Act, without
causing any violence to the language of Sec. 6(a).
WHEN CAN A COURT REMOVE THE NATURAL GUARDIAN?

Section 13 of the Hindu Minority and Guardianship Act, 1956 enacts that the welfare of the minor
to be paramount consideration, and the natural guardian’s right of guardianship is subordinate to the
welfare of the child. If the natural guardian is not in a position to perform his duties towards the minor
and is not in a position to protect the interests, rights and properties of the minor, the Court can remove
such natural guardian. The Court gives paramount consideration for the welfare of the minor.
Section 6 of the Act provides that no person shall be entitled to act as the natural guardian of a minor
under the provisions 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 (vanaprastha) or an
ascetic (yati or sanyasi).
PROBLEM: Can the natural guardianship be extended to an adoptive child?
SOLUTION: Yes. The natural guardianship can be extended to an adoptive child also. This is
explained in Section 7 of HMGA, which reads:
“Sec. 7. Natural guardianship of adopted son.— The natural guardianship of an adopted son who is a minor passes on
adoption, to the adoptive father and after him to the adoptive mother.”

PROBLEM: Afather renounced the world and took sanyasa. Is he remained as a natural guardian
of his children?

SOLUTION: No. According to Section 6, he loses the natural guardianship of his children.
PROBLEM: A, a Hindu father, converts from Hinduisam to Islam. The wife and children sued him for
maintenance. The wife sued him for divorce. Can A retain guardianship of his children?
SOLUTION: No. According to Section 6, he loses the natural guardianship of his children.
GROUNDS FOR THE REMOVAL OF A NATURAL GUARDIAN: Under the following circumstances,
the Court may remove a natural guardian. The Court gives paramount consideration for the welfare of
the minor. This concept has become a legal maxim, and is said: “Paramount consideration is the
welfare of the minor.”

The Court may remove a natural guardian from his guardianship, if it opines that the welfare of the
child is defeated if such guardian is continued:—
1. If the natural guardian converts his religion from Hindu religion to other religion,;
2. If the natural guardian becomes Sanyasi or renunciates the world;
3. If the natural guardian becomes the person of unsound mind;
4. If the natural guardian exceeds his powers, and sells the properties of the minor without any valid
reason, and without Court’s permission, which may cause irreparable loss to the minor and his
property;

5. If the widow remarries neglecting the minor children born to the deceased husband;
6. Incapacity of a minor to act as guardian of property: According to Section 10 of HMGA, an
elder brother, who is also a minor, cannot act as a natural guardian or testamentary guardian of a
minor;
 The Family Law -1 (The Hindu Law) 103

7. Guardian not to be appointed for minor’s undivided interest in joint famiiy property:
According to Section 12 of HMGA, where a minor has an undivided interest in joint famiiy property
and the property is under the management of an adult member of the family, no guardian shall be
appointed for the minor in respect of such undivided interest: Provided that nothing in this Section
shall be deemed to affect the Jurisdiction of a High Court to appoint a guardian in respect of such
interest.

8. PROBLEM: Whether the guardians can alienate the properties of minor? Discuss.
(June, 2004, B.U.) (Dec., 2005, B.U.)
SOLUTION: No. The guardians of any category, i.e., natural guardians, testamentary guardians,
guardians appointed by court, de facto guardians, ad hoc guardians, etc., have no authority to alienate
the properties of a minor. But they have an opportunity to obtain permission from the Court. If a
guardian wants to sell the minor’s property, he has to apply to the Court, and seek permission from the
Court. He has to convince the Court that the sale is for the “welfare and necessities, i.e., education,
medical, etc., of the minor”. If the Court permits, then only the guardian can sell the property of the
minor. This is mandatory.
8. If any of the provisions of Section 39 ofthe Guardian & Wards Act, 1890 are contravened.
“[The Guardian and Wards Act, 1890] Sec. 39. Removal of Guardian.— The Court may, on the
application of any person interested, or of its own motion, remove a guardian appointed or declared by
the Court, or a guardian appointed by will or other instrument, for any of the following causes, namely:
(a) for abuse of his trust;
(b) for continued failure to perform the duties of his trust;
(c) for incapacity to perform the duties of his trust;
(d) for ill-treatment, or neglect to take proper care, of his ward;
(e) for contumacious disregard of any provision of this Act or of any Order of the Court;
(f) for conviction of an offence implying, in the opinion ofthe Court, a defect of character which
unfits him to be the guardian of his ward;
(g) for having an interest advance to the faithful performance of his duties;
(h) for ceasing to reside within the local limits of the jurisdiction of the Court;
(i) in the case of a guardian of the property, for bankruptcy or insolvency;
(I) by reason ofthe guardianship ofthe guardian ceasing, or being liable to cease, under the law
to which the minor is subject:
PROVIDED THAT a guardian appointed by will or other instrument whether he has been declared
under this Act or not, shall not be removed,—

(a) for the cause mentioned in Cl. (g) unless the adverse interest accrued after the death of
the person who appointed him, or it is shown that, that person made and maintained the
appointment in ignorance ofthe existence ofthe adverse interested; or
(b) for the cause mentioned in Cl. (h) unless such guardian has taken up such a residence
as, in the opinion of the Court, renders it impracticable for him to discharge the functions
of guardian.”
CONCLUSION: The Court may, on the application of any person interested, or of its own motion,
remove a guardian. But for this purpose, “paramount consideration is given for the welfare of
the minor”. Similarly the Court is also empowered to appoint appropriate person as the guardian of
a minor. The grounds forthe removal of a natural guardian as explained above, are also applicable for
the removal of testamentary guardian ora guardian appointed by the Court.]

rCADE Veera Reddy I

LL.M. ENTRANCE TEST I
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104 The Family Law - / (The Hindu Law)

5.C. TESTAMENTARY GUARDIANS [Sec. 9]

Q.1. Who is a guardian and what are the powers and functions of guardian appointed by the Court? (Aug., 2006, O.U.)
Q.2. Who is a testamentary guardian and how he may be appointed? What are his powers?
(Feb., 2006, O.U.) (Jan., 2003, O.U.) (Dec., 2004, O.U.)
Q.3. Who are testamentary guardians under the Hindu Minority and guardianship Act, 1956? What are their powers? (AnI., 2004, P.U.)
Q.4. “Welfare and well-being of the minor is a primary requirement for permitting the custodian and guardianship of the child.” —
Discuss with reference to relevant legal decisions. (Dec., 2001, O.U.)
Q.5. Testamentary guardian. (SN) (Dec., 2004, O.U.)
ANSWER:

MEANING: Testament, (n.) = a will.

A testamentary guardian is one appointed by a will. The father or mother of a minor may appoint the
testamentary guardian under his/her will.
SCOPE: The law of testamentary guardian is explained in Section 9 of the Hindu Minority &
Guardianship Act, 1956. It explains the appointment and powers of a testamentary guardian.
SECTION-9:

“Sec. 9. Testamentary' guardians and their powers.— (1) A Hindu father entitled to act as the natural guardian of his
minor legitimate children may, by will, appoint a guardian for any of them in respect of the minor’s person or in respect of the
minor's property (other than the undivided interest referred to in Section 12) or in respect of both.
(2) An appointment made under sub-section (1) shall have no effect if the father predeceases the mother, but shall revive
if the mother dies without appointing by will, any person as guardian.
(3) A Hindu widow entitled to act as the natural guardian of her minor legitimate children, and a Hindu mother entitled to act
as the natural guardian of her minor legitimate 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 chiidren may, by will, appoint a guardian, for
any of them in respect of the minorls person or in respect of the minor’s property or in respect or both.
(5) The guardian so appointed by will has the right to act as the minor’s guardian after the death of the minor’s father or
mother, as the case may be, and to exercise all the rights of a natural guardian under this Act to such extent and subject to
such restrictions, if any, as are specified in this Act and in the will.
(6) The right of the guardian so appointed by will shall, where the minor is a girl, cease on her marriage.”

OBJECT: As a general rule, the natural parents show utmost interest, love, affection on their children.
Their whole aim is the welfare of the children, i.e., to give quality education and prosperous future.
The parents want to continue the welfare and development of their children, if they die in an accident or
so. They wish that their children be protected under the appropriate guardians, in whom they have
good faith. Section 9 provides the appointment and powers of testamentary guardians.
IMPORTANT POINTS :

A. PROBLEM: Can a Hindu father appoint testamentary guardian during the life time of mother?
(Dec., 2004, O.U.)
SOLUTION: A Hindu father is entitled to act as the natural guardian of his minor legitimate children,
may by a will, appoint a guardian for any of them or for all of them, in respect of the minor’s person or
in respect of minor’s property or in respect of both.
B. The appointment of testamentary guardian comes into force only if the natural mother predeceases
the natural father, i.e., only after the death of both the natural parents. If the father pre-deceases the
mother, it shall not come into force. The mother is the natural guardian of her minor children after the
death of the father. Of course, if the mother dies without appointing any guardian by her will, then the
testamentary guardian appointed by the father shall be effective. If the mother, after the death of
father, appoints a testamentary guardian, her appointee will become the testamentary guardian and
father’s appointment will not be effective.
C. A testamentary guardian can be appointed only by a will.

D. A Hindu mother is the natural guardian of her minor illegitimate children. She may, by will appoint
a guardian, for any of the minors in respect of the minor’s person or in respect of the minor’s property
or in respect of both.
E. The testamentary guardian will become the guardian of the minor for the protection of person and
property, after the death of the father or mother in the circumstances mentioned in the will.
F. A Hindu father or mother appoints a testamentary guardian. It is necessary for the testamentary
guardian to accept the guardianship. Acceptance may be express or implied. The testamentary
guardian may refuse to act as the guardian. But if once he accepts to act as guardian, he must
continue it, and shall perform his duties as guardian. ■ He.cannot refuse or resign except with the
permission of the Court.
 The Family Law - I (The Hindu Law) 105

G. PROBLEM: Whether a minor is competent to act as a guardian? (Dec., 2006, B.U.)

SOLUTION: No. The testamentary guardian ceases his guardianship of a minor girl, on her marriage.
The husband of such minor girl shall become the natural guardian as per Section-6. If the husband
is a minor, the testamentary guardian continues his guardianship of the minor girl, because a minor
husband cannot act as a testamentary guardian of a minor wife.

H. The testamentary guardian shall have all the powers of a natural guardian as per the provisions of
Section 8 of the Hindu Minority and Guardianship Act, 1956. But in no case he can have more powers
than the natural guardian. The natural father, by will itself, restrict some of those powers.
I. The testamentary guardian shall have to obtain the Court’s permission for leases when the term of
the lease exceeds five years or will extend beyond minority for more than a year. The testamentary
guardian shall get prior permission of the Court for the alienation of the minor’s property by way of sale,
gift, mortgage, change, or exchange etc.
J. The testamentary guardian shall have the powers of the Doctrine of “Necessity or Benefit” as
laid down in Hanuman Prasad’s case.

K. He shall exercise his powers equally with those of natural guardian subject to:—
(i) the restrictions contained in Section 8: and
(ii) the restrictions imposed in the will itself.
L. Atestamentary guardian can be removed by the Court, if his conduct is against the welfare of the
child. (Section 39 of the Guardians and Wards Act, 1890) [Refer to Point-P of Topic 5-B.]
M. PROBLEM: Can a guardian resign his office?
SOLUTION: There is no legal provision in this regard in the Hindu Minority and Guardianship Act,
1956. However, there is a crystal clear provision in the Guardians and Wards Act, 1890. Section 40
of the Guardians and Wards Act, 1890 lays down that if a guardian appointed or declared by the Court
desires to resign his office, he may apply to the Court to be discharged. If the Court finds that there is
sufficient reason for the application, it shall discharge him, and if the guardian making the application is
the Collector and the State Government approves of his applying to be discharged, the Court shall in
any case discharge him.
The same provision applies to the Hindu Minority and Guardianship Act, 1956. However, these provisions
shall apply to the Testamentary Guardians. But these provisions shall not apply to the Natural Guardians.
As a general rule, a natural guardian can not escape from his liability. However, a natural guardian
may be removed from the guardianship, if he has ceased to be a Hindu or becomes a hermit.
PROBLEM: X, a child of 10 years lost his parents in an accident. A, the guardian nominated as
testamentary guardian, sold the house of X in order to meet the educational expenditure of X. Discuss
the validity of the sale transaction. (Dec., 2001, S.V.U.)
SOLUTION: The testamentary guardian is entitled to sell X’s house for the maintenance of X. However,
A, the testamentary guardian, should first get permission from the competent Court. This rule not only
applies to the testamentary guardian, but also to the natural guardian. Therefore, without the valid
permission of the competent Court either the natural guardian or testamentary guardian is empowered
to sell the minor’s property, even though it is for the necessities of the minor.

Dear Reader !

REQUEST

“SClJdTH^ LflW SERIES” (English) has spread through out the country. 1 would like to publish “S(l]fiTHR LfiW
SERIES” in HINDI, so that these books can be usefui to the Hindi Medium Legai Students. I seek the help from
those who have efficiency in Hindi and Legai Knowiedge to translate “SCl]^i(THR UIW SERIES” in Hindi. Agood
remuneration is offered.

CONTACT

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Author: SCQfmfUiJWSERIES
Cell: 9394084208 & 9885289270
 106 The Family Law - / (The Hindu Law)

5.D. GUARDIAN APPOINTED BY THE COURT /

THE GUARDIANS & WARDS ACT, 1890 /
THE INTER-COUNTRY ADOPTIONS

Q.1. Discuss inter-country adoptions. What is the latest trend in adoption? (Dec., 2005, G.U.)
Q.2. Court Guardian. (SN) (Aug., 2005, S.V.U.)
Q.3. The Guardians and Wards Act, 1890. (SN) (AnI., 2003, K.U.)

Q.4. The Trans-National Adoptions. (SN)

ANSWER:

SCOPE: There has been a law existing during the British reign called as “The Courts & Wards Act.
1890” for the protection of the minors of all the religions. However, the ancient Hindu jurisprudence
was applied to the Hindu minors. To remove difficulties, the Hindu Minority and Guardians Act, 1956
has been enacted by the Indian Parliament, applicable only to the Hindus. However, the provisions of
the Courts & Wards Act, 1890 still apply in case of the Hindus in certain adoptions and guardianships,
. especially in the inter-country adoptions and the appointment of testamentary guardians in dispute and
the guardians appointed by the Courts.
Structure of the Courts & Wards Act, 1890: Originally, there were 53 Sections, housed in four
Chapters. During the period of 1890-2008, some Sections were repealed, and some Sections have
been inserted in the Act. Chapter-1 (Ss. 1 - 4-A) deals with “Preliminary”. Chapter-ll (Ss. 5-19)
deals with “Appointment and Declaration of Guardians”. Chapter-Ill (Ss. 20-42) deals with
“Duties, Rights and Liabilities of Guardian”. Chapter-IV (Ss. 43-53) deals with “Supplementary
Provisions”. There was one Schedule, but was repealed.
DEFINITION OF GUARDIAN: Section 4 f2) of the Courts and Wards Act, 1890 defines: “Guardian”
means a person having the care of the person of a minor or of his property, or of both his person and
property.”
Section 4 (b) of the HMGA. 1956 defines: “Guardian” 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,—
(I) a natural guardian,
(ii) a guardian appointed by the will of the minor’s father or mother,
(ill) a guardian appointed or declared by a Court, and

(iv) a person empowered to act as such by or under any enactment relating to any Court of
Wards.

Both the parents are natural guardians of the child. If both the parents die, a guardian will be appointed
according to the testamentary declaration of the both or either of the spouses. If there is the testamentary
guardian is not appointed as perthe wishes of the parents, or any dispute arises in such appointment,'
the Court may interfere the matter, and decide, and appoint a guardian.”
IMPORTANT POINTS:

A. Minor: “Minor” means a person who, under the provisions of the Indian Majority Act, 1875 (9 of
1875), is to be deemed not to have attained his majority.” (Sec. 4 (1) of the Courts and Wards Act,
1890.

B. Ward: “Ward” means a minor for whose person or property or both there is a guardian.” (Section
4 (2) of the Courts and Wards Act, 1890)
C. District Court: The District Court is the competent Court to decide the disputes in relation to the
appointment, functions, powers, duties, etc., of the Guardian. (Section 4 (5) of the Courts and Wards
Act, 1890)
D. Collector: “Collector” means the Chief Officer in
charge of the revenue-administration of a
district, and includes any officer whom the State Government, by notification in the Official Gazette,
may, by name or in virtue of his office, appoint to be a Collector in any local area, or with respect to any
class of persons, for all or any of the purposes of this Act.” (Section 4 (6) of the Courts and Wards
Act, 1890)
E. Foreign Adoptive Parents: The Courts and Wards Act, 1890 was enacted by the British rulers
for the purposes of the Hindus, Muslims, Christians, Parsis, etc. However, they did not think about the
foreign adoptive parents. The number of the foreign adoptive parents has been increased after
independence of India. There were incidents that some pf the foreign adoptive parents were using the
adopting Indian children as slaves and to dP their house works cruelly under the pretext of adpption.
 The Family Law - / (The Hindu Law) 107

This was noticed by the Supreme Court, and held in Lakshmi Kant Pandey vs. Union of India (AIR
1984 SC 469): “Since there is no statutory enactment in India providing for adoption of a child by
foreign parents or laying down the procedure which must be followed in such a case, resort is had to
the provisions of the Guardians and Wards Act (8 of 1890)forthe purpose of facilitating such adoption.
The primary object of giving the child in adoption must be the welfare of the child.”
F. # Lakshmi Kant Pandey, Petitioner vs. the Union of India
(Respondent) (AIR 1984 SC 469)
Brief Facts: The petitioner wrote a letter to the Supreme Court about the heinous conditions of the
adoptive children adopted by the foreign adoptive parents, and their illicit traffic under the pretext of
“adoption”.
JUDGMENT: The Supreme Court gave judgment in favour of the petitioner, and treated the letters as
Public Interest Litigation, and rightly responded and gave several directions to the Central
Government.

PRINCIPLES LAID DOWN: (i) Since there is no statutory enactment in India providing for adoption
of a child by foreign parents or laying down the procedure which must be followed in such a case,
resort is had to the provisions of the Guardians and Wards Act (8 of 1890) for the purpose of facilitating
such adoption. The primary object of giving the child in adoption must be the welfare of the child,
(ii) When the parents of a child want to give it away in adoption or the child is abandoned and it is
considered necessary in the interest of the child to give it in adoption, every effort must be made first
to find adoptive parents for it within the country,
(iii) The normative and procedural safeguards which should be insisted upon so far as a foreigner
wishing to take a child in adoption is concerned are as follows:—
(a) Every application from a foreigner desiring to adopt a child must be sponsored by a social or
child welfare agency recognised or licensed by Government of the country in which the foreigner
is resident,

(b) No application by a foreigner for taking a child in adoption should be entertained directly by any
social or welfare agency in India working in the area of inter-country adoption or by any Institution or
Centre or Home to which children are committed by the juvenile court. This is essential primarily for
three reasons:—

Firstly, it will help to reduce, if not eliminate altogether, the possibility of profiteering and trafficking
in children.

Secondly, it would be almost impossible for the Court to satisfy itself that the foreigner who
wishes to take the child in adoption would be suitable as a parent for the child and whether he would be
able to provide a stable and secure family life to the child and would be able to handle trans-racial,
trans-cultural and trans-national problems likely to arise from such adoption.
Thirdly, in such a case, where the application of a foreignerfor taking a child adoption is made
directly without the intervention of a social or child welfare agency, there would be no authority or
agency in the country of the foreigner who could be made responsible for supervising the progress of
the child and ensuring that the child is adopted at the earliest in accordance with law and grows up in
an atmosphere of warmth and affection with moral and material security assured to it. It is not
necessary that there should be only one social or child welfare agency in the foreign country through
which an application for adoption of a child may be routed; there may be more than one such social or
child welfare agencies, but every such social or child welfare agency must be licensed or recognised
by the Government of the foreign country,
(iv) Every application of a foreigner for taking a child in adoption must be accompanied by a home
study report and the social or child welfare agency sponsoring such application should also send
along with it a recent photograph of the family, and other particulars showing the social and financial
status ofthe foreigner and his declaration and appropriate security that he will maintain the child and
provide for his education and upbringing,
(v) If the biological parents are known, they should be properly assisted in making a decision above
relinquishing the child for adoption, by the Institution or Centre or Home for Child Care or Social or
Child Welfare Agency to which the child is being surrendered,
(vi) It should not be open to any and every agency or individual to process an application from a
foreigner for taking a child in adoption and such application should be processed only through a licensed
or recognised social or child welfare agency,
(vii) The Government of India or the Government of a State would do well to examine every application
and see that every adoption should be legal and for the welfare of the child.
 108 The Family Law - / (The Hindu Law)

5.E. DE FACTO GUARDIANS [Sec. 11]|

Q.l. Who is a De Facto Guardian? What are his powers? (July, 2003, O.U.)
Q.2. De Facto Guardian.
(SN) (Dec., 2001, S.V.U.)
ANSWER:

MEANING: de facto. (Latin phrase) = actual; in fact.

A de facto guardian means a “self-appointed guardian”. A de facto guardian is a person who
takes continuous interest in the welfare of the minor’s person or in the management and administration
of his property without any authority of law.
SCOPE: The ancient Hindu jurisprudence honoured “De facto guardian” in the past. He performed
the guardianship for the benefit of the minor, when the natural parents died, or renounced the world.
He steps into the shoes of the natural father, for the welfare of the minor. The term ‘de facto
guardian’ is not mentioned in any texts, but his existence was never denied in the Hindu law. The de
facto guardian enjoyed a unique position in the Hindu law. This system is not seen in any other
system of law. Section 11 of the Hindu Minority and Guardianship Act, 1956 abolished the system
of de facto guardian.
SECTION 11:

“Sec. 11. De facto guardian not to deal with minor’s property.— After the commencement of this Act, no person shall
be entitled to dispose of, or deal with, the properly of a Hindu minor mereiy on the ground of his or her being the de facto
guardian of the minor.”

Distinction between ‘De Jure Guardian’ and ‘De Facto Guardian’

De Jure Guardian De Facto Guardian

1.
The natural guardian, testamentary guardian and 1.
De facto guardian is not recognised by the law.
a guardian appointed by the Court are de Jure
guardians and they are recognised by the law.
2.
Sections 6 to 8 of HMGA, 1956 provide the . 2. Section 11 of the HMGA, 1956 aboiishesthe
definition, appointment and powers of natural system of de facto guardianship.
guardians. Section 9 of HMGA, 1956 provides
the definition, appointment and powers of
testamentary guardians. The Courts and
Wards Act, 1890 lays down the legal provisions
relating to the guardians appointed by the
Courts.
3.
The natural guardianship is recognised in almost 3. The position of de facto guardian in the ancient
all jurisprudences in the past and present. Hindu jurisprudence was unique. This system is
not or was not seen in any jurisprudence.
However, it was abolished by the HMGA.
4. The dejure guardian can alienate the minor’s 4.
The de facto guardian has no power of
property, subject to certain circumstances and alienation.
conditions, and prior permission of the Court.
5. The dejure guardian has the power to 5. It is now settled law that de facto guardian has
acknowledge debt on behalf of the minor, to no power to acknowledge debt on behalf of the
make reference to arbitration, or to make a gift of minor, to make reference to arbitration or to
minor’s property. make a gift of minor’s property.
6. The dejure guardian can perform contracts for 6. The de facto guardian is not entitled to
the benefit of the minor. contracts for minor.

[Gade Veera Reddy

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 The Family Law - I (The Hindu Law) 109

Distinction between ‘Testamentary Guardian’ and ‘De Facto Guardian’

Testamentary Guardian De Facto Guardian

1. Testamentary guardian is a de jure guardian 1. De facto guardian is not recognised by law.

and is recognised by iaw.
2.
Testamentary guardian is a guardian appointed 2. De facto guardian is not appointed by any one.
by father or in his absence, by the mother.
3. Section 9 of the HMGA, 1956 deals with the 3. Section 11 deals de facto guardianship.
Testamentary guardian.
4. Section 9 of the HMGA, 1956 explains the 4. Section 11 abolishes the appointment of de
appointment and powers of the testamentary facto guardian.
guardian.
5. The testamentary guardian steps into the shoes 5. No such powers are vested in the de facto
of the natural guardian. He has powers of a guardian.
natural guardian.
6. The testamentary guardian can alienate the 6. No such powers are granted to de facto
minor’s properties with the permission of the guardian. Ab initio, the de facto guardian is
Court for the welfare of the minor. not allowed to do any alienations.
7. Testamentary guardianship is recognised in 7. De facto guardianship is not and was not seen
almost all the jurisprudences. in any jurisprudence, except in Hindu old law.
8. The testamentary guardian can perform 8. He has no such powers.
contracts for the benefit of the minor.

GUARDIAN AD HOC (SN)

MEANING: Aguardian appointed fortemporary period orfora single transaction is called “Guardian
Ad hoc”. He is not recognised as a de jure guardian. He is similar to de facto guardian. In
Sriramulu’s case, Mr. Justice Mukherjea points out that: “As the law stands at present, if a person
is not what is called an Ad-hoc Guardian and does not act as guardian. For a particular transaction
only, but is found to be managing the property of an infant in the same way as a de jure guardian would,
he could be described the De facto guardian, although he is neither a natural guardian nor a guardian
appointed by the Court.”
A GUARDIAN AD LITEM (SN)
A person is called as “a Guardian adiitem”, who is appointed to defend an action or other proceeding
on behalf of minor or person under a disability.
Minor as guardian of property: Section 10 of this Act explains that a minor shall be incompetent to
act as guardian of the property of any minor. A Hindu minor husband is not entitled to act as a guardian
for his minor wife.

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 Unit - Vi

6. THE HINDU SUCCESSiON ACT, 1956

6.A. DEVOLUTION OF INTEREST IN
COPARCENARY PROPERTY [Sec. 6]
Q.1. Write a note on the concept of a “Notional Partition” under the Hindu Succession Act, 1956.
(Aug., 2006, O.U.) (Feb., 2006, O.U.) (Apr., 2002, O.U.)
Q.2. intestate Succession.
(SN) (May. 2008, O.U.) (Dec., 2007, O.U.)
Q.3. Notionai Partition.
(SN) (Dec., 2007, O.U.) (AnI., 2004, K.U.)
Q.4. Expiain the difference between heir and intestate. (SN) (May. 2003, N.U.)
Q.5. “Propinquity is the test of heirship under the Mitakshara Law."
(SN) (AnI., 2004, P.U.)
Q.6. Doctrine of Propinquity. (SN) (Dec., 2003, S.V.U.)
Q.7. Daughter as coparcener. (SN) (Dec., 2003, S.V.U.)
ANSWER:

MEANING:

testament, (n.) = A will of personal property,

testator, (n.) = A person, who executes a will,
legacy, (n.) = A legacy is a gift of property by way of will, and arising as it does from the mere bounty
of the testator,

legator, (n.) = One who makes a will, and leaves legacies,

legatee, (n.) = One who has a legacy left to him by a will,
testamentary succession. = Any person, who writes a will, transferring his property to another
person, is called “the testamentary succession”. The ^ is the testament,by which the property
shall go that particular person, in whom favour, the testator has written the m!!- The testator can
write as many wills, and can revoke them during his life time, as he wishes. The last wl|i only
functions. Registration of a m!1 is not necessary and compulsory. It is only optional. However, the
will must be proved beyond the reasonable doubts. The Indian Succession Act, 1925 lays down the
detailed provisions for the testamentary succession. The Indian Succession Act, 1925 applies to
the Hindus. Section 30 of the Hindu Succession Act, 1956, as amended by the Hindu Succession
Amendment Act, 2005, lays down that any Hindu (male or female) may dispose of his/her property by
testamentary disposition, i.e., byway of will,
intestacy, (n.) = Dying intestate, i.e., without leaving a will,

intestate, (n.) = One who has left no will.

heir, (n.) = A person, who succeeds by descent to an estate/property of inheritance,
intestate succession.
= Upon the death of a person, dying intestate, the property of the deceased
shall devolve to his heirs according to their shares, defined by the succession laws framed by the
religion and codified laws. The Hindu Succession Act, 1956, (containing Sections 1 to 29) as
amended by The Hindu Succession Amendment Act, 2005 (Act No. 39 of 2005) lays down the legal
provisions relating to the intestate succession of the Hindus (males and females).
Partial intestacy, (n.) = Partial intestacy means the leaving a wiN which validly disposes of part only
of the property, so that the rest goes as on an intestacy.
Escheat, (n.) = If a person, having property, dies without writing any will and without any heirs, the
Government is entitled to acquire such property. It is called “Escheat”.
Joint Hindu Undivided Family/Property. = A joint Hindu undivided consists of all persons linearly
descended from a common ancestor, and includes their wives and unmarried daughters.
Coparcener, Coparcenary & Coparcenary Property. = According to the old Hindu succession
Law and customs, coparcenary is also a kind of Joint Hindu family. A member of a coparcenary or
joint family is called “Coparcener”. Every coparcenary is a joint Hindu family, but every Joint
Hindu family is not a coparcenary. The difference between the Coparcenary and the Joint Hindu
undivided family is that the former is limited four degrees only, and in the latter there is no such
restriction. According to the old Hindu jurisprudence, sons/males had right and interest in the Joint
family properties. The daughters/females were not entitled to inherit The Hindu Succession
Amendment Act, 2005 (Central Act No. 39 of 2005) has brought several changes in The Hindu
-110-
 The Family Law -1 (The Hindu Law) 111

Succession Act, 1956. Now according to the latest amended and substituted provisions of the
Act 1956 and Act of 2005, daughter is made equal to son. Now daughter have become
“coparceners” in the coparcenary equally with son. Now a daughter can claim her interest and
share in the coparcenary property, and she can inherit the ancestral properties/coparcenary properties
as a coparcener. If any share is not given to daughter in the coparcenary property, the daughter
and her heirs have claim and sue the co-heirs.

Devolution of Interest in Coparcenary Property. = According to the old Hindu jurisprudence,

and under Section 6 and other provisions of the Hindu Succession Act, 1956, where a father/karta of
a family died, his sons would inherit the coparcenary property. Every male coparcener was entitled
to a share in the coparcenary property. The females were not regarded as the coparceners, and no
right of share was given in the coparcenary property, i.e., the daughters were excluded from the
partition of the coparcenary property. The Hindu Succession Amendment Act, 2005 (Centra!
Act No. 39 of 2005) brought drastic changes. Now, according to the Act of 2005, any Hindu (male or
female) is entitled to devolve the interest in the coparcenary property.
SCOPE: In the maintenance and governance of family institutions, there are two types - (i) the
Patriarchal Family; and (ii) The Matriarchal Family. In the Patriarchal Family organization, the
father is the formal Head and exercises the ruling power in the family. In the Matriarchal Family
organization, the mother is the formal Head and exercises the ruling power in the family. The
patriarchal family system spread in vast. The matriarchal family is found very rare.
The Hindu family institution hailed from the Patriarchal System. According to the ancient Hindu
Succession Law, in a coparcenary or joint Hindu families, the properties were enjoyed and partitioned
between the males only, i.e., between the sons only. Females were not considered in the partition.
While drafting the Hindu Succession Act, 1956, this legal point and custom was taken into consideration.
Thus Section 6 “Devolution of Interest In Coparcenary Property” of The Hindu Succession
Act 1956 was constructed on the basis of the Sastras, Customs and Usages, and the males only
were provided the right to devolution of interest in the coparcenary property.
During the tenure of Late N. T. Rama Rao. the then Chief Minister of A.P., the Andhra Pradesh State
Government inserted Sections 29-A. Section 29-B and Section 29-C in the Hindu Succession Act,
1956 by the Hindu Succession (Andhra Pradesh Amendment) Act, 1986, with effect from 5-9-
1985. This was the First Legislation in the Hindu Succession laws giving equal rights and devolution
of interest in coparcenary property to a daughter. However, there was a cut-off date in the Act of
1986. Clause (v) of Section 29-A of the 1986 Act provides: “nothing in clause (ii) shall apply to a
daughter married prior to or to a partition which had been effected before the commencement of
the Hindu Succession (A.P. Amendment) Act, 1986.”
Therefore, the daughters married prior to or to a partition, which had been effected before the
commencement of the Act of 1986, were clearly excluded from the devolution of interest in the
coparcenary property.
Thereafter, the State of Maharashtra, State of Tamil Nadu, Karnataka, etc., enacted similar respective
State Amendments on the line of theA.P. State Amendment Act, 1986.

This has paved the way the different judgments of the High Courts. The academicians, advocates,
jurists, especially, women organisations, through out the country had demanded the Central Government
to enact a Central Act basing upon theA.P. State Amendment, 1986. The Law Commission of India
also supported it.
As a result. The Hindu Succession (Amendment) Act No. 39 of 2005 was enacted by the Central
Government, which came into effect from 9th September. 2005. Drastic changes have been occurred
in the Hindu Succession Act, 1956 by The Hindu Succession (Amendment) Act No. 39 of 2005.
Old Section 6 has been substituted with new construction. After commencement of the Central
Act No. 39 of 2005, the State Acts and Amendments will be deemed to have extinguished.

Due to these drastic changes, now the position of a daughter in a coparcenary family has become
equal to that of a son. The distinguishing feature of the Central Act No. 39 of 2005 is that there is
no cut-off date in this Act, as was provided in the A.P. Amendment Act, 1986.
The only cut-off provision incorporated in the Act of 2005, i.e.. Explanation to Section 6, is that if
there is a registered partition or a partition effected by a decree of a Court.
Under the provisions of the original Act of 1956, the Courts were empowered to accept the registered,
written and even oral evidence of partition. Under the old Act, registration of a partition was not
compulsory. A written or oral partition itself was sufficient.
If there is a registered partition deed between the male heirs of a coparcenary property before the 2005
Act, then the female cannot challenge and claim any share. Before the 2005 Act, even now, there is
 112
The Family Law - / (The Hindu Law)

no compulsory provision for the registration of the partition. No Hindu would care about the registered
partition, as it was only optional. Before the 2005 Act, the oral partition and unregistered written
documents were also accepted as the proof of partition. But now, this is not the position. Only
registered documents are recognised by Section 6. If there is no registered partition deed prior to the
2005 Act, then every daughter of a coparcenary family can claim a share in it. Then what about the
dowry and/or pasupu kumkuma given to the daughter at the time of the marriage, and the marriage
expenses of such a daughter incurred by father or the coparcenary family. This is not solved by the
2005 Act.

The newly incorporated provisions in the Central Act No. 39 of 2005 have paved the way to property
disputes through out the country. Even a ninety years aged woman also is entitled to devolve the
interest/share in the coparcenary properties under Section 6.
Therefore, the disputes also have been increasing throughout the country, since the enacting of Act 39
of 2005. Before the 2005 Act, only male heirs of a coparcenary were entitled to devolve the interest in
the coparcenary property. However, the Act, 2005 has made the daughters equal to devolve the
interest in the coparcenary property.
The general tendency of the Hindu families is that with the joint family properties and the income from
such joint family properties were/have been allotted for the marriages of the daughters. The father/
karta of the family used to give “dowry” or “Pasupu Kumkuma” or “gift” to the daughters in a huge
quantity. Sometimes, it would exceed the share of a son. After the daughters’ marriage, the entire
properties were/have been devolved to the sons. In a partition of a coparcenary property, the daughters,
wives were excluded. Only male heirs were recognised and the properties were distributed between
the male heirs.

After the 2005 Act, this position has been changed. The coparcenary family would incur heavy
expenditure towards the expenses of the family and towards the dowrv/pasupu kumkuma. According
to the changes brought by the 2005 Act, all the married daughters, their sons and daughters, their
grand-sons and grand-daughters, and great-grandsons or great-grand daughters have become the
heirs of the coparcenary property equally with the male heirs.
The student should know the difference and the changes brought by the 2005 Act.
SECTION-6 - BEFORE THE AMENDMENT BY THE 2005 ACT
“Sec. 6. Devolution of interest in coparcenary property.— When a male Hindu dies after the commencement of this
Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shali devolve
by survivorship upon the surviving members of the coparcenary and not in accordance with this Act :

Provided that, if the deceased had left him surviving a female relative specified in Class-I of the Schedule or a male relative
specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary
property, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship.
Explanation-1:— For the purposes of this section, the interest of a Hindu Mitakshara coparcener shali be deemed to be the
share in the property that would have been allotted to him if a partition of the property had taken place immediately before his
death, irrespective of whether he was entitled to claim partition or not.

Explanation-2:— Nothing contained in the proviso to this Section shall be construed as enabling a person who has
separated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestacy a share
in the interest referred to therein.”

IMPORTANT POINTS:

LAW BEFORE THE HINDU SUCCESSION (AMENDMENT) ACT, 2005

A. Unobstructed heritage {Apratibandha Dava): A Mitakshara coparcenary includes those male
members who take an interest in the coparcenary property by birth. It is known as “Unobstructed
Heritage” {Apratibandha Daya). It devolves by survivorship.
Obstructed Heritage (Sapratibandha Dava): The other property may be self-acquired or that
inherited from a person other than a father, grandfather or a great-grandfather, which is known as
“Obstructed heritage” (Sapratibandha Daya). This kind of property separate or self acquired
property passes by succession and not by survivorship.
C. Section-6 recognizes the rule of the Hindu law under which the interest of a male Hindu in a
Mitakshara coparcenary property passes by survivorship to other coparceners and not to his heirs.
Example-(i): There are two brothers B1 and B2 consisting of a joint family. Suppose B1 dies. His
coparcenary interest goes to B2 and not to the wife of B1.

Example-(ii): There are three brothers B1, B2 and B3 of a joint family. B3 separated from this joint
family. After B3 separation, B1 dies. The coparcenary interest of B1 goes to B2 and not to the wife
of B1 and not to B3. This is the principle of Section 6 and its Explanation-1.
D. The proviso is the significance in the change of the law in the joint family. If the Hindu male of a
joint family dies surviving female heir mentioned in Class-1 of the Schedule to the Act, the coparcenary
 The Family Law -1 (The Hindu Law) 113

interest of the deceased coparcener would not devolve by survivorship, but would devolve accordinq
to the Hindu Succession Act, 1956.
E.
THEORY OF NOTIONAL OR DEEMED PARTITION (SN)
The coparcenary interest of a Hindu is devolved and the method of calculation is called “The Theory
of Notional Partition” and it is explained in the Explanation-1 to the Proviso of the Section-6. The
notional partition or deemed partition is not a real partition. It neither effects a severance of status nor
does it demarcate the interest of the other coparceners or of those who are entitled to a share on
partition. It has to be used to demarcate the interest of the deceased coparcener, once that is done,
rest should be forgotten. What happens to the shares of the coparceners and others who are apparently
allotted a share? Nothing happens as no shares are in fact allotted to them. Allotment of shares to
them is a fiction. But it is a necessary fiction. Without the help of it, it is impossible to demarcate the
interest of the deceased coparcener.
Example:

# Gurupad vs. Hira Bai (AIR 1978 SC 1239)

(the theory of Notional or Deemed Partition)
Hirabai’shusband died in 1960 surviving his wife, 2 sons and 3 daughters.

Father (died in 1960)

Widow S1 S2 D1 D2 D3
Hirabai Gurupad

Hirabai claimed her share in the ancestral property left by her husband. The Supreme Court held that
under Sec. 6 at the notional partition between the deceased and his two sons. The widow, being
mother of the Defendants-sons were also eligible for allotment of a share. So she would get at the
notional partition 1/4. The 1/4th share of the deceased husband would be divided among Hirabai, 2
sons and 3 daughters. Therefore, Hirabai gets 1/4 x 1/6 = 1/24. So her total share would be 1/4 + 1/
24 = 7/24 of the ancestral property.
In this circumstance, one share is allotted to the deceased, and again it is partitioned among his heirs.
It is called the theory of Notional or Deemed Partition.
# Buddha Singh vs. Lallu Singh (37A 604 (1915)
(Full Blood & Half Blood)
Brief Facts: The rule of preference of the full blood over half blood applies also to brother’s sons and
in the case of all other relations in the same degree. There is no clear indication in the Sanskrit texts
as to who is to succeed in the absence of the brother’s son. In this case, the contesting claimants
were the paternal uncles’ son’s son and the father’s paternal uncle’s son. The question was whether
the brother’s son was a valid heir or not.

JUDGMENT: It was held by the Judicial Committee that the word “putra” as used by Vijnaneswara,
in relation to the last owner, signified, and included son, grandson and great-grandson and that “putra”
and its synonym {sunaval) employed by him in connection with other relations, such as brother,
uncle, or grand-uncle, must be understood in a generic sense as in the case of the deceased owner.
In this view they held that the descendants in each collateral line which starts from a nearer ancestor
should be exhausted at any rate to the order of succession. The reason given for this view in the
judgment of the Board was that if Vijnaneswara’s intention had been to confine the descent in the
case of collaterals to the actual sons of brothers and uncles, he would have employed terms
which would have exactly conveyed his meaning, such as “atmaja”or “aurasa”which means “sons
of one’s loins”. If as was observed by the Privy Council, the word “putra” should be taken to include
sons, grandsons and great-grandsons, then brother’s “putra” must means brother’s son, brother’s
grandson, and brother’s great-grandson, in which case the heirs in each collateral line upto the 4th
instead of the 3rd degree should be exhausted before making an ascent to a remoter collateral line.

PROBLEM: A Hindu Mitakshara joint family consisted of A and B, brothers, their sons A1 and B1 and
daughters D1 and D2. A died after 1990. Divide the property. (Dec., 2003, S.K.U.)
SOLUTION: Before the Hindu Succession Amendment Act, 2005: The given facts of the
Problem occurred on 1990, i.e., before the Act of 2005. According to the provisions of Section 6 (Old
Section) of the Hindu Succession Act, 1956, the Mitakshara joint family properties are divided between
two brothers, excluding the daughters, and each brother would get 1/2 share.
114 The Family Law -1 (The Hindu Law)

After the Hindu Succession Amendment Act 2005: The given facts of the Problem occur after
2005, i.e., after the Act of 2005, according to the provisions of Section 6 (new Section) of the Hindu
Succession Act, 1956, as incorporated by the Hindu Succession Amendment Act, 2005, the Mitakshara
joint family properties are divided between two brothers equally. Then the properties would be divided
between the sons and daughters, giving each of them equal share. Therefore, each of them gets 1/4th
share.

LAW AFTER THE HINDU SUCCESSION (AMENDMENT) ACT, 2005

SECTiQM-6 - AFTER THE AMENDMENT BY THE 2005 ACT:

“Sec. 6. Devolution of interest in coparcenary property.— (1) On and from the commencement of the Hindu
Succession (Amendment) Act, 2005, in a Joint Hindu famiiy governed by the Mitakshara Law, the daughter of a coparcener
shall,—

(a) by birth become a coparcener in her own right in the same manner as the son;
(b) have the same rights in the coparcenary property as she would have had if she had been a son;

(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son,

and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener;

PROVIDED that nothing contained in this sub-section shall affect or invalidated any disposition or alienation including any
partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.
(2) Any property to which a female Hindu becomes entitled by virtue of sub-section (1) shall be held by her with the incidents
of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the
time being in force in, as property capable of being disposed of by her by testamentary disposition.
(3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the
property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as
the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided
as if a partition had taken place and,—

(a) the daughter is allotted the same share as is allotted to a son;

(b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time
of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and

(c) the share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, as such child would have
got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the
pre-deceased son or a pre-deceased daughter, as the case may be.

Explanation:— For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be
the share in the property that would have been allotted to him if a partition of the property had taken place immediately before
his death, irrespective of whether he was entitled to claim partition or not.

(4) After the commencement of the Hindu Succession (Amendment) Act, 2005, no Court shall recognise any right to proceed
against a son, grandson or great-grandson for the recovery of any debt due from his father, grandfather or great
grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to
discharge any such debt:

PROVIDED THAT in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act,
2005, nothing contained in this sub-section shall affect,—

(a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case may be; or

(b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be
enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been
enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted.
Explanation:— For the purposes of clause (a), the expression “son”, “grandson” or “great-grandson” shall be
deemed to refer to the son, grandson or great-grandson, as the case may be, who was born or adopted prior to the
commencement of the Hindu Succession (Amendment) Act, 2005.
(5) Nothing contained in this Section shall apply to a partition, which has been effected before the 20th day of December
2005.

Explanation:— For the purposes of this Section “Partition” means any partition made by execution of a deed of partition
duly registered under the Registration Act, 1908 (16 of 1908), partition effected by a Decree of a Court.”
IMPORTANT POINTS:

A. Right of a Daughter as a coparcener: According to sub-section (1) of Section 6, on and from

the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed
by the Mitakshara law, the daughter of a coparcener shall,—
(a) by birth become a coparcener in her own right in the same manner as the son:

(b) have the same rights in the coparcenary property as she would have had if she had been a
son;

(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son,
and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a
daughter of a coparcener.
 The Family Law - I (The Hindu Law) 115

B. EXCEPTION: The provisions of sub-section (1) shall not affect or invalidate

(1) any disposition or alienation,

(2) including any partition or
(3) testamentary disposition of property,
which had taken place before the 20th day of December. 2005.

C. REGISTERED PARTiTiON OR DECREE OF COURT: A valid partition is an exception to the

provisions of sub-section (1). The daughter cannot devolve any interest in the coparcenary property,
which was validly partitioned on or before the 20th day of December, 2004.
Sub-section (5) of Section 6 clarifies: “Nothing contained in this Section shall apply to a partition,
which has been effected before the 20th day of December, 2005.”
However, such a partition must be a valid one. Explanation appended to sub-section (5) imposes
the condition: “For the purposes of this Section, “Partition” means any partition made by execution
of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908), partition effected by
a Decree of a Court.”

D. Disposition or Alienation: If the coparcenary/joint family properties were already disposed or

alienated by the Karta or by the coparcenary joint family, by valid documents, such properties cannot
be devolved to the daughter or son.
E. Testamentary Disposition: If any property is disposed by a testamentary disposition on or
before the 20th day of December, 2004, such property cannot be devolved to the daughter or son.
F. Rights of a Daughter in the coparcenary property: According to sub-section (2) of Section 6,
any property to which a female Hindu becomes entitled by virtue of sub-section (1),
(i) she can hold such property with the incidents of coparcenary ownership, and
(ii) she can dispose such property by testamentary disposition.
G. Rule of survivorship does not apply - But the Ruie of Deemed Partition applies: According
to Sub-section (3) of Section 6, where a Hindu dies afterthe commencement of the Hindu Succession
(Amendment) Act, 2005, his interest in the property of a Joint Hindu family governed by the
Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under
this Act and not by survivorship, and the coparcenary property shall be deemed to have been
divided as if a partition had taken place and,—
(a) the daughter is allotted the same share as is allotted to a son;
(b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got
had they been alive at the time of partition, shall be allotted to the surviving child of such
pre-deceased son or of such pre-deceased daughter; and
(c) the share of the pre-deceased child of a pre-deceased son or of a pre-deceased
daughter, as such child would have got had he or she been alive at the time of the partition,
shall be allotted to the child of such pre-deceased child of the pre-deceased son or a
pre-deceased daughter, as the case may be.
H. interest of a Hindu Mitakshara coparcener: According to Explanation appended to sub
section (3) of Section 6, for the purposes of sub-section (3), the interest of a Hindu Mitakshara
coparcener shall be deemed to be the share in the property that would have been allotted to him
if a partition of the property had taken place immediately before his death, irrespective of whether
he was entitled to claim partition or not.
I. Abolition of the Doctrine of Pious Obligation: Sub-section (4) of Section 6 abolishes the
Doctrine of Pious Obligation. According to sub-section (4), after the commencement of the
Hindu Succession (Amendment) Act, 2005, any Court shall not recognise any right to proceed
against a son, grandson or great-grandson for the recovery of any debt due from his father,
grandfather or great-grandfather solely on the ground of the pious obligation under the Hindu
law, of such son, grandson or great-grandson to discharge any such debt.
J. Exception to sub-section (4): Proviso appended to sub-section (4) lays down that In the case
of any debt contracted before the commencement of the Hindu Succession (Amendment) Act,
2005, nothing contained in this sub-section shall affect,--
(a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case
may be; or
(b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or
alienation shall be enforceable under the rule of pious obligation in the same manner and
to the same extent as it would have been enforceable as if the Hindu Succession (Amendment)
Act, 2005 had not been enacted.
 116 The Family Law -1 (The Hindu Law)

K. Explanation: For the purposes of clause (a), the expression “son”, “grandson” or “great-
grandson” shall be deemed to refer to the son, grandson or great-grandson, as the case may be,
who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act,
2005.

PROBLEM: X’s property is inherited by his brother-Y. The illegitimate daughter of X claims
maintenance from Y. Is she entitled for maintenance? (May, 2008, O.U.)
SOLUTION: According to Section 16 of the Hindu Marriage Act, 1955, whether legitimate or illegitimate
child is entitled to inherit the property of his father. The Hindu Succession Amendment Act, 2005
makes a daughter entitled to devolve the interest and right to claim a share the coparcenary property.
X’s property cannot be inherited by his brother, being the brother is in Class-ll heir. When a heir in
Class-I is alive, no heir of Class-ll is entitled to inherit. Here in the given Problem, the daughter, though
illegitimate, comes within the Class-I heir. Hence the illegitimate daughter of X is entitled to inherit the
property of her father. Therefore, there is no necessary to claim maintenance from Y. Legally also,
Y is not bound to maintain the daughter.
PROBLEM: A, a Hindu dies intestate of property worth Rs. 50 lakhs, leaving behind his widow W, son
S, daughter D, father F and mother M. Distribute among the legal heirs according to the Hindu
Succession Act, 1956. (Dec., 2007, O.U.)
SOLUTION: The solution differs depending on the date of death of the ancestor-A.

(i) If As died before the Hindu Succession Amendment Act. 2005: Father, being in Class-ll
heirs, he is excluded from the inheritance of the coparcenary property. D, daughter, is also excluded.
as the old Hindu law, and the provisions of Section 6 (before substituted). According to the pre-Hindu
Law, and Section 6 (before substituted) of the Hindu Succession Act, 1956, daughters would not be
regarded as the heirs. Then W, S and M remain in the list of devolution of interest in the Coparcenary
Property, and each of the three gets 1/3rd share.
(ii) If A’s died after the Hindu Succession Amendment Act. 2005: Father, being in Class-il
heirs, he is excluded from the inheritance of the coparcenary property. But D-daughter is not excluded
according to the provisions of the Act of 2005. According to the provisions of the latest Act of
2005, a daughter is a coparcener of the coparcenary family/property. Thus D, as a female
coparcener, is entitled a share in the coparcenary property. Then W, S, M and D get equal share in
the coparcenary property. It means of these four heirs gets 1/4th share of the coparcenaryproperty.
PROBLEM: A Joint Hindu Family consists of father-F, a son-S and a daughter-D. Partition takes
place. What is share of each person according to the Hindu Succession (Amendment) Act, 2005?
(Dec., 2006, B.U.)
SOLUTION: According to the provisions of the substituted Section 6 and insertion of list of
daughters in Scheduie of the Hindu Succession Act. 1956 bv The Hindu Succession Amendment
Act 2005 (Central Act No. 39 of 2005). D-the daughter in the above given Problem is entitled equal
share with S-son. Therefore, each of D and S gets 50% in the joint Hindu family properties.
PROBLEM: Two brothers were living as members of a Joint family. They inherited property from
their maternal grand-father. On the death of one of them leaving a widow, can the surviving brother
claim the interest of the deceased?
(June, 2004, B.U.)
SOLUTION: Before The Hindu Succession Act, 1956, the property shall be partitioned between the
deceased brother and surviving brother, if the deceased brother had children. If the deceased brother
had no children, then the widow would hold the share of such property as a limited owner/woman’s
estate. In such circumstances too, the surviving brother could not usher up the property. After The
Hindu Succession Act, 1956, the limited ownership becomes the full ownership.
After The Hindu Succession Amendment Act, 2005, the surviving brother cannot claim interest of
the deceased brother. The widow is legally entitled to have her share.
PROBLEM: In a Hindu Joint family, F was survived by his three sons. A, B and C. A is suffering from
AIDS. B converted himself to Christianity. C killed F. Who will succeed to his property.
(Dec., 2003, S.V.U.)
SOLUTION: C is disqualified to inherit the Joint Hindu family properties, as killed his father-F under
Section 25 of the Hindu Succession Act, 1956. B, as he converted himself to Christianity, he cannot
continue in the Joint Hindu family, but he has right to claim the share from the Hindu Joint family as on..
date of his conversion or marriage, as the case may be. A is not disqualified to inherit the Joint Hindu
family properties, according to Section 28. a disease or physical defect does not disqualify a coparcener
to inherit the properties. Therefore, outofthreebrothers. A, Band C, A is entitled to continue the Hindu
Joint family. B is entitled to claim the share in the coparcenary property.
 The Family Law - I (The Hindu Law) 117

PROBLEM: A died leaving his Widow, 2 Sons, 3 Daughters, Mother, Brother and Sister, without
writing a will. Who will succeed to the property and how will they succeed? (Dec., 2003, S.K.U.)
SOLUTION: Widow, 2 Sons, 3 Daughters and Mother are Class-I Heirs. Brother and Sister are
Class-H Heirs. When the Class-I Heirs are present, Class-ll Heirs are excluded. Hence brother and
sister are excluded. Therefore, each of Class-I Heirs, i.e., Widow, 2 Sons, 3 Daughters and Mother,
gets 1/7th Share.

6.A.(i) THE HINDU SUCCESSION ACT NOT TO APPLY TO

CERTAIN PROPERTIES [Sec. 5]
Q.l. To which properties the Hindu Succession Act, 1956 does not appiy?

ANSWER:

SCOPE: The Hindu Succession Act, 1956 is enacted to regulate the succession and inheritance of
the Hindus. Basically, this Act does not apply to Muslims, Christians, and Parsis. Section 5 of the
Hindu Succession Act, 1956 clarifies that certain properties are not governed by this Act.
“Sec. 5. Act not to apply to certain properties.— This Act shall not apply to,—
(a) any property succession to which is regulated by the Indian Succession Act, 1925, by reason of the provisions
contained in Section 21 of the Special Marriage Act, 1954;
(b) any estate which descends to a single heir by the terms of any covenant or agreement entered into by the Ruler of any
Indian State with the Government of India or by the terms of any enactment passed before the commencement of this
Act;

(c) the Valiamma Thampuran Kovilagam Estate and the Palace Fund administered by the Palace Administration Board by
reason of the powers conferred by Proclamation (IX of 1124) dated 29th June, 1949, promulgated by the Maharaja of
Cochin.”

[See Topic “Impartible Property”.]

6.A.(ii) DEVOLUTION OF INTEREST IN

PROPERTY OF A TARWAD, TAVAZHI, KUTUMBA,
KAVARU OR ILLOM [Sec. 7]

Q.l. The marumakkattayam or nambudri law. (SN)

Q.2. Devolution of interest in property of a Tarwad, Tavazhi, Kutumba, Kavaru or //torn. (SN)
Q.3. Aliyasantana Law. (SN)

ANSWER:

SCOPE: Section 7 of the Hindu Succession Act, 1956 lays down the provisions about “Devolution
of interest in the property of a tarwad, tavazhi, kutumba, kavaru or illom. These provisions
apply to particularly a few sub-communities, such as, tarwad, tavazhi, kutumba, kavaru or illom, of
the Kerala Hindu community. The provisions of Section 7 shall not be applicable to general Hindu
community through out the country. These provisions are specially meant forthese communities and
for Tamil Nadu and Kerala States only.
DEFINITIONS:

Section 3 (1) (b) of the Hindu Succession Act, 1956 defines: “Aliyasanta Law” means the system
of law applicable to persons who, if this Act had not been passed, would have been governed by the
Madras Aliyasanta Act, 1949, or by the customary Aliyasanta law with respect to the matter for which
provision is made in this Act.”
Section 3 (1) (h) of the Hindu Succession Act, 1956 defines:
if

'Marumakkattayam Law” means the

system of law applicable to person,—
(a) who, if this Act had not been passed would have been governed by the Madras Marumakkattayam
Act, 1932; theTravancore NayarAct; theTravancoreEzhavaAct;theTra vancoreNanjinad Vellala
Act;theTravancoreKshatriyaAct; theTravancoreKrishnavakaMarumakkathayamAct; theChochin
Marumakkathayam Act; or the Chochin NayarAct with respect to the matters for which provision
is made in this Act; or
William Shakespear writes: "Neither lend nor borrow.” This is quite applicable to the law students and
lawyers. Law books and legal knowledge are the source of reputation and money for an advocate. Therefore,
the law student should not borrow or should not lend their books. All the books purchased by a law student and
lawyer will be useful one day. Particularly the subjects of LL.B. are inter-linked. Refer to the previous subjects
often, and memorise the contents therein.
118 The Family Law - / (The Hindu Law)

(b) who belong to any community, the members of which are largely domiciled in the State of
Travancore-Cochin or Madras as it existed immediately before the 1st November, 1956, and who,
if this Act had not been passed, would have been governed with respect to the matters of which
provision is made in this Act by any systern of inheritance in which descent is traced through the
female line; but does not include the aliyasantana law.”
Section 3 (1) (i) of the Hindu Succession Act, 1956 defines: “Nambudri Law” means the system of
law applicable to persons who, if this Act had not been passed, would have been governed by the
Madras Nambudri Act, 1932; the Chochin NambudriAct; ortheTravancore Malayala Brahmin Act with
respect to the matters for which provision is made in this Act.”

SECTION 7:

“Section 7. Devolution of interest in the property of a tarward, tavazhi, kutumba, kavaru or illom.—' (1)
When a Hindu to whom the marumakkattayam or nambudri law would have applied if this Act had been passed dies
after the commencement of this Act, having at the time of his or her death an interest in the property of a tarwad, tavazhi
or illom, as the case may be, his or her interest in the property shall devolve by testamentary or intestate succession, as
the case may be, under this Act and not according to the marumakkattayam or nambudri law.

Explanation:— For the purposes of this sub-section, the interest of a Hindu in the property of a tarwad, tavazhi or
illom shall be deemed to be the share in the property of the tarwad, tavazhi or illom, as the case may be, that would have
fallen to him or her if a partition of that property per capita had been made immediately before his or her death among all the
members of tarwad, tavazhi or illom, as the case may be, then living, whether he or she was entitled to claim such
partition or not under the marumakkattayam or nambudri law applicable to him or her, and such share shall be deemed
to have been allotted to him or her absolutely.

(2) When a Hindu to whom the aliyasantana law would have applied if this Act had not been passed, dies after the
commencement of this Act, having at the time of his or her death an undivided interest in the property or a kutumba or
kavaru, as the case may be, his or her interest in the property shall devolve by testamentary or intestate succession, as the
case may be, under this Act and not according to the aliyasantana law.

Explanation:— For the purposes of this sub-section, the interest of a Hindu in the property of kutumba or kavaru shall
be deemed to be the share in the property of the kutumba or kavaru as the case may be, that would have fallen to him or
her if a partition of that property per capita had been made immediately before his or her death among all the members of the
kutumba or kavaru, as the case may be, then living, whether he or she was entitled to claim such partition or not under
the aliyasantana law, and such share shall be deemed to have been allotted to him or her absolutely.

(3) Notwithstanding anything contained in sub-section (1), when athan amdar dies after the commencement of this Act,
sfhanamproperty held by him shall devolve upon the members of the family to which the sthanamdar belonged and the
heirs of the sthanamdar as if the sthanam property had been divided per capita immediately before the death of the
sthanamdar among himself and all the members of his family then living, and the shares falling to the members of his family
and the heirs of the sthanamdar shall be held by them as their separate property.
Explanation-1:— For the purposes of this sub-section, the family of a sthanamdar shall include every, branch of that
family, whether divided or undivided, the male members of which would have been entitled by any custom or usage to
succeed to the position of sthanamdar if this Act had not been passed.

Explanation-ll:— The devolution of sthanam properties under sub-section (3) and their division among the members of
the family and heirs shall not be deemed to have conferred upon them in respect of immovable properties any higher rights
than the sthanamdar regarding eviction or otherwise as against tenants who were holding such properties under the
sthani."

Gade Veera Reddy’s

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 The Family Law - I (The Him ‘u Law) 119

6.B. GENERAL RULES OF SUCCESSION

IN THE CASE OF MALES [Secs. 8-13 & Schedule]

Q.l. Enumerate the general provisions relating to succession as laid down in It.-; Hindu Succession Act, 1956. (May, 2008, O.U.)
[Also refer to Topic “General Rules of Succession in the case of Females”..
Q.2. Enumerate the Class-1 Heirs under the Hindu Succession Act, 1956. What are the respective shares of Class-1 Heirs?
(Aug., 2006, O.U.)
Q.3. ‘The Hindu Succession Act rationaiised the iist of heirs on the iove and affection theory."— Explain. (Feb., 2006, O.U.)
Q.4. Explain the general rules of succession of a male Hindu dying intestate. (Dec., 2004, B.U.)
Q.5. Explain the classification of heirs to a Hindu male, if he dies intestate. (Sep., 2005, O.U.) (July, 2003, O.U.)
Q.6. Explain the classification of heirs to the property of a deceased male Hindu. (Feb., 2005, O.U.)
Q.7. Who are the Class I Heirs? Explain the Rules of Succession applicable to them. (Dec., 2006, B.U.)
Q.8. Explain the order of siiccession among agnates and cognates. (June, 2004, B.U.)
Q.9. Enumerate the Class-1 Heirs of Hindu male. (SN) (May, 2008, O.U.) (Dec., 2005, G.U.) (May, 2003, N.U.) (Apr., 2003, A.U.)
Q.10. Classes of Heirs. (SN) (May, 2008, O.U.)
Q.11. Agnates. (SN) (Dec., 2003, S.V.U.)

Q.l2. Distinction between Agnates and Cognates. (Dec., 2005, G.U.)

ANSWER:

GENERAL RULES OF SUCCESSION IN THE CASE OF MALES

[BEFORE THE COMMENCEMENT OF THE HINDU SUCCESSION (AMENDMENT) ACT, 2005

(Central Act 39 of 2005]
INTRODUCTION: The Hindu Succession Act, 1956 made profound changes and formed general
rules of succession of the property left by the Hindu male. Sections 8 to 13 specifically provide the
General Rules of Succession to the Property of a male Hindu”. In these Sections the term
u

property is used and included for the self-acquired property of a male Hindu and also his separate
property and interest in the Mitakshara coparcenary property. Before the Act, the distribution of the
property of the deceased Hindu was devolved to the male successors, and females were given lesser
priority. The widow was entitled to enjoy only limited estate. The Hindu Succession Act, 1956
provides two classes of heirs in its Schedule. Class-1 Heirs are preferable to Class-ll heirs.
IMPORTANT POINTS:

A. General rules of succession in the case of males are provided in Section-8:

“Sec. 8. General rules of succession in the case of males.— The property of a male Hindu dying intestate shall

devolve according to the provisions of this Chapter,—

(a) firstly, upon the heirs, being the relatives specified in Class-1 of the Schedule;
(b) secondly, if there is no heir of Class-1, then upon the heirs, being the relatives specified in Class-ll of the Schedule;
(c) thirdly, if there is no heir of any of two classes, then upon the agnates of the deceased; and

(d) lastly, if there is no agnate, then upon the cognates of the deceased."

B. SCHEDULE: Schedule incorporated according to the provisions of Section 8 contains the list of
Class-1 and Class-ll heirs. Class-1 heirs are preferred than Class-ll heirs. Where all the heirs in
Class-1 extinguished, then only Class-ll heirs are considered.
THESCHEDULE

(See Section-8)
HEIRS IN CLASS-1 AND CLASS-II

CLASS-1:

Son; daughter; widow; mother; son of a pre-deceased son; daughter of a pre-deceased son; son of a pre
deceased daughter; daughter of a predeceased daughter; widow of a pre-deceased son; son of a pre-deceased
son of a pre-deceased son; daughter of a pre-deceased son of a pre-deceased son; widow of a pre-deceased
son of a pre-deceased son.
CLASS-II:

(i) Father,
(ii) (1) Son’s daughter’s son, (2) Son’s daughter’s daughter, (3) Brother, (4) Sister,
(iii) (1) Daughter’s Son’s son; (2) daughter’s son’s daughter, (3) daughter’s daughter’s son, (4) daughter’s
daughter’s daughter,
(iv) (1) Brother’s son, (2) Sister’s son, (3) Brother’s daughter, (4) Sister’s daughter.
 120 The Family Law - I (The Hindu Law)

(v) Father’s father; father’s mother,

(vi) Father’s widow; brother’s widow,
(vii) Father’s brother; father’s sister,
(viii) Mother’s father; mother’s mother,
(ix) Mother’s brother; mother’s sister.
Explanation:— in this Schedule, references to a brother or sister do not include references to a brother or
sister by uterine blood.”
C. Order of Succession is provided in Section-9:
“Sec. 9. Order of succession among heirs in the Scheduie.— Among the heirs specified in the Schedule, those in
Class-I shall take simultaneously and to the exclusion of all other heirs; those in the first entry in Class-ll shall be preferred
to those in the second entry; those in the second entry shall be preferred to those in the third entry; and so on in succession.”
D. Distribution of property among heirs in Class-1 is explained in Section-10:
“Sec. 10. Distribution of property among heirs in Class-I of the Schedule.— The property of an intestate shall be
divided among the heirs in Class-I of the Schedule in accordance with the following rules:
RuIe-1 : The intestate’s widow, or if there are more widows than one, all the widows together, shall take one share.

Rule-2 : The surviving sons and daughters and the mother of the intestate shall each take one share.

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

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

(i) among the heirs in the branch of the pre-deceased son shall be so made that his widow
(or widows together) and the surviving sons and daughters get equal portions; and the
branch of his pre-deceased sons gets the same portion;
(ii) among the heirs in the branch of the pre-deceased daughter shall be so made that the
surviving sons and daughters get equal portions.”
E- Distribution of property among heirs in Class II of the Scheduie: According to Section 11.
the property or an intestate shall be divided between the heirs specified in any one entry in Class-ll of
the Schedule so that they share equally.
F- The Order of succession among agnates and cognates is explained in Section-12:
MEANING:

Agnates. = “Agnate” - one person is said to be an “ag/iafe”of another if the two are related by blood
or adoption wholly through males.” (Sec. 3 (1) (a))
Examples: (i) Brother’s son’s son; (ii) Father’s brother’s son’s son.
Cognates. = “Cognate” - one person is said to be a cognate of another if the two are related by
blood or adoption but not wholly through males.”
Examples: (i) daughter’s son; (ii) Sister’s son; (iii) Sister’s daughter, etc.
“Sec. 12. Order of succession among agnates and cognates.— The order of succession among agnates or
cognates, as the case may be determined in accordance with the rules of preference laid down hereunder,—
Rule-1 : Of two heirs, the one who has fewer or no degrees of ascent is preferred.

Rule-2 : Where the number of degrees of ascent is the same or none, that heir is preferred who has fewer or no degrees
of descent.

Rule-3 : Where neither heir is entitled to be preferred to the other under Rule-1 or Aule-2 they take simultaneously.”

G- Computation of degrees: According to Sectjon_13,forthe purposes of determining the order of

succession among agnates or cognates, relationship shall be reckoned from the intestate to the heir
in terms of degrees of descent or both, as the case may be. Degrees of ascent and Degrees of
descent shall be computed inclusive of the intestate. Every generation constitutes a degree either
ascending or descending.
For the clear understanding the general rules of succession to the property of a male Hindu dying
intestate, some problems are given hereunder.
While computing degrees, certain terms are to be uno rstood.

Section 3 (1) (d) defines: “The expression “custoir ’^ and “usage” signify any rule which having
been continuously and uniformly observed fora long time, as 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 opp>.. ^ed to public policy; and
Provided further that in the case of a rule applicable only to a family it has not been discontinued by the
family.”
 The Family Law - I (The Hindu Law) 121

Section 3 M) fel defines: full blood”, “half blood” and “uterine blood means,—

(i) two persons are said to be related to each other by full blood when they are descended from
a common ancestor by the same wife, and by half blood by when they are descended from
a common ancestor but; by different wives;
(ii) two persons are said to be related to each other uterine blood when they are descended from
a common ancestress but by different husbands.
Explanation:— In this clause “ancestor” includes the father, and “ancestress” the mother.”
Section 3 dWfi defines: Heir” means any person, male or female, who is entitled to succeed to
the property of an intestate under this Act.
Section 3 MUal defines: Intestate” - a person is deemed to die intestate in respect of property of
which he or she has not made a testamentary disposition capable of taking effect.”
H. PROBLEM: A, a Hindu male, died intestate leaving his widow, one son; two daughters and
mother. The property is worth Rs. 5 Lakhs. Divide among the heirs. The property is self acquired.
SOLUTION:

Widow - One share Rs. 1,00,000/-

Son - One share Rs. 1,00,000/-
Mother - One share Rs. 1,00,000/-
Daughter-1 - One share Rs. 1,00,000/-
Daughter-2 - One share Rs. 1,00,000/-

Rs. 5,00,000/-

All the five heirs belong to Class-1 heirs of the Schedule. Hence each of them gets one share each.
I. PROBLEM: A died, leaving two widows, 1 son, 2 daughters, father and mother. Property worth
Rs.5,00,000/-. Decide.

SOLUTION: Father belongs to Class-ll. He is not entitled to get the share in the property, while
Class-1 heirs are in existence. Therefore, father is excluded.

Two widows get one share, i.e., each gets 1/2 share, i.e., Rs. 50,000/- Rs. 1,00,000/-
(if both of them are valid wives)
One son gets one share Rs. 1,00,000/-
Two daughters get one share each @ 1 lakh Rs. 2,00,000/-
Mother gets one share Rs. 1,00,000/-

Total: Rs. 5,00,000/-

J. PROBLEM: Adied, leaving 2 illegitimate sons, 2 legitimate daughters, mother and father. Property
worth Rs. 5,00,000/-.

SOLUTION: According to Section 16 of the Hindu Marriage Act, 1955, the illegitimate children are
entitled to inherit their father’s property. The father, being the Class-ll heir, is excluded from the
distribution. Thus there are five heirs. Hence each of the heirs, excluding father, gets Rs. 1,00,000.
K. PROBLEM: A died, leaving one adopted son, one daughter and widow. Property worth
Rs. 3,00,000/-.
SOLUTION: The adopted son is treated as aurasa son. Therefore, each of the adopted son,
daughter and widow is entitled to inherit 1/3rd of the property. The adopted son gets one share, i.e.,
Rs. 1,00,000/-. Daughter gets one share Rs. 1,00,000/-. Widow gets one share, i.e., Rs. 1,00,000/

L. PROBLEM: A, a male Hindu, died, leaving two sons (among them one son was pre-deceased to
A), two daughters, widow, father. The pre-deceased son left his widow, two sons. The property worth
Rs. 5,00,000/-.

SOLUTION: Father belongs to Class-ll heir. He is not entitled to get any share. Hence he is
excluded.
122 The Fan <ily Law -1 (The Hindu Law)

Wife gets one share. Rs. 1,00,000/-

S1 gets one share. Rs. 1,00,000/-

S2 (Pre-deceased son) gets one share. This share is

divided among his wife and two sons, i.e., each of
them gets 1/3rd share, i.e., Rs. 33,333/- Rs. 1,00,000/-
D1 gets one share. Rs. 1,00,000/-
D2 gets one share. Rs. 1,00,000/-

M. PROBLEM: A, a Hindu died in 1933, surviving wife and one daughter. According to the ancient
Hindu law (pre-Hindu Law) and customs, the widow, without son, was not entitled to inherit. However,
such a woman could enjoy the properties during her life, but could not alienate the properties. Such a
woman was called as a “Limited Owner”. After her death the properties would go to nearest heir
called probable reversioner. After the Hindu Succession Act, 1956 came into force, the widow alienated
the properties by way of gift to her daughter. The reversioner challenges it. Decide.
SOLUTION: According to the pre-Hindu law, if the widow gifted the properties before the Hindu
Succession Act, 1956 came into force, such alienation would be treated void. However, the widow
gifted the properties after 1956. By virtue of the Hindu Succession Act, 1956, she and her daughter
became legal and Class-1 Heirs. Hence the widow’s gift would be treated legal and valid. The facts
of the above given problem are identical with the following case:—

# Daya Singh (dead) through L.Rs. and another - Appellants

vs.

Dhan Kaur. - Respondent.

(AIR 1975 SC 665)
(Riverslonary Rights)
Brief Facts: Wadhwa Singh was the father of Dhan Kaur-the respondent. He died in 1933, leaving
the property. His widow, i.e., the mother of the respondent, succeeded to the estate. The widow
madeagiftoftheproperty in favour of her daughter-the Respondent, i.e., Dhan Kaur in April, 1933.
Daya Singh was a reversioner of Wadhwa Singh. He challenged the gift deed dated April, 1933
made to the respondent. According to the ancient Hindu Dharmas/Laws and Customary Law of
Punjab the Court quashed the gift-deed. The widow was in continuous possession of the estate.
The Hindu Succession Act, 1956 came into force with effect from 17-6-1956. Under the provisions
of that Act, the widow again made a gift of the said lands to her daughter Dhan Kaur-the Respondent
in 1956. The widow died in 1963. The appellant under the force of the decree passed by the High
Court filed a suit for the recovery of the property alleging that the second gift was too invalid.
JUDGMENT: The Supreme Court held that in this case. Section 8 of the Hindu Succession Act,
1956 would apply and not the ancient Hindu Law nor the Customary Law of Punjab. According to the
provisions of the Section 8 of the Act of 1956, the widow was the competitive and successful heir of
her husband, and she was continuously enjoying the properties. Therefore, the appellant-Daya Singh
had no reversionary rights. The appellants could not succeed in this appeal. The appellants were
also ordered to pay the costs to Respondent.
Principle laid down: Section 8 of the Hindu Succession Act, 1956 applies to a widow succeeding to
her husband’s estate dying after Act came into force.
❖

GENERAL RULES OF SUCCESSION IN THE CASE OF MALES

[AFTER THE COMMENCEMENT OF THE HINDU SUCCESSION (AMENDMENT) ACT, 2005

(Central Act 39 of 2005]
We have read the changes brought in Section 6 “Devolution of interest in coparcenary property”
in the preceding Topic.
There are no changes in Section 8. which narrates the provisions relating to “General rules of
succession in the case of males”. However, Schedule, which was framed basing on Section 8.
has been modified by the Hindu Succession Amendment Act 2005. The degrees of daughter
have been added newly to Schedule. The bold letters shown in the brackets have been added by
the Hindu Succession i\mendment Act 2005.
 The Family Law - I (The Hindu Law) 123

“THE SCHEDULE

fSee Section-8)
HEIRS IN CLASS-1 AND CLASS-II
CLASS-1:

Son; daughter; widow; mother; son of a pre-deceased son; daughter of a pre-deceased son; son
of a pre-deceased daughter; daughter of a predeceased daughter; widow of a pre-deceased son;
son of a pre-deceased son of a pre-deceased son; daughter of a pre-deceased son of a pre
deceased son; widow of a pre-deceased son of a pre-deceased son; *[son of a pre-deceased
daughter of a pre-deceased daughter; daughter of a pre-deceased daughter; daughter of a
pre-deceased daughter of a pre-deceased son of a pre-deceased daughter; daughter of a
pre-deceased daughter of a pre-deceased son]
CLASS-II:

(i) Father,
(ii) (1) Son’s daughter’s son, (2) Son’s daughter’s daughter, (3) Brother, (4) Sister,
(iii) (1) Daughter’s Son’s son; (2) daughter’s son’s daughter, (3) daughter’s daughter’s son, (4)
daughter’s daughter’s daughter,
(iv) (1) Brother’s son, (2) Sister’s son, (3) Brother’s daughter, (4) Sister’s daughter,
(v) Father’s father; father’s mother,
(vi) Father’s widow; brother’s widow,
(vii) Father’s brother; father’s sister,
(viii) Mother’s father; mother’s mother,
(ix) Mother’s brother; mother’s sister.
Explanation:— In this Schedule, references to a brother or sister do not include references to a
brother or sister by uterine blood.”
* The list of heirs from the daughter’s side has been added in Schedule by The Hindu Succession Amendment Act,
2005 (Central Act No. 39 of 2005), w.e.f. 9-9-2005.

PROBLEM: A male Hindu dies leaving behind his father, mother, one adopted son, three daughters
and two natural bom sons. He has left behind him a seif acquired property. Distribute his property
among the heirs. (Dec., 2005, G.U.)
SOLUTION: Before the Hindu Succession Amendment Act. 2005: Relating to joint Hindu
family property. Mother and three daughters were excluded, and father, one adopted son, two natural
sons (total 4 coparceners) would inherit. Relating to self-acquired property, except Father, being in
Class-ll Heirs was excluded, and remaining heirs, i.e., mother, adopted son, three daughters and two
natural bom sons, (total 7 coparceners), being in Class-I Heirs’ list, they can inherit with equal shares.
After the Hindu Succession Amendment Act, 2005: Relating to joint Hindu family property,
except mother, remaining all the heirs, i.e., father, mother, adopted son, three daughters and two
natural bom sons (total 8 coparceners) would inherit. Relating to self acquired property, except
Father, being in Class-ll Heirs’ list, remaining all the heirs (total 7 coparceners) can inherit with equal
shares.

NOTE

While revising Suiatha Law Series Notes, I am also compiling the Bare Acts
for the Criminal Major Acts keeping in view of the students requirements or
the Internal, Problems and Notes. Within a short period, I would like to the
Criminal Major Acts for Advocates, incorporating the Ingredients, latest
and leading case-laws, etc. which can be useful in the Courts.

GADE VEERA REDDY

124 The Family Law -1 (The Hindu Law)

6.C. STRIDHAN I WOMAN’S ESTATE (LIMITED ESTATE) [Sec. 14]

(The Hindu Disposition of Property Act, 1916/The Hindu Women’s
Rights to Property Act, 1937)
Q.1. What are the incidents of “Limited Estate" of a Hindu woman? (Feb., 2008, Burdwan U., W.B.)
Q.2. What are the incidents of “Limited Estate” of a Hindu woman? State the effect of Section 14 of the Hindu Succession Act, 1956
upon these estates. (Feb., 2008, Burdwan U., W.B.)
[Note : Two Essay Questions were asked in one question paper on the same Topic.]
Q.3. “Section 14 of the Hindu Succession Act is a Charter of Hindu women’s iiberty." — Discuss. (Dec., 2007, O.U.)
Q.4. Briefly explain the effect of the Hindu Succession Act on the proprietory capacity of a Hindu woman. (Dec., 2005, B.U.)
Q.5. Explain the remedies availabie to a married woman for claiming absolute right over her Stridhan. (Feb., 2004, O.U.)
Q.6. Stridhana. (SN) (Dec., 2006, B.U.) (Dec., 2005, B.U.) (Dec., 2004, B.U.) (Apr., 2003, A.U.)
Q.7. Endowments. (SN) (Dec., 2006, B.U.)
Q.8. Kotturuswami vs. Setra Veeravva and Others (1959 SCJ 437). (SN) (Dec., 2006, B.U.)
Q.9. Spes successonis. (SN) (Ani., 2004, P.U.) (Dec., 2003, S.V.U.)
Q.10. Religious and Charitable Endowments. (SN) (Dec., 2004, B.U.)
Q.11. Female Kartha. (SN) (Dec., 2003, S.V.U.)
ANSWER;

STRIDHAN (SN)
[BEFORE THE COMMENCEMENT OF THE HINDU SUCCESSION ACT, 1956]
MEANING: Stridhan is the property of a woman in which she has an absolute estate which carries
with it unrestricted power of alienation and capacity to be a fresh stock of descent for purposes of
inheritance. Stridhan is the property given to a woman by her father, mother, brother or husband in
token of love and affection.

OBJECT: Under the old Hindu jurisprudence the males were the persons managing the properties.
The women had no place in the management of all properties. Even then, for the protection of
women, almost all the Schools of Hindu jurisprudence arranged the provisions for providing Stridhan
for the protection of women for their future living, if any obstacles arose. Paramount consideration of
Stridhan is the welfare of women. This property can not be touched by her husband, or any other
person.

Sources of acquisition of Stridhan:

1. Gifts before marriage by brothers, father, mother, uncles, grand-fathers, etc.
2. Wedding gifts.
3. Gifts subsequent to marriage, in connection with pregnancy, delivery, deepavali, rakhi, etc., given
by brothers, father, mother, uncles, grand-fathers, great-grand-fathers, etc.
4. Self-acquisitions.
5. Inheritance.

6. Purchase.

7. Partition.

8. Adverse Possession.

9. Maintenance claim.

10. Other sources.

Characteristic features of Stridhan:

1. She was absolute owner of the Stridhan property, and had full rights of disposal or alienation
over it, and

2. On her death the property passed to her own heirs, and not to the heirs of last male owner.
3. While disposing the case “Sarupuri Narayanamma vs. Kadiyala Venkatasubbaiah (1973) 1
see 801)”, the Supreme Court said: ‘The word pasupu kumkuma means ‘conferring an absolute
title in the property’ to the woman.”
❖ ❖ ❖
 The Family Law - / (The Hindu Law) 125

WOMEN’S ESTATE (LIMITED ESTATE) (SN)

MEANING: The ancient Hindu law was based on the patriarchal system, that too joint family systetin.
In that system, father was the ruler of the family. Mother and children were the subordinate to father.
Father was the Karta of the family. Women were low graded than men. Even in the law of inheritance,
only the sons would inherit the properties. The daughters were excluded from inheritance.
In case of the daughter, marriage was performed by incurring huge expenses, dowry, etc., and was
sent to her matrimonial house. Besides the marriage expenses, the daughter was given stridhan by
the father, brothers and other male relatives. After the marriage, the daughter’s sur name was changed
into her husband’ssur name. In the Sastra Karmasalso the daughters were not given importance.
If there were no aurasa son, then the husband was empowered to adopt a son for him and his family.
The wife had no power to adopt a son. During his life time, if the husband would have permission to
his wife to adopt a son, after the death of the husband, the wife could adopt a son. In the absence of
such permission, if the collateral heirs would permit to adopt a son. In the absence of the husband’s
and if the collateral heirs would not permit to adopt a son, the wife had no power to adopt a son.
In such a circumstance, the wife would get the possession of the husband’s property for a limited
period. She could enjoy that property for her livelihood. She could not dispose or alienate such
property. Her power was limited over the property. Hence in such a situation, the wife was called as
“LIMITED OWNER”. Such an estate was called as “Limited Estate” or “Woman’s Estate”

Limited Owner means she had no irght to transfer the property, except for legal necessities, livelihood,
benefit of the estate, religious expenses, etc. On her death, the property went not to her daughter or
her daughter’s sons, but to the heir of last full male owner. The last full male owner was called
“Reversioner”.

EXAMPLE: A and B were wife and husband. B died surviving A and their daughter D. There were
no sons to A& B. D married and had one son DS. On the death of B, A took over the property of B,
as “Limited Estate-holder”. She could not become as “Absolute Owner of the Estate”, she
being the lady. She could enjoy the property as limited estate holder during her life. Suppose A died.
D could took the property of B as “limited Estate-holder” only, she being the daughter/woman. She
too could not become as the absolute owner of the estate of B. X was the son of B’s brother. On the
death of D, X took over the property as “Absolute Owner”, because he was the last male heir, and
the only male heir of B. Here X was a “Reversioner”. On the death of X, X’s heirs would take the
property, and not the heir of A While the Limited Estate-holder was alive, the presumptive or
prospective reversioner had only a chance of succession. Such a chance is called “Spes
Succesionis” (Chance of Succession). According to the provisions of the Transfer of Property Act,
1882, a spes successionis (chance of succession) is not transferable.
PROBLEM: East India company has made a Zamindari in the name of Raja of Sivaganga in 1801. In
1820 Zamindar died, leaving a daughter. Raja of Sivaganga’s brother’s son claimed the Zamindari by
survivorship. Daughter of Raja of Sivaganga claimed herself to be the heir of the Zamindari.
(Apr., 2003, A.U.)
SOLUTION: According to the old Hindujurisprudence, the daughter was entitled to have the Zamindari
as a limited estate/woman’s estate. After her death, the brother’s son would get the Zamindari as a
last male reversioner.

Distinction between “Life-Estate” and “Limited Estate

Life Estate Limited Estate

1. It is prevailing in the English Law and still 1. It existed in the ancient Hindu Law. It is
now in existence. abolished now.
2. Life Estate can be granted to any of the 2. Limited Estate was granted only to females
sexes. in India.
3. Exampie: A is an obsolute owner of 3. Example: (Meaning and Example are given
certain property. He gave life-estate to B. above)
Thus, life-estate has been created in favour
of B by A by grant.
4. B enjoys the life-estate given by A. After 4. The woman enjoyed the limited estate
the death of B, the residue of the property during her life. After her death, the
goes back to A or to the heirs of A. It is property goes to the last male heir, who is
called “Reversion”. called “Reversioner”.
5. It is a vested right to have Reversion of 5. The Reversioner’s interest is only a spes
the property by the original owner or his successionis (chance of succession).
heir.

❖ ❖ ❖
126 The Family Law - / (The Hindu Law)

TWO ACTS FOR THE PROTECTION OF LIMITED ESTATE/WOMAN’S ESTATE: The then British
Government enacted two small statutes for the protection of the rights of the woman as the holder of
the Limited Estate/Woman’s Estate:—

1. The Hindu Disposition of Property Act 1916: The primary purpose of this Act is to protect the
unborn persons, especially, the child in womb, i.e., a Hindu has power transfer to dispose the property
for the benefit of persons not in existence at the date of such disposition. Though the Act was
repealed, it is given hereunder for the academic interest and understanding:—
“THE HINDU DISPOSITION OF PROPERTY ACT, 1916

(Act No. 15 of 1916)

[Dated 28th September, 1916.]
An Act to remove certain existing disabilities in respect of the power of disposition of property by
Hindus for the benefit of persons not in existence at the date of such disposition:
Whereas it is expedient to remove certain existing disabilities in respect of the power of disposition
of property by Hindus for the power of disposition of property by Hindus for the benefit of persons not
in existence at the date of such disposition;
It is hereby enacted as follows;—
I
1. Short title and extent.— (1) This Act may be called “The Hindu Disposition of Property Act,
1916”.

(2) It extends to the whole of India except the State of Jammu and Kashmir.

2. Dispositions for the benefit of persons not in existence.— Subject to the limitations and
provisions specified in this Act, no disposition of property by a Hindu, whether by transfer inter wVos
or by will, shall be invalid by reason only that any person for whose benefit it may have been made
was not in existence at the date of such disposition.
3. Limitations and conditions.— The limitations and provisions referred to in Section 2 shall be
the following, namely:—
(a) in respect of dispositions by transfer/nferv/Vos, those contained in Chapter II of the Transfer
of Property Act, 1882 (4 of 1882), and
(b) in respect of dispositions by will those contained in Sections 113, 114, 115 and 116 of the
Indian Succession Act, 1925 (33 of 1925).
4. Failure of Prior Disposition.—- [Repealed by the Transfer of Property (Amendment)
(SupplementaryAct, 1929(21 of 1929.]
5. Application of this Act to the Khoja community.— Where the State Government is of opinion
that the Khoja community in the State or any part thereof desire that the provisions of this Act should
be extended to such community, it may by notification in the Official Gazette, declare that the provisions
of this Act, with the substitution of the word “Khoja” or “Khoja” as the case may be, for the word
“Hindus” or “Hindu” wherever those words occur, shall apply to that community in such area as
may be specified in the notification, and this Act shall thereupon have effect accordingly.”
❖ ❖ ❖

2. The Hindu Women’s Rights to Property Act. 1937. The Governor-General of India gave his
assent on the 14th April, 1937 to this Act. This Act was repealed by Section 31 of the Hindu Succession
Act, 19356 (30 of 1956). Though the Act was repealed, it is given hereunder for the academic interest
and understanding:—

“THE HINDU WOMEN’S RIGHTS TO PROPERTY ACT, 1937

(Act No. XVIII of 1937) (As Amended by Act XI of 1938)
Whereas it is expedient to amend the Hindu Law to give better irght to women in respect of property:-
It is hereby enacted as follows:—
1. Short title and extent (1) This Act may be called “The Hindu Women’s Rights to Properly
Act, 1937".

(2) It extends to the whole of India except Part B States.

2. Application.—Notwithstanding any rule of Hindu Law or custom to the contrary, the provisions
of Section 3 shall apply where a Hindu dies intestate.
 The Family Law -1 (The Hindu Law) 127

3. Devolution of Property.— (1) When a Hindu governed by the Dayabhaga School of Hindu
Law dies intestate leaving any property, and when a Hindu governed by any other school of Hindu
law or by customary law dies intestate leaving separate property, his widow, or if there is more than
one widow all his widows together, shall, subject to the provisions of sub-section (3), be entitled in
respect of property in respect of which he dies intestate to the same share as a son:
Provided that the widow of a predeceased son shall inherit in like manager as a son if there is no son
surviving of such predeceased son, and shall inherit in like manner as a son’s son if there is surviving
a son or son’s son of such predeceased son:
Provided further that the same provisions shall apply mutatis mutandis to the widow of a predeceased
son of a predeceased son.
(2) When a Hindu governed by any School of Hindu law other than the Dayabhaga School or by
customary law dies having at the time of his death an interest in a Hindu joint family property, his
widow shall, subject to the provisions of sub-section (3), have in the property the same interest as
he himself had.

(3) Any interest devolving on a Hindu widow under the provisions of this Section shall be the limited
interest known as a Hindu woman’s estate, provided however, that she shall have the same right of
claiming partition as a male owner.
(4) The provisions of this Section shall not apply to an estate which by a customary or other rule of
succession or by the terms of the grant applicable thereto descends on a single heir or to any
property to which the Indian Succession Act, 1925, applies.
5. Savings, Nothing in this Act shall apply to the property of any Hindu dying intestate before the
commencement of this Act.

6. Meaning of the expression “die intestate”.— For the purposes of this Act, a person shall
be deemed to die intestate in respect of all property of which he has not made a testamentary
disposition which is capable of taking effect.”
:♦ ❖ ❖

DOCTRINE OF SURRENDER OF LIMITED ESTATE / WOMAN’S ESTATE (SN)

As a general rule. Woman’s limited estate comes to an end on her death. But some times, even
during her life time, the property could be alienated to the Reversioner. This is called “Doctrine of
Surrender of Limited Estate”. The conditions for such surrender required were:—

1. The surrender must comprise the whole estate.

2. Surrender must be in favour of the next reversioner only.
3. The surrender should be bona fide.

4. The woman may stipulate for her own maintenance from the property and reserve some of the
property for the maintenance only.
Rights of the Reversioner:

1. The Reversioner could take appropriate steps in the Court of law for setting aside alienation of
widow after her death.

2. If the woman had made any alienation of the property beyond her powers, the Reversioner can
bring a declaratory suit against alienator and alienee.
3. The Reversioner can take possession of the property after widow’s death.

ALIENATORY POWERS OF A WOMAN: Under the old Hindu Law, the woman had no power of
alienation. She could only enjoy the property during her life period. That is why the property so
possessed is called as “Limited Estate” or “Woman’s Estate”. ■ Even under such circurnstances,^
the woman possessing the “Limited Estate”, could alienate the property under the following'
circumstances only, which were accepted by Sastras and customs:—
1. Religious purposes/Endowments: For the religious purposes/endowments, the Hindu woman
was entitled to cause expenditure from the estate of her limited estate. Generally the recognised
religious purposes were actual obsequies of the deceased and the periodical performance of obsequial
rites. It was called as pious obligation. Every Hindu believes the “God” and “Karma”, “Pinda”
etc. Performance of the daughter’s marriage was also treated as religious purpose. Performance of
the daughter’s son’s marriage is also similarly treated as religious purposes.
2. Legal Necessities: Whenever there arose legal necessities, the woman, possessing limited
estate, could alienate the property. Education, marriage, treatment, payment of debts, etc., were
treated as the legal necessities. Case-law: Hanooman Persad Vs. Musammat Babooee (1856)
128 The Family Law - / (The Hindu Law)

3. Benefit of the Estate: For the improvement of the Estate, and as a sequence of improving the
same, the woman could alienate some of the property of the limited Estate.
PROBLEM: A died in the year 1949. After that his wife B was in possession of the property. In 1954,
B sold the property to C. Whether the sale was valid? (AnI., 2004, P.U.)
SOLUTION: The period of the given Problem is before The Hindu Succession Act, 1956. Upto
1956, the widow was entitled only limited ownership and enjoyment, and the Male Reversioner was
entitled to receive the property after the death of the widow. However, in the ancient law, a limited
power was given to a widow to sell the joint Hindu family properties, i.e., for religious purposes, benefit
of the estate, and other legal necessities. If B sold the properties for any of the reasons, the sale could
be held valid. Otherwise, the nearest Reversion was entitled to sue B and C to set aside the sale.
This was the position before 1956. If B sold the property after the Act of 1956, the sale would be
valid.

ABOLITION OF STRIDHAN I LIMITED ESTATE/WOMAN’S ESTATE

[AFTER THE COMMENCEMENT OF THE HINDU SUCCESSION 1956]

Section 14 of the Hindu Succession Act, 1956 abolished the systems of “Stridhan” and “Limited
Estate” (Woman Estate). Stridhan and Limited Estate (Woman’s Estate) were required in those
days according to the patriarchal and joint family systems. The ancient Hindu Law and customs
accepted and followed them.
The Age-Old Practice of Stridhan and Limited Estate (Woman’s Estate) were abolished by the
Section 14 of the Hindu Succession Act. 1956 with effect from 17-6-1956. Since then, the Hindu
woman has been enjoying full rights over her property as absolute owner. The Act of 1956 has made
the Hindu woman full owner of all the property possessed by her, The Hindu Succession Act
brought radical changes. It gives full rights of succession to the female equally with that of male heirs.
While disposing the case “Pentapati Subba Rao (Died) (Rep. by L.Rs.) vs. Jupudy Pardha Sarathy
(2007) 1 ALT 278)”, the Andhra Pradesh High Court held: "Any limited interest created in favour of a
female Hindu either by way of will or partition or gift in lieu of arrears of maintenance whether by her
husband or relative before or after the marriage or any property purchased with limited right becomes
absolute right of the Hindu female. ”
While disposing the case “BImla Devi vs. State of Bihar (2003 (13) AlC 815)”, the Jharkand High
Court held: Where a Hindu widow is in possession of the property of her husband, she has a right to
be maintained out of it and she is entitled to retain the possession of that property in lieu of her right to
maintenance.”

SECTION 14:

“Sec. 14. Property of a female Hindu to be her absolute property.— (1) Any property possessed by a female Hindu,
whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited
owner.

Explanation.— In this sub-section “property” includes both movable and immovable property acquired by a female
Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any
person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by
prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before
the commencement of this Act.

(2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a wili or any other
instrument or under a decree or order of a Civil Court or under an award where the terms of the gift, will or other instrument
or the decree, order or award prescribe a restricted estate in such property.”
IMPORTANT POINTS:

A. While disposing the case “Jose vs. Rama Krishnan Nair Radhakrishnan (AIR 2004 Ker. 16)”,
the Kerala High Court observed: "The object of Section 14 is to remove the disability of a female to
acquire and hold property as an absolute owner. ”
B. PROBLEM: Prior to the Hindu Succession Act, 1956, A, a widow, came into possession of her
husband’s property. LaterX, a reversioner, forcibly dispossessed Afrom the property. She filed a suit
against X. While the proceedings were pending, the Hindu Success'on Act, 1956 came into force. A
died in 1960. Decide.

SOLUTION: The facts of the above Problem are identical with the following case. In this case, the
reversioner’s appeal was dismissed by the Supreme Court, and gave judgment in favour of the widow.
# Mangal Singh vs. Smt. Rattno (AIR 1967 SC 1786)
(Continuous possession by Widow)
Brief Facts: A, a Hindu Widow, obtained the possession of certain landed property on the death of
her husband in 1917, and she enjoyed the said property since then to 1954. The appellant, Mangal
 The Family Law - / (The Hindu Law) 129

Singh, the nearest inheritable reverspner of her husband, forcibly and wrongfully dispossessed her.
She filed a suit on 12-3-1956 for her lawful possession ofthesaid land. While the case was pending,
she died in 1958. The question arose, whether could she be regarded as a continuous possessor
of the land for the purpose of Section 14 of the Hindu Succession Act, 1956 or not. If she was
regarded as the continuous possessor, the properties should be divested to her heirs, otherwise the
appellant would succeed. |
JUDGMENT: The Supreme Court gbve judgment in favour of widow-A, and held that A was the full
owner of the disputed land according to the provisions of Section 14 of the Hindu Succession Act
1956.

PRINCIPLE LAID DOWN: The use of the expression “possessed by” in stead of the expression
“in possession of’ in Section 14 (1) of the Hindu Succession Act, 1956 reveals the intention of
the framers to enlarge the meaning of that expression. A property is said to be possessed by a
person, if he is its owner even though he may, for the time being, be out of actual possession, but in
constructive possession.
. C. PROBLEM-1: Prior to the Hindu Succession Act, 1956 and the Hindu Adoptions and Maintenance
Act, 1956, a childless Hindu widow took over the possession of her husband’s properties, and adopted
a child. The nearest Reversioner challenged her acts. While the case was pending, both the Acts,
i.e., the Hindu Succession Act, 1956 and the Hindu Adoptions and Maintenance Act, 1956 were enacted.
Decide.

PROBLEM-2: B inherited the property after the death of her husband A, B, the widow, adopted a son.
Can the adopted son divert the property inherited by his adoptive mother? (AnI., 2004, P.U.)
SOLUTION1&2: Both the acts of the Hindu widow are valid. The facts of the Problem are identical
with the following case:—
# Kotturuswami vs. Setra Veerawa and Others (1959 SCJ 437)
(No question of Reversionary Rights)
Brief Facts: Karl Veerappa was the last male owner of the estate. His wife was Satra Veerawa.
They had no children. Veerappa executed a will on 10-10-1920 in favour of his wife. He also instructed
and empowered his wife to adopt a son. After the death of Veerappa, Veerawa took the possession
of the lands. She adopted a child-the second defendant in 1942. Both of them enjoyed the
properties since 1942. The appellant challenged the validity of adoption and possession under the
Section 42 of the Specific Relief Act, 1877 contending that the act of Veerawa in adopting the
second defendant was to bring in a stranger and her action of adopting could affect his reversionary
rights. He urged the Court to quash any alienation made by her during her life-time. Because her
enjoyment over the lands was a limited extent, and she was not the full owner.
JUDGMENT: The Supreme Court held that the appellant cannot question her enjoyment, possession
over the lands after the enactment of the Hindu Succession Act, 1956. According to the provisions of
this Act, she had become the full owner of her husband’s properties and no question of reversionary
rights arose. She could alienate her properties under Section 14 of the Hindu Succession Act,
1956. She could adopt the defendant-2 as her son according to the provisions of the Hindu Adoptions
and Maintenance Act, 1956. The appeal was dismissed with costs.
PRINCIPLES LAID DOWN: 1. Section 42,///usfraf/on (f) of the Specific Relief Act, 1877, does not
apply to full owner.
2. The possession referred to in Section 14 need not be actual. Physical possession or personal
occupation of the property by the Hindu female is sufficient to treat her in possession in law. The
possession of a licensee, or a mortgagee from the female owner or the possession of guardian or a
trustee or an agent of the female owner would be her possession for the purpose of Section 14. The
word “possessed” is used in Section 14 in a broad sense and in the context possession means the
state of owning or having in one’s hand or power. It includes possession by receipt of rent and profits.
CONCLUSION: Section 14 of the Hindu Succession Act, 1956 has abolished the Stridhan and
Hindu Woman’s Estate (Limited Estate) and made the Hindu woman absolute owner of all the property
possessed by her. Section 14 of the Act of 1956 enlarged the position of the Hindu woman from
“Woman’s Estate”/”Limited Estate-holder” to “Absolute Owner”.

The Hindu Succession Amendment Act 2005 has not made any changes in connection with Section
14, which has already brought tremendous changes. However, The Hindu Succession Amendment
Act. 2005 makes the Hindu woman/daughter more stronger than ever.
130 The Family Law - / (The Hindu Law)

6.D. GENERAL RULES OF SUCCESSION TO

THE PROPERTY OF FEMALES /
THE POSITION OF DAUGHTER IN [Ss. 6,14,15
THE HINDU SUCCESSION ACT & 16 + Schedule]

Q.l. State the general rules of succession to the properties of a female Hindu dying intestate as provided in the Hindu Succession Act,
1956.
(Feb., 2008, Burdwan U., W.B.)
Q.2. Who are the heirs to the property of a female Hindu? (Jan., 2003, O.U.)
Q.3. Explain the iaw governing the right of succession of Hindu Female dying intestate under the Hindu Succession Act, 1956.
(Dec., 2005, G.U.) (May, 2003, N.U.) (AnI., 2003, K.U.) (Apr., 2003, A.U.)
Q.4. Explain how the self-acquired property of a female Hindu wili be divided according to the Hindu Succession Act, 1956.
(Dec., 2003, S.V.U.)
Q.5. How is the property distributed if a female Hindu dies intestate? (Apr., 2002, O.U.)
ANSWER:

SCOPE: Section 14 of the Hindu Succession Act, 1956 has changed the position of the woman.
After the Act, the Hindu female has become absolute owner of her property. Section 14 abolished
Stridhan and Limited Estate (Woman’s Estate). Just like a male Hindu, now the Hindu female is
entitled equal rights. Section 15 provides the general rules of succession in the case of female
heirs. Section 16 explains the order of succession and manner of distribution among heirs of
a female Hindu. Section 6. as amended by the Hindu Succession Amendment Act, 2005, equaled
a Hindu daughter with that of a Hindu son. Speak to the truth, the Hindu Succession Amendment
Act, 2005 has strengthened the Hindu woman more than ever in the past. [Referto Topic “Devolution
of interest in Coparcenary Property”.]
SECTION 15:

“Sec. 15. General rules of succession in the case of female Hindus.— (1) The property of a female Hindu dying
intestate shall devolve according to the rules set out in Section 16,—
(a) firstiy, upon the sons and daughters “including the chiidren 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) Notwithstanding anything contained in sub-section (1),—

(a) any propeily 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 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
husband.”

SECTIQN-16
“Sec. 16. order of succession and manner of distribution among heirs of a female Hindu.— 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 predeceased 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
would have taken if living at the inestate’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 the 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.”

IMPORTANT POINTS:

A. Originally, while enacting the Hindu Succession Act, 1956, Schedule constructed under Section
8 was meant only for a male Hindu. According to Schedule, there are two Classes of Heirs. In the
first instance, the heirs of the First Class would inherit a male Hindu. In the absence of the heirs
in the First Schedule, then the heirs of the Second Class Heirs would inherit a male Hindu.

B. Now, the Hindu Succession (Amendment) Act, 2005 has changed the very concept of Section 6,
and has given equal rights to a daughter with a son. There was a limited list of the heirs in the Class-
 The Family Law -1 (The Hindu Law) 131

I heirs of Schedule. The Hindu Succession Amendment Act, 2005 has added daughter and her heirs
in the Class-I heirs. Act 2005 has also added the list of daughter, grand-daughter and great grand
daughter, and their sons in Schedule. Therefore, now there is no difference between a son and a
daughter under the latest 2005 Act. [Refer to “Schedule”.]
C. The major changes took place of the heirs a male by the Hindu Succession Amendment Act, 2005.
However, this is not necessitated in case of a female heirs. Sections 15 and 16, incorporated in the
Hindu Succession Act, 1956 are sufficient to distribute the female’s properties.
D. Section 15 lays down the General Rules of Succession in the case of a female Hindu. Section
16 lays down the Order of Succession and Manner of Distribution among heirs of a female Hindu.
First Preference: According to the combined meaning of Sections 15 & 16, the property of a female
Hindu dying intestate shall devolve upon the Sons and Daughters (including the children of any pre
deceased son or daughter) and husband.
Second Preference: In case of the absence of her own children and husband, the property of a
female Hindu dying intestate shall devolve upon the heirs of the husband.

Third Preference: In case of the absence of her own children and husband, and the heirs of the
husband, then the property of a female Hindu dying intestate shall devolve upon her mother and
father.

Fourth Preference: In case of the absence of her own children and husband, the heirs of the
husband, her mother and father, and then the property of a female Hindu dying intestate shall devolve
upon the heirs of her father.
Fifth and last Preference: In case of the absence of her own children and husband, the heirs of the
husband, her mother and father, the heirs of her father, and then the property of a female Hindu dying
intestate shall devolve upon the heirs of the mother.
THE POSITION OF A DAUGHTER IN THE HINDU SUCCESSION ACTS (SN)
SCOPE: Before the Hindu Succession Act, 1956, the Hindu females had no equal rights with the
males. They were entitled only Woman’s Estate (Limited Estate) and Stridhan. Section 14
abolished both of them. Now the woman enjoys full rights over her property as an absolute owner.
The major change brought is that the female Hindus are equally treated with male Hindus. The Act
1956 classifies the Heirs in Two Classes. These two classes are given in the Schedule. Class-1
includes son, daughter, widow, mother, son of a pre-deceased son, daughter of a pre-deceased
daughter: widow of a pre-deceased son; son of a pre-deceased son of a predeceased son; daughter
of a pre-deceased son of a pre-deceased son; widow of a pre-deceased son of a pre-deceased son.
The daughter is equally treated with the son.
Still there was a defect in Section 6 of the HinduSuccession Act, 1956, giving priority to sons in the
partition of a Coparcenary/joint Hindu family. The Andhra Pradesh State Government enacted “The
Hindu Succession (AP. Amendment) Act, 1986” giving equal rights to daughter in the coparcenary
property, giving a cut-off date of marriage. States of Maharashtra, Tamil Nadu, Karnataka, etc., followed
the A.P. State Amendments. It gave confusion between the High Courts. To resolve such confusion,
the Central Government has enacted “The Hindu Succession Amendment Act, 2005”.

The Act of 2005 has completely changed Section 6, and added daughter and her heirs in Schedule.
Originally Schedule was meant for only males. These are major steps brought by the Act of 2005.
While the State Amendments gave cut-off dates, the Central Act does not give such cut-off date.
Now according to the provisions of the Act of 2005, even a ninety years aged woman can also claim
her irght in the partition of a coparcenary property.
Example: A-a Hindu died leaving one daughter and one son. Before the Act of 1956, only the son
used to take the entire property of A. If there is no son, but son of a pre-deceased son, the son of a
pre-deceased son was entitled to take entire property of A, leaving daughter and her heirs without a
share. But now, the daughter is entitled 1/2 share along with the son. If the daughter is pre-deceased,
her sons or daughters are entitled to get the 1/2 share. It is a radical change in the Hindu Succession.
Before the Hindu Succession Act, 1956, only the father was entitled to take the share from the property
of his pre-deceased son. But now father is included in Class-ll List. Instead of father, now
mother is brought in the Class-1 List, and now the mother is entitled to a share. Father is excluded
from Class-1 Heirs.

In Class-ll list, sister, sister’s daughter, mother’s sister, etc., such female heirs are included.
The Hindu Succession Act, 1956 has made profound changes in the position of the daughter in
Hindu law, and also other female heirs. The Hindu Succession Amendment Act 2005 has brought
132 The Family Law -1 (The Hindu Law)

radical changes in the succession of female. The entire succession system has been re-arranged,
rather we can say, it is secularised and equalised. The daughters are given equal status,
opportunities and rights, and even in some circumstances more convenient rules are framed in
favour of the female heirs.

SCHEDULE: Originally Schedule was incorporated in the Hindu Succession Act, 1956 for males
only under Section 8. The Hindu Succession Amendment Act 2005 (Central Act No. 39 of2005)
has brought several changes in the Hindu Succession. The object of the 2005 Act is to bring daughter
equally with son. Therefore, the Act of 2005 has added a list of heirs of female in Schedule.
There are no changes in Section 8. which narrates the provisions relating to “General rules of
succession in the case of males”. However, Schedule, which was framed basing on Section 8.
has been modified by the Hindu Succession Amendment Act, 2005. The Class-1 Heirs of daughter,
entitled to claim interest/share in the coparcenary property, have been added newly to Schedule by the
new 2005 Act as follows;—

(a) son of a pre-deceased daughter of a pre-deceased daughter;

(b) daughter of a pre-deceased daughter;
(c) daughter of a pre-deceased daughter of a pre-deceased son of a pre-deceased daughter;
(d) daughterof a pre-deceased daughter of a pre-deceased son.

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 The Family Law - I (The Hindu Law) 133

6.E. FUNDAMENTAL CHANGES BROUGHT BY

THE HINDU SUCCESSION ACT, 1956
Q.l. “The Hindu Succession Act has brought some radical changes in the Law of Succession without abolishing the joint family and
joint family property.” — Comment. (Aug., 2004, O.U.) (Anl., 2004, K.U.)
[Also refer to Topic “Changes brought by the Hindu Succession Amendment Act, 2005”.]
Q.2. Explain the changes made by the Hindu Succession Act, 1956. (Dec., 2005, B.U.) (June, 2004, B.U.)
ANSWER:

Fundamental changes brought by the Hindu Succession Act, 1956

Old Law (Before the Act of 1956) The Hindu Succession Act, 1956
1. There were two schools - (i) Mitakshara and 1. The Act of 1956 brings all the schools into a
(ii) Dayabhaga governing the Hindu succession uniform system.
before the Act of 1956.

2. There was a distinction between male and 2. The Act makes no distinction between male
female heirs. Only male heirs were regarded. and female heirs, except in case of
coparcenary properties, where male was given
priority. (This defect is removed by the Hindu
Succession Amendment Act, 2005. Now
daughter is equal to son.)
3. The rule of preference is based on right to offer 3. The order of succession provided by the Act is
pinda or propinquity of blood. based on the concept of love and affection.
4. The rule of preference is based on right to offer 4. The Act provides simple rule of preference and
pinda or propinquity of blood. where no preference can be made, heirs take
simultaneously.
5. There was no such right in previous law. 5. The Act has given the rights to a certain female
heirs to succeed to the interest of a Mitakshara
coparcener. (This defect is removed by the
Hindu Succession Amendment Act, 2005.
Now daughter is equal to son.)
6. There was “Stridhan” and “Women’s Estate” 6. The Act abolished “Stridhan” and “Womens
(Limited Estate) in previous law. Estate”. (Sec. 14)
7. There was a lot of confusion and disorder in 7. The Act made the provisions very clearly the
computing the order of succession among order of succession of agnates or cognates as
agnates or cognates. the case may be. (Sec. 12)
8. There were no clear provisions in the old law 8. The Act gives an unmarried woman, a widow, or
pertaining to these circumstances. a woman deserted by or separated from her
husband, the right of residence in her father’s
home under Sec. 23. In fact, the right of
residence is not necessary to a daughter now.
Being she is given equal right to the daughter,
she can claim partition under the provisions of
the Hindu Succession Amendment Act, 2005.
Now daughter is equal to son.
9. The diseased, defective or deformative 9. Disease, defect or deformity is no ground of
person was generally excluded from Inheritance exclusion from inheritance under Section 28 of
in the old law. the Act.

10. There was no such right existed in the old law. 10. The Act entitles a male Hindu to dispose of his
interest in coparcenary property and also self
acquired property by will under Sec. 30.
Section 30 was substituted by the Hindu
Succession Act, 2005. Now there is no
distinction between male and female.Any
Hindu can dispose of his interest in coparcenary
property.
11. There was no uniform order of succession. 11. Schedule incorporated under Sec. 8 provides
the uniform order of succession governing the
property of a male Hindu. Sec. 15 provides the
uniform order of succession governing the
property of a female Hindu.
12. There was a system of impartible estates. 12. The Act abolishes the impartible estates not
created by statutes.
134 The Family Law -1 (The Hindu Law)

13. There was no such type of organised method in 13. A Schedule is appended to the Act. The
the old law. It arose several difficulties and Schedule contains Two Classes of Heirs. Class-
disputes, injustices, inconveniences, etc. I are preferable heirs than Class-11. In arranging
such classes, several aspects are taken into
consideration. Females are given equality with
males. Love and affection play important role in
arranging the two tiers of classes. The Hindu
Succession Act, 2005 has widened the scope
of daughter and has added daughter’s heirs in
the Schedule.

14. There was no organised or proper system in that 14. The right of child in womb at the intestate’s
circumstance. death and subsequently born alive, shall relate
back to the date of intestate’s death. (Sec. 20)

6.F. CHANGES INTRODUCED IN THE

HINDU SUCCESSION ACT, 1956
BY THE A.P. ACT OF 1986

Q.1. Explain the changes brought by the Hindu Succession (A.P. Amendment) Act, 1986 in the Law of Succession.
(Feb., 2005, O.U.)(Anl., 2004, P.U.)
Q.2. Explain the salient features of the Hindu Succession (Andhra Pradesh Amendment) Act, 1986.
(Feb., 2004, O.U.) (July, 2003, O.U.) (Dec., 2001, O.U.)
[Also refer to Topic “Changes introduced in the Hindu Succession Amendment Act, 2005”.]

Q.3. The Hindu Succession (A.P. Amendment) Act, 1986. (SN) (Anl., 2003, K.U.)
Q.4. The Hindu Succession (Karnataka Amendment) Act, 1994. (SN) (Dec., 2002, GU.)
ANSWER:

SCOPE: The Hindu Succession Act, 1956 has made profound changes in the position of the women
in Hindu Law. The Act made the females equal with those of males. Daughter, wife, daughter of a
pre-deceased son, daughter of a pre-deceased daughter, daughter of a pre-deceased son of a pre
deceased son, widow of a pre-deceased son of a pre-deceased son are included in the Class-1 Heirs,
who are the preferential heirs than Class-il. Before the Act, all of them were kept aside, and they were
only given women’s estate. But now, the Act of 1956 made all of them with equal powers of the male
heirs.

DEFECTS IN THE HINDU SUCCESSION ACT, 1956: The Hindu Succession Act, 1956 has brought
several drastic changes in the Hindu succession. However, still there were defects in that Act, i.e., in
the coparcenary property, female were excluded. Section 6 was constructed basing upon the old
Hindu Law, according to which the males were only entitled to claim a share in the partition of a
coparcenary property. Section 30 empowered the male Hindu to dispose his interest in a
coparcenary property by way of will. These were the main defects. This defect in the Hindu
Succession Act, 1956 has created the evil dowry system in the Hindu community. Later it crept to
other communities also.

With an intention to remove these defects, the A.P. State Government enacted The Hindu Succession
(Andhra Pradesh Amendment) Act 1986 (Act No. 13 of 19861. which came into retrospective
effect from 5th September, 1985. The A.P. Act has given the right to claim share/interest in the
coparcenary property to a daughter. Chapter-li-A containing Sections 29-A. 29-B and 29-C. was
inserted in the Hindu Succession Act, 1956, applicable to the A.P. State by the A. P. Act 13 of 1986,
which gives more power to daughter.
OBJECTS AND REASONS OF THE 1986 ACT: The Hindu Succession Act, 1956 governs the
property rights of Hindus and provides for devolution of property. Women are not members of the
coparcenary under the old Hindu Mitakshara law and therefore they were not entitled to claim partition
in co-parcenary property, and such exclusion of daughters has led to the creation of socially pernicious
dowry system with its attendant social ills. In order to eradicate this ill by positive means which will
simultaneously ameliorate the conditions of women in Hindu Society, it is proposed to confer equal
rights on Hindu women along with the male members so as to achieve the constitutional mandate of
equality by suitably amending the said Act.
“Sec. 29-A. Equal rights to daughter in coparcenary property.— Notwithstanding anything contained in Section 6
of this Act,—

(i) in a joint Hindu Family governed by Mitakshara iaw, the daughter of a coparcener shail by birth become a coparcener
in her own right in the same manner as the son and have the same rights in the coparcenary property as she would
have had if she had been a son, inclusive of the right to claim by survivorship and shall be subject to the same liabilities
and disabilities in respect thereto as the son,
 The Family Law - I (The Hindu Law) j 135

(ii) (a) at a partition such a Joint Hindu Family the coparcenary property shall be so divided as to allot to a daughter the
same share as is allotable to a son:

Provided that the share which a pre-deceased son or a pre-deceased daughter would have got at the partition if he or she
had been alive at the time of the partition shall be allotted to the surviving child of such pre-deceased son or of such pre
deceased daughter:

Provided further that the share allotable to the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, if
such child had been alive at the time of the partition, shall be allotted to the child of such | pre-deceased child of the pre
deceased son or of the pre-deceased daughter as the case may be;
(ii) (b) the share allotted to a female at a partition shall be held by her, subject to the terms of the partition, as a full owner;
(iii) when a partible property includes a dwelling-house wholly occupied by members of the joint Hindu family, then
notwithstanding anything contained in this Act, the right of a female coparcener to clairn partition to the dwelling-house
shall not arise until the male coparceners choose to divide their respective shares therein; but the female coparcener
shall be entitled to a irght of residence therein if she is unmarried or has been deserted by or has separated from her
husband or is a widow; i

(iv) any property to which a female Hindu becomes entitled by virtue of the provisions of clause (i) shall be held by her with
the incidents of coparcenary ownership and shall be regarded notwithstanding anything contained in this Act or any
other law for the time being in force, as property capable of being disposed of by her by will or other testamentary
disposition; i
(v) Nothing in clause (ii) shall apply to a daughter married prior to or to a partition which had been effected before the

commencement of the Hindu Succession (Andhra Pradesh Amendment) Act, 1986.

Sec. 29-B. Interest to devolve by survivorship on death.— When a female Hindu dies after the commencement of the
Hindu Succession (A.P. Amendment) Act, 1986 having at the time of her death an interest in a Mitakshara coparcenary
property, her interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not
in accordance with this Act:

Prpvided that if the deceased had left any child or child of a pre-deceased child, the interest of the deceased in the
Mitakshara co-parcenary property shall devolve by the testamentary or intestate succession, as the case may be, under this
Act and not by survivorship.

Explanation-1:— For the purposes of this Section, the interest of a female Hindu Mitakshara coparcener shall be deemed
to be the share in the property that would have been allotted to her if a partition of the property has taken place immediately
before her death irrespective of whether she was entitled to claim partition or not. ;
Explanation-2:— Nothing contained in the proviso to this section shall be construed as enabling a person who, before
the death of the deceased, had separated himself or herself from the co-parcenary or any of his or her heirs to claim on
intestacy a share in the interest referred to therein.

Sec. 29-C. Preferential right to acquire property in certain cases:— (1) Where, after the commencement of the
Hindu Succession (Andhra Pradesh Amendment) Act, 1986 an interest in any immovable property of an intestate or in any
business carried on by him or her, whether solely or in conjunction with others, devolves under Section 29-A or Section 29-
6 upon two or more heirs, and anyone of such heirs, proposes to transfer his or her interest in the property or business, the
other heirs shall have a preferential right to acquire the interest proposed to be transferred.
(2) The consideration for which any interest in the property of the deceased may be transferred under this section shall, in
the absence of any agreement between the parties, be determined by the Court on application being made to it in this behalf,
and if any person proposing to acquire the interest is not willing to acquire it for the consideration so determined, such person
shall be liable to pay all costs of or incidental to the application.

(3) If there are two or more heirs proposing to acquire any interest under this section, that heir who offers the highest
consideration for the transfer shall be preferred.
Explanation:— In this Section “Court” means the Court within the limits of whose jurisdiction the immovable property is
situate or the business is carried on, and includes any other Court which the State Government may, by notification in the
Andhra Pradesh Gazette, specify in this behalf.”

Afterthe Hindu Succession (Andhra Pradesh Amendment) Act, 1986, the State of Tamil Nadu enacted
it

The Hindu Succession (Tamil Nadu Amendment) Act, 1990 (Tamil Nadu Act No. 1 of 1990),
w.e.f. 25-3-1989, following the similar provisions of the Andhra Pradesh Act.
Afterthe Hindu Succession (Andhra Pradesh Amendment)Act, 1986, the State of Maharashtra enacted
ti

The Hindu Succession (Maharashtra Amendment) Act, 1994 (Maharashtra Act No. 39 of 1994),
w.e.f. 22-6-1994, following the similar provisions of the Andhra Pradesh Act.
Afterthe Hindu Succession (Andhra Pradesh Amendment)Act, 1986, the State of Karnataka enacted
it

The Hindu Succession (Karnataka Amendment) Act, 1994 (Karnataka Act No. 23 of 1994), w.e.f.
30-7-1994, following the similar provisions of the Andhra Pradesh Act.
All these States’Amendments gave equal rights to daughter a right and interest in the coparcenary
property eqally with that of a son. The same concept has been taken by The Hindu Succession
Amendment Act, 2005 (Central Act No. 39 of 2005). Now the States’Amendments are not in function.
Hence reading of the A.P. State Amendment, and particularly the CentralAct No. 39 of 2005, one can
easily understand the changes brought by these Amendments, and write the necessary answer in the
examination.

One who creates the opportunities and new ways, he is the best leader. One who follows the best leader is
a good person. One who does not create any thing, does not follow any best leader, and does nothing, is not
useful to the society and even to himself and his family. Such a person cannot attain any prosperity and
development in his life. Bhartruhari.
 136 The Family Law -1 (The Hindu Law)

6.G. CHANGES INTRODUCED IN THE

HINDU SUCCESSION ACT, 1956
BY THE CENTRAL ACT OF 2005 (ACT No. 39 of 2005)
Q.l. Write a note on the Hindu Succession (Amendment) Act, 2005. (May, 2008, O.U.)
Q.2. Can the female heir ask for partition in respect of dwelling house wholly occupied by a Joint Family? (Dec., 2006, B.U.)
Q.3. What are the Rules of Succession as to Dwelling House under the Hindu Law. (Sept., 2005, O.U.)
Q.4. Examine the status of a Hindu woman as a heir. (Feb., 2004, O.U.)
Q.5. Examine the judicial approach to the problem of female’s right in dwelling house in the light of the Hindu Succession Act provisions.
(Dec., 2003, S.V.U.)
Q.6. Dwelling House. (SN) (May, 2008, O.U.)
Q.7. "Rule of survivorship does not apply - But the Rule of Deemed Partition applies" — Discuss. (SN)
ANSWER:

CHANGES BROUGHT BY THE HINDU SUCCESSION AMENDMENT ACT, 2005

(ACT No. 39 of 2005)
INTRODUCTION: After the Hindu Succession (Andhra Pradesh Amendment) Act, 1986, the State of
Tamil Nadu enacted “The Hindu Succession (Tamil Nadu Amendment) Act, 1990 (Tamil Nadu Act
No. 1 of 1990), w.e.f. 25-3-1989, following the similar provisions of the Andhra Pradesh Act.
After the Hindu Succession (Andhra Pradesh Amendment) Act, 1986, the State of Maharashtra enacted
“The Hindu Succession (Maharashtra Amendment) Act, 1994 (Maharashtra Act No. 39 of 1994),
w.e.f. 22-6-1994, following the similar provisions of the Andhra Pradesh Act.

After the Hindu Succession (Andhra Pradesh Amendment) Act, 1986, the State of Karnataka enacted
“The Hindu Succession (Karnataka Amendment) Act, 1994 (Karnataka Act No. 23 of 1994), w.e.f.
30-7-1994, following the similar provisions of the Andhra Pradesh Act.

The result was that different High Courts began to give different judgments pertaining to the Hindu
coparcenary properties. It has created confusion in the Hindu community. The women N.G.Os.
agitated and brought this discrepancy before the Parliament. The Law Commission of India had
submitted a Report to the Central Government stating the necessity of enacting a Central Act.
As a result, the Indian Parliament enacted “The Hindu Succession Amendment Act, 2005” (Act No.
39 of 2005) came into force with effect from 9th September, 2005, through out India. As the Central
Act has come into force through out the country, the State Amendment Acts have become dead. Still,
the Andhra Pradesh Amendment Act, 1986 is produced above in the academic interest only.
IMPORTANT CHANGES:

A. Section 4 of the original Hindu Succession Act, 1956 contained two sub-sections. Sub-section
(2) of Section 4 was omitted by The Hindu Succession Amendment Act, 2005. The repealed sub
section (2) read: “For the removal of doubts it is hereby declared that nothing contained in this Act
shall be deemed to affect the provision of any law for the time being in force providing for the prevention
of fragmentation of agricultural holdings or for the fixation of ceilings or for the devolution of tenancy
rights in respect of such holdings.”
B. Substitution of Section 6: Section 6 in the Act of 1956 was meant “devolution of interest in
the coparcenary property for maies only”. The Central Act, 2005 framed a new Section 6, and
substituted in place of the old Section 6. According to the provisions of the new Section 6, now the
devolution of interest in the coparcenary property equalised to males and females. According to old
Section, a female was not a coparcenary in the coparcenary family, and she could not claim any right
or interest or partition in the coparcenary property. Now, according to new Section, a female is a
coparcenary in the coparcenary family, and she can claim right or interest or partition in the coparcenary
property. Not only the female’s heirs are also entitled to claim such interest or right or partition in the
coparcenary property. This is the revolutionary change brought by the Central Act, 2005.
C. Rights of a Daughter in the coparcenary property: According to sub-section (2) of Section 6,
any property to which a female Hindu becomes entitled by virtue of sub-section (1),
(i) she can hold such property with the incidents of coparcenary ownership, and
(ii) she can dispose such property by testamentary disposition.
D. Rule of survivorship does not appiy - But the Ruie of Deemed Partition applies: According
to Sub-section (3) of Section 6, where a Hindu dies after the commencement of the Hindu Succession
(Amendment) Act, 2005, his interest in the property of a Joint Hindu family governed by the
Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under
 The Family Law - I (The Hindu Law) 137

this Act and not by survivorship, and the coparcenary property shall be deemed to haye been
diyided as if a partition had taken place and,—
(a) the daughter is allotted the same share as is allotted to a son;
(b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got
\ had they been alive at the time of partition, shall be allotted to the surviving child of such
pre-deceased son or of such pre-deceased daughter; and
(c) the share of the pre-deceased child of a pre-deceased son or of a pre-deceased
daughter, as such child would have got had he or she been alive at the time of the partition,
shall be allotted to the child of such pre-deceased child of the pre-deceased son or a
pre-deceased daughter, as the case may be.
E- Every disposition or alienation including any partition or testamentary disposition of property
should be registered deed or decreed bv a court: Explanation appended to sub-section (5) of
Section 6 of the Hindu Succession Act, 1956, as is inserted by the Central Act, 2005, makes it
compulsory to recognise the “Partition” that for the purposes of this Section, every partition must
have been executed and registered under the Indian Registration Act 1908. partition effected by
a Decree of a Court, and has been effected before the 20th day of December. 2004.

Before the Central Act, 2005, and according to the old Hindu laws of succession. Partition may be by
fixing the shares and/or by fixing the metes and bounds. The oral partitions or written partitions were
also accepted as proof evidence by the Court. Registration of Partition was not compulsory. It was
only optional.

Now under the new provisions of Section 6, every partition must have been executed and registered
under the Indian Registration Act. 1908. partition effected by a Decree of a Court, and has been
effected before the 20th day of December, 2005.

This is the drastic change. It affects on the majority of partitions of the Hindu coparcenary properties,
which were partitioned some 60 years or ninety years ago. The majority of the partitions were not
registered. The majority of partitions did not approach the Court of Law for Decree of Partition. There
may be a few occasions, rather than we can say one or two per cent of the total partitions, which had
approached the Court for partition. Even a ninety years aged woman and her heirs can claim her
right, interest and partition of a Hindu coparcenary property.
F. Abolition of the Doctrine of Pious Obligation: Sub-section (4) of Section 6 abolishes the
Doctrine of Pious Obligation. According to sub-section (4), after the commencement of the
Hindu Succession (Amendment) Act, 2005, any Court shall not recognise any right to proceed
against a son, grandson or great-grandson for the recovery of any debt due from his father,
grandfather or great-grandfather solely on the ground of the pious obligation under the Hindu
law, of such son, grandson or great-grandson to discharge any such debt.
G. Special Provision respecting dwelling houses: In the old Hindu law of succession, the
females were excluded from partition. However, in certain occasions, i.e., widow, the females were
given right of residence and maintenance in the dwelling house of the coparcenary family/properties.
The same concept was incorporated in Section 23 of the Hindu Succession Act, 1956.
As the right of interest or partition is given to the females by the new provisions of Section 6 by the
Central Act, 2005, the framers felt that now there is no necessary and meaning for providing special
provision respecting dwelling houses for the females. Right to claim interest, share and partition
is more stronger than the mere right to residence and maintenance. That is why. Section 23 was
omitted from the Hindu Succession Act, 1956 by the Central Act, 2005, with effect from 9-9-2005.
H. Certain widows re-marrying may not inherit as widows: The original provisions of Section 24
of the Hindu Succession Act, 1956 imposed condition that certain widows re-marrying should not
inherit as widows.

“Section 24. Certain widows re-marrying may not inherit as widows.— Any heir who is related to an intestate as
the widow of a pre-deceased son, the widow of a pre-deceased son of a pre-deceased son or the widow of a brother shall
not be entitled to succeed to the property of the intestate as such widow, if on the date the succession opens, she has re
married.”

Section 24 was constructed as a disqualification for a widow, if she would re-marry. The Hindu
Succession Amendment Act, 2005 has omitted Section 24 from the Hindu Succession Act, 1956.
The affect of such omission of Section 24 is that a re-married woman is also entitled to devolve the
interest, right and share in the Coparcenary property. This is also one of the important changes
brought by the 2005 Act.
i. Testamentary Succession: The original Section 30 of the Hindu Succession Act, 1956 empowered
any male Hindu to dispose of any property by will or other testamentary. Thus a male Hindu was
138 The Family Law -1 (The Hindu Law)

empowered to dispose his share' in the coparcenary property. This right was not given to female
Hindu, as she was not considered as a coparcener. The original Section is given as follows:
“Sec. 30. Testamentary Succession.— Any Hindu may dispose of by wiil or other testamentary disposition any property,
which is capabie of being so disposed of by him in accordance with the provisions of the indian Succession Act, 1925 (39
of 1925), or any other iaw for time being in force and appiicable to Hindus.
Explanation:— The interest of a male Hindu in a Mitakshara coparcenary property or the interest of a maie member
of tanward, tawazhi, iliom, kutumba or kavaru in the property of the tanward, tazhi, iiiom, kutumba or kavaru shaii notwithstanding
anything contained in this Act or in any other iaw for the time being in force, be deemed to be property capable of being
disposed of by him or by her within the meaning of this section.”

The Hindu Succession Amendment Act 2005 made changes in Section 30 and substituted certain
words, and thus empowering any Hindu (male or female) to dispose his share in the coparcenary
property. Now the substituted Section 30 runs as thus:
“Sec. 30. Testamentary Succession.— Any Hindu may dispose of by will or other testamentary disposition any
property, which is capable of being so disposed of by him or by her in accordance with the provisions of the Indian
Succession Act, 1925, or any other law for the time being in force and applicable to Hindus.

Explanation:— The interest of a male Hindu in a Mitakshara coparcenary property.or the interest of a member of a

tarwad, tavazhi, illom, kutumba or kavaru in the property of the tarwad, havazhi, illom, kutumba or kavaru shall
notwithstanding anything contained in this Act or in any other law for the time being in force, be deemed to be property
capable of being disposed of by him or by her within the meaning of this Section.”

According to the changes brought in Section 30 by the Act of 2005, any Hindu (maie or female) can
dispose any property„inciuding the share in the coparcenary property.
J. Incorporation of daughter and her heirs in the Schedule: There is only one Schedule
appended to the Hindu Succession Act, 1956. Schedule has been incorporated under Section 8.
Originally Section 8 was meant for “General Rules of Succession in the case of maies”. By
substituting Section 6. the Act of 2005 has brought daughter equal to son. Therefore, the Act of
2005 has added the list of daughters, great-daughters, grand-great-daughters, and their heirs in
Schedule. Thus the femaies are equalized with males.
CONCLUSION: The Hindu Succession Amendment Act, 2005 has brought several drastic
changes in the Hindu Succession Act, 1956. Due to the Hindu Succession Act, 1956, the evil
system of dowry, dowry suicides, dowry deaths, matrimonial cruelty, etc., crept in the Hindu
community through out India. Even it has crept to the Hindus migrated to abroad. We hear and read
such news in the newspapers and see in TVs. After commencement of the Hindu Succession Act,
1956, this evii system started and spread through out India, and also spread in other religious
communities also. The Indian Parliament made several Acts, i.e.. The Dowry Prohibition Act, 1961,
and brought several changes and criminal provisions in the Indian Evidence Act, 1872, the Criminal
Procedure Code, 1973, the Indian Penal Code, 1860, etc., but in vain.
In fact, the source of dowry is our old succession laws, customs and the Hindu Succession Act,
1956. Lastly, the Indian Parliament amended the provisions of the Hindu Succession Act, 1956 by
enacting The Hindu Succession Amendment Act, 2005 (Act No. 39 of 2005) and making a Hindu
daughter equal to a Hindu son in inheriting the coparcenary and self-acquired properties. We hope
this will do good to entire country, and particularly to the Hindu Community, which consists 82% of the
population of the country.
DEFECTS: During the tenure of Late N. T. Rama Rao. the then Chief Minister of A.P., the Andhra
Pradesh State Government inserted Sections 29-A. Section 29-B and Section 29-C in the Hindu
Succession Act, 1956 by the Hindu Succession (Andhra Pradesh Amendment) Act, 1986, with
effect from 5-9-1985. This was the First Legislation in the Hindu Succession laws giving equal
rights and devolution of interest in coparcenary property to a daughter. However, there was a cut-off
date in the Act of 1986. Clause (v) of Section 29-A of the 1986 Act provides: “nothing in clause (ii)
shall apply to a daughter married prior to or to a partition which had been effected before the
commencement of the Hindu Succession (A.P. Amendment) Act, 1986.”
Therefore, the daughters married prior to or to a partition, which had been effected before the
commencement of the Act of 1986, were clearly excluded from the devolution of interest in the
coparcenary property.
The Hindu Succession (Amendment) Act No. 39 of 2005 was enacted by the Central Government,
which came into effect from 9th September. 2005. Drastic changes have been occurred in the
Hindu Succession Act, 1956 by The Hindu Succession (Amendment) Act No. 39 of 2005. Old
Section 6 has been substituted with new construction. After commencement of the Central Act
No. 39 of 2005, the State Acts and Amendments will be deemed to have extinguished.
Due to these drastic changes, now the position of a daughter in a coparcenary family has become
equal to that of a son. The distinguishing feature of the Central Act No. 39 of 2005 is that there is
no cut-off date in this Act, as was provided in the A.P. Amendment Act, 1986.
 The Family Law -1 (The Hindu Law) 139

The only cut-off provision incorporated in the Act of 2005, i.e., Explanation to Section 6. is that if
there is a registered partition or a partition effected by a decree of a Court.
Under the provisions of the originalActof 1956, the Courts were empowered to accept the registered,
written and even oral evidence of partition. Under the old Act, registration of a partition was not
compulsory. A written or oral partition itself was sufficient.
If there is a registered partition deed between the male heirs of a coparcenary property before the 2005
Act, then the female cannot challenge and claim any share. Before the 2005 Act, even now, there is
no compulsory provision forthe registration of the partition. No Hindu would care about the registered
partition, as it was only optional. Before the 2005 Act, the oral partition and unregistered written
documents were also accepted as the proof of partition. But now, this is not the position. Only
registered documents are recognised by Section 6. If there is no registered partition deed prior to the
2005 Act, then every daughter of a coparcenary family can claim a share in it. Then what about the
dowry and/or pasupu kumkuma given to the daughter at the time of the marriage, and the marriage
expenses of such a daughter incurred by father or the coparcenary family. This is not solved by the
2005 Act.

Therefore, the disputes also have been increasing through out the country, since the enacting of Act 39
of 2005. Before the 2005 Act, only male heirs of a coparcenary were entitled to devolve the interest in
the coparcenary property. However, the Act, 2005 has made the daughters equal to devolve the
interest in the coparcenary property.
The newly incorporated provisions in the Central Act No. 39 of 2005 have paved the way to property
disputes through out the country. Even a ninety years aged woman also is entitled to devolve the
interest/share in the coparcenary properties under Section 6. The Act of 2005 gives much scope for
the disputes and increase of cases through out the country.

6.H. RIGHT OF DWELLING HOUSE [Sec. 23 Repealed] (SN)

Q.l. Explain the legal provisions about the “Right of Dwelling House” of a Hindu under the Hindu Succession Act, 1956.
ANSWER:

[Law Before the Hindu Succession Amendment Act, 2005]

SCOPE: Section 23 of the Hindu Succession Act, 1956 laid down the special provision in respect of
dwelling house:
Sec. 23. Special Provision respecting dwelling houses.— Where a Hindu intestate has left surviving him or her both
male and female and female heirs specified in Class-1 of the Schedule and his or her property includes a dwelling house
wholly occupied by members of his or her family, then, notwithstanding anything contained in this Act, the right of any such
female heir to claim partition of the dwelling house shall not arise until the male heirs choose to divide their respective shares
therein; but the female heir shall be entitled to a right of residence therein:
Provided that where such female heir is a daughter, she shall be entitled to a right of residence in the dwelling house only if
she is unmarried or has been deserted by or has separated from her husband or is a widow.
COMMENT: The Object of this Section was to respect one of the ancient Hindu tenets. It also intended to safeguard the
ancestral property from fragmentation or disintegration. It was intended to give protection and shelter to an unmarried
daughter, widow, a daughter deserted or divorced by her husband.

Section 23 applied both male or female who died intestate. The beneficiaries of this Section were
limited to Class-1 Heirs. The property must be a dwelling house. Such house must have been
occupied by his or her family members. Section 8 gives a right of claim to partition to female heirs.
However, Section 23 curtailed it, in an auspicious aspect. At that time, a female heir was not entitled
to a right of partition of the dwelling house, until the male heirs chose to divide.
Till the division/partition, female heirs were entitled to a right of residence. In the case of a daughter,
this right of residence was available only if she was unmarried or was a widow or was living away from
her husband. However this position has been changed by the following case-law:
# Pulsing Ram Singh Rajput and another (Appeiiants) vs. Durgabai,
W/o. Shivsingh Rajput (Respondent) (AIR 1997 Bom. 201)
Brief Facts: This case-law refers to the partition of coparcenary property, and particularly to partition
of ‘dwelling house’ under Section 23 of the Hindu Succession Act, 1956.
One Ram Singh was the main propositor of the family, who was the material grand-father of plaintiff/
respondent. Said Ramsingh was having four sons, viz., (i) Rustam (Defendant-1), (ii) Fulsingh
(Defendant-2), (iii) Tukaram; and (iv) Gulabsingh-father of Durgabai.
Tukaram, one of the sons of Ramsingh was also dead. Defendant No. 3 Ramdas was the son of
Tukaram. The father of the respondent Gulab Singh expired on 8-5-1957. At the time of death of
Gulab Singh, there was a joint family and coparcenary of defendant Nos. 1 to 3 and his deceased
brother Tukaram. The suit property was the joint family property of the said family.
 140 The Family Law -1 (The Hindu Law)

Durgabai filed a suit claiming her one-fourth share in the suit property contending that she was the
daughter of Gulab Singh, who had one-fourth share in the ancestral property, and she being the daughter
of Gulab Singh, who died, was entitled to that share. Other coparceners opposed the claim contending
that Durgabai, being wonrian, was not the member of their Hindu Joint Family/Coparcenary and that
they were residing in the dwelling house and had adversary possession over it, and that her claim was
time-barried under Article 65 of the Limitation Act, 1963. Finally it reached to the doors of the
Mumbai High Court.
JUDGMENT: The Mumbai High Court gave judgment in favour of the respondent, i.e., Durgabai,
holding that she was entitled to 1/4th share in the ancestral property, being she was the only child of
Late Gulab Singh, who was the coparcener of the joint family, and she was entitled to 1/4th share in
the dwelling house.
PRINCIPLES: (i) The possession of one co-owner can not be said to be adverse to the other co
owners, unless the person claiming his possession adverse satisfies not only denial of title of other
co-owners but has to prove ouster of other co-owners. Even though one of the co-owners is not in
physical possession of the property, law treats that he is in possession of the said property,

f-
(ii) The possession of one of the co-owners is the possession of all co-owners is a settled
principle of law, unless and until there is an ouster of the co-owner,
(iii) A coparcener died intestate, while in jointness with his brothers, leaving behind only a daughter as
his class I heir. The daughter demanded partition about 5/6 years after her marriage and filed a suit 12
years after her father’s death. The evidence on record established that there was no ouster or
exclusion of the daughter from the property by surviving coparceners of the deceased. Her marriage
was performed by them which was indicative of the fact that the relations between them were cordial
and, therefore, she must not have claimed her share in the suit property. Thus there was no adverse
possession so as to bar the suit under Article 65 of the Limitation Act, 1963.
[PRESENT POSITION AFTER THE HINDU SUCCESSION AMENDMENT ACT, 2005]
Special Provision respecting dwelling houses: In the old Hindu law of succession, the females
were excluded from partition. However, in certain occasions, i.e., widow, the females were given right
of residence and maintenance in the dwelling house of the coparcenary family/properties. The same
concept was incorporated in Section 23 of the Hindu Succession Act, 1956.
As the right of interest or partition is given to the females by the new provisions of Section 6 and
amendment of Schedule incorporating females by the Hindu Succession Amendment Act, 2005
(Central Act No. 39 of 2005), the framers felt that now there is no necessary and meaning for providing
special provision respecting dwelling houses for the females. Right to claim interest, share and
partition is more stronger than the mere right to residence and maintenance. That is why. Section
23 was omitted from the Hindu Succession Act, 1956 by the Central Act, 2005, with effect from 9-9-
2005. Therefore, Section 23 is not in force w.e.f. 9-9-2005.

6.I. DISQUALIFICATIONS [Ss. 24-28]

Q.l. Write a short note on disqualification relating to succession. (SN) (May 2003, N.U.)
Q.2. Disqualifications under the Hindu Succession Act. (SN) (June, 2004, B.U.)
Q.3. Murderer & Abetter in the law of inheritance. (SN)
Q.4. Status of a re-married widow to inherit the property. (SN)
Q.5. Effect of Conversion to inherit the Hindu joint family property. (SN)
Q.6. AIDS as a disqualification to inherit. (SN) (AnI., 2003, K.U.)
ANSWER:

SCOPE: Sections 24 to 28 of the Hindu Succession Act, 1956 provide about the disqualifications
from inheritance. ^

They are:—
1 ■ REMARRIAGE OF WIDOW: Section 24 imposes condition that “Certain widows re-marrying
may not inherit as widows”. The Hindu Succession Amendment Act, 2005 omitted Section 24 from
the Hindu Succession Act, 1956. Therefore, now re-marriage of a widow is not a disqualification
under this Act.

2. MURDERER AND ABETTOR: In the old Hindu jurisprudence, it has been mentioned about the
disqualification of the murderer. On the ground of public policy. Section 25 has been enacted, which
provides that the murderer cannot succeed to any property for inheriting which he had committed the
murder. Not only the murderer, but also any person abetting the offence is also disqualified. This
principle is based on justice, equity and good conscience.
 The Family Law -1 (The Hindu Law) 141

3. CONVERSION: Section 26 provides that where, before or after the commencement of this Act
(1956), a Hindu has ceased or ceases to be a Hindu by conversion to another religion, children born
to him or her after such conversion and the descendants shall be disqualified from inheriting the
property of any of their Hindu relatives, unless such children or descendants are Hindus at the time
when the succession opens. This Section does not apply to the children who born to the deceased
before the conversion.

4. Succession when heir disqualified: According to Section 27. if any person is disqualified from
inheriting any property under this Act, it shall devolve as if such person had died before the intestate.
5- DISEASE. DEFECT. ETC., ARE NOT DISQUALIFICATIONS: Section 28 provides that disea.se
defect or deformity are not the disqualifications to any person to succeed to any property. Blindness,
Deafness and dumbness, want of any limb or organ, congenial impotency, lunacy, idiocy, leprosy,
AIDS, etc., are not disqualifications.

6.J. ESCHEAT [Sec. 29]

Q.l. Escheat.
(SN)
ANSWER:

MEANING:

Escheat. = The reversion by forfeiture or failure of heirs; to take over forfeited property: to revert by
forfeiture or failure of heirs.

If an intestate has left no heir, such property shall devolve on the Government. The forfeiture of the
property to the Government due to failure of heirs, is called as “Escheat”.
SCOPE: Section 29 of the Hindu Succession Act, 1956 explains about “Escheat”.
SECTION-29:
“Sec.29. Failure of heirs.— If an intestate has left no heir qualified to succeed to his or her property in accordance with
the provisions of this Act, such property shall devolve on the Government; and the Government shall take the property
subject to all the obligations and liabilities to which an heir would have been subject."

6.K. TESTAMENTARY SUCCESSION [Sec. 30]

Q.l. wai.
(SN) (Dec., 2005, B.U.) (Anl., 2004, K.U.) (AnI., 2004, P.U.)
Q.2. Self-acquired Properties. (SN) (Dec., 2003, S.V.U.)
ANSWER:
MEANING:

testament, (n.) = A will of personal property,

testator, (n.) = A person, who executes a will,
testamentary succession. = Any person, who writes a will, transferring his property to another
person, is called “the testamentary succession”. The will is the testament, by which the property
shall go that particular person, in whom favour, the testator has written the will. The testator can
write as many wills, and can revoke them during his life time, as he wishes. The last will only
functions. Registration of a will is not necessary and compulsory. It is only optional. However, the
will must be proved beyond the reasonable doubts. The Indian Succession Act, 1925 lays down the
detailed provisions for the testamentary succession. The Indian Succession Act, 1925 applies to
the Hindus. Section 30 of the Hindu Succession Act, 1956, as amended by the Hindu Succession
Amendment Act, 2005, lays down that any Hindu (male or female) may dispose of his/her property by
testamentary disposition, i.e., by way of will,
intestacy, (n.) = Dying intestate, i.e., without leaving a will,
intestate succession. = Upon the death of a person, dying intestate, the property of the deceased
shall devolve to his heirs according to their shares, defined by the succession laws framed by the
religion and codified laws. The Hindu Succession Act, 1956, (containing Sections 1 to 29) as
amended by The Hindu Succession Amendment Act, 2005 (Act No. 39 of 2005) lays down the legal
provisions relating to the intestate succession of the Hindus (males and females).
Partial intestacy, (n.) = Partial intestacy means the leaving a will which validly disposes of part only
of the property, so that the rest goes as on an intestacy.
Escheat, (n.) = If a person, having property, dies without writing any will and without any heirs, the
Government is entitled to acquire such property. It is called “Escheat”.
142 The Family Law - I (The Hindu Law)
TESTAMENTARY SUCCESSION

[BEFORE THE HINDU SUCCESSION AMENDMENT ACT, 2005]

SCOPE; There are two types of succession - (i) intestate succession; and (ii) testamentary
succession. Sections 1 to 29 of the Hindu Succession Act, 1956 lay down the provisions for the
intestate succession. Section 30 of the Hindu Succession Act, 1956 lays down the provisions for the
testamentary succession.
Testamentary Succession: A Hindu has the power to dispose of his property by way of a will.
Whether the property may be acquired by himself, or he has an interest in the joint family. He can
dispose of his share in the joint family properties as per his own will and wish. The old Hindu
jurisprudence did not know the law of wills. The law of wills was introduced in the Hindu community by
the English jurisprudence during the English reign. More particularly, the succession laws of the
English law has been introduced in India by an enactment of “The Indian Succession Act, 1925”.
The old Hindu law after the Indian Succession Act, 1925 permitted the Hindu to dispose of his property
self acquired by way of a will. Certain restrictions were being continued to dispose the interest or
share in coparcenary joint family. Section 30 of the Hindu Succession Act, 1956 removed such bars
and restrictions. Now it is very clear that a Hindu can dispose of his self-acquired property or his
share in the joint coparcenary property by a will.
Old Section-30:
“Sec. 30. Testamentary Succession.— Any Hindu may dispose of by wili or other testamentary disposition any property,
which is capabie of being so disposed of by him in accordance with the provisions of the indian Succession Act, 1925 (39
of 1925), or any other iaw for time being in force and appiicabie to Hindus.
Explanation:— The interest of a maie Hindu in a Mitakshara coparcenary property or the interest of a maie member of
tarward, tawazhi, illom, kutumba or kavaru in the property of the tarward, tazhi, illom, kutumba or kavaru shaii nohwithstanding
anything contained in this Act or in any other iaw for the time being in force, be deemed to be property capabie of being
disposed of by him or by her within the meaning of this section.”

IMPORTANT POINTS :
A. Section 30 of the Hindu Succession Act, 1956 is the assertion of the general rule that a Hindu may
dispose of any property by will which is within his power to bequeath by any testamentary disposition.
B. The governing rules pertaining to “WILLS” shall be read with the Indian Succession Act, 1925.
C. The Explanation to Section 30 empowers a male Hindu in a Mitakshara coparcenary family or
the interest of a member in the property of a tarward, etc., to dispose of his share in the property by will.
D. Section 30 gives the right to every male coparcener to will away his interest in the joint family or
coparcenary property. This right was not given in the old Hindu Succession Law. This is a drastic
change.
E. EXAMPLE: Acoparcenary consists of a father and four sons. The father is entitled to execute a
will in respect of his 1/5th interest in the coparcenary property. Similarly the other coparceners can
also execute wills @ 1/5th share each.
F. The property passed to a legatee by a will becomes individual property of the legatee.
G. PROBLEM; A, a widow, acquired certain properties from her husband, and was enjoying the
properties as a limited estate. After the Hindu Succession Act, 1956 came into force, A dispose of
such properties under a will to others. Is A entitled?
SOLUTION: YES. A has become absolute owner after the Hindu Succession Act, 1956 came into
force, and she can dispose of the properties by way of a will. The facts of the Problem are identical
with the following case:—
Jwala Narasimha Reddy vs. Narayana Reddy (1978 AP ALT 407)
(Testamentary Disposition)
The Andhra Pradesh High Court held that a Hindu widow becoming under Section 14 full owner of the
property she had inherited with limited interest from her husband, prior to the Act is entitled under
Section 30 to dispose of that property by will.
TESTAMENTARY SUCCESSION

[AFTER THE HINDU SUCCESSION AMENDMENT ACT, 2005]

Testamentary Succession: The original Section 30 of the Hindu Succession Act, 1956 empowered
any male Hindu to dispose of any property by will or other testamentary. Thus a male Hindu was
empowered to dispose his share in the coparcenary property. This right was not given to female
Hindu, as she was not considered as a coparcener.
The Hindu Succession Amendment Act. 2005 made changes in Section 30 and substituted certain
words, and thus empowering any Hindu (male or female) to dispose his share in the coparcenary
property. Now the substituted Section 30 runs as thus:
“Sec. 30. Testamentary Succession.— Any Hindu may dispose of by will or other testamentary disposition any
property, which is capable of being so disposed of by him or by her in accordance with the provisions of the Indian
Succession Act, 1925, or any other law for the time being in force and applicable to Hindus.
 The Family Law - / (The Hindu Law) 143

Explanation:— The interest of a male Hindu in a Mitakshara coparcenary property or the interest of a member of a tamad,
tavazhi, illom, kutumba or kavaru in the property of the tarwad, havazhi, illom, kutumba or kavaru shall notwithstanding
anything contained in this Act or in any other law for the time being in force, be deemed to be property capable of being
disposed of by him or by her within the meaning of this Section.”

According to the changes brought in Section 30 by the Act of 2005, any Hindu (maie or femaie) can
dispose any property, including the share in the coparcenary property.
PROBLEM: A executes a Will in respect of his interest in joint family property and dies leaving behind
two sons. Can his sons claim the property by survivorship? (Dec., 2004, B.U.)
SOLUTION: According to the provisions of Section 30 of the Hindu Succession Act, 1956, as
amended by The Hindu Succession Amendment Act, 2005, a Hindu can execute a Will in respect of
his self-acquired properties, and to his share in the joint family properties. Therefore, As sons are
entitled to claim their respective shares in the joint family property after deducting their father’s share
executed in the will.

GADE NARSIMHA REDDY & RANGAMMA

CHARITABLE CHOULTRIES TRUST
(Regd.No.44/IV/15, dt. 2015)
H. No. 4-5-200 & 201, Hasmath Gunj, Sultan Bazar,
Hyderabad-500 095, State of Telangana.
LEGAL CONSULTANCY
The GNRRCC Trust is constituted by GADE VEERA REDDY on his parents’ names with the charitable objectives
to construct choultries atTlrupathi, Srisailam, Bhadrachalam, Yadagiri Gutta, Annavaram and Kasi.
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(Recipient of FIVE Gold Medals) (KU.)
Advocate, High Court,
Author of Sujatha Law Series, A.P. Departmental Books,
H. No. 4-5-201,3"* Floor, Sultan Bazar,
HYDERABAD - 500 095, A.P.

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 THE FAMILY LAW -1 (THE HINDU LAW)

I FILL UP THE BLANKS - FOR INTERNALS AND VIVA-VOCE, Etc.

ANCIENT HINDU LAW

1. The Hindu Law is deveioped from two main sources. They are
2. The ancient Hindu Law has been deveioped from the sources
3. The Modern Hindu Law has been deveioped from the sources _

The Vedas are also known as which are the “Direct words of the God”, and these
words were heard by Sages.
5.
it
Veda”means

6.
it
Sruti” means

7. There are four Vedas

8. Rig Veda contains Hymns.

9. The oidest Veda is

10. Yajur Veda contains ceremonies.

11. istheiast veda.

12. Smritis means _

13. Out of the Smritis is weii famous and criticised to-day, but is stiil foiiowed in
india.

14. Manu. the Sage, prepared Manusmriti some B.C., and it contains .2694
slokas some 200 B.C.

15. There are two main schoois

16. The is a running commentary on the Mitakshara, and it was written by

17. The digest of Dayabhaga was written by

18. The Gentoo Code (Hindu Code) was prepared by , the first Governor-
Generai of india, in .
19. was the first step towards the codification of the Hindu Law.

20. , the then Governor-Generai of india, enacted the Sati Abolition Regulation.
1829.

21. The Hindu Widow’s Re-Marriage Act was enacted in .

22. The Chiid Marriage Restraint Act was enacted in .
23. The Hindu Women’s Right to Property Act was enacted in

24. The Hindu Disposition of Property Act was enacted in _.

25. The Hindu inheritance (Removai of Disabiiities) Act was enacted in

26. The Dayabhaga School prevaiis in .

27. The Mitakshara School prevails in .
28. wrote the commentary about the school of Mitakshara.
29. _ wrote the commentary stating the rules of School of Dayabhaga.
30. There are sub-schools in the Mitakshara School. They are
31. If a family from South India migrates to Bengal, by which school the family shall be governed?
32. There are three kinds of custom recognised by the Courts. They are
33. A class custom is one binding on all persons in the particular class., Example:
34. An Example of a Family Custom is
35. Examples of Local Customs are
36. Rules of Procedure are explained in Sections _ of the Indian Evidence Act, 1872.
-144-
 The Family Law - I (The Hindu Law) 145

37.
The burden of proof lies on the person pleading
38.
“Clear proof of usage will outweigh the written text of law” spoken by
in case.

39. It is the duty of the Court to delete custom.

40. The word ‘Hindu* is derived from
41. ‘Sindhu’ is a river, and it is also known as , which flows from the Punjab.
42.
The Aryans, who had settled nearby that river, were called as
43. Greeks used to call the Aryans as by dropping the hard aspirate ‘H*. Gradually ‘Ando/*
has been changed as ‘India*.
44.
Gradually the Greek term ‘jndoT has been changed as .

45. Etymologically, the word ‘Hindu* has only a

46. The terms ‘Hindu* and ‘Indoi* were used forthe territorial significance of
47. Every coparcenary starts with a ., which after his death, consists
only.
48. Every coparcenary is a and is purely a .
49. A coparcenary consists only _ from the point of common ancestor.
50.
consists of all persons lineally descended from a common ancestor and
includes their wives and unmarried daughters.
51.
The joint family system is emanated from the principle of .
52. The entire joint Hindu family is led by one person called .
53.
“ ” means “transfer of property, such as gift, sale and mortgage”.
54.
The father-karta of a Joint Hindu Family has special powers of alienations for the following
purposes .

55. A, a father and the Karta of a joint Hindu family, gave certain properties by way of gift to his
daughter for her maintenance, who was deserted by her husband. Is it valid? If so in what
case?

56. The father/karta had alienated some of the joint properties. His minor son filed a suit through his
next friend to set aside the alienation. Is it valid? If so in what case?
57. The Joint Hindu Family system is a established in the world,
58. and
are the fundamental principles and distinguishing
features of this institution.
59. A Joint Hindu Family is purely a .
60. A Joint Hindu Family is unlimited both as to the number of persons and the degrees, e.g., the
remoteness of their descent from common ancestor. But the Coparcenary Hindu Family is
limited to

61. The Joint Hindu family does not show any difference between males and females. But the
Copracenary Hindu family is limited to
62.
Every joint Hindu family is not a coparcenary. But every coparcenary is not a

63. An example of joint property is .

64. Where two or more families agree by express or implied terms, to live and work together, pool
their resources, throw their gains into the joint stock, bear the common risks and utilise the
resources of the units indiscriminately for the purposes of tne entire families, such a case is
known as a .

65. In the partition of the joint Hindu family, the principle of takes place.
66. There are two modes of partition. They are:
67. Once the shares are defined _ , the partition is complete.
68. Partition by metes and bounds
69. The property ceases to be immediately after the shares are defined.
146 The Family Law -1 (The Hindu Law)
70. The members of the joint family so partitioned and are enjoying the property jointly, as above
said, are called .
71. In the partition. are excluded.

72. Registration is
73. The doctrine of pious obligation cannot apply to the .

74. The Doctrine of Pious Obligation does not bind the sons, if the debt is incurred for .
75. The obligation of the son is not a personal obligation existing irrespective of the receipt of any
asset but a liability confined to the assets received by him as his in joint family property.
76. A, a father, renewed a pre-partition debt after partition takes place. Is the son liable to pay the
pre-partition debt?
77. Give two examples of the debts which the Doctrine of Pious Obligation does not apply.
78. A property of the joint Hindu Family properties, which cannot be partitioned, and should be devolved
to a particular person. Such property is called .
79. “Impartible Property” means .
80. The system of devolution of an impartible property to a particular person in the joint Hindu family
was abolished by of the Hindu Succession Act, 1956.
THE HINDU MARRIAGE ACT. 1955
81. The marriage institution and the family institutions are the .

82. The first benefit of the marriage is to give (i) between wife and husband to have
sex, and the opportunity to bear (ii)
83. “Marriage is a socially sanctioned union of male and female, eras a secondary institution devised
by society to sanction the union and mating of male and female, for purposes of (a) establishing
a household, (b) entering into sex relations, (c) procreating, and (d) providing care for the off
spring.”— Defined by .
84. “Marriage is the sanctioning by a society of a durable bond between one or more males and one
or more females established to permit sexual intercourse for the implied purpose ofparenthood. ”
— Defined by .
85. “Marriage consists of the rules and regulations which define the rights, duties and privileges of
husband and wife, with respect to each other. ” — Defined by .
86. Under the Hindu Law, the marriage is regarded as .
87. In the Hindu Law, sastras, slokas, mantras, customs are not found relating to .
88. Section provides certain conditions to be fulfilled under the Hindu Marriage Act, 1955.
89. The Hindu marriages occur between the same .
90. According to Clause (iii) of Section 5 of the Hindu Marriage Act, 1955, the bride should have
completed years and the bridegroom should have completed years.
91. According to Clause (iv) of Section 5 of the Hindu Marriage Act, 1955, the parties are not within
the

92. In the ancient Hindu Law, the bride should be separated by on the father’s side and
on the mother’s side.

93. According to Clause (v) of Section 5 of the Hindu Mamage Act, 1955, the parties are not
of each other.

94. In the ancient Hindu Law and customs, and presently, according to Clause (ii) of Section 5 of the
Hindu Marriage Act, 1955, and are the disqualifications for a
Hindu marriage.
95. In the Hindu marriages, the parties belonging to the same should not marry.
96. According to Section 3 (f) (i), “Sapinda relationship”, with reference to any person extends as
far as the (inclusive) in the line of ascent through the mother, and the
(inclusive) in the line of ascent through the father.
97. Two persons are said to be related to each other by , when they are descended from a
common ancestor by the same wife.
98. Two persons are said to be related to each other by , when they are descended from a
common ancestor, but by different wives.
 The Family Law -1 (The Hindu Law) 147

99. Two persons are said to be related to each other by when they are descended
from a common ancestress but by different husbands.
100. Two persons are said to be of each other if one is a lineal ascendant of the other
within the limits of . relationship, or if they have a common lineal ascendant who is
within the limits of relationship with reference to each of them.
101. Section of the Hindu Marriage Act, 1955 narrates about the customary rites and ceremonies
ofa Hindu Marriage.
102.
is an essential ceremony of a valid Hindu marriage.
103. A Hindu marriage is also called as .
104. In the case of bigamy, the wife must prove the ceremonies of the second marriage. It is held by
the Supreme Court in .
105. Under Section of the Hindu Marriage Act, 1955, the Hindu marriages shall be registered.
However such registration is
106. The Andhra Pradesh Government enacted Act making ail the Hindu
marriages to be registered compulsorily.
107. According to Section 10 of the Andhra Pradesh Compulsory Registration of Marriages Act.
2002, any person who, wilfully omits or neglects to get the marriage registered as required in
Sections 8 and 9 shall be punished with fine which may extend to rupees.

108. According to Section 11 of the Andhra Pradesh Compulsory Registration of Marriages Act.
2002. if a Marriage Officer, who fails to register a marriage pursuant to Section 8 shall be punished
with imprisonment for a term which may extend to months or fine which may extend
to rupees or with both.
109. The title of the Act the Andhra Pradesh Compulsory Registration of Marriages Act. 2002
denotes that after the commencement of this Act, all the marriages should be compulsorily
registered. However, Section 16 of that Act makes it .

MATRIMONIAL REMEDIES UNDER THE HINDU MARRIAGE ACT. 1955

110. The restitution of conjugal rights is explained in Section of the Hindu Marriage Act.
111. In case, the Andhra Pradesh High Court quashed Section 9 of the
Hindu Marriage Act, 1955 opining that Section 9 is against Article 21 of the Constitution,
112. In case, the Delhi High Court upheld Section 9 of the Hindu Marriage
Act, 1955 opining that Section 9 is not against Article 21 of the Constitution,
113. In case, the Supreme Court upheld Section 9 of the Hindu Marriage
Act, 1955 opining that Section 9 is not against Article 21 of the Constitution.
114. The provisions for “Judicial Separation” are provided in Section of the Hindu Marriage Act,
1955.

115. The object of the judicial separation is the hope of

116. The provisions for “Void Marriages” are provided in Section of the Hindu Marriage Act, 1955.
117. The provisions for “Voidable Marriages” are provided in Section of the Hindu Marriage Act,
1955.

118. Is the removal uterus/ls the bareness/childlessness a good ground for divorce?
119. The limitation period laid down under Section 12 (2) for filing a petition seeking for nullity of
marriage of the void marriages is .
120. The grounds for seeking divorce are explained in Section of the Hindu Marriage Act,
1955.

121. Both the parties of a Hindu marriage can file a petition combinely for divorce before the Court
under Section of the Hindu MarriageAct, 1955, and it is called .
122. “Apostacy” means .
123. The Court is empowered to grant “alternate reliefs” in a divorce proceedings under Section
of the Hindu MarriageAct, 1955.
124. Dastane vs. Dastane, a leading case, stands for Divorce under .

125. Bipinchandra vs. Prabhavati (AIR 1967 SC 1760), a leading case, stands for Divorce under
and
 148
The Family Law -1 (The Hindu Law)
126. Both the parties file for the divorce by mutual consent. Later one of the spouses withdraws her
consent. Can the Court grant the Decree of Divorce? Cite the case.
127.
No petition for divorce shall be presented within one year under Section of the Hindu Marriage
Act, 1955.
128.
According to Section of the Hindu Marriage Act, 1955, it is clearthat even though a marriage
is void or voidable under this Act, the children of any such marriage have the status of legitimate
children.

129. The Family Courts Act was enacted in .

130. The Protection of Women from Domestic Violence Act was enacted in .
131.
The cases of the restitution of conjugal rights, judicial separation, divorce, divorce by mutual
consent shall be filed before the
132.
According to Section of the Family Courts Act, 1984, it is the duty of the Family Court to
make efforts for conciliation and settlement between the parties.
133. The State Government is empowered to establish the Family , to help
the Family Courts in conciliation, counselling and settlement of the disputes between the spouses.
134. If the parties require under Section 22 of the Hindu Marriage Act, 1955, the Family Court conduct
the proceedings in the presence of the parties, and all other parties and advocates are sent out
of the Court Hall. This type of proceedings are called .

135.
After passing of a Decree of Divorce, either spouse is entitled to re-marry, subject to the conditions
mentioned in Section of the Hindu MarriageAct, 1955.
136. Under Section
of the Hindu Marriage Act, 1955 grants relief for respondent in divorce and
other proceedings.
137. Section
of the Hindu MarriageAct, 1955 empowers the Court to grant maintenance pendente
ate and expenses of proceedings,
138. Section
of the Hindu MarriageAct, 1955, empowers the Court to grant permanent alimony
and maintenance.

139. Section
of the Hindu Marriage Act, 1955 narrates the provisions about “Custody of Children”,
140. Section
of the Hindu MarriageAct, 1955 narrates the provisions about “Disposal of Property”,
141. Section
of the Hindu MarriageAct, 1955 narrates the provisions about “Enforcement of decrees
and orders”.

142. “The whole Sanskrit law of adoption is evoived from two texts and a metaphor. ” Defined by

143. A figure of speech, in which a comparison is implied, is called

143. The two texts are those of and and the metaphor is that of
144. The Metaphor ofSanuka is that “the adopted son must be 99

145. ‘Dattaka Mimamsa’ is written by _.

146. ‘Dattaka Chandrika’ is written by .
147. , the English Jurist, translated two books “Dattaka Chandrika” and “Dattaka
Mimamsa” into English.
148. The Privy Council also followed the Metaphor of Saunaka, and held in the case
— that “no one could be adopted whose motherthe adopter
could not have married in her maiden state."
149. In Sanskrit, the Hell is called , and the son is called
150. Aurasa means

151. The object of the old Hindu Law of Adoption were

152. Adoption is one of those of the law.

153. TheobjectofthenewHinduAdoptionAct, 1956 is two fold, i.e., and

154. In the old Hindu Adoption Law, the wife had not power to adoption. However she can be delegated
the power of adoption by her husband during his life time. It is called .
155. The natural father would continue as the father of the child even after giving him in adoption It is
called
 The Family Law - I (The Hindu Law) 149

156. Section of the Hindu Adoption Act explains about Determination of adoptive mother in certain
cases.

157. Requisites of a valid adoption are explained in Section of the HAMA.

158. Capacity fora male Hindu to take in adoption are explained in Section of the HAMA.

159. To prove valid adoption, it would be necessary to bring on records that there had been an actual

160. The provisions relating to “Capacity for a female Hindu to take in adoption” are explained in
Section of the HAMA.

161. The provisions relating to “Persons capable of giving in adoptions” are given in Section of
the HAMA.

162.
The provisions relating to “Persons who may be adopted” are given in Section of the HAMA,
163. The provisions relating to “Other Conditions for a valid adoption” are given in Section of the
HAMA

164. Can a valid adoption be cancelled?

165. Can an adoptive father or adoptive mother dispose of the self acquired properties?
166. Can any person receive or agree to receive any payment or other reward in consideration of the
adoption of any person?
167. The Doctrine of Relation Back was abolished by Section of HAMA.
168. The effects of Adoption are explained by Section of HAMA.

169. A has two sons X and Y. A has given his son X in adoption to L. L has a daughter-D. CanY
marry D?
170.
ii.
Quod fieri non debris factum valet” means .
171. Custom is more stronger than the law. This is also called as
172.
Partition between the father, adopted son and, subsequently born aurasa son. What is each
share?

173. The adopted child is treated as an .

174. Adoption imitates .
175. Can an adopted child retain his coparcenary right in his genitive family?
176. The adopted child shall not any person of any estate which vested in him or her before
he adoption.
177. The adoptive child all the ties from his natural family.
178. The ante-adoption agreement for the welfare of the adoptive child is valid under Section
of HAMA.

179. The text was only directory, not ■ .

180. The adoptive person can perform such religious acts “Sradha Karma
ti
PInda Karma” and
cc

Karyadanam”, etc., in the natural family. This is called the

MAINTENANCE
181. Chapter-lil (from Section to Section ) of the Hindu Adoptions and Maintenance Act, 1956
contains the provisions relating to “MAINTENANCE”.
182. Section of the HAMA narrates the provisions about “Maintenance of Wife”.
183. The provisions about “Maintenance of Widowed Daughter-in-law” are contained in Section
of the HAMA.

184. Section of the HAMA lays down the provisions for the “Maintenance of Children and aged
Parents”.

185. Section _ of the HAMA lays down the provisions for the “Maintenance of Dependants”.
186.
ti
Avarudha Stri” means .
187. The obligation of the father-in-law to maintain his widowed daughter-in-law is not primary or
secondary, but it is , and is subject to certain conditions.
188. A widow sues her father and father-in-law for maintenance. Does she succeed?
150 The Family Law - / (The Hindu Law)

189. The Hindu is bound to maintain a daughter until .

190. A Hindu is bound to maintain his or her legitimate or illegitimate minor child under Section of
the HAMAand under Section of the Cr.P.C.

191. For the purposes of Section 20 of the HAMA, “Parent” includes a childless .

192. The Parliament has enacted a new Act, i.e., for the welfare
and maintenance of the old aged parents and senior citizens.

193. The amount of maintenance payable is Rs. underthe HAMA.

THE HINDU MINORITY AND GUARDIANSHIP ACT. 1956

194. “The Hindu Minority and Guardianship Act, 1956” is a special Act enacted onlyforthe Hindus.
For the governance of other religious people, another Act was enacted, and is now in force.
Name that Act .

195. Name the kinds of guardianship: .

196. The De Jure Guardianship includes .
197. A minor cannot act as a guardian for the property of a minor. This legal position is laid down in
Section of the HMGA.

198. De facto guardianship was abolished by Section of the HMGA.

199. According to Section 2:^ of HMGA, where a minor has an undivided interest in joint family
property and the property is underthe management of an adult member of the family, no guardian
shall be appointed for the minor in respect of such undivided interest: Provided that nothing in
this Section shall be deemed to affect the jurisdiction of a High Court to appoint a guardian in
respect of such interest.
200. Section ___ of the Guardians and Wards Act, 1890 lays dov/n the grounds for the removal
of guardian.
201. The provisions relating to the natural guardianship are explained in Section of the HMGA.

202. The provisions relating to the testamentary guardianship are explained in Section of the
HMGA.

203. “The Hindu Succession Act, 1956 brought certain changes from the basis of the old Hindu
jurisprudence. Stiii it was founded on the ancient Hindu Jurisprudence and customs. The main
defect was that it did not recognise a female as a coparcener in the coparcenaryljoint Hindu
family. The Act did not give equal rights to a daughter with that of a son. ” However, these
defects are removed by .
204. The Hindu Succession Amendment Act, 2005 (Act No. 39 of 2005) came into force with effect
from .

205. “The Scheduled Tribe” within the meaning of Ciause (25) of Article of the Constitution of
India is a Hindu, and the provisions of the Hindu Succession Act, 1956 apply to it.
206. “One person is said to be an of another, if the two are related by blood or adoption
wholly through males.” Defined in Section of HSA, 1956.
207. “Ancestor” includes .

208. When two persons are said to be related to each other by blood when they are descended
from a common ancestor by the same wife.
209. When two persons are said to be related to each other by blood by when they are descended
, from a common ancestor but by different wives.
210. “Ancestress” includes

211.
it

Law” means the system of law applicable to persons who, if this Act had not
been passed, would have been governed by the Madras Act, 1949, or by the
customary law with respect to the matter for which provision is made in this
Act.” (Sec. 3 (1) (b) of the HSA).
212.
tt
Intestate” means a person is deemed to die intestate in respect of property of which he or she
has not made a testamentary disposition capable of taking effect.” Defined by Section
of HSA.

213. “Marumakkattayam Law” defined in Section _ of HSA.

214. “Two persons are said to be related to each other blood, when they are descended
from a common ancestress, but by different husbands. Defined by Section of HSA.
 The Family Law -1 (The Hindu Law) 151

215. “One person is said to be a of another if the two are related by blood or adoption, but
not wholly through males.” — Defined by Section ofHSA.

216. “Nambudri Law" has been defined in Section ofHSA.

217. “Major changes are occurred in the Hindu Succession Act, 1956, particularly in Section of
the HSA, 1956 by the Hindu Succession Amendment Act, 2005. ”

218. Now according to Section of HSA, a female is also entitled to devolve interest, right to claim
partition in the coparcenary property.
219. “Partition” means any partition made by execution of a deed of partition duly registered under the
^ Act, partition effected by a
220. The Doctrine of Pious Obligation is abolished by sub-section of Section of the HSA,
1956 by the Amendment Act, .
221. Under the Hindu Succession Amendment Act, 2005 (Act No. 39 of 2005), every partition must
have been effected by registered deed or by a decree of a court on or before .

222. According to the provisions of the Hindu Succession Act, 1956, as amended by the Central Act,
2005, the daughter is allotted the same share as is allotted to a .

223. The expression of “daughter includes the daughter, grand daughter or .

224. In India, the first State, which has given equal rights to a daughter is by the
Act in .

225. The Hindu Succession (Karnataka State Amendment), 1994 came into force with effect from

226. The Hindu Succession (Maharashtra State Amendment), 1994 came into force with effect from

227. The Hindu Succession (Tamil Nadu State Amendment), 1990 came into force with effect from

228. The Hindu Succession (Andhra Pradesh State Amendment), 1990 came into force with effect
from .

229. The Hindu Succession Amendment Act, 2005 (the Central Act No. 39 of 2005) came into force
with effect from .

230. Section of the Hindu Succession Act, 1956, as amended by the Hindu Succession Act,
2005, gives the equal rights to a daugterforthe devolution of interest in coparcenary property.
231. The provisions relating to “Devolution of interest in the property of a tarwad, tavazhi,
kutumba, kavaru or illom” are explained in Section of the Hindu Succession Act, 1956.
232. General Rules of Succession in the case of males” are provided in Section and
OfHSA, 1956.
233. The heirs of Class shall devolve the succession of male or female ancestors under the
HSA, 1956, as amended by the Central Act No. 39 of 2005.
234. Class-11 heirs take place of the Class-1 heirs, when there are _ underthe provisions
of the HSA, 1956 as amended by the Central Act, 2005.
235. When there are no heirs either in Class-1 or Class-ll heirs in Schedule, appended to the HSA,
then the property devolves upon _ of the deceased.

236. Lastly, if there is no agnate, then are entitled to succession of the deceased Hindu
under Section 8 of the HSA, 1956, as amended by the Central Act, 2005.
237. Daughters married prior to or to a partition, which had been effected before 1986 were clearly
excluded from the devolution of interest in the coparcenary property under the _
238. The daughter is given equal coparcenary rights as a son under Section of the Hindu
Succession Act, 1956, which has been substituted by the Central Act, 2005.
239. According to the substituted Section 6of the HSA, by the HSAA, 2005, every partition must be

240. An unregistered written agreement or oral agreement for partition is underthe Hindu
Succession Amendment Act, 2005.
241. It is observed that due to the Act, the dowry system has been increased
in the Hindu community.
152 The Family Law - I (The Hindu Law)

242. The object of the Act is to demolish the dowry system in the
country, and to give equal rights to the daughters of a coparcenary family.
243. A Mitakshara coparcenary includes those male members who take an interest in the coparcenary
property by birth. It is known as and devolves by survivorship.
244. The other property may be self-acquired or that inherited from a person other than a father,
grandfather or a great-grandfather, which is known as , This
kind of property separate or self acquired property passes by succession and not by survivorship.
245. “The Theory of Notional Partition” is explained in .

246. According to the substituted Section 6, now the daughter, in

her own right in the same manner as the son.

247. The substituted provisions of sub-section (1) of Section 6 shall not affect or invalidate,—
(1) any disposition or alienation,
(2) including any partition or
(3) testamentary disposition of property,
which had taken place before the .
248. Like a male coparcener, a female coparcener is also empowered to dispose her share in the
coparcenary property by way of will under Section of the HSA, 1956 as amended by the
AHSA, 2005.
249. According to the substituted provisions of Section 6 of the HSA, 1956 as amended by the HSAA,
2005, in case of present partitions, the Rule of Survivorship does not apply, but
^applies.
250. The Doctrine of Pious Obligation has been abolished by
251. The general rules of succession of males are explained in Sections of
the HSA, 1956, as amended by the HSAA, 2005.
252. the general rules of succession of females are explained in Sections of
the HSA, 1956, as amended by the HSAA, 2005.
253. Stridhan and Limited Estate (Woman’s Estate) have been abolished by Section of the HSA,
1956.

254. The concept of Life Estate belongs to the jurisprudence.

255. The concept of Limited Estate, which is also called as “the '■ belongs to the
jurisprudence.
256. For the protection of the Limited EstateA/Voman’s Estate, a separate Act was enacted by the
British rulers. The name of the Act was .
257. The Hindu Women’s Rights to Property Act, 1937 was abolsihed by
258. Re-marriage of a widow was a disqualification to inherit the properties under Section ofthe
HSA, 1956. However it was omitted by the HSAA, 2005.
259. A murderer or an abettor is disqualified to inherit the properties under Section ofthe HSA,
1956.

260. Conversion from the Hinduism is a disqualification to inherit the properties under Section of
the HSA, 1956.
261. Are disease, defect or deformity the disqualifications to any person to succeed to any property?
Cite Section ofthe HSA, 1956.
262. If an intestate has left no heir, such property shall devolve on the Government. The forfeiture of
the property to the Government due to failure of heirs, is called as , and is explained
under Section ofthe HSA, 1956.
263. The provisions of the testamentary succession relating to the Hindus are explained in Section
ofthe HSA, 1956.
264. According to the new and substituted provisions of Section 30 ofthe HSA, 1956, as amended by
the HSAA, 2005, may dispose of by will or other testamentary disposition any
property, which is capable of being so.
265. A will written by a Hindu (male or female) shall be read under Section 30 of the HSA, 1956, as
substituted by the HSAA, 2005, read with the provisions ofthe
Act,
 The Family Law -1 (The Hindu Law) 153

266. “Marumakkattayam Law” has been defined in Section _

, and the law is explained in Section
of the HSA, 1956, as amended by the HSAA, 2005.
267.
“Nambudri Law” has been defined in Section _ ., and the law is explained in Section of
the HSA, 1956, as amended by the HSAA, 2005.
268. “AUyasantana Law” has been defined in Section ., and the law is explained in Section of
the HSA, 1956, as amended by the HSAA, 2005.

THE FAMILY LAW -1 (THE HINDU LAW)

FILL UP THE BLANKS - ANSWERS
ANCIENT HINDU LAW
1.
(i) The Traditional Sources: and (ii) The Modem Sources. I
2- (i) The Vedas (Srutis): (ii) The Smrithis: and (iii) The Customs.

3- (i) The Judicial decisions of Privy Council. Supreme Court and High Courts: (ii) The Principles
of Justice. Equity and Good Conscience, (iii) Acts. Rules. Regulations, etc., enacted bv the
Central and State Governments.
4. “Sruti”.

5. knowledge.

6. “What is heard". '

7. (a) Rig Veda: (b)YaiurVeda: (c) Sama Veda: and (d)Atharvana Veda.
8. 1028 Hymns.

9. Rig Veda.

10. sacrificial ceremonies.

11. AtharvanaVeda.

12. What was remembered bv the sages.

13. Manusmriti.

14. 200 B.C.: 2694 Slokas.

15. (i) the Mitakshara School, (ii) the Davabhaga School.

16. The Code of Yainavalkva: written by Vijnaneswara in eleventh century.
17. Jimutavahana in the twelfth century.
18. Warren Hastings in 1772.
19. Gentoo Code (Hindu CodeV

20. Lord Bentinck.

21. 1856.

22. 1929.

23. 1937.

24. 1916.

25. 1928.

26. Bengal.

27. except Bengal in other parts of India.

28. Vijnaneswara.

29. Jimutavahana.
30.
four sub-schools-fi) the Benares School: (ii) the Mithila School: (iii) Maharashtra School: and
(iv) the Dravida School.
31. the Dravida School.

32. (i) Family Custom: (ii) Class Custom: and (iii) Local Custom.

33. Kutchi Memons are Muslims.

154 The Family Law - / (The Hindu Law)
34. In certain castes, male marries his sister’s or aunty’s (father’s sister’s) daughter.

35. Santa Padi. Mangala Sutra Dharanam, etc.

36. Section 13 and 48.

37. a special custom to prove it.

38. Sir James Colville. Justice, spoke these words in Ramnad Case.

39. barbarious customs, such as sati. child marriages, dowry, etc.

40. ‘Sindhu’.

41. Indus’.

42. ‘the Hindus’.

43. ‘IndoF

44. ’India’.

45. territorial significance.

46. The territorial significance.

47. ‘Common Ancestor’: the collaterals.

48. corporated body; creature of law.

49. four degrees.

50. Joint Hindu Family.

51. principle of subordination.

52. ‘Karta’.

53. “Alienation”.

54. (i) Gift of love and affection: and (ri) Alienation for the discharge of his’ personal debts.
55. It is valid. Ammathavee vs. Kumarsen (AIR 1967 SC 569).

56. Yes. It is valid. Param Nayakam Pillai vs. Sivaraman (AIR 1952 Mad. 419 (FB)
57. a unique jurisprudence.

58. Sapindaship and family relationship.

59. a creature of law.

60. four degrees/generations.

61. males only.

62. joint Hindu family.

63. partnership.

64. composite family.

65. equity and equality partition.

66. (I) Severance of Status of Interest, and fll) Actual Division of Property in accordance with the
shares so specified, known as partition bv metes and bounds.

67. numerically.

68. means the property shall be shared bv measurements (metes) and with boundaries (bounds).

69. joint Hindu family status.

70. the tenants-in-common.

71. females.

72. not compulsory - only optional.

73. wife.

74. immoral and illegal purposes.

75. share.

76. Na

77. (i) Debt for drinkinq liquor: (ii) Debt for qamblinq.
 The Family Law - I (The Hindu Law) 155
I
78. Impartible Property.

79. A property of Joint Hindu Family Properties, which cannot be partitioned.

80. Section 5 of the Hindu Succession Act. 1956. P
>
THE HINDU MARRIAGE ACT. 1955
81. Basic Social Institutions.

82. (i) legal relation, (ii) the opportunity to bear legitimate offspring.
83. MazumdarT.
/
A ,
84. Anderson and Parker.
3
85. Lundberg.

86. “sacramental”.
J
87. divorce.
f
88. Section 5.

89. same caste.

90. 18 years for bride, and 21 years for bridegroom.

91. the degrees of prohibited relationship. I

92. seven degrees from the father’s side: and five degrees from the mother’s side. £>

93. Saoindas. 3

94. unsoundness and impotencv.

95. same Gotram.

96. third generation from the mother side: fifth generation from the father side.
t
97. full blood.

98. half blood.

99. uterine blood.

100. Sapinda: Saoinda: Sapinda.

101. Section 7.

102. Saptaoadi.

103. “Sastraic Marriage" and “Sacramental Marriage".

104. Bhaurao vs. State of Maharashtra (AIR 1965 SC 1564). y

105. Section 8: optional.

3

106. The Andhra Pradesh Compulsory Registration of Marriages Act, 2002.

107. one thousand rupees.

108. three months: five hundred rupees.

109. optional.

MATRIMONIAL RELIEFS UNDER THE HINDU MARRIAGE ACT. 1955

110. Section 9 of the Hindu Marriage Act, 1955.

111. Sareetavs. Venkata Subbaiah (AIR 1983AP 356).

112. Smt. Harvinder Kaur vs. Harmander Singh (AIR 1984 DEL. 66).

113. Saroi Rani vs. Sudarshan Kumar (AIR 1984 SC 1562).

I

114. Section 10 of the Hindu Marriage Act. 1955.

115. adjustment or reconciliation.

116. Section 11. I

i
117. Section 12.

118. No.
It?
119. One year.
 156 The Family Law -1 (The Hindu Law)

120. Section 13 of the Hindu MarriaaeAct. 1955.

121. Section 13-A(Divorce by Mutual Consent^of the Hindu MarriaaeAct. 1955.

122. Divorce.
1
f 123. Section 13-A.

124. cruelty.

125. Desertion and Adultery.

126. No. Ashok Hurra vs. Rupa Hurra (1997 SC).

V 127. Section 14 of the Hindu MarriaoeAct. 1955.

4 128. Section 16.

1
129. 1984.
■i
130. 2005.

131. The District Court/the Family Court.

132. Section 9 of the Family Courts Act, 1984.

133. The Counselling Centre of the Family Court.

134. in camera.

135. Section 15.

136. Section 23-A.

137. Section 24.

% 138. Section 25.

% 139. Section 26.

140. Section 27.

141. Section 28-A.

THE HINDU ADOPTIONS AND MAINTENANCE ACT. 1956

ADOPTION

142. Mavne.
4
143. Metaphor.

143. ‘Manu’ and *Vasisliita*: and the metaphor is that of ‘Sanuka’.

144. ‘Putrachavavaha’\.e.. the reflection of son.”

145. Nanda Pandita.

146. Devanda Bhatta.

147. Southerland.

148. ‘Bhaqawan Singh vs. Bhaoawan Sinah*.

149. "Putra”.

150. natural born legitimate son.

151. spiritual benefit and the continuation of the family tree iVamsavrukshami).
152. fictions.

153. Religious and Secular.

154. The Doctrine of Relation Back.

155. Dwamushvavana adoption.

156. Section 14 of the Hindu Adoptions and Maintenance Act. 1956.

157. Section 6 of the HAMA.
J
158. Section 7 of the HAMA.

159. actual giving and taking ceremonev.

160. Section 8 of the HAMA.
 The Family Law - / (The Hindu Law) 157

161. Section 9 of the HAMA.

162. Section 10 of the HAMA.

163. Section 11 of the HAMA.

164. Section 15 of the HAMA.

165. Yes. Section 13 of the HAMA.

166. No. Section 17 of the HAMA prohibits consideration.

167. Section 12 of HAMA.

168. Section 12 of HAMA.

169. Y cannot marry D.

170. “What ought not to be done, is valid when done

171. Factum Valet.

172. 1/3rd share.

173. an aurasa son.

174. nature.

175. Yes.

176. divest.

177. severs.

178. Section 13 of HAMA.

179. not mandaton/.

180. “Factum Valet”.

MAINTENANCE

181. Sections from 18 to 28 of HAMA.

182. Section 18 of HAMA.

183. Section 19 of HAMA.

184. Section 20 of HAMA.

185. Section 21 of HAMA.

186. concubine.

187. remote.

188. There is only moral liability on the father. There is legal liability on the father-in-law, subject to the
conditions in Section 19 of the HAMA.

189. until she marries.

190. Section 20 of the HAMA & Section 125 of the Cr.RC.

191. Step-mother.

192. The Maintenance and Welfare of Parents and Senior Citizens Act. 2007.
193. depending upon circumstances and also the discretion of the Court.

THE HINDU MINORITY AND GUARDIANSHIP ACT. 1956

194. The Guardians and Wards Act 1890.

195. (i) The Natural Guardians: (ii) The Testamentary Guardians: and (iii) De Facto Guardians.
196. (i) The Natural Guardians: and (ii) The Testamentary Guardians.
197. Section 10 of HMGA.

198. Section 11 of HMGA.

199. Section 12 of HMGA.

200. Section 39 of the Guardians and Wards Act. 1890.

201. Sections 4. 6. 7 & 8 of HMGA.

202. Section 9 of HMGA.

158 The Family Law -1 (The Hindu Law)
203. The Hindu Succession Amendment Act 2005 (Central Act 39 of 2005).

204. 09-09-2005.

205. Article 366.

206. “agnates” under Section 3 (a) of the Hindu Succession Act, 1956.
207. father.

208. full blood.

209. half blood.

210. mother.

211. Aliyasantana Law.

212. Section 3 (1) (a).

213. Section 3 n)(h).

214. “Uterine Blood”: Section 3 (1 Ue) ofHSA.

215. “Cognate” under Section 3 (1) (c) of HSA.

216. Section 3(1 Hi) of HSA.

217. Section 6 “Devolution of interest in coparcenary property".

218.. Section 6 “Devolution of interest in coparcenary property”.

219. The Registration Act. 1908 (16 of 1908), partition effected by a decree of a court.

220. sub-section (4) of Section 6 of HSA. 1956 as amended by the HSAA, 2005.

221. the 20th day of December. 2005.

222. a son.

223. qreat-grand-dauahter.

224. The Andhra Pradesh State: bv its “The Hindu Succession (A. P. Amendment) Act. 1986.

225. 30-7-1994.

226. 22-06-1994.

227. 25-03-1989.

228. 05-09-1985.

229, 09-09-2005.
230. Section 6 of the HSA. 1956 as amended bvthe HSA (Central Act. 2005).

231. Section 7 of HSA. 1956.

232. Section 8 of HSA. 1956. as amended bv HSA (Central Act. 2005).

233. Class -1 heirs, now including the daughter and her heirs.
234. no Class-1 heirs.

235. “Agnates”.

236. “Cognates”.
237. The Hindu Succession (A.P. Amendment) Act. 1986.

238. Section 6.

239. registered under the Indian Registration Act. 1908. and/or decreed bv a Court.
240. not valid.

241. The Hindu Succession Act. 1956.

242. The Hindu Succession (Amendment) Act. 2005 (Central Act No. 39 of 2005).

243. Unobstructed heritage (Apratibandha Dava).

244. Obstructed heritage (Sapratibandha Dava).

245. the Exp/anation-l to the Proviso of the Section-6 of the HSA. 1956 before amendment.
246. bv birth become a coparcener.
 The Family Law -1 (The Hindu Law) 159

247. 20th day of December. 2005.

248. Section 30.

249. the Rule of Deemed Partition applies.

250. sub-section (4) of Section 6 of the HSA. 1956. as amended bv theHSAA. 2005.
251. Sections 8-13 & Schedule of the HSA. 1956. as amended bv the HSAA. 2005.
252. Sections 6,14.15 & 16 & Schedule of the HSA. 1956, as amended bvthe HSAA. 2005.
253. Section 14ofthe HSA. 1956.

254. the English jurisprudence.

255. the Woman’s Estate - the Hindu jurisprudence.

256. The Hindu Women’s Rights to Property Act, 1937.
257. Section 31 of the HSA. 1956.

258. Section 24 of the HSA, 1956, as omitted bvthe HSAA. 2005.

259. Section 25 of the HSA. 1956.

260. Section 26 of the HSA. 1956.

261. No. Section 28 of the HSA. 1956.

262. Escheat. Section 29 of the HSA. 1956.

263. Section 30 of the HSA. 1956.

264. any Hindu (male orfemale^

265. The Indian Succession Act. 1925.

266. defined in Section 3 (1) (h) (a) and explained in Section 7 of the HSA. 1956. as amended bv the
HSAA. 2005.

267. defined in Section 3 (1) (h) fb) (h and explained in Section 7 of the HSA. 1956. as amended bv the
HSAA. 2005.

268. defined in Section 3 (1) fb) and explained in Section 7 of the HSA. 1956. as amended bv the
HSAA. 2005.

❖ ❖ ❖ ❖ »:♦

PLEASE, NOTE

Dear Students,

Kindly send Whatsup Photocopy of all the Question Papers, you have
recently attended to our Whatup Phones, i.e. 8885237139
Or 7702299200

Or 9652764933

GADE VEERA REDDY

160 The Family Law -1 (The Hindu Law)

THE FAMILY LAW -1 (THE HINDU LAW)

TABLE OF CASES
(with hints to memorise and to solve the Problems)
UNIT-I

THE UNCODIFIED HINDU LAW

Ahmad Khan vs. Channi Bibi (AIR 1925 PC 267)-family or tribal custom. 7

Amritlal vs. Jayantilal (AIR 1960 SC 964) - Doctrine of Pious Obligation. 28

# Appuvier vs. Rama Subba Aiyer (1866) 11 MLA75 PC) - Partition by defining Shares - 20
Balwinder Singh vs. Gurpal Kaur (AIR 1985 Del 14) - Custom & Divorce. 6

# Brij Narain vs. Mangal Prasad (46 A11. 951 PC) - Antecedent Debt. 25

# Collector of Madura vs. Mootob Ramalinga Sethupathy (1868) 12 MIA 397) -

Ramnad Case - Custom - “Clear proof of usage will outwiegh the written text of law.” 7

# Faqirchand vs. Sardarini Hamam Kaur (AIR 1967 SC 727) - Vyavaharika Debt-
Mortgage - 27

Gajadhar vs. Jagannath (1924 A. 551 F.B.) - Avyavaharika Debt. 26

# Girija Bai vs. Sadashiv (1916) 43 lA 1031 PC) - Oral Partition. 20

Gururadhwaja Pd. vs. S.P. SINGH (1900 (10) Mad LJ 267) - Family Custom. 7

Jakati vs. Borkar (AIR 1959 SC 282) -Avyavaharika Debt. 26

# Kalyani and others vs. Narayanan and others (AIR 1980 SC1173)-
Partition by Will of Father/Kartha). 21

# Loharu Amrutalal vs. Jayantilal (AIR 1960 SC 964) - Mortgage Deed. 26

# Prabati vs. Jagadash (1902 Cal.) - migration of a Hindu family and governance
of the School. 5

# Sat Narain vs. Shri Kishen Das (1936 MLW 44 PC) - Karta’s alienation
after partition. 21

# U.D. Dhanwanty vs. CIT M.P. (AIR 1968 SC 683) - Joint Family Property -
Income-tax case. 14

CODIFIED HINDU LAW

UNIT - II
2. THE HINDU MARRIAGE ACT, 1955
# Bhaurao vs. State of Maharashtra (AIR 1965 SC 1564) - Proof of the
Ceremonies of the Second Marriage. 37

# Deivain Achi vs. Chidambara Chettiar (AIR 1954 Mad 357) - Proof of the
Ceremonies of the Second Marriage. 38

Pavan Kalyan, Cine Actor vs. Nandini (2008) - Proof of Ceremonies of the
Second Marriage - Permanent Alimony. 38, 96
# Pendent! Venkata Ramamma vs. State of AP (AIR 1977 AP 43) -
Child Marriage & Doctrine of Factum, Valet 35

Rabindra Prasad vs. Sita Devi (AIR 1986 Pat 128) - Child Marriage. 36

Santosh Kumari vs. Surjit Singh (1990 CrLJ 1012 HP) - Permission from the
first wife for her husband’s second marriage. 34

Saramma vs. Ganapatulu (AIR 1975AP 193)-ChildMarriage. 35

 The Family Law -1 (The Hindu Law) 161

UNIT-III
3.
MATRIMONIAL REMEDIES UNDER THE HINDU MARRIAGE ACT, 1955

# Ashok Hurra vs. Rupa Hurra (1997) 4 SCC 226) - Mutual Consent. 63

Bhogadi Kannababu and others vs. Vuggina Pydamma and others (2006 (6) SCJ 414) -
Children of second wife entitled to inherit. 66

# Bipinchandra vs. Prabhavati (AIR 1967 SC 1760) - Adultery. 55,57

Board of Trustees of the Port of Visakhapatnam vs. Presiding Officer,
Lok Adalat (2000 (5) ALT 577) - Children of second wife entitled to inherit. 66

Chetan Dass vs. Kamla Devi (AIR 2001 SC 1709) - Debaucher. 57

Chikkamma vs. N. Suresh (2001) 1 ALT 10 AP) - Child of Void Marriage entitled to inherit. 66
Chiruthakutty vs. Subramanian (AIR 1987 Ker. 5) - Cruelty to wife - Failure of Vasectomy. 55
D. Balakrishnan vs. Pavalamani (AIR 2001 Mad 147)- Impotency. 50

# Dastane vs. Dastane (AIR 1975 SC 1536) - Cruelty to Husband. 56

Dharam Pal vs. Pushpa Dev (AIR 2006 P&H 59) - Imputation of Adultery - Cruelty. 56

Goverdhan Singh vs. Hiraman Singh (1980 (2)ALT210) - Children of void or

voidable marriages have the status of legitimate children. 66

Harprasad Santore vs. Anita Santore (1993) 1 DMC 27) - Impotency. 50

# Harvinder Kaur vs. Harmander Singh (AIR 1984 Del 66) - Sec. 9
HMAvs. Art. 21 Con. 45

# Lily Thomas vs. Union of India (AIR 2000 SC 1650) - Conversion to

another religion. 58

Nighawan vs. Nighawan (AIR 1973 Del 200) - Impotency. 50

Patwant Kaur vs. Sarabjit Singh (2006 (3) CCC 267 P&H) - Desertion. 57

Pranab Kumar vs. Krishna (AIR 1975 Cal. 109) - Schizophrenia. 51

# Pratibha Rani vs. Suraj Kumar (AIR 1985 SC 628) - Refund of Wife’s
Jewellery/Dowry. 75

Rasala Surya Prakasa Rao vs. Rasala Venkateswara Rao (1992 (1) ALT 33 NRC DB) -
Children of void or voidable marriages have the status of legitimate children. 66

Ratan Moni Devi vs. Nagendra Narain (AIR 1949 Cal 404) - Impotency. 50

# Rohini Kumari vs. Narendra Singh (1972) 1 SCJ 487) - Desertion without any cause. 47
Samar Ghosh vs. Jaya Ghosh (2007) 4 SCC 511)- Cruelty to Husband. 57

Samar Som vs. Sadhana Som (AIR 1975 Cal 413) - Impotency - Removal of Uterus. 50

# Santosh Kumari vs. Surjit Singh (1990 CrLJ 1012 HP) -

Written Permission of the First Wife for the Second Marriage. 58

# Sarala Mudgai vs. Union of India (AIR 1995 SC 1531) - Conversion

to another religion. 58

# Sareeta vs. Venkata Subbaiah (AIR 1983 AP 356) - Sec. 9 HMAvs. Art. 21 Con. 45

# Saroj Rani vs. Sudarshan Kumar (AIR 1984 SC 1562) -

Sec. 9 HMAvs. Art. 21 Con. 45

# Shobha Rani vs. Madhukar Reddy (AIR 1988 SC 121) - Cruelty -

Demand of Dowry. 61

Siddagangaiah vs. Lakshamma (AIR 1968Mys. 115)-Cruelty-Suspiciou sHusband. 55

Som Dutt vs. Raj Kurnar (AIR 1986 P&H 191)- Fraud - Non-Disdosure of First Marriage. 51
Sunil K. Mirchandani vs. Reena S. Mirchandani (AIR 2000 Bom66) - Fraud. 51
 162 The Family Law -1 (The Hindu Law)

UNIT - IV
4. THE HINDU ADOPTIONS AND MAINTENANCE ACT, 1956
ADOPTIONS

# Chandrasekhara vs. Kulandaivelu (AIR 1963 SC 185) - Validity of adoption

without the consent of Sap/nc/as. 85

# Collector of Madura vs. Mootoo Ramalinga Sethupathy (Ramnad Case) -

Effect of Adoption. 7,90
Gurudas vs. Rasaranjan (AIR2006 SC 3275)-Adoptions. 80

# Laxman Singh Kothari vs. Smt. Rup Kanwar (AIR 1961 SC 1378) -
Giving and taking the adoptive boy is essential in adoption. 80

Pavan Kalyan, Cine Actor vs. Nandini (2008) - Proof of Ceremonies of the
Second Marriage - Permanent Alimony. 38, 96
# Ram Das @ Ram Suraj vs. Smt. Gadiabai (AIR 1997 SC 1563) - Legitimacy,
Valid Adoption, Coparcenary Property. 84

# Sawan Ram vs. Smt. Kalawanti (AIR 1967 SC 1761) - Adoption -

Presumptive Reversioner. 86

# Sita Bai vs. Ramachandran (AIR 1970 SC 345) - Illegitimate Son and

Adopted Son. 87

# T.A. Lakshmi Narasamba vs. Sundaramma (AIR 1975) -

Maintenance of Daughter-in-Law. 94

# Yarlagadda Nayudamma vs. State of Andhra Pradesh (AIR 1981 AP19) -

Rights of Coparcenary rights of an adopted child in his genitive family. 87

UNIT - V
. 7.
5. THE HINDU MINORITY AND GUARDIANSHIP ACT, 1956
# Gita Hariharan vs.^RBi (AIR 1999 SC 1149) - Mother as natural guardian,
while father is alive. 101

y # Hanooman Prasad Pandey vs. Babooee Munraj Koonwaree (1856) 6 M.I.A. 393) -
Natural Guardian’s Power to Mortgage the properties of the minor’s properties for his
necessities. 100

# Lakshmi Kant Pandey vs. Union of India (AIR 1984 SC 469) -

the Inter-Country Adoptions. 107

UNIT - VI
6. THE HINDU SUCCESSION ACT, 1956
Bimla Devi vs. State of Bihar (2003 (13) AlC 815) - Woman’s Estate. 128

# Buddha Singh vs. Laiiu Singh (37A604 (1915) - Fuli Biood and Half Blood. 113

# Daya Singh vs. Dhan Kaur (AIR 1975 SC 665) - General Rules of
Succession in case of male Hindus - Reversionary Rights. 122

# Pulsing Ram Singh Rajput vs. Durgabai (AIR 1997 Bom. 201) -
Rightof Dwelling House 139

# Gurupad vs. HIra Bai (AIR 1978 SC 1239) - The Theory of Notional or
Deemed Partition. 113

# Hanooman Pershad vs. Musammat Babooee (1856) - Legal Necessities. 127

Jose vs. Rama Krsihnan Nair Radhakrishnan (AIR 2004 Ker. 16) - Woman’s Estate. 128

Jwala Narasimha Reddy vs. Narayana Reddy (1978APALT 407)-

Testamentary Succession. 141

# Kotturu Swami vs. Setra Veerawa and Others (1959 SCJ 437) -
Woman’s Estate - No Question of Reversionary Rights. 129

# Mangai Singh vs. Smt. Rattno (AIR 1967 SC 1786) - Woman’s Estate -
Continuous possessionby Widow. 7. 128

Pentapati Subba Rao vs. Jupudy Pardha Sarathy (2007) 1 ALT 278) - Stridhan. 128
 SOME GOLDEN TIPS TO THE STUDENTS!

1. Preserve the Examination Question Papers, including the Internal Multiple Choice/
Objective Question Papers of each subject.
2. Neither lend nor borrow the books particularly SUJATHA LAW SERIES. Majority
Of SU JATHA LAW SERIES contains FILL UP THE BLANKS. These books will be

useful for the Advocates’ Eligibility Test, LL.M. Entrance Test, and forthe screening
Tests of the Public Prosecutors Test and Judicial Examinations and any other
competitive examinations. Each book of Sujatha Law Series contains Problems
and Solutions. They will be helpful to you in the Public Prosecutors’ and Judicial
Examinations to solve the concept and problem oriented questions.
3. Sujatha Law Series will also be helpful to you in your early practice.
4. Purchase one Legal Dictionary. Write meanings of all the new terms in your Sujatha
Law Series book itself from Page to the Last Page. Remember those terms very
often. By this practice, you become well versed with the legal terms.
5. Semester means six months. But in practice, six months’ time is not available to
the students. Hence I advise you, to purchase and start reading the Fifth semester
books, on the next day of your writing the Fourth Semester Examinations.
6. Attend the Classes regularly.
7. It vvas the practice in the ancient times to clarify the doubts with the teachers. Sri
Krishna, Sri Rama, Sudhama, Chandragupta, etc. were educated on this pattern
only. Gurukulas were established on this principle. Aristotle and the teachers,
Greek Philosophers followed it. Gurukulas are gone away. Still in the residential
schools, this practice is going on.
I

8. In the similar way, respect your Lecturers. Discuss your doubts on the subjects
with your class mates and with the concerned Lecturer. If the Lecturer consents,
take his/her cell phone number and seek permission to clarify your doubts.
9. Study the subjects with concept orientation giving the importance to the
INTERNALS with Mini/Short Questions and Fill up the Blanks as stated in the
Preface.

GADEVEERA REDDY,
Author.

Ph, 8885231739 (Strictly between 8-00 p.m. to 9-00 p.m. and on only academic matters)

PUBLISHERS' NOTE
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Publishers & Sellers

(
All irghts whatsoever in the Notes are strictly reserved and no portion of it may be
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Graphics at Sujatha Law Series (OPC) Pvt. Ltd. H. Nos. 4-5-201 & 202, Sultan Bazar (Kothi), Hyderabad - 500 095, T.S.
Printed at: Sushma Graphics, Hyderabad.
Re-Printed in May, 2023
 -*

SUJUTHfl LflW SERIES

THE BEST OF THE BEST MATERIAL ON LEGAL SUBJECTS
MOST UP-TO-DATED, ELABORATED, ENHANCED AND REVISED
ACCORDING TO NEW SYLLABUS & NEW EXAMINATION PATTERN
❖ ❖ ❖

THE FAMILY LAW - I (THE HINDU LAW)

I

(i) The Uncodified Hindu Law;

(ii) The Hindu Marriage Act, 1955;
(iii) The Hindu Minority and Guardianship Act, 1956;
(iv) The Hindu Adoptions and Maintenance Act, 1956; &
^ (v) The Hindu Succession Act, 1956 as amended by the Centrai Act No. 39 of 2005
y
❖ ❖
This book contains the best of the best materiai. Printed on superior paper, offset printing and laminated.
Space of paper is maximum utilised with the matter.
'

TOTAL WORDS 1,29,000

TOTAL PAGES 184 + 4
PROBLEMS 100
TOTAL CASE-LAWS 77 •I

PRESCRIBED CASE-LAWS. 42

TOPICS (INCLUDING SUB-TOPICS) 150

FILL UP THE BLANKS WITH ANSWERS 268
, I
PAPER - CREAMWOVE QUALITY
PRIirriNG DTP/OFFSET
❖ ❖ ❖

NEW SYLLABUS: These Notes on THE FAMILY LAW -1 [The Uncodified Hindu Law + The Hindu Marriage
C3=

Act, 1955 + The Famijy Courts Act, 1956 + The Hindu Minority and Guardianship Act,1956 + The Hindu
Adoptions and Maintenance Act, 1956 + The Hindu Succession Act, 1956 as amended by the Centrai Act
No. 39 of 2005] are prepared according to the New Syllabus and New Examination Pattern, which comes into
force with effect from 2007-2008.
LANGUAGE: Difficuit and new terms are expiained in easy language. While preparing the materiai, the
difficuities of the vernacuiar Medium Graduates are kept in mind. Therefore ianguage is very easy to erad
and understand. Dictionary for the Environment is also given.
NEW EXAMINATION PATTERN : This book is prepared according to the New Examination Pattern It contlans
all-in-one, l.e., Answers to Essay Questions, Answers to Short Notes (SNs), Solutions to Important
; /-

Problems for the University / End Examinations This book aiso contains "Fill Up the Blanks" with answers
for the Internal Examinations.
IMPORTANT POINTS: Important points of the topic are expiained number-wise in an abstract manner.
CASE-LAWS with hints to memorise and to solve the problems: Totaiiy there are 77 case-laws in FAMILY
LAW -1 including the 42 Prescribed Case-Laws of O.U., K.U & N.U. Recent and upto-date case-laws upto
2007-2008 are also quoted.
PROBLEMS: Problems with solutions are also given in appropriate places; More than 100 Problems asked
in the previous exams are solved in this book.
FILL UP THE BLANKS WITH ANSWERS: Recently internal exams are introduced for 20 marks for each
subject. The Author has framed 268 bits of Fill up the blanks with answers. If the student studies well these
bits and these notes certainly he vi/ill get 20 marks out of 20 rharks. Fill up the blanks'enhance the students'
memory, and will be useful in the End Exarhs.
PR^YIOUS QUESTION PAPERS: The credit"of our Series lies in our efforts to give the appropriate answers
to the previous question papers and solutions to the problems. As far as possible, uptodate previous
question papers, i.e , since 2000, are answered. It is the easiest way of understanding and preparing for the
examinations within a short period. We are thankful to the students, who contributed with our efforts by
sending the previous question papers. Besides O.U., now we are also incorporating the previous questions
of K U., A U., N.U., S.V.U , S.K.U., G.U.; B.U., PU., D.U., etc. We are also planning to prepare our Series /
University-wise/State-wise in future. We are also planning to prepare Sujatha Law Series in Hindi. Kindly /
help the previous questions of LL B. (English and Hindi).
DIAGRAMS: Wherever necessary, diagrams are given, which are useful to understand the concept.
SECTIONS: Original Sections are quoted wherever and whenever necessary. INGREDIENTS of Sections are
also explained.
MEANING, OBJECT, etc- Each Topic is explained with Meaning, Object,. Scope, Definitions, Sections,
Illustrations, Examples, Tabulations, Diagrams, Important Points,' Case-laws, Quotations, Principles’
Answers to big questions, short notes (SN), Solutions to Problems, differences between two concepts, etc.!
are given at one place The students can easily answer to any type of question, i.e., question essay or short
notes or problem or prescribed case-law, whatever it may be.
TIPS: Important Tips are given, which will be helpful to the students to get the highest marks.