Sources of Hindu law

The primary sources of Hindu law are the texts that are considered authoritative by Hindu
scholars and practitioners. These texts include the Vedas, the Upanishads, and the Smritis.
They are considered to be the most important sources of Hindu law because they contain
the original teachings of Hinduism.
What are the main sources of Hindu law?
Ancient Texts: Vedas, Smritis, and Dharma shastras:
The ancient texts of Hinduism form the primary source of Hindu law in India. These texts are
revered as sacred scriptures and contain philosophical, ethical, and moral principles that
guide the conduct of Hindus.
What is the origin of the Hindu law?
Hindu law claims one of the longest continuous histories of any legal system in the world.
For about 2,500 years it was based on the same primary sources, Sanskrit texts composed
between ca. 500 BCE and 500 CE. These texts (dharmaśāstras) were considered to be
revealed, and were part of the eternal, unchangeable Veda.
Notes on Sources of Hindu Law
Introduction
Hindu law is a complex system of laws that governs the lives of millions of people in India
and other parts of the world. It has a rich history that stretches back thousands of years, and
it has evolved and changed over time as society has changed. The sources of Hindu law can
be divided into various categories like ancient sources, modern sources, primary sources,
and secondary sources.
Ancient Sources of Hindu Law

The ancient sources of Hindu law include the Vedas, the Upanishads, and the Smritis. The
Vedas are the oldest sacred texts of Hinduism, dating back to 1500 BCE. They are a collection
of hymns, prayers, and rituals that were passed down orally for generations before they
were finally written down. They contain a vast collection of knowledge, including spiritual
and philosophical teachings, as well as descriptions of rituals and customs. The Vedas are
considered to be the primary source of Hindu law, as they provide the fundamental
principles that underpin the entire legal system.

The Upanishads are philosophical texts that were written around the 8th century BCE. They
explore the nature of reality, the soul, and the ultimate goal of human life. The Smritis are a
collection of texts that were written between the 2nd century BCE and the 5th century CE.
They contain detailed instructions on social, moral, and religious behavior. They are a
secondary source of Hindu law, as they expand upon the principles set forth in the Vedas
and provide more specific guidelines for conduct. There are several important Smritis,
including the Manusmriti, the Yajnavalkya Smriti etc.

Modern Sources of Hindu Law

The modern sources of Hindu law include legislation, judicial decisions, and customs.
Legislation refers to laws that are enacted by the Indian parliament or state legislatures.
These laws include the Hindu Marriage Act, the Hindu Succession Act, and the Hindu
Minority and Guardianship Act. Judicial decisions refer to the decisions made by the Indian
courts in cases that involve Hindu law. These decisions have the force of law and can be used
as precedent in future cases. Judicial decisions are an important source of law as these
decisions are based on the principles set forth in the Vedas and Smritis, as well as on
customary practices and local traditions. Over time, a body of case law has developed, which
is used to guide future legal decisions.

Customs refer to the practices and traditions that have developed over time in the society.
Customary practices are another important source of Hindu law. These practices are based
on local traditions and are often passed down through generations. They can vary widely
depending on the region and community, but they are considered to be an important part of
Hindu law.

Primary Sources of Hindu Law

The primary sources of Hindu law are the texts that are considered authoritative by Hindu
scholars and practitioners. These texts include the Vedas, the Upanishads, and the Smritis.
They are considered to be the most important sources of Hindu law because they contain
the original teachings of Hinduism. The Vedas, in particular, are considered to be the
ultimate source of all knowledge in Hinduism.

Secondary Sources of Hindu Law

The secondary sources of Hindu law include commentaries, digests, and textbooks.
Commentaries are works that interpret and explain the primary sources of Hindu law. They
are written by scholars and experts in Hindu law and are used to help practitioners
understand the meaning and significance of the primary sources. Digests are collections of
legal principles that have been extracted from the primary sources of Hindu law. They are
organized by topic and are used to provide a concise summary of the law on a particular
subject.
Over the centuries, many scholars have written commentaries on the Vedas and Smritis.
These commentaries are an important source of Hindu law, as they provide interpretations
and explanations of the texts.

Scope And Application Of Hindu Law

The true character of Hindu Jurisprudence is in fact different from that of the
European system. The obedience to the Smritis etc., was not due to any political authority of
their authors, but the veneration in which they were held by those for whom these writings
were intended. These lawgivers showed admirable practical good sense in prescribing rules.
“While apparently professing to follow the Divine Laws and Commands as found in the
Vedas and claiming simply to interpret and explain them to the general public, in reality
they so moulded these texts as to bring them in conformity with the general sense of their
followers - a fact which secured them a following and obedience which was as universal and
strong- as that secured by a political authority .
The development of Hindu Law in this way may well he compared with English Equity and
Roman Praetorian Legislation which had to pass through similar stages of formation. But the
expression Hindu Law can even stand the test of Western Lawyers if the true origin of the
Laws is properly borne in mind. In the East, as well as the West, it is never the King or
Sovereign or Political Superior who composes the Laws himself, but it is only with his
signature and seal that the Laws which are otherwise composed by private individuals are
issued to the world with the Political Sanction imprinted on it. There is only one point
wherein the two systems differ. For, whereas, in the West, the authors compose the Code
by an authority previously given for the purpose, in the East, the political mark is affixed to
the writings which probably were commenced and completed at the individual wish of a
private person, but subsequently obtained political sanction and thus came to be laws by
ratification subsequently given.
The term 'Hindu' is a general term, it denotes all those persons who profess Hindu religion
either by birth or by conversion to the Hindu faith. Till this day there is no precise definition
of the term 'Hindu' available either in the statute or in any judicial pronouncement. But it is
easy to state the various categories of persons to whom Hindu Law applies. The persons to
whom Hindu Law applies may come in the following three categories -
1. Any person who is a Hindu, Jain, Sikh or Buddhist by religion, i.e. Hindus by religion.
2. Any person who is born of Hindu parents (when both the parents or one of the parents is
a Hindu, Jain, Sikh or Buddhist by religion) i.e. Hindus by birth.
3. Any person who is not a Muslim, Christian, Parsi or Jew and who is not governed by any
other law.
Hindu by Religion

In this category two types of persons fall –

1. Those who are originally Hindus, Jains, Sikhs or Buddhist by religion, and
2. Those who are converts or reconverts to Hindu, Jain, Sikhs or Buddhist religion.
Any person who follows Hindu religion in any of its forms or development, either by
practicing it or by professing it, is a Hindu. However it is difficult to describe what is
Hinduism.
Swaminarayana Sampradaya: This sampradaya prevails in Maharastra and Gujarat, founded
by Shajanand (called later Swami Narayan) a brahimin by birth and the pupil of Ramanuj.
The followers of this Sampradaya were called Satsangi. In Yagna - Purusdasji v Muldas . a
question arose whether the followers of this Sampradaya came within the perview of Hindu
or not. Their main argument was that the Swaminarayan Sampradaya, being a non-Hindu
sect and the temple being also a non-Hindu temple, the HarUans had no right to enter it.
This Sampradaya is different from Hindu Religion. So the provisions of Hindu Law are not
applied to this temple. The Supreme Court decided that this Sampradaya was not different
from Hindu Religion and the provisions are applied to this temple also.
Hindu by Birth
A child whose both the parents were Hindus, Sikhs, Jains or Buddhists at the time of his
birth, is regarded as Hindu. If one of the parents is Hindu and the other is Jain, Sikh or
Buddhist, then also the child will be Hindu. It makes no difference that such child does or
does not profess, practice or have faith in the religion of its parents. If after the birth, both
or one of the parents become convert to another religion, the child will continue to be a
Hindu, unless, in the exercise of parental right the child is also converted into the religion in
which the parent or parents have converted (In case of legitimate child this right is on
father, and in illegitimate case is on the mother).
A person will be Hindu if at the time of his birth one of the parents was Hindu and the child
is brought up as a member of the tribe, community, group or family to which Hindu parent
belonged at the time of his birth.
If both the parents of a child are not Hindu and the child is brought up as a Hindu, the child
will not be Hindu unless he becomes converted Hindu.
Who are not Muslims, Christians, Parsis or Jews: Any person who is not a Muslim, Christian,
Parsi or Jew and who is not governed by any other law, is governed by Hindu law, unless it is
proved that Hindu law is not applicable to such a person (Raj Kumar v/s Barbara ). Those
persons who are atheists or who believe in all faiths, or in conglomeration of faiths, may fall
under this class. A Muslim who has renounced his religion and did not adopt any other
religion will be considered as Hindu.
Applicability: It was the old belief that the Hindu Law applies only to those who are the
followers of the rigid orthodox traditions of Hindu religion but the case of Ram Bhagwan
Koer v EC. Bose has settled a rule that a Hindu does not cease to be governed by Hindu Law
because of the lapse from orthodox Hindu practice or by deviation from its central
doctrines.
Under the Codified Law
Section 2 of the Hindu Marriage Act 1955, provides that the Act applies to the persons listed
below (and similar provisions are also made in the other enactments of Hindu Law)

1. Application of Act - This Act applies –

a) to any person who is Hindu by religion in any of its forms of development, including
a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj;
b) to any person who is a Buddhist, Jaina or Sikh by religion; and
c) to any other person domiciled in the territories to which this Act extends, who is not
a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person
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,
Jains 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; and
c) any person who is a convert or re-convert to the Hindu, Buddhist, Jain or Sikh
religion.
2) Notwithstanding anything contained in sub-section (1), nothing contained in this Act
shall apply to the members of any Scheduled Tribes 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.
The following persons are Hindus, Buddhists, Jain or Sikh by religion.
 Any child legitimate or illegitimate, both of whose parents are Hindus, Jain, Sikhs or
Buddhists by religion.
 Any child legitimate or illegitimate, one of whose parents is a Hindu, Jain, Sikh or
Buddhist by religion and who is brought up as a member of the tribe, community group
or family to which such parents (either the father or mother) belong or belonged, and
 Any person who is a convert or reconvert to the Hindu, Jain, Sikh or Buddhists religion.
Person to whom Hindu Law Applies (Uncodified Law)
1. Hindus by birth and to Hindus by conversion in any of its forms or developments
including.
2. Brahmans, Arya Samajists etc.
3. Illegitimate children whose parents are Hindus.
4. Illegitimate children born of a Christian father and a Hindu mother and brought up as
Hindus.
5. Buddhists, Jains, Sikhs and Nambudiri Brahmans except, so far such law is varied by
custom and to lingayats who are considered as Shudras.
6. Sons of Hindu dancing girls of Naik caste converted to Mohammedanism where the sons
are taken into the family of Hindu grandparents and are brought up as Hindus.
Schools of Hindu Law
Introduction
 The author Mr. Colebrooke coined the term "Schools of Law" to refer to different
legal opinions prevalent in various parts of India.
 School means rules and principles of Hindu Law which are divided into opinion and
are not codified.
 He noticed that the rules of Hindu Law vary from place to place and lack uniformity.
 For the purpose of identifying this variance, the thesis of the School of Hindu Law has been
propounded.
Emergence of Schools of Hindu Law
 Originally, there were no schools of Hindu jurisprudence. Due to the emergence of
various commentaries on Shruti and Smriti, different schools of thought arose.
 Shruti means which has been heard. The shrutis include the four Vedas - Rig, Yajur,
Sama, and Athrava along with their brahmanas. Vedas primarily contain theories
about sacrifices, rituals, and customs.
 Smriti means what is remembered. It includes those works which are created by the
virtue of memory of sages and are further divided into Dharmashastras and
Dharmasutras.
 The commentary in one part of the country varied from the commentary in the other
parts of the country.
 In Rutcheputty v. Rajendra (1839), the privy council observed that different schools
of Hindu law have originated because of different local customs prevailing in
different parts of India.
Existence of Schools of Hindu Law
 In the codified area of Hindu Law, there is no scope for existence of Schools as the
codified Hindu Law lays down uniform law for all Hindus.
 The Schools of Hindu Law have relevance only in respect of the uncodified areas of
Hindu Law.

 Schools of Hindu Law

 There are two main schools of Hindu Law:

o Mitakshara School
 o Dayabhaga School
Mitakshara School
 The Yagnavalkya Smriti was commented on by Vijnaneshwara under the title Mitakshara.
 The followers of Mitakshara are grouped together under the Mitakshara School.
 The Mitakshara is not only a commentary on the Smriti of Yajnavalkya but it is also a digest
of practically all the leading Smritis of Hindu Law.
 The provisions of this School are applicable throughout India except in the State of Bengal
and Assam.
Features of Mitakshara School
 Mitakshara School is based on the principle of the joint family system where ancestral
property is passed on from generation to generation, and each member of the family has a
right to a share in the property.
 It also recognizes the concept of survivorship, where the share of a deceased coparcener
automatically passes on to the surviving coparceners.
 One of the unique features of Mitakshara School is that the coparcener male child (four
generations from a common ancestor) acquires right in family property by mere birth.
 A woman could never become a coparcener. But the Hindu Succession (Amendment) Act,
2005 empowered women to become a coparcener like a male in ancestral property.
Sub – Schools Under the Mitakshara School
 There are four Sub-Schools under the Mitakshara School which are as follows:
o Madras School or Dravidian School of thought
o Maharashtra School or Bombay School of thought
o Benaras School of thought
o Mithila School of thought
Madras School or Dravidian School of Thought
 It exists in South India.
 The main authority accepted by this school is Smriti Chandrika authored by Devananda
Bhatta.
 In the case of adoption by a widow it has a peculiar custom that the consent of the sapindas
was necessary for a valid adoption.
o Two individuals are considered sapindas of each other if they have a common ancestor
within the preceding three generations.
o In other words, if they share a common bloodline within three generations, they are
considered sapindas.
Maharashtra School or Bombay School of Thought
 It exists in Bombay (Mumbai) and Gujarat.
 The main authority accepted by this school is Vyavahra Mayukha authored by Nilakantha.
 This school has got an entire work of religious and Civil laws.
Benaras School of Thought
 It extends of whole of northern India except in Punjab where its authority is modified by
customary law in rural areas.
 The main authority accepted by this school is Viramitrodaya authored by Mitra Mishra.
Mithila School of Thought
 It exists in Tirhut, North Bihar and Uttar Pradesh near the Yamuna River areas.
 The main authority accepted by this school is Vivad Chintamani authored by Vachaspati
Mishra and Vivad Ratnakara authored by Chandeshwar Thakur.

Dayabhaga School
 The Yagnavalkya Smriti and some other Smritis are commented on by Jimutavahana under
the title Dayabhaga.
 It exists in Bengal and Assam only.
 It has no sub-school.
Features of Dayabhaga School
 Sapinda relation is by pinda offerings.
 The right to Hindu joint family property is not by birth but only on the death of the father.
 The system of devolution of property is by inheritance. The legal heirs (sons) have definite
shares after the death of the father.
 Each brother has ownership over a definite fraction of the joint family property and so
can transfer his share.
 On the death of the husband the widow becomes a coparcener with other brothers of the
husband. She can enforce partition of her share.
Difference between Mitakshara and Dayabhaga School
The following are the 3 Organs of the System:
1) Legislature
2) Executive and
3) Judiciary
There are two types of Law.
Territorial Law = This is the law which is applied to all the citizens in a particular territory
irrespective their religion, caste, creed and other considerations. Eg., IPC, Cr. PC, Corporate
law, etc.
Personal law== The personal law is applicable to only those persons who belong to the
particular categories. Examples of such laws are; Hindu Law, Muslim Personal law, Christian
Law etc.
Personal law is applicable in the following areas.
 Marriage
 Divorce
 Maintenance
 Adoption
 Minority, Guardianship
 Succession
Marriage creates Rights and obligations.
Monogamy means -one wife and one Husband.
Polygamy means-One Husband with more than one wife.
Hindu Law permits payment of maintenance. In Muslim Law Maintenance is paid to wife
only for 3 months during ijjat period.
Hindu:
 A person born in Hindu religion is a Hindu. The word Hindu includes “Buddhist”,
“Jain” and “Sikh”.
 If one of the parents is a Hindu and the other is a non-Hindu, how the Child is
brought up in the tribe will decide whether he is Hindu or non-Hindu.
 Any person except “Muslim”, “Parsi”. “Jew” and “Christian” comes under definition
“Hindu”.
It is to be noted that. the word “Hindu” do not signify any meaning except for the
application of Hindu law.
School is an Institution which gives Knowledge. The schools of Hindu law emerged as a result
of era of “Commentary & Digests” as a result of origin of Hindu School.
The Privy Council observed that the “Smritis are common to all the different schools”. The
process by which these schools have been developed seems to differ with one another. This
authority of schools has been received in one and rejected in another part of the Country.
The Codified Hindu Law laid down uniform law for all Hindus, now there is no existence of
Hindu School. Now, Hindu law is relevant with codified “Hindu Law”.
The following are the type of families:
 Family-Husband, Wife and Childre,
 Joint Family-Wife, Husband, Children, Brothers, Sisters and their spouses,
Grandparents etc.
 Undivided Hindu Family
Property types:
 Ancestral Property
 Separate Property
 Joint Property
 Coparcenary property
Status in relation families:
 Common ancestor (CA)
 Coparcener
 Sons
 Daughters
In ancient India Patriarchal family system. In Mitakshara Law only males are Coparceners.
All males up to 4 generations are entitled to joint family property. I.e..
All these lineal descendants up to 4 generation males have equal rights on coparcener
property.
Women do not have any right in coparcener property. This rule is up to year 1956.
The joint family consists of father and his 3 male lineal descendants. Coparcenary cannot be
created by agreement. It is a creation of law.
Schools of Hindu Law:
Mitakshara Law was written by Vignaneshwara:
It is the most important authority of all the commentators of the Yagnavalkya Smriti. The
period of him was 11th century. Mitakshara was the subject of several commentaries.
Mitakshara law exists throughout India except Bengal. Mitakshara was considered as great
authority in all matters, Eg. Against the re-marriage of women.
1. He has classified the caste.
2. He advocated limited polygamy
3. He was against 8 forms of marriage.
4. He discouraged inter caste marriages.
5. Partition & Inheritance
6. Boundary Disputes
7. Contract of services
8. Law of Mortgages
9. Rules of evidence
10. Duties of King
Dayabagha School:
Written by Jeemuthavahana, this school is mainly found in Bengal and some parts of Assam.
Jeemuthavahan lived around 12th Century. Dayabhaga was not divided into any sub schools.
Dayabhaga deals with subjects like.
1. inheritance
2. Partition
3. Succession in a direct approach
4. StreeDhan
The Major differences in Mitakshara law and Dayabagha law are summarized as under;
The Law up to 1956: Survivorship
Mitakshara =====> Ancestor
Law

Four Generations 1

3
Here the Law is governed by Survivorship. Surviving means, surviving coparceners. In this
case all the surviving males (including Ancestor/Father) are coparceners.
S=Son Father Wife
D=Daughter X

X Wife Son Son Son Daughter Daughter

X X

S DX S S S S
“Survivorship” all male coparceners are entitled to property.
Karta
In a Hindu Joint Family, the Karta is the Manager. He is having a unique position. He is a
person with power and right over the joint family. From the 12 th century to 19th Century we
are following patriarchal system, accordingly males used to represent as Karta.
Hindu Undivided family used to consist of:
 Hindu Undivided Family (HUF)

F F father +B+Sister+Widow of Brother etc.

F=Father
S=Son
Father' father
B=Brother
W=Wife
Father

Son

S Son

S S Son
A joint family is a Patriarchal family. The Senior most male ascendant (line goes up) is the
Head of the family, and he can be the Karta. He represents the family and act on behalf of
the family. The Senior most male member is Karta by virtue of the fact, that he is the senior
most male member. He does not owe his position to agreement or consent of other
coparceners.
In a family consisting of the Father, Wife and his Children, the Father is the Karta. In a family
consisting of brothers, the eldest brother is the Karta.
Prior to 1956== A woman cannot be a Karta as she is not a coparcener. If Minor
coparcener becomes a Karta, he has to act through his legal guardian till he becomes a
major.
However post Hindu Succession (Amendment) Act 2005, women also have a right to joint
family property like a male coparcener. There is land mark judgement of;
Case Law- Mrs. Sujatha Sharma Vs. Manu Gupta &n Others (2016)
Delhi High Court has decided that, as per the amended Act 2005, a female member of a joint
family is entitled for a share in the joint family property like a male coparcener, she can also
become a Karta of the HUF (Hindu Joint Family).
Rights and powers of Karta:
 i. Powers of management
ii. Right to income.
iii. Right to representation
iv. Power of compromise.
v. Power to refer a dispute to Arbitration.
vi. Power of acknowledgment
vii. Karta’s power to contact debts.
viii. Loan on promissory note.
ix. Power to enter into contracts.
Marriage:
In ancient Hindu Law eight forms of marriage prevailed of which only three were valid before
1955. These were Brahma, Gandharva and Asura. The Hindu Marriage Act does not specially
provide for any form of marriage.
The act calls marriage solemnized under the Act as Hindu marriage which may be performed
in accordance with the “Shastric” rites and ceremonies or in accordance with the customary
ceremonies prevalent in the community to which the bride and bridegroom belongs. Hindu
marriage is still a ritual ridden marriage.
Performance of certain “Shastric” ceremonies is still necessary for a valid Hindu marriage.
According to Hindu law marriage is sacramental. For every religious and spiritual ceremony
presence of a female partner is compulsory.
The purpose of marriage is to do all religious rites, religious & spiritual ceremonies. Union of
two parties. Sexual intercourse and carry forward the lineage. It is also the sharing of rights
and obligations. Marriage is a bundle of rights including sexual intercourse.
Hindu Marriage Act 1955
The Hindu Succession Act 1956
The Hindu Adoption and Maintenance Act 1956
The Hindu Minority and Guardianship Act 1956
The Prohibition of Child Marriage Act 2006
The Hindu Widow Remarriage Act 1956
Section 1: This Act may be called The Hindu Marriage Act 1955, it extends to whole of India
and applies also to Hindus domiciled in the territories to which this Act extends who are
outside the territories.
Section 2: Application of the Act
Section 2(1)(a): to any person who is a Hindu by religion in any of its forms or developments,
including Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj.
Section 2(1)(b): to any person who is a Buddhist, Jain or Sikh by religion; and
Section 2(1)( c): to any other person domiciled in the territories to which this Act extends
who is not a Muslim, Christian, Parsi or Jew by religion. Unless it is proved that any such
person 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 1: The following persons are Hindus, Buddhists, Jains or Sikhs by religion as the
case may be;
(a) Any child legitimate or illegitimate, both of whose parents are Hindus, Buddhists,
Jains, or Sikhs by religion.
(b) Any child legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jain 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 and;
(c) Any person who is a convert or reconvert to the Hindu, Buddhist, Jain or Sikh
religion.
Explanation 2:
Notwithstanding anything contained in Section 2(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.
Section 3: Definitions In this unless the context otherwise requires, -
Section 3(a): “custom” and “usage”
The expression “custom” and “usage” signify any rule which having been continuously and
uniformly observed for a long time, has obtained the force of Law among Hindus in any
local area, tribe, community, group, or family.
Provided 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(b): “District Court”
means, in any area for which there is a City Civil Court, that Court and in any other area the
principal Civil Court of original Jurisdiction and includes any other civil court which may be
specified by the State Government by notification in the official Gazette , as having
jurisdiction in respect of the matters dealt with in this Act.

Notes: It was “District Court” after amendment it is “Family Court”

Section 3( c): “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 (d): 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.
Section 3(e): “prescribed”
Means prescribed by rules made under this Act,
Section 3(f)(i): “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 counted as
the first generation.
 Father’s Father’s
Father’s Father’s
father (FFFFF)
Mother’s side 3 generations
Father’s side 5
Father’s Father’s
generations
Father’s father
(FFFF)

Mother’s Father’s
Father (MFF) Father’s Father’s
father (FFF)

Mother’s father Father’s father

(MF) (FF)

Mother (M) Father (F)

Notes: Hindu marriage Act applies even if the person resides outside India.
“Sapinda” : The Hindus believe in ancestor worship and offer “Pinda dhaan” to their
departed ancestors. These offerings are mainly in the form of “Pinda”. The “Pinda” literally
means a rice ball usually made from cooked rice. Thus, he is connected by Pinda Dhaan to 5
ancestors on the paternal side and the 3 ancestors on the maternal side and is Sapinda to
them.
Two persons are said to be “Sapinda” of each other if one is a lineal ascendent of the other
within the limit of Sapinda relationship or if they have a common lineal ascendent who is
within the limit of Sapinda relationship with reference to each of them.

Refer Delhi High Court Judgement January’24

Section 3(g): Degrees of Prohibited relationship

Two persons are said to be within the “degrees pf prohibited relationship’,-
(i) If one is a lineal ascendent of the other; or
(ii) If one was the wife or husband of a lineal ascendent or descendent of the other;
or
(iii) If one was the wife of the brother or of the Father’s or mother’s brother or of
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 two brothers or two sisters.
Explanation:
For the purpose of clause (f) and (g) relationship includes
(i) Relationship by half or uterine blood as well as by the full-blood.
(ii) Illegitimate blood relationship as well as legitimate
(iii) Relationship by adoption as well as by blood.
Section 4: Overriding effect of Law
Save as otherwise expressly provided in this Act,-
Section 4 Clause (a), any text ,rule or interpretation of Hindu Law or any custom or usage as
part of the law in force immediately before the commencement of this Act shall cease to
have effect with respect to any matter for which provisions is made in this Act
Section 4 Clause (b): any other law in force immediately before the commencement of this
Act, shall cease to have effect in so far as it is inconsistent with any of the provisions
contained in this Act.

Section 5 : Conditions for a Hindu Marriage;

A marriage may be solemnized between any two Hindus if the following conditions are
fulfilled.
Section 5(i): neither party has a spouse living at the time of marriage.
Case Law: Sambi Reddy Vs Jayamma (1972) AP 156
It was held that Section 5(i) read with Section 17 of Hindu Marriage Act 1955
rendering a bigamous marriage Void. It does not contravene the Article 14, Article of
15 of the Indian Constitution.
Under IPC, 7 years punishment for bigamous marriage. If the person is in Government
service he can be removed from service.
Section 5(ii) at the time of 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.
Case Law: Ram Narain Gupta Vs Rameswari Gupta
 It was held that the onus pf proof of lunacy lies on him to annul the marriage
Section 5(iii):
The bridegroom has completed the age of 21 years and the bride the age of 18 years.at
the time of marriage.
Notes: An amendment was made in 1978 with regard to age of Bride and Bride
Bridegroom. Before amendment ie prior to 1978, the age of Bride was 15 years and
Bridegroom was 17 years.
 Case Law Pendeti Venkata Ramana Vs State of AP 1977
The marriage of A and B was solemnized by the elders in 1959 and the Bridegroom
was 13 years and bride 9 years. In 1975, the husband marries another woman
treating his previous child marriage as void. The first wife files a criminal case under
Section 494 of IPC for the offence of Bigamy.
Section 5(iv):
The parties are not within the degree of prohibited relationship unless the custom or
usage governing each of them permits of a marriage between the two.
Notes: A person whosoever marries under prohibited relationship is void. The
marriage between paternal aunt’s children and maternal uncle’s children, if the
custom permits is valid.
Section 5(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.
Notes:
In a valid marriage rights and obligations are enforced through court.
 Valid marriage-enforceable through Court
 Void marriage-not enforceable through Court
 Voidable Marriage- enforceable at the option of the one of the parties to it.
  Hindu Law never recognizes a second marriage.
 Monogamy- one wife with one Husband
 Polygamy- One husband and number of wives
 Polyandry-one wife and many Husbands
 Bigamy-One husband with two wives or one wife with two husbands.
Child Marriage: Whoever performs a child marriage including the Pandit are liable for
prosecution. However, the bride and Bridegroom will not be prosecuted as they are
minors. After they age of majority, they can take a decision to either continue with the
marriage or not.
Child marriage is valid based Latin phrase “Factum Valet” translates to "the deed is
valid". It is a legal principle that acknowledges the validity and binding nature of an act
or deed.
Section 6: Guardianship in marriage:
Repealed by the Child marriage restraint (amendment) Act 1978.
Section 7 : Ceremonies for Hindu marriage.
Section 7(1): A Hindu marriage may be solemnized in accordance with the customary
rites and ceremonies of either party thereto.
Section 7(2): where such rites and ceremonies include “saptapadi” (that is the taking of
seven steps by the bridegroom and the bride jointly before the sacred fire) the marriage
becomes complete and binding when the seventh step is taken.
Section 8: Registration of Hindu marriage:
Section 8(1): For the purpose of facilitating the proof of Hindu marriage, 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.
Section 8(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 subsection (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
directions has been issued , any person contravening any rule made in this behalf shall
be punishable with fine which may extend to twenty five rupees.
Section 8(3):
All rules made under this section shall be laid before the State Legislature as soon as may
be after they are made.
Section 8(4):
The Hindu marriage register shall aat 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 to him of the prescribed
fee.
Section 8(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.
Section 9: Restitution of conjugal Rights
When either the husband or the wife without reasonable excuse, withdrawn from the
society of the other, the aggrieved party may apply, by petition to the district court for
restitution of conjugal rights 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
society the burden of proving reasonable excuse shall be on the person who has
withdrawn from the society.
Case law 1: Sarita Vs Venkata Subbaiah AIR 1983 AP 356
It was held that Section 9 is a brutal section. The petitioner’s contention that she left
him to pursue her profession/vocation and restitution of conjugal rights is in violation of
fundamental rights granted to the defendant. Hence, petition was not granted.
Articles 14, 19, and 21 are known as the "golden triangle" of the Indian
Constitution. Article 14's right to equality before the law is necessary for Article 19's
freedom of speech and expression. Article 21's right to life and personal liberty
depends on the protection of equal rights and freedoms under Articles 14 and 19.
 Case Law 2: Smt. Harvinder Kaur Vs Harminder Singh Choudhary AIR 1984 Delhi
It was held by The Delhi High Court, Section 9 is a speed breaker. It gives an opportunity for
reconciliation between Husband and Wife.
Case law 3: Smt. Saroj Rani Vs Sudarsan Kumar Chedda AIR 1984 SC 1562
It was held by The Supreme Court said that “it is a sacramental one and it is the duty of the
parties to the marriage shall perform their duties truthfully and honestly”.
Notes: The violation of fundamental rights a person can sue the State. But extending its
application of Violation to individual violations is like “leaving a bull in Chinese Shop”.
 Live-in relations don’t get benefit of Section-9 restitution of conjugal rights
This remedy available for:
 Withdrawal from society
 Without Reasonable excuse
 Right under Section 9 is available to both Husband and wife.
Section 10: Judicial Separation:
Notes:
There are 7 grounds initially indicated for Judicial separation as follows.
1. Adultery
Under Section 497(which was removed in 1996)
 Under Hindu marriage Act, Adultery is one of the grounds for judicial
separation.
2. Cruelty
Wait for 2 years before making an application for judicial separation.
3. Desertion
Wait for 3 years before making an application for judicial separation
4. Conversion
 5. Unsound mind
6. Leprosy
Removed from the grounds after amendment
7. Venereal diseases
Wait for 2 years before making an application for judicial separation.
Thus, the wait period indicated for certain grounds as above is not acceptable as the person
who endures the unjust treatment prolongs his/her pain in the relationship. Considering the
anomaly and after an amendment in the year 1976, it was “ on any of the grounds specified
in sub section (1) Section 13 a petition for Judicial separation” can be made. Thus. Time
limits were removed. Both Wife and Husband can get Judicial separation.

Section 10: Judicial Separation:

Section 10(1): Either party to a marriage , whether solemnized before after the
commencement of this Act, may present a petition praying for a decree for judicial
separation on any of the ground specified in sub section (1) of section 13 and in the case of
a wife also on any of the grounds specified in sub section (2) there of as grounds on which a
petition for divorce might have been presented..

Section 10(2): Where a decree for judicial separation has been passed it shall no longer be
obligatory for the petitioner to cohabit with the respondent, but the Court may on the
application by petitioner 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.
Notes:
Differences between Marriage, Judicial separation and Divorce:
Marriage Judicial Separation Divorce
Status of Wife and Husband Status of Wife and Husband continue Status of Wife
continue and Husband
 ends.
Union of two persons, Stay separately and no obligation to stay
staying together, enjoying together.
conjugal rights If a decree for judicial separation is passed by
a competent Court it is no longer obligatory to
either party to cohabit with the other. Such a
decree does not severe or dissolve the
marriage.
If the Husband goes for another marriage it is
Bigamy and it is void marriage.
No time limit for judicial separation. After one
year the couple can petition for Divorce
There certain mutual rights and obligations
arising from the marriage are suspended when
judicial separation is passed.
The object of judicial separation is mainly to
give time to the spouses for reconciliation and
reapprochement.
 Judicial separation works as a speed breaker to
reduce their speed of decision which ends
with Dicorce

Notes:
 A person who files a petition is called “Petitioner”. Other person is “Respondent”.
 If a suit is filed the person who filed the suit is called “Plaintiff” and the other person
is “Defendant/respondent”.
  If an appeal is filed the person who files the appeal is called “appellant” and the
other person is “Respondent”
Grounds for Judicial Separation:
1. Adultery (extra Marital sexual intercourse)
2. Cruelty
3. Desertion
4. Conversion
 5. Unsoundness of mind
6. Leprosy
7. Venereal disease
8. Renunciation of the world
9. Presumption of Death
Additional grounds available for wife:
 Bigamy
  Sodomy
 Bestiality

Nullity of Marriage and Divorce

Section 11: Void marriages
Any marriage solemnized after the commencement of this Act shall be null and void and
may on a petition presented by either party thereto (against the other party) be so declared
by a decree of nullity if it contravenes any one of the conditions specified in clause (i), (iv)
and (v) of section 5.
Section 12: Voidable Marriage
Section 12(1):
Any marriage solemnized whether before 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 ha snot been consummated owing to the importance of the
respondent: or
(b) that the marriage is in contravention of the conditions specified clause (ii) of
Section5; or
(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 immediately before the
commencement of 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 material circumstance concerning the respondent) ; or
(d) that the respondent was at the time of the marriage pregnant by some person other
than the petitioner
Section 12 (2):
Notwithstanding anything contained in sub Section (1) no petition for annulling marriage –
(a) on the ground specified in clause( c) of subsection(1) shall 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 and wife after the force had ceased
to operate or , as the case may be, the fraud has been discovered.
(b) On the ground specified in clause (d) of sub section (1) shall 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 marriage
solemnized before the commencement of this Act within one year of
such commencement and in the case of marriage solemnized after
such commencement within one year from the date of the marriage ;
and
 iii. that marital intercourse with the consent of the petitioner has not
taken place since the discovery by the petitioner of the existence of
the [said ground].

Notes:
As per Section 5 of Hindu Marriage Act, Conditions for a Hindu Marriage
i. Monogamy-neither party has a spouse living at the time of marriage
 ii. Soundness of mind (unsound mind, incapable of procreation and recurrent
attacks of insanity)
iii. Age of the parties-The bridegroom has completed the age of 21 years and
the bride the age of 18 years.
iv. The parties are not within the degree of prohibited relationship.
v. The parties are not Sapindas.
 If the conditions of (i), (iv) and (v) are not met the marriage is a Void marriage.
  If condition (ii) and (iii) are met, then it is a voidable marriage. Child marriage is valid
marriage, the bride and groom after attaining majority may take their own decision
whether to continue with the marriage or not.

Section 13 : Divorce
Any marriage solemnized, whether before 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-
Section 13(1)(i): has after solemnization of the marriage, had voluntary sexual intercourse
with any person other than his or her spouse; or
Case Law: Tribhat Singh Vs Bimla Devi
Section 13(1)(ia): has after the solemnization of the marriage treated the petitioner with
cruelty; or
Case Law; Dastane Vs Dastane (AIR 1970 BOM 312)
Case Law: Russel Vs Russel
Section 13(1)(ib): has deserted the petitioner for a continuous period of not less than 2
years immediately preceding the presentation of the petition; or
Section 13(1)(ii): has ceased to be a Hindu by conversion to another religion; or
Section 13(1)(iii): has been incurably or 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.
Section 13(1)(iv): has been suffering from a virulent and incurable form of leprosy. or
Note: the above sub clause (iv) has been omitted by Amendment Act 2019.
Section 13(1)(v): has been suffering from venereal disease in a communicable form; or
Section 13(1)(vi): has renounced the world by entering any religious order; or
Section 13(1)(vii): 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.

A person who files a petition is called “Petitioner.”

Other person is “respondent”
If suit is filed the person who filed the suit is called “Plaintiff”
the other person is called “respondent/defendant”
 If an appeal is filed, the person who filed the appeal is called “appellant”
The other person is called “respondent”

Section 13(1)(ia): Cruelty:

Case Law: Sobha Rani Vs Madhukar Reddi 1988 (1) SC 1291
The court has observed that the cruelty mental or physical, intentional or unintentional. If it
is mental, the enquiry must begin as to the nature of the cruel treatment.
Case Law Dastane Vs Dastane
The modern law takes the view that the objective is to accord protection to the innocent
party. Nagging and scolding and even incompatibility of temperament have been held to be
included in cruelty.
The modern law classified (a) physical cruelty and (b) mental cruelty.
Physical cruelty
 Injury to private parts; Ashok Vs Santosh, During intercourse (probably on account
husband’s failure to complete coitus), the wife used to pull the flaccid penis of her
husband. The Delhi High court held this amount to cruelty as pulling of the flaccid
penis can cause extreme pain.
 Husband indulging in unnatural carnal relationship is held to be cruelty
  Denial of medical treatment to the spouse particularly on the very first day of her
arrival in the matrimonial home and turning her out of the matrimonial homeon the
very first day are acts of cruelty.
Expanding the horizon of cruelty : post 1976 developments, -The Marriage law (amendment)
Act 1976, has changed the definition and meaning and scope of cruelty perception. (refer
page 154 oof Text book)
 False accusations of adultery and unchastity amounts to cruelty came to be
established at an early period. Such accusations can take various forms.
Thus in Kusumalata Vs Kampta Prasad, false accusations of adultery were made
orally, in lawyer’s notice and in pleadings while in Saptami Vs Jagadish the husband
constantly called his wife a prostitute , a woman of the street.
 If a woman is subjected to false accusations of adultery, insults, abuses humiliation,
false charge of immorality it would make married life impossible to be endured and
would make a very unhappy amd miserable existence. Thus, can be treated a cruelty.
 Wife quarrelling with Mother in Law: Mere domestic quarrels on account of the
presence of the mother-in-law in the family would not constitute mental cruelty.
Mere misbehavior with parents of Husband and other relations does not amount to
cruelty.
 Demand of Dowry: The demand od dowry from the wife or her parents and relations
amounts to cruelty. But this should be distinguished from the Section 498-A of IPC
whereunder it is a criminal offence.
 Persistence refusal to have intercourse.
o Shakuntala Vs Om Prakash
 LeilaSeth J observed that wilful denial of sexual relationship by a spouse when
the other spouse is anxious for it, would amount to mental cruelty, especially
when the parties are young and newly married. This is a consistent view
taken by courts.
 Wilful refusal to sexual intercourse and impotency: If refusal to have intercourse
amounts to cruelty, so does the impotency. Wilful refusal to perform marital
obligations amount to cruelty.
 Drunkenness : If a spouse indulges in excessive drinking and continues to do so in
spite of remonstrance by the other it may amount to cruelty, since it may cause
great anguish and distress to the other spouse who may find living together not
merely miserable but unbearable.
 False criminal Charges: In several cases it has been held that prosecution of a
spouse by the other of a false criminal charges amount to cruelty.
 o Eg . False charge of Bigamy under Section 494 of IPC by wife (Kalpana Vs
Surendra)
 Refusal to have Children: Just as Wilful refusal to have intercourse amounts to
cruelty, the persistent refusal of a spouse to have any children amounts to cruelty
 Peculiar behaviour: in Uma Wantt Vs Arjan Dev, though the wife not found to be
insane, but she behaved in a peculiar manner such as she was not obedient and
 declined to cohabit, she did not understand the responsibilities of housewife.
After taking bath she would not put clothes properly. She urinated outside the
house and in her own clothes and she did many other pranks and unusual
behaviour. The court said this amount to cruelty.
 Birt of an illegitimate child: Madan lal Vs Sudesh Kumar, the court held that birth
of a child within 6 months of marriage amounted to cruelty. No one should
dispute this finding. But, under Section 12(2) (b)(ii) on the ground of pre-
 marriage pregnancy , the petition for annulment must be filed within one year of
marriage.
 Irretrievable breakdown of marriage amounts to cruelty
 Threat to commit suicide.
 False allegation of insanity and lunacy:
 False complaint to the employer
 Acts of conduct amounting to cruelty: No hard and fast rules can be laid down so
as to what acts or conduct will amount to cruelty in any given case. The court has
to consider the social status, environment, the education, the mental and
physical condition and the susceptibilities of the innocent spouse as also the
cutom and manners of the parties. The following examples will clarify the
position.
o Satya Narain Vs Mamta, the Husband did not like his wife from the
beginning and was living in adulterous life and contracted a second
marriage , it was held to be cruelty.
o Hiding facts like true age, and previous marital statusand the fact that
Wife’s first husband had committed suicide amounts to cruelty.
o Undue familiarity with members of opposite sex may be mental cruelty in
some cases.
o Obstructing vocation of spouse: in U Sree vs U Srinivas, husband was a
famous musician. Wife hated his vocation. She did not care about his
public image and made aspersions on his character. It was held to mental
cruelty.
What is not Cruelty:
 Cruelty is to be distinguished from normal wear and tear of the marriage
 Quarrels between the spouse on trivial matters does not amount to cruelty.
Defence of Cruelty: At one time insanity was a good Defence for cruelty but no loner so.
Evidence or proof: In Viswananthan Sitaram Aggarwal Vs Sarla Aggarwal, it has been
observed that members of family, relatives, friends and neighbours would be the most
natural witnesses. Brushing aside their deposition on ground of relationship is not proper.
Burden of Proof: It is a settled law that the burden of proving adultery or desertion is on the
petitioner. But, petitioner need not prove it beyond reasonable doubt. In Dastane Vs
Dastane , Chandrachud J after considering certain English and Australian decisions , has
taken the view that though the burden of establishing cruelty lies on petitioner, the cruelty
may be proved on balance of probabilities. His Lordship said” words in Section 23 Hindu
Marriage Act 1955’satisfied” must mean “satisfied on a preponderance of probabilities.” And
not “satisfied beyond reasonable doubt”. But Divorce cannot be granted on mere averments
of cruelty in absence of cogent proof”

When Husband not entitled for divorce on ground of mental Cruelty by wife: Where a
petition for divorce was filed by the husband on the ground that wife was having extra-
marital affair which has caused mental cruelty to husband but the said allegation was not
substantiated by the husband through any independent and uninterested witnesses , held
that the husband was not entitled for Divorce.
In the absence of any such evidence, alleged acts would not constitute “cruelty”. Further,
the mere fact that parties had been living separately or wife had filed maintenance
application would also not entitle him to a decree of Divorce.
Section 13(1)(ib): Desertion:
Desertion is the active or Wilful termination of an existing cohabitation without the consent
express or implied of the party alleging desertion and against wish of such party.
 The factum of separation
 The intention to bring cohabitation to an end permanently.-(animus descendi)
 Desertion for a period of 2 years
Case Law: Rangaswamy Vs Aravindmani
It was held that the essential factor which must be established for the charge of desertion
are;
i. The spouse must have parted or terminated all joint life.
ii. Intention to desert the other spouse.
iii. The deserted spouse must not have agreed to the separation
iv. Without reasonable excuse.
 v. Have continued for at least 2 years before presentation of petition

Desertion is of following categories:

1. Actual desertion
2. Constructive desertion and
3. Wilful neglect
Case Law: Bipin Chandra Vs. Prabhavati [AIR 1957 SC 176]
Facts of the Case: Soon after the marriage in 1942, the wife resided in Bombay with her
husband and along with husband’s parents and two sisters, The coupled lived happily till
1946. A son was born to them. In 1946, one Mahendra friend of the family came to live in
the matrimonial home.
In January, 1947, the husband went to England on business. He came back in May, 1947. On
his return he came to know that his wife had become intimate with Mahendra in his
absence. The husband’s father had intercepted a letter by the wife to Mahendra which he
handed over to the husband. The Husband asked the wife to explain! She denied having
written the letter.
Next day on May 24, 1947 she left her parents home at at Jalgaon, ostensibly for the
marriage of her cousin which was to take place 4 to 6 weeks later.
On July 15, 1947, the husband sent a letter through his solicitor charging her with intimacy
with Mahendra and asking her to send back the child.
However, in November, 1947, the husband was told by his mother that is wife is coming to
Bombay within a few days. The Husband sent a telegram to the wife’s father to the
following effect. “Must not send Prabha, letter posted……..”
In 1951 a petition for Divorce was filed. In between, abortive attempts at reconciliation were
made.
Decision: The main Defence of the wife was that it was the petitioner who by his treatment
after his return from England made her life unbearable and compelled her to leave the
marital home against her wishes and did not allow her to return. She denied any intimacy
with Mahendra.
The Supreme Court, Sinha J said “Whether her leaving marital home on May 24, 1947 is
consistent with her having deserted her husband in the sense that she had deliberately
decided permanently to forsake all relationship with him with the intention of not returning
to consortium, without the consent of the husband and against his wishes?”.
It is to be noted that “the party who intends to bring the cohabitation to an end and whose
conduct in reality causes its termination, commits the act of desertion”.
The court said that what is required in this case is that the petitioner has to prove that ‘
throughout the entire statutory period , the wife has without cause has been in desertion”.
But as per the facts of the case it is clear that the wife is willing come back immediately after
the completion of her cousin’s marriage in June 1947. However, the Husband has sent a
letter through his solicitor in July, 1947 and further countermanded her return with a
telegram in November 1947 ““Must not send Prabha, letter posted……..”.
The Supreme court concluded that, “ ….the wife was not in desertion though she left her
husband’s home without any fault of the plaintiff. After the lapse of a few months stay at her
father’s place, she was willing to go back to her matrimonial home“. The petition was
dismissed.
Section 13(1)(ii): Conversion or change of religion:
Apostasy. Conversion of religion is a ground for Divorce
Section 13(1)(iii): unsound mind or mental disorder:
has been incurably or 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.
Then it’s a ground for Divorce
Section 13(1)(iv): virulent form of Leprosy
has been suffering from a virulent and incurable form of leprosy. or
Note: the above sub clause (iv) has been omitted by Amendment Act 2019.
Section 13(1)(v): Venereal disease
has been suffering from venereal disease in a communicable form; or
Section 13(1)(vi): has renounced the world by entering any religious order; or
Section 13(1)(vii): has not been heard of as being alive for a period of 7 years or more by
those persons who would naturally have heard of it had that party been alive.

The above grounds are common grounds for both Husband and wife.
Section 13(2) additional grounds on which a Hindu wife can seek Divorce
Section 13(2) gives special grounds for Divorce to wife;
Section 13(2)(i)
Bigamy-Second marriage of Husband. Bigamy is a punishable offence under Indian
Penal Code with imprisonment up to 7 years and the offender is a Government
employee, he can be removed from service.
The marriage is solemnized before or after the Hindu marriage Act 1955, the wife can
apply for Divorce on the ground that the Husband has married again.
Case Law: Mandal Naganna Vs Lakshmi Bai
It was observed, when wife presents a petition that the fact must be proved, the
husband has performed a second marriage.
Section 13(2)(ii)
Commission of the offence of “Rape, Sodomy and Bestiality”.
Rape: Rape is a criminal offence under Section 375 of IPC
Sodomy and Bestiality are unnatural offences under Section 377 of IPC Sodomy and
Bestiality are committed when one has carnal intercourse against the order of nature
with any man, woman or animal”.
If a man commits sodomy on his own wife without her consent, then it would
amount to the matrimonial offence of sodomy within the meaning of the clause.
The person guilty of these offences is prosecuted in a Criminal court.
Note: When a wife sues her husband for divorce on the ground of commission of
rape, sodomy or bestiality, it is not necessary for her to show that he was prosecuted
or convicted for the offence. Even if the husband has been acquitted by the criminal
court, she can in divorce proceedings establish his guilt and obtain relief.
On the other hand, even if the husband has been convicted by a criminal court, the
wife will have to prove the offence “de novo” in the matrimonial court proceedings,
then alone she will be entitled to the decree of divorce.
Section 13(2)(iii): Maintenance decreed to wife.
Maintenance application can be made under the following.
Under Section 18 of the Hindu Adoptions and Maintenance Act 1956
Under Section 24 and Section 25 of Hindu Marriage Act 1955
Under Section 125 of Cr. PC 1973
If a wife has obtained a order of maintenance in proceedings under Section 125 of Code of
Criminal procedure 1973, or a decree under Section 18, Hindu Adoptions and Maintenance
Act 1956, and cohabitation between parties has not resumed for one year or upwards after
passing of the order or the decree as the case may be, then the wife can sue for divorce on
that ground. It is evident that this provision enables the wife alone to sue for divorce and the
husband has no such right.
Section 13(2)(iv)-Repudiation of Marriage
Provides that where a marriage was solemnized before the woman attained the age of 15
years and she repudiates the marriage after attaining the age of 15 years but before
attaining the age of 18 years, she can apply for Divorce whether her marriage has
consummated or not.
 The court will not ask for any evidence.
 The court can grant divorce.
  Even the marriage is consummated and children are there she can file for Divorce
The repudiation must be a valid repudiation. Any repudiation of a marriage done by a wife
below the age of 18 years is valid.
The Act does not prescribe any procedure for repudiation of marriage.
Case Law: Indira Vs Balbir Singh
It was observed that the presentation of the petition by the appellant itself amount to
repudiation of marriage.
Case Law: Kamlesh Vs Chamal Singh
It is sufficient if she repudiates the marriage before completion of 18 years and it is not
necessary that she should file a petition under Section 13(2)(iv), she could file the petition
even after that date.
The grounds indicated in Section 13(2)(iv) are known as “Fault grounds”.
Alternate reliefs in Divorce Proceedings:
It is obligatory on the court to pass a decree for Divorce when cohabitation has not
been restored within one year of the passing of the decree of judicial separation (u/s
10) and restitution of Conjugal Rights (U/s 9).
Importance of Conciliation in Marriage:
Conciliation is an alternative dispute resolution method that can help couples settle their
marital disputes.
Here are some reasons why conciliation is important in marriage:
 Binding decisions: In conciliation, the parties reach an agreement that is binding.

 Reduced cases: The Family Courts Act, 1984 and the Hindu Marriage Act, 1955
mandate that parties try to resolve their disputes through conciliation before going
to court. This has led to a reduction in the number of cases being filed.
 Helps preserve marriage: Conciliation helps preserve the sanctity of marriage and
the family.

 Focuses on needs: Conciliation generally focuses on the practical and emotional

needs of separating couples.
Conciliation is provided to both spouses and can take place if both agree to it.

Section 13A(i):
Noncompliance of cohabitation after the decree of judicial separation:

Section 13(1)
Section 10
Section 13(2) For wife
Section 13(1A)(ii):
Noncompliance with a decree of restitution of conjugal rights after 1 year of execution of
decree of “restitution of conjugal rights”
Either party to a marriage, whether solemnized before after the commencement of this act,
may also present a petition for dissolution of marriage by a decree of 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 upward after the passing of the order for
judicial separation in a proceeding to which they are 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 passing of a decree for
restitution of conjugal rights in a proceedings to which they were parties.
 Thus, if a spouse who had obtained a decree for restitution of conjugal rights fails to
entreat the other spouse to join him, or a spouse against whom a decree had been
obtained fails or refuses to comply with it, he or she will be in the wrongand the petition
for divorce under Section 13(1A) will fail.

Section 13B-Divorce by Mutual consent:

Subject to the provisions of this Act, a petition for dissolution of the marriage by a decree
of Divorce may e presented to a District court by both the parties to a marriage together,
whether such marriage was solemnized before after the commencement of the marriage
laws (amendment) Act 1976.
(i) That they have been living separately for a period of one year
(ii) They have not been able to live together, and
(iii) They have mutually agreed to live separately.
It is not necessary that parties should be living under separate roofs. They might be living in
the same house but not as husband and wife.
 Supreme Court has said that one year should be completed after the marriage. The
court, in exceptional cases competent to consider the petition to grant Divorce.
 When Husband and wife were living separate for a period of more than one year and
not able to live together and they were mutually agreeing to dissolve the marriage, it
was held all ingredients of the section are fulfilled.
 After the presentation of the petition, the parties are required to wait for six months
as a cooling period.
 Counselling for wife and Husband will be done.
 After counselling, proceedings will start.
 Within 18 months, the proceedings will be completed.
Case Law: Davinder Singh Narula Vs Meenakshi Nangia
The Supreme Court given a sort of approval to waive this waiting period of 6 months by
stating that if circumstances so warrant the cooling period of 6 months can be waived off.

Case Law: Sarala Mudgal Vs Union of India

Case Law:

Irretrievable breakdown of Marriage:

Divorce can be granted on the “Guilt” theory. The Divorce could be obtained if one of the
parties to the marriage was guilty of a marital offence and the other was innocent. In 1964,
by the Hindu Marriage (amendment) Act a form of breakdown theory was introduced in
Hindu law by modifying the last two clauses of Section 13(1) viz., clauses (vii) and (ix). These
clauses were renumbered as clauses(i) and (ii) of Section 13(1A).
These clauses of Section 13(1A) (i) and (ii) were modified by the Marriage Laws
(Amendment) Act 1976 under which the period of 2 years has been reduced to one year and
Section 13(1A) runs as under;
Either party to a marriage solemnized before after the commencement of this Act, may also
present a petition for dissolution of marriage by a decree of divorce on the grounds.
(i) That there has been no resumption of cohabitation as between the parties to the
marriage for a period of one year or upward after the passing of the order for
judicial separation in a proceeding to which they are 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 passing of a decree for
restitution of conjugal rights in a proceedings to which they were parties.
 The 1964 or 1976 amendment to the Act has not touched Section 23, as to its
application to all matrimonial causes, including divorce under Section 13(1A). the result
has been that when irretrievable breakdown of marriage clause came for interpretation
most of the High Courts applied Section 23(1)(a) and took the view that if the petitioner
is found guilty of any wrong , he would not be granted divorce even though there is a full
compliance to the clause.
Thus, where the husband obtained a decree of restitution but did not allow the wife to
comply with it and when later on he sued for divorce on the ground of non-compliance
of the decree for the statutory period , the court refused to grant him divorce, as they
felt that it would amount to giving him advantage of his wrong as his not allowing the
wife to comply with his decree was such a wrong. In some cases also the same view has
been expressed.
Case law O.P. Mehra Vs Saroj
Facts: This is a case illustrating the application Section 23(1)(a) to the irretrievable
breakdown ground. The husband filed a petition of divorce on the grounds of wife’s
adultery, about 6 months after he had obtained a decree for restitution of conjugal rights.
While the divorce petition was pending, one year period was completed as provided under
Section13(1A)(ii) and he filed for another petition for divorce under Section 13(1A)(ii) on the
basis of non-restitution of conjugal rights for a period of one year after the passing of the decree
of restitution. The husband was, probably in a hurry, he wanted to obtain divorce on whatever
ground he could lay hand on. Due to this hurry and undue haste the court came to the
conclusion that granting of petition of the divorce under Section 13(1A)(ii) would amount to
giving him an advantage of his own wrong as in the opinion of the court, the wife was prevented
from complying with the restitution decree on account of his petition for divorce on the ground
of wife’s adultery; no self-respecting wife would go to her husband’s house while her husband
has sued her. In the court alleging adultery on her part. Certainly, the husband’s petition for
divorce on wife’s adultery in the intervening period was a new factor, a distressing factor, but this
as well as all other facts of the case lead to the inevitable conclusion of breakdown of the
marriage and if that was the position whatever efforts; ugly or mean he made, should not matter.
The wife will gain nothing by keeping this empty shell of marriage.
Thus, a spouse who had obtained a decree for restitution of conjugal rights fails to entreat the
other spouse to join him or a spouse against whom a decree had been obtained fails or refuse to
comply with it, he or she will be in the wrong and the petition for divorce under Section 13(1A)
will fail.
 The Supreme court has further emphasised this aspect in Manjula Vs K.R. Mahesh, where all
efforts at reconciliation failed and parties claimed that marriage was irretrievably broken down.
After making arrangements for the daughter of the marriage divorce was granted to the parties.
It has been held that an ex-parte decree or consent decree of judicial separation or restitution of
conjugal rights can also be the basis for divorce under Section 13(1A).

Section 14: No petition for divorce to be presented within one year of

marriage;
Section 14(i): Notwithstanding anything contained in this Act, it shall not be competent for
any Court to entertain any petition for dissolution of a marriage by a decree of divorce,
unless at the date of the presentation of the petition one year has elapsed, since the date of
the marriage.
Provided that the Court may, upon application made to it in accordance with such rules as
may be made by the High Court in that behalf, allow a petition to be presented , before one
year has elapsed form the date of the marriage on the ground that the case is one of
exceptional hardship to the petitioner or of exceptional depravity on the part of the
respondent.
But, it it appears to the court at the hearing of the petition that the petitioner obtained to
leave to present the petition by any misrepresentation or concealment of the nature of the
case, the Court may, if it pronounces a decree do so subject to the condition that the decree
shall have effect until after the expiry of one year from the date of the marriage or may
dismiss the petition.
Section 14(2): while disposing of any application under this section for leave to present a
petition for divorce before the expiration of one year, the Court shall have regard to the
interests of any children and reasonable probability of reconciliation between the parties.
Section 15: Divorced persons when may marry again:
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, but an appeal has been presented but
has been dismissed, it shall be lawful for either party to the marriage to marry again.

Section 16 Legitimacy of Children of Void and Voidable marriage:

Section 16(1). Notwithstanding 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 after the commencement of the Marriage Laws
(Amendment) Act 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.
Section 16(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.
Section 16(3): nothing contained in sub section (1) and (2) of Section16, shall be construed
as conferring 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.
Section 17: Punishment of Bigamy:
Any marriage between two Hindus solemnized after the commencement of this Act is void if
at the date of such marriage either part had a husband or wife living and provisions of
Section 494 and Section 495 of Indian Penal code 1860 shall apply accordingly.

Section 18: Punishment for contravention of certain other conditions for a

Hindu marriage.
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 with;
a) In the case of contravention of condition specified in clause (iii) of Section 5 , with
rigorous imprisonment which may extend to two years or fine which may extend to
one lakh rupees or with both.
b) In the case of contravention of condition specified in clause (iv) or clause (v) of
Section 5, with simple which may extend to one moth or with fine which may extend
to one thousand rupees or with both
Section 19: Court to which petition shall be presented.
Every petition under this Act shall be presented to the District Court within the local
limits of whose ordinary original civil jurisdiction--.
 i. The marriage was solemnized, or
ii. The respondent, at the time of presentation of the petition resides, or
iii. The parties to the marriage last resided together, or
(iiia). In case the wife is the petitioner where she is residing on the date of presentation of
petition.
 iv. The petitioner is residing at the time of the presentation of the petition, in case
where the respondent is at that time residing outside the territories to which this
Act extends or had not been heard of as being alive for a period of 7 years……
Section 20; Contents and verification of petition
Section 20 (1): every petition presented under this Act shall state as distinctly as the nature
of case permits the facts on which the claim to relief is founded and shall also state that
there is no collusion between the petitioner and other party.
Section 20 (2): The statements contained in every petition under this Act shall be verified by
the petitioner or some other competent person in the manner required by law for the
verification of plaints and may at the time of hearing referred to as evidence.
Section 21 Application of Act V of 1908:
Subject to the other provisions contained in this Act and to such rules as the High Court may
make in this behalf, all proceedings under this Act shall be regulated as may be by the Code
of Civil Procedure 1908.
Section21A: Power to transfer petition in certain cases.

Section 21B: Special provisions relating to trial and disposal of petitions under this Act.

Section 21C: Documentary evidence

Section 22: Proceedings to be “in camera” and may not be printed or published.
Section 23: Decree in proceedings

Section 23A: relief for respondent in Divorce and other proceedings

Section 24: Maintenance, ‘pendente lite’ and expenses of proceedings.

Section 25: Permanent alimony and maintenance.

Section 26 ; Custody of Children
The Hindu adoptions and maintenance act 1956
Section 1
short title and common extent this act may be called the Hindu adoptions and
maintenance act 1956.
Section 2 Application of the Act.
(a). This act applies to any person who is a Hindu by religion in any of its forms or
developments including a Vaishnava, a Lingayat or a follower of the Brahmo, Prarthana
or Arys Samaj.
(b). to any person who is a Buddhist, Jain or Sikh by religion.
(c) To any other person who is not a Muslim, Christian, Parsi or Jew by religion, unless it
is proved that any such person 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 deal with
herein if this had had not been passed.
Section 3: Custom and Usage
In this act unless the context otherwise requires
(a) the expression “custom” and “Usage” signify any rule which having been
continuously and uniformly observed for a long time, has obtained the force of law
among Hindus in any local area, tribe, community, group or family.
 Provided that the rule is certain. And unreasonable. Are opposite 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.
(b) ‘maintenance’ includes.
(i) In all cases provision for food, clothing, residence, education and medical
attendance and treatment
 (ii) In the case of unmarried daughter, also the reasonable expenses of and
incidental to her marriage.
(c) “minor’ means a person who has not completed his or her age of eighteen years.
Section 4: overriding effect of the Act.
This Act overrides all the laws, customs and usages practiced prior to 1956.
Section 5: Adoptions to be regulated by Chapter II
As per Section 5(1): No adoption shall be made after the commencement of this Act by or to
a Hindu, except in accordance with the provisions contained in this chapter and any
adoption made in contravention of the said provisions shall be Void.
Section 5(2): Any adoption, which is void shall neither create any right in the adoptive family
in favour of any person, which he or she would not have acquired except by reason of the
adoption, nor destroy the rights of any person in the family of his or her birth.
Section 6: Requisites of a valid adoption.
 (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.
Section 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 any one of them is unnecessary for any of
the reasons specified in the preceding proviso.
Section 8: Capacity of a female Hindu to take in adoption.
Any female Hindu who is of sound mind and is not a minor has the capacity to take a son or
daughter in adoption:
provided that if she has a husband living, she shall not adopt a son or daughter except with
the consent of her husband unless the husband 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.
Section 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.
Subsection (2) subject to the provisions in subsection (4) the father or the mother if alive,
shall have equal right to give a son or daughter in adoption.
Subsection (4) where both the father and mother are dead are 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.
Explanation: for the purpose of this section 9
(a). The expression “father” and “mother” do not include an adoptive father and an
adaptive mother.
(ia). “guardian” means a person having the care of the person of a child or both
his person and property and includes.
a) a guardian appointed by the will of the child's father or mother and
b) a guardian appointed are declared by a Court and
 (b). ‘Court’ means the City Civil Court or a District Court within the local limits of
whose jurisdiction the child to be adopted ordinarily resides.

----------------------
Other notes:
What are the differences between adoption before and after 1956 Act?
Ans:
Adoption before 1956
(i) Adoption is only of male child.
(ii) Adoption within the family
(iii) Datta Homam ritual is performed at the
time of adoption.
(iv) When the adoptive parents have their own
child after adoption, they can return the
adopted child to their natural parents.
Adoption after 1956
(i) Adoption of male and female child possible
(ii) Adoption can be outside family also.
(iii) Datta Homam ritual not necessary for
adoption.
(iv) Transfer of child to adoptive parents to take
place instead of Datta Homam
(v) Adoption once completed can not be
reverted back.
Under Section 3(b) 0f ““The Hindu adoptions and maintenance act 1956”, “Maintenance “
means?
Ans: ‘maintenance’ includes.
(i) In all cases provision for food, clothing, residence, education and medical attendance
and treatment
 (ii) In the case of unmarried daughter, also the reasonable expenses of and incidental to
her marriage.

What are the requisites of a valid adoption?

Ans: As per Section 6 of “The Hindu adoptions and maintenance act 1956”,
requirements of a valid adoption are;
 (i) the person adopting has the capacity, and 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
Chapter II of Hindu Adoption and Maintenance Act 1956.

Abandoned Child
Juvenile Board

--------------------------

Section 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 completed the age of 15
years being taken in adoption.

Section 11 : Other conditions for a valid adoption.

In every adoption the following conditions must be complied with:
i. if the adoption is of a son the adaptive further 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 adaptive father or mother by whom the
adoption is made must not have any Hindu daughter or sons daughter (whether
by legitimate blood relationship or by adoption) living at the time of adoption
iii. if they 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 the 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 two are more persons.
vi. the child to be adopted must be actually given and taken in adoption by the
parents or guardians concerned or under the 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
adoption.
Exercise-1:
Sita and Rama are Husband and wife . Rama is 36 years old. Sita is 30 years. Because of
family disputes both are staying away for the past 5 years. Now, Rama want to adopt a girl
child of 3 years.
Give advice whether he can adopt?
Solution: Yes. He can adopt. The age gap of 21 years between the adoptive parent and the
child must be there.
Section 12: Effect of adoption
An adopted child shall be deemed to be the child of his or her adoptive father or mother for
all purposes with effect from the date of adoption and from such date all the ties of the child
in the family of his or her birth shall be deemed to be terminated and replaced by those
created by the adoption in the adoptive family.
 Natural parents Adoptive parents
X Y O P

Mwas adopted by "O"and "P"

M M
Provided that
clause (a) the child cannot marry any person whom he or she couldn't have married if he or
she had continued in the family of his or her birth.
Clause (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, attending to attaching to
the ownership of such property, including the obligation to maintain relatives in the family of
his or her birth Clause ( c) the adopted child shall not divest any person of any estate which
vested in him or her before the adoption.
Explanation for Section 12:
It is plain and clear that an adopted child shall be deemed to be the child of his or her
adoptive father or mother for all purposes with effect from the date of adoption as is
evident from the main part of section 12. Section 12 in clear terms says that the adopted
child shall not divest any person’s of any estate which vested in him or her before adoption.
Case Law: Namdev Vyankat Ghadge and others Vs. Chandrakant Ganpat Ghadge and Others
[AIR 2003 SC 1735]
I this case, defendant 6 having been adopted after the death of Vyankat and after the
property vested in his heirs. The court held that defendant 6 is not entitled for share in the
suit property.
Section 13: Right of adoptive parents to dispose of their properties.
Subject to any agreement to the contrary an adoption doesn’t 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: Determination of adoptive mother in certain cases
(1). Where Hindu who has a wife living 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 a 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
Section 15: a 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.
Section 16: Presumption as to registered documents relating to adoption.
Whenever any document registered under any law for the time being in force is produced
before any Court purporting to record an adoption made and is signed by the person giving
and the person taking the child in adoption the Court shall presume that the adoption has
been made in compliance with the provisions of this Act unless and until it is disproved.
Section 17: Prohibition of certain payments
(1). no person shall receive or agree to receive any payment or other reward in
consideration of the adoption of any person and no person shall make or give or
agree to make or give to any other person any payment or reward the receipt of
which is prohibited by this section
 (2). if any person controversial the provisions of subsection (1) he shall be punishable
with imprisonment which may extend to 6 months or with fine or with both
(3). no prosecution under this section shall be instituted without the previous
sanction of the State government or an officer authorised by the State
government in this behalf.
Case Law: Jupudi Venkata Vijay Bhaskar Vs. Jupudi Kesava rao and others
One has to receive or agree to receive any payment or reward by consideration of adoption,
both the recipient and giver comes under the purview of Section 17.

Section 18: Maintenance of wife.

Section 18(1): subject to the provisions of the 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.
Section 18(2): 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;
(c). if he is suffering from a virulent form of leprosy; (removed through 2019
amendment act)
(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
(g). 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 a Hindu by conversion to another religion.
Case Law: Rajati Vs. Ganesan [1999]
When the husband is living with another woman, wife is entitled to claim maintenance even
if she fails to prove her allegation of second marriage by Husband.

Section 19: Maintenance of widowed daughter-in- law

(1). 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:
provided and to the extent that she is unable to maintain herself out of her own earnings or
other property or where she has 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 subsection (1) shall not be enforceable if the father-in-law has
not the means to do so from any coparcenary property in the possession of 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.

Section 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 child 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 parents or a daughter
who is unmarried extends in so far 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.
Section 21 Dependents defined: For the purpose of this chapter “dependents” mean the
following relatives of the deceased;
(i) his or her father
(ii) his or her mother
(iii) his widow, so long as she doesn't remarry
(iv) his or her son or the son of his pre-deceased son or the sun of a pre-deceased son
of his pre-deceased son, so long as he is a minor
provided and to the extent that he is unable to obtain maintenance in the case of a
grandson from his father’s or mother’s estate and in the case of a great-grandson
from the estate of his father or mother or father’s father or father’s mother;
(v) his or her unmarried daughter or the unmarried daughter of his pre-deceased son or
the unmarried daughter of a pre-deceased son of his pre-deceased son so long as
she remains unmarried
provided and to the extent that she is unable to obtain maintenance in the case of a
granddaughter from her father’s or mother’s estate and in the case of a great
granddaughter from the estate of her father or mother our father's father or father’s
mother.
(vi) His widowed daughter: provided and to the extent that she is unable to obtain
maintenance-
(a). from the estate of her husband or
(b). from her son or daughter, if any, or his are her estate or
(c). from her father-in-law or his father or the estate of either of them
(vii) Any widow of his son or of a son of his pre-deceased son so long as she
doesn't remarry:
 provided and to the extent that she is unable to obtain maintenance from her
husband's estate or from her son or daughter, if any, or his or her estate, or in the
case of a grandson’s widow, also from her father-in-law’s estate.
(viii) his or her minor illegitimate son, so long as he remains a minor
(ix) his or her illegitimate daughter, so long as she remains unmarried

Section 22 Maintenance of dependents:

(1). Subject to the provisions of subsection (2) the heirs of a deceased Hindu are
bound to maintain the dependents of the diseased out of the estate inherited by
them from the diseased.
(2). Where a dependent has not obtained by testamentary or Intestate succession
any share in the estate of a Hindu dying after the commencement of this Act, the
dependent shall be entitled, subject to the provisions of this Act to maintain from
those who take the estate
(3). the liability of each of the persons who takes the state shall be in proportion to
the value of the share or part of the estate taken by him or her
(4). notwithstanding anything contained in subsection (2) or subsection (3), no
person who is himself or herself a dependent shall be liable to contribute to the
maintenance of others, if he or she has obtained a share or part, the value of
which is or would, if the liability to contribute were enforced become less than
what would be awarded to him or her by way of maintenance under this Act
Section 23 amount f maintenance
(1). it should 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 set out in subsection (2)
or subsection (3), as the case may be so far as they are applicable
(2). 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 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
(3). In determining the amount of maintenance, if any, to be awarded to a dependent
under the Act, 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 provisions, if any made under a will of the deceased in respect of the
dependent
c. the degree of relationship between the two
 d. the reasonable wants of the dependent
e. the past relations between the dependent and the deceased
f. the value of the property of the dependent, and any income derived from
such property; or from his or her earnings or from any other source.
g. the number of dependents entitled to maintenance under this Act.

Section 24: Claimant to maintenance should be 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: Amount of maintenance may be altered on change of circumstances.
The amount of maintenance whether fixed by a decree of Court or by agreement before
after the commencement of this Act may be altered subsequently if there is a material
change in the circumstances justifying such alteration.
Section 26 Debts to have priority
Subject to provisions contained in Section 27, debts of every description contracted or
payable by the deceased shall have priority over the claims of his dependents for
maintenance under this Act.

Section 27 Maintenance when to be a charge.

A Dependent claim for maintenance under this act shall not be a charge on the estate of the
deceased r any portion thereof unless one has been created by the will of the deceased by a
degree of court, by agreement between the dependent and the owner of the estate or
portion or otherwise.
Section 28: effect of transfer of property on right in maintenance
Where a dependent has a right to receive maintenance out of an estate, and such estate or
any part thereof he is transferred, the right to receive maintenance may be enforced against
the transferee, if the transferee has notice of the right or if the transfer is gratuitous but not
against the transferee for consideration and without notice of the right.
Section 29: repealed
Section 30 : Savings
Nothing contained in this Act shall affect any adoption made before the commencement of
this Act and the validity and effect of any such adoption shall be determined as if this Act
had not been passed.
Notes:

*******end of this chapter**************

 The Hindu Minority and Guardianship Act 1956
Section1: This act may be called the Hindu Minority and Guardianship Act 1956
It extends to whole of India.
Section 4:
(a). ‘Minor’ means a person who has not completed the age of eighteen years.
(b). ‘Guardian’ means a person having the care of the person of a minor or of his
property or of both his persona and property, and includes-
(i) A natural guardian
(ii) A guardian appointed by the will of the minor’s father or mother.
(iii) A guardian appointed or declared by the Court, and
(iv) A person empowered to act a such by or under any enactment relating to any
Court of Wards.
 (v) ‘Natural guardian’ means any of the guardians mentioned in Section 6
Section 5: Overriding effect of Act
Section 6: Natural Guardian 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 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 5 years shall
ordinarily be with the mother.
(b). In the case of an illegitimate boy or an illegitimate unmarried girl the mother, and
after her the father
(c). in the case of a married girl- the husband
provided that no person shall be entitled to act as the natural guardian of a minor
under the 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 and ascetic (yati or sanyasi)
Explanation: - in this section the expression ‘father’ and ‘mother’ do not include a
stepfather and a stepmother.

Section 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.
Section 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 in no case, bind the minor by a personal covenant.
(2). The natural guardian shall not, without the previous permission of the Court;
(a) mortgage or, charge or transfer by sale, gift, exchange or otherwise any part of
the immovable property of the minor or
(b) lease any part of such property for a term exceeding 5 years 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
subsection (1) or subsection(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 subsection (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 subsection(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
subsection(2), (3) and (4) of Section 31of 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 subsection(2) of this
section to the Court to which appeals ordinarily lie from the decisions of the
Court.
(6). In this section court means “City Civil Court” or “family Court”
Case Law: Vishwambhar & Others Vs. Laxmi Narayana (deseased) and through Legal
representatives. [AIR 2001 SC 2607]
It was held that, ------

Explanation:
Under section 8 of this Act, a natural guardian shall not without the previous permission of
the Court, transfer by sale any part of the immovable property belonging to the minor.
Section 9 Testamentary Guardian:
The testamentary guardian is on par with natural guardian.
(1). A Hindu father entitled to act as the natural guardian of his minor legitimate children
my, 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 subsection(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
children may by “will” appoint a guardian for any of them in respect of the minor’s
person or in respect of the minor’s property or in respect of both.
(5). The guardian so appointed by “will’ has the right to act as the minor’s guardian after
the death of the minor’s father or mother, as the case may be and to exercise all the
 rights of a natural guardian under this Act to such extent and subject to such
restrictions, if any, as are specified in this Act and in the will.
(6). The right of the guardian so appointed by “will’ shall, where the minor is a girl, cease
on her marriage.

Section 10: Incapacity of minor to act as guardian of property.

A minor shall be incompetent to act as guardian of the property of any minor.
Section 11: De Facto guardian not to deal with minor’s property:
De facto guardian, after the commencement of this Act, not to deal with the property of a
Hindu minor merely on the ground of his or her being the de facto guardian of the minor.
 De Facto Guardian
Natural Guardian
Any pate rnal pare nt
Or Testamentary Guardian (by Will)
Any Mate rnal Pare nt
Court apponted Guardian
Section 12: Guardian not to be appointed for minor’s undivided interest in joint family
property.
Where a minor has an undivided interest in joint family 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.
Section 13: welfare of a minor to be paramount consideration.
(1). In the appointment or declaration of any person as guardian of a Hindu minor by a
Court, the welfare of the minor shall be the paramount consideration.
(2). No person shall be entitled to the guardianship by virtue of the provisions of this Act
or of any law relating to Guardianship in marriage among Hindus, if the court is of
the opinion that his or her guardianship will not be for the welfare of the minor.

Notes:
Certificated Guardian:
The guardian appointed by the Court is known as the certificated guardian.
Powers of certificated guardian are controlled by “Guardians and Wards Act 1890”. There
are a very few things which the certificated guardian cab perform without the prior
permission from the Court.
In the ultimate analysis, his powers are co-extensive with the powers of the Sovereign and
he may do all these things (though with the permission of the Court) which the sovereign
has power to do. A certificated guardian from the date of his appointment is under the
supervision, guidance and control of the Court. (refer page 273 of Textbook Dr. Paras Diwan)
Rights of Natural Guardian:
(a). Right to custody
(b). Right to determine the religion of children
(c). Right to control education
(d). Right to control movement and,
 (e). Right to reasonable chastisement
These rights are conferred on the guardians in the interest of the minor children and
therefore exercise of each of these rights is subject to the welfare of the minor children.
(refer page 269 of Textbook Dr. Paras Diwan)
Guardianship by affinity: Guardianship and custody of Child Widow) :
Prior to 1956 Hindu law………………………………….
(refer page 279 of Textbook Dr. Paras Diwan)
*******end of this chapter**************
Case Law: Kumar V Jahgirdhar Vs Chetana Ramateertha
CASE NO.: Special Leave Petition (civil) 4230-4231 of 2003 PETITIONER: Kumar V. Jahgirdar
RESPONDENT: Chethana Ramatheertha DATE OF JUDGMENT: 29/01/2004 BENCH: Shivaraj V.
Patil & D.M. Dharmadhikari. JUDGMENT: JUDGMENT Dharmadhikari J.
In these two appeals, the subject matter of dispute between the married couple, now
separated by decree of divorce obtained on mutual consent under the provisions of Hindu
Marriage Act, 1955, is their rival claim to the exclusive custody of their daughter \026 Aaruni
who is now little above 9 years of age and is prosecuting her education in a well-known
school in the city of Bangalore where the parties reside. After obtaining divorce on mutual
consent, the wife \026 Smt. Chethana Ramatheertha is re-married to Mr. Anil Kumble, a
Cricketer of national and international repute. The Family Court of Bangalore by its judgment
dated 20.4.2002, after considering the evidence led by the parents of the child, came to the
conclusion that as the wife is remarried to a famous cricketer and is leading a different style
of life involving frequent tours with her second husband for attending cricket events, there is
likelihood of child developing distance and dislike for her natural father. The exclusive
custody of the child was directed to be given to the natural father with only right of
visitations to the mother on every week on Sunday between 10 A.M. to 8 P.M. and to keep
the child with her overnight on two Sundays in a month with prior intimation to her former
husband. The High Court, in appeal, by its impugned judgment dated 27.1.2003, has,
however, taken a different view and reversed the judgment of the Family Court. On the
basis of evidence on record, the Division Bench of High Court has formed an opinion that in
the absence of compelling reasons and circumstances, the mother cannot be deprived of the
company of the child to the detriment of the interest of the child. The High Court, therefore,
set aside the judgment of the family court and directed that the mother should continue to
retain exclusive custody of the child with visitation rights to her former husband. The former
husband is allowed to keep the child on weekends either on Saturday or Sunday from
morning till evening and he can also be with the child during half the period of vacations in
the school. The stay of child with each of them during half of the vacations, is to be shared
by the two parents under mutual agreement. The father is also allowed to visit the child as
and when he likes with the prior intimation and mutual arrangements with the mother. The
parties are also given liberty to seek necessary modifications in the arrangement evolved by
the High Court. For deciding the controversy regarding the custody of the child, only few
more facts are relevant and required to be stated. http://JUDIS.NIC.IN SUPREME COURT OF
INDIA Page 2 of 5
The parties were married in the year 1986 at Mysore and had a married life for more than 12
years. The child \026 Aaruni was born to them on 07.12.1994. When the child was little
about two years old, the wife took a job in Trans Oceanic Travels. Their marriage broke down
in the year 1998 when the wife left her matrimonial home and sent a notice through her
lawyer that she was unwilling to live with her husband. On a joint petition, filed by the
parties in the Family Court for dissolution of marriage by mutual consent, a decree of
divorce was passed on 17.4.1999. The separated parents, in accordance with the conditions
of divorce by consent, agreed to their appointment as joint guardians with periodic custody
of the child. They also agreed to keep the child alternatively in every week. As per the
mutual arrangement agreed between the couple, the wife took custody of the child for a
week in the year 1999. She soon thereafter got re-married to famous cricketer \026 Mr. Anil
Kumble on Ist July, 1999 and went out of the country with her second husband leaving the
child under the custody of her former husband. On return from abroad with her second
husband, she filed an application in the Family Court on 12.8.1999 seeking exclusive custody
of the child. The Family Court rejected her application and the High Court, in revision, only
granted liberty to the parties to approach the Family Court for alteration or modification of
the terms of consent decree of divorce. Thereafter, the wife moved a petition again to the
Family Court for altering the conditions of divorce. During pendency of those proceedings,
with the permission of the Family Court, she took the child with her while on tours with her
second husband. A counter application was filed by the present petitioner/her former
husband \026 Shri Kumar V. Jahgirdar for exclusive custody of the child on the ground that
he being the natural guardian and having remained unmarried with sole aim to bring up the
child in congenial atmosphere was better suited to be entrusted with her custody. It was
stated that the re-marriage of the wife is detrimental to the welfare of the child. The wife
from her side filed repeated applications in Family Court seeking permission to take the child
to foreign countries on tours with her second husband. The Family Court granted such
permissions but on certain conditions. The wife went up by revision petition to the High
Court and the High Court directed that the child should be placed in the custody of mother
for a continuous period of one year. When the present petitioner/her former husband
appealed, this Court, after hearing the learned counsel appearing for the parties, by order
dated 18.4.2003 made an interim arrangement pending final orders on the pending
applications of the parties before the Family Court, Bangalore. The mother was allowed to
retain custody of the child with visitation rights granted to the former husband every week
on Saturday and Sunday. It was also directed that during pendency of the cases before the
family court, if the mother is required to go out of the country, she will not carry the child
with her but leave the child in the custody of her former husband during her absence. The
family court was directed to decide the case within four months. The family court in its
judgment dated 20.4.2002 granted exclusive custody of the child to the former husband
with only right of weekly visitations to the mother on the grounds inter alia that the mother
is re-married to a famous cricketer whereas the former husband is still unmarried and his
nature of business as a Stock Broker is such that he is able to give required attention to the
rearing of the child. The family court also, on the basis of apprehensions raised in evidence
on behalf of the former husband, came to the conclusion that custody of child with natural
father would rule out possibility of attempts on the part of the mother and her
second http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5
husband to induce or create ill-will in the mind of the child towards her natural father. The
family court also recorded that during long periods when the girl child lived with her natural
father, she herself expressed satisfaction and happiness. The wife appealed against the
judgment of the family court to the High Court. The child was interviewed twice by the
Hon’ble Judges of the High Court on 20.11.2002 and 05.12.2002. On the basis of interviews
with the child who is school going and aged about 9 years, the High Court recorded in its
judgment that the child expressed no dislike or negative feelings towards any of her natural
parents or her step father. The High Court after examining the evidence on record and
interviewing the child, came to the conclusion that in the absence of any compelling or
adverse circumstances, the natural mother cannot be deprived of the exclusive custody of a
growing female child. The judgment of the family court has been upset by giving exclusive
custody of the child to the natural mother with visitation rights on week ends to the natural
father on timings mentioned in the order. Aggrieved by the order of the High Court, the
former husband is, in appeal, before us. Learned senior counsel, Shri S.S. Javali appearing on
behalf of the petitioner/former husband took great pains by taking us through the record of
the case and particularly the relevant parts of the depositions of the estranged couple and
the second husband of the wife. He severely criticised certain general remarks and
statements made by the High Court in the impugned judgment such as that ’mother has an
absolute right to keep company of the child unless deprivation of it is required for
compelling reasons’. It is argued that such an erroneous approach on the part of the High
Court, has resulted in upsetting a just and very well-reasoned judgment of the family court.
From the arguments advanced on behalf of the former husband, what we have been able to
gather as more important circumstances set up against allowing the wife to retain the
custody of the child inter alia are that the wife is re-married to a cricket celebrity and has a
style of life which requires frequent foreign tours, exposure to public life and media. There
is also possibility of the child being brain-washed to keep distance from the natural father.
On the behaviour of the child during her interviews on two occasions, as has been recorded
by the High Court Judges, submission made is that it might have been so due to
psychological counselling given to the child. It is stated that during one of her interviews, a
psychologist was found to be accompanying her to the court before she child entered the
Chamber of the Judges for interview. On behalf of the wife, the learned counsel stoutly
denied any such happening during hearing in court. On behalf of the former husband,
learned counsel then very strenuously submitted that his client has remained unmarried
with one single aim to rear and bring up his child in a congenial atmosphere of love and
affection which he alone can guarantee. In the present status and style of life of his former
wife, it is submitted that the former husband was rightly held by the family court to be a
preferable parent to keep custody of the child. The father is also financially well-off and has
already acquired movable and immovable properties as also deposited cash in the name of
the child to ensure best of care and education to her. We have also heard learned senior
counsel, Shri Gopal Subramanium appearing on behalf of the wife, who has supported the
impugned judgment of the High Court and submits that the past conduct of the wife and her
second husband throughout the proceedings in these cases belies the apprehension of the
former husband that the child’s mind would be poisoned against him.
The http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5
apprehension is stated to be completely baseless and imaginary. Learned counsel assures on
behalf of Mr. Anil Kumble, the second husband of the wife, that he would continue to extend
same love to the child and cooperation to the natural parents as he has been doing
throughout in the past so that the child gets the best of care, affection and education for her
proper upbringing. It is submitted that as has been desired by the High Court with the
conditions imposed in its orders, the parties would faithfully and sincerely continue with the
existing arrangement without any detriment to their mutual interests and the interest of the
child. After hearing the learned counsel appearing for the parties at sufficient length and
having bestowed our careful consideration to the observations and conclusions reached by
the family court and the High Court in their respective judgments, we do not find any ground
to substantially upset the judgement of the High Court containing the arrangements made
therein for the custody of the child and the rights of visitation granted to the natural father.
We make it clear that we do not subscribe to the general observations and comments made
by the High Court in favour of mother as parent to be always a preferable to the father to
retain custody of the child. In our considered opinion, such generalisation in favour of the
mother should not have been made. We, however, do not find that the judgment of the High
Court is based solely on one consideration that between two parents, the mother always can
claim superior right to retain the custody of the child. The High Court has taken into
consideration all other relevant facts and circumstances to come to the conclusion that
female child of growing age needs company more of her mother compared to the father and
remarriage of the mother is not a disqualification for it. The conclusion of the High Court
seems to be just and proper in safeguarding the interest of the child. Without going into
the allegations, counter allegations and misapprehensions expressed against each other, on
the paramount consideration of best safeguarding the interest of the child, in our opinion,
the judgement of the High Court giving exclusive custody of the child to the mother and
visitation rights to the natural father deserves to be maintained with little modification for
the following reasons :-
1. The child is, at present, 9 years of age and on advent of puberty. This is the age in
which she requires more care and attention of the mother. Mother, at this age of the child,
deserves to continue to keep the custody of the female child. She is reported to have given
up her service and now leading life of a house-wife. The progress report of Aaruni from the
Sophia High School, Bangalore, indicates that she is very good at studies and has a bright
educational career.
2. It is reported that the wife is presently on the family way. The prospect of arrival of the
second child in the family of the wife is another circumstance which would be in favour of
the present child.
3. The petitioner lives alone with his father. There are no female members living jointly
with him although he may have female relations in the city but that would not ensure
constant company, care and attention to the female child.
4. The petitioner/natural father is a busy Stock Broker allegedly carrying on his business
with aid of on-line computer but it cannot be said that in the course of his business, he has
not to remain out of residence for attending his office and other business engagements.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5
5. The apprehension expressed against the second husband that he might poison the
mind of the child and create ill-will towards natural father is not borne out from the
evidence on record. On the contrary, the second husband in his deposition has made
statements evincing a very cooperative and humane attitude on his part towards the
problem of the estranged couple and the child. We find that apprehension expressed against
the second husband is without foundation. The parents of the child have separated by
mutual consent without making any vicious allegation against each other. They also agreed
under the express terms of the consent decree of divorce to take responsibility of bringing
up their child as her joint guardians. This gesture of decency and cooperation in jointly
looking after the child has to continue. In this mutual agreement of separated couple, on
behalf of second husband, it is assured to us that he would continue to give his unreserved
cooperation and help and would do nothing as to spoil the relationship or intimacy of the
child with the natural father.
6. The visitation rights given to the natural father, in the present circumstances, also do not
require any modification because with the passage of time, the growing child should eagerly
wait for the company of his father as a happy and enjoyable moment rather than treat it as a
part of empty ritual or duty. To make visitation rights of natural father effective and
meaningful for proper growth of the child, active cooperation of both the parents and her
step father is expected and we hope it would not be found wanting from any one of them.
7. Since the mother of the child is married to a famous cricketer, as and when she leaves
the country on tour with her husband during school days or vacation period of the child
without taking the child with her, instead of leaving the child to the care and custody of
some other member of the family, the custody of the child during her absence from her
home shall be given to the natural father. With the above observations and modification,
we maintain the judgment of the High Court. The two appeals are, thus, disposed of. As all
the parties, before us, are highly educated, cultured, of modern outlook, well-off and having
so far conducted themselves decently and courteously towards each other, we hope, in
future as well they will continue same attitude and conduct for maintaining their cordial
relationships and extend full cooperation in safeguarding the interest of the child in best
possible manner. Looking to the nature of the case and the position of the parties, they are
directed to bear their own costs and expenses incurred in these appeals.
Hindi Succession Act 1956:
1. Son;
2. daughter;
3. widow;
4. mother;
5. son of a pre-deceased son;
6. daughter of a pre-deceased son;
7. son of a pre-deceased daughter;
8. daughter of a pre-deceased daughter;
9. widow of a pre-deceased son;
10. son of a pre-deceased son of a pre-deceased son;
11. daughter of a pre-deceased son of a pre-deceased son;
12. widow of a pre-deceased son of a pre-deceased son
13. son of a predeceased daughter of a pre-deceased daughter;
14. daughter of a pre-deceased daughter of a pre-deceased daughter;
15. daughter of a pre-deceased son of a pre-deceased daughter;
16. daughter of a pre-deceased daughter of a pre-deceased son
*13 to 16 are from Amendment Act – 2005
Class II - hiers
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.
Female Succession;
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) firstly, upon the sons and daughters (including the children of any pre-deceased 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.
1.what are the of the adopted son against the natural parents and adoptive parents
2.The Hindu succession act is a magnacarta of Hindu womens properly right, discuss
3 write the rules of succession to the property of a Hindu male who dies intestate
4.what are the essential requisites of a valid adoption
5. What are the rights of a Hindu wife to claim maintenance from the husband under HDMA
6. Explain the rights of daughters in the coparcenary property after Hindu succession act
2005
7. Explain the devolution of Hindu female intestate
8. Write a note on the law of maintenance
9. Who is a minor child, what are the powers of natural guardian
10. Explain developments in succession law of Hindu s after 1956
11. Testamentary guardian
12. Class 1 heirs
13. Effect of adoption
14. Notional partition
15. Limited estate and absolute estate
According to the Hindu Succession Act of 1956, a Hindu woman's limited estate is
abolished. The act establishes a uniform and comprehensive system of inheritance and
succession.
According to Section 14(1) of the Hindu Succession Act, a limited estate can be bequeathed
to a female by way of a will. However, if the limited estate is given to the wife for her
maintenance, then it would mature into an absolute estate.
The objective of Section 14(1) is to create an absolute interest in case of a limited interest of
the wife. The objective cannot be that a Hindu male who owned self-acquired property is
unable to execute a Will giving a limited estate to a wife.
An absolute estate is often called a fee or fee simple. It is the most comprehensive ownership
of real property known to the law.