FAMILY LAW-I/HINDU

LAW
3 AND 5 YEARS LLB UNDER KARNATAKA STATE LAW
UNIVERSITY

MOST IMPORTANT PREVIOUS YEAR QUESTIONS

ALONG WITH ANSWERS

By
ANIL KUMAR K T
Mob: 9584416446
 Karnataka State law university 3 & 5 Years LLB.

ANIL KUMAR K T LLB COACH

Family Law/Hindu law - I
Previous years Most important questions
1. Who are Hindus? Persons to whom Hindu law does not apply?
2. Explain the features of a coparcenary and bring out the rights of a
coparcenary?
3. Distinguish between Mitakshara and Dayabhaga schools of Hindu law.
4. Write a note on modern and ancient sources of Hindu law.
5. Briefly explain the sources of sources of Hindu law with special reference
to the customs.
6. Explain the salient features of Mitakshara school of Hindu law.
7. Explain the importance of customs.
8. Distinguish between smrutis and shruthis.
9. Hindu marriage is a sacrament and also a contract discuss.
10.Explain the constitutionality of restitution of conjugal rights with the
help of leading cases.
11.Write a note on void and voidable marriages.
12.Customary practices and legislative provisions relating to dowry
prohibition act.
13.Explain the grounds on which a Hindu marriage can be dissolved by
divorce.
14.Define and distinguish between judicial separation and divorce.
15.Write a note on divorce by mutual consent.
16.What is divorce? On what ground divorce can be obtained?
17.What is partition? Under what circumstances partition can be reopened?
18.Write a note on reunion?
19.Who is Karta? Discuss his positions, duties and powers.
20.Explain partition? Explain the various modes of partition?
21.Discuss the changes brought out before and after passing the Hindu
succession act 1956 in respect of the property rights of the female heirs.
22.Explain the requirements of valid adoption under the Hindu adoption
and maintenance act.
 23.Who is a guardian? Explain the powers of natural guardian?
24.What do you mean by adoption? Discuss the changes brought about by
legislation relating to adoption.
25.Enumerate the important changes brought by Hindus succession act.
26. Write a note on testamentary guardian.
27.Write a note on will and Gift.
28.Essential of endowments.
29.Discuss the types of property owned by a Hindu woman state the
changes brought to women’s estate.
30.State the dependents under Hindu adoption and maintenance act 1956.
31.Distinguish between obstructed and unobstructed heritage.

BY
ANIL KUMAR K T
LLB COACH
1.Who are Hindus? Persons to whom Hindu law does not apply?
Introduction:

In Dharmasastra there is no word such as ‘Hindu’. It is a foreign origin. The word

‘Hindu’ came into existence through Greeks who used to call the residence of
the Indus Valley nation as ‘Indoi’. Later it becomes a ‘Hindu’. This nation came
to be known as ‘Hindustan’ and its people as Hindu. In history, the word ‘Hindu’
not only indicates a religion, but it also indicates a nation basically. The Hindu
law has been modified through centuries and been also existing since last 5000
years and has also continued to govern the social and moral figure of Hindu life
by following the different elements of Hindu cultural life.

A person can be called as a Hindu, who:

• Is a Hindu by religion in any form.

• Is a Buddhist, Jaina or Sikh by religion.
• Is born from Hindu parents.
• Is not a Muslim, Parsi, Christian or Jews and are not governed under
Hindu law.
• Lodge in India.
The Supreme Court of India in the landmark case of Shastri vs Muldas expressly
defined the term ‘Hindu’. This case is related to the Swami Narayan temple in
Ahmedabad. There are a group of people called the Satsangi who were
managing the temple and they restricted non-Satsangi Harijans to enter the
temple. They argued that Satsangi is a different religion and they are not bound
by Hindu Law. The Supreme Court of India held that the Satsangi, Arya Samajis
and Radhaswami, all these belong to the Hindu religion because they are
originated under Hindu philosophy.

Hindu by Religion:

• If any person follows the religion by practising it or by claiming it can

be called as a Hindu.
Conversion and Reconversion to Hinduism:

• Under the codified Hindu law, any person if converted to Hinduism,

Buddhism, Jainism or Sikhism can be called as a Hindu.
 • From the case of Perumal vs poonuswami, we can say that a person
can be called a Hindu by conversion.
In this case, Perumal was the father of Poonuswami who got married to an
Indian Christian. In the future due to certain differences, they were living
separately. In the future, the mother of Poonuswami asked Perumal for the
share of his properties. Perumal denied and said “marriage between a Hindu
and a Christian is void”. The Supreme Court of India held that a real intention is
sufficient evidence of conversion and no formal ceremony of purification is
needed (Conversion of Hinduism). So it is not void and Poonuswami would get a
share.

• For conversion, the person should have a bonafide intention and also
shouldn’t have any reason to be converted.
• Reconversion basically happens, when a person is Hindu and gets
converted to a non-Hindu religion and he will again become Hindu if
he/she gets converted into any four religions of Hindu.
• If a person is born from a Hindu family, he/she is a Hindu.
• When one of the parents of a child is Hindu and he/she is brought up
as a member of the Hindu family, he/she is a Hindu.
• If a child is born from a Hindu mother and a Muslim father and he/she
is brought up as a Hindu then he/she can be considered as a Hindu. We
can explain that a child’s religion is not necessarily that of a father.
• The codified Hindu Law lays down that a person who is not a Muslim,
Parsi, Christian or Jews is governed by Hindu Law is a Hindu.
•
To whom Hindu Law does not apply?

1. To an illegitimate child whose father is a Hindu and mother is Christian

and the child is brought up as a Christian. Or also, the illegitimate child
of a Hindu father and a Mohammedan mother, because these children
are not Hindus either by birth or by religion.
2. To the Hindus who are converted to Muslims, Christians, Parsi or Jews.
3. To the Hindus who don’t follow the principles of Sastra.

4.To descendants of Hindus who have formed themselves into a distinct

community or sect with a peculiar religion and usages so different from the
principles of Shastras that the community cannot but be regarded as being
outside Hinduism in the proper meaning of the words;

5.To convert from Hindu to the Mohammedan faith.

Conclusion:
There are many theories which state how did the term “Hindu” originate but
the most famous theory was given by Swami Vivekananda and Swami
Harshananda. According to Swami Vivekananda, Hindus are those people who
lived on the other side of river Indus (Sindhu: in Sanskrit). This was elaborated
by Swami Harshananda who explained that Persians, some 3000 to 4000 years
ago, used to refer the people who lived on the banks of river Indus as Sindhus.
But they couldn’t pronounce the letter “S” correctly in their native tongue and
mispronounced it as “H.” Thus, for the ancient Persians, the word “Sindhu”
became “Hindu.” The ancient Persian Cuneiform inscriptions and the Zend
Avesta refer to the word “Hindu” as a geographic name rather than a religious
name. In the play “Parijat Haran” written by Sankar Dev it is said that one who
eradicates his bodily sin and evil thoughts through Tapasya and his enemies by
weapons are called “Hindu”.
2.Explain the features of a coparcenary and bring out the rights of a
coparcenary?
Introduction.
A Hindu joint family consists of lineal descendants of a common ancestor. In
other words, a male head and his descendants, including their wives and
unmarried daughters. A coparcenary is a smaller unit of the family that jointly
owns property. A coparcenary consists of a ‘propositus’, that is, a person at the
top of a line of descent, and his three lineal descendants — sons, grandsons
and great-grandsons. Coparcenary property is named thus because the co-
ownership is marked by “unity of possession, title and interest”.
Features of Coparcenary:
1.Community of interest and unity of possession:
No coparcener is entitled to any special interest in the coparcenary
property nor is he entitled to exclusive possession of any part of the party
as there is a community of interest and unity of possession between all
the members of the family.
 A coparcener’s interest is a fluctuating interest capable of being
enlarged by deaths in the family and liable to be diminished by births in
the family. It is only on a partition that he becomes entitled to a definite
share.

2. Share of income:
The whole income of the joint family property must be
brought according to the theory of an undivided family to the common
chest or purse and there dealt with according to the modes of
enjoyment of the members of an undivided family.

a) Joint possession and enjoyment:

If any coparcener is excluded from joint possession or
enjoyment, he is entitled to enforce his right by a suit.

If any unauthorised act is done by any coparcener without the

consent of the other coparceners like erection of a building on land
belonging to the joint family or any portion thereof which materially
alters the condition of the property, he may be restrained by an
injunction.

If a company is formed to hold the property of the family with the

consent of all the adult coparceners to preserve the family property
and for the benefit of the family, the transaction is binding on all
coparceners.

3. Exclusion from joint family property:

If any coparcener is excluded by an act of other coparceners from
the use and enjoyment of joint family property or any portion thereof
and if the act amounts to an ouster then such a coparcener by an
injunction restrain the other coparceners from such an act.

4. Maintenance:
A coparcener, his wife and children of an undivided family is
entitled to be maintained out of the coparcenary funds and a
member of a joint Hindu family is under a corresponding legal
obligation to maintain all the male members of the family, their wives
and unmarried daughters.
 5. Right to enforce partition:
Every adult coparcener is entitled to enforce a partition of the
coparcenary property. The rule is that partition can be demanded by any
member of a joint family who is not removed more than 4 degrees from
the last holder however remote he may be from the common ancestor
or original holder of the property.

6. Alienation of undivided interest:

No coparcener can dispose of his undivided interest in coparcenary
property by gift. Nor can he alienate such interest even for value except
in Bombay, Madras and Madhya Pradesh.

7. Right of survivorship:
On the death of a coparcener his interest does not pass by succession
to his heirs. It passes by survivorship to the other coparceners unless the
deceased coparcener leaves behind a heir.

8. Manager:
A coparcener who is a manager/karta has certain special powers of
disposition over the coparcenary property which no other coparcener
has.

The following are the rights of a coparcener in the coparcenary :—

1. Right of common possession and common enjoyment : There is

community of interest and unity of possession between all the coparceners. No
one is entitled to any special interest in coparcenary property nor is any one
entitled to exclusive possession of any part of it.

2. Community of interest and right to savings : No coparcener has got a

defined share in coparcenary property or income thereof and as long as family
in undivided, he cannot predicate that he has certain share in the family
property. The entire income must be brought to the common purse and used
by all members of undivided family.

3. Right to joint possession : Each coparcener is entitled to joint possession

and enjoyment of the family property and if he is prevented by other
coparcener from doing so, he is entitled to an injunction restraining that other
coparcener from disturbing his possession and enjoyment.
4. Right to enforce partition : Every coparcener, whether major or minor, is
entitled to call for the partition of his share against his father, brother or
grandfather irrespective of whether the other coparceners agree to become
divided or not.

5. Right to restrain unauthorized act : A coparcener may restrain any

unauthorized act (for example, erection of wall or building etc.) of other
coparceners in respect of coparcenary property if such act interferes in joint
enjoyment and causes substantial injury to the property or rights of other
coparceners.

6. Right to ask for accounts : A coparcener may demand an account of the

management of joint property so that he may know the actual state of family
funds when the coparcener is suing for partition. If such demand is met by
refusal, he is entitled to restrain the other coparceners for excluding him from
management thereof.

7. Right of alienation : A coparcener may alienate his undivided interest in

the coparcenary by gift, sale or mortgage with the consent of other
coparceners. However, in Bombay, Madras and Madhya Pradesh, no such
consent is required.

8. Right to set aside alienations : Every coparcener has a right to set aside
alienation made by the father, manager or any other coparcener beyond his
authority which includes alienation without legal necessity or illegal
transactions without any benefit to estate.

9. Right to maintenance : A coparcener’s wife and children are entitled to be

maintained out of the coparcenary funds and the members of a joint Hindu
family are under a legal obligation to maintain all the members of the joint
Hindu family.

10. Right to renounce his interest : A coparcener according to Madras High

Court, can renounce his interest in the coparcenary property in favour of all or
any of the coparceners. However, the Bombay and Allahabad High Court are of
the view that renunciation must be in favour of all the coparceners.

Conclusion:

Thus, under Mitakshara law, the right of coparcener to share in the

coparcenary property arises by birth and that right carries with it right to be
maintained out of those properties and to have partition of his share.
3.Distinguish between Mitakshara and Dayabhaga schools of Hindu law.
Introduction:

According to the true notion of an undivided Mitakshara family, no individual

member of that family, Whist it remains undivided, can predicate of the joint
property that he (that particular member) has a certain definite share, one
third or one fourth. Partition, According to that law, consists of ascertaining
and defining the shares of the coparceners, in other words, it consists of the
numerical division of the property by which the proportion of each coparcener
in the property is fixed.1

According to Dayabhaga law, on the other hand, each coparcener has even
whilst the family remains undivided, a definite share in the joint property of
which he is the absolute owner. The property is held in defined shares, though
the possession is the joint possession of the whole family. Partition according
to that law, Consists of separating the shares of the coparceners and assigning
to the coparceners specific portions of the property.2

Following are some points which distinguish the Mitakshara and Dayabhaga.

Mitakshara

• Under Mitakshara Law only Male Members are coparcener.

Females develop into coparcener after the enactment of the
Hindu Succession Act.
• Persons are acquiring coparcenary by birth or adoption.
• Property dissolved on the doctrine of survivorship. In case of the
death of one coparcener, his share in the property is belongs to
other coparceners.
Dayabhaga

• Both Male and female members are coparcener.

• Persons are acquiring Coparcenary only after the passing away of
the father.
• In case of the death of one coparcener his share is given to his
lawful heirs i.e., Son Daughter, wife etc.
Dayabhaga Partition
Persons who are Entitled to partition:-
Under Dayabhaga Law, every adult coparcener, male or female is entitled to
enforce a partition of the coparcener property.

Illustration

A, a Hindu governed Dayabhaga school dies leaving two sons, B and C. On the
A’s death B and C inherit the property left by A as coparcener B dies leaving a
son D. On B’s death, D inherit B’s share in the coparcenary property as B’s heir
and he comes coparcener with C. C dies next leaving a widow W. On C’s death
W inherit C’s share in the coparcener with D. The position at this stage is of
two members namely D and W i.e. One male and one female.

W sues D for the Partition.

Under Dayabhaga law, a son is not entitled to a partition of the coparcenary

property against his father. The reason is that a son, according to that law does
not acquire by birth an interest in ancestral property. The same rule applies to
grandsons and great-grandsons.

Illegitimate Sons –
According to all schools the illegitimate son of the regenerate classes is not
entitled to any share of the inheritance nor to any share on the partition. They
are entitled to maintenance only under the Hindu Adoption and Maintenance
Act.

Purchaser-
Where a fractional share in a property, which forms part of a joint estate has
been sold the purchaser may sue for partition of that property only and for
possession of the share brought by him without asking for the partition of the
whole joint estate4.

Wife-
According to Mitakshara law, though a wife can-not, she demands a partition
between her husband and his sons. No such question can arise under
Dayabhaga law, for according to that law a father is the absolute owner of his
property, whether ancestral or self-acquired and the sons not being entitled to
any interest in his property in his lifetime can-not demand a partition against
him5.

Since a Father according to Dayabhaga law has absolute power of disposal over
his property, whether ancestral or self-acquired he may in his lifetime divide
his property among his sons in such proportions as he likes. He is not bound to
divide it equally between them, not even the ancestral property.

Mother-
As under Mitakshara law, so under Dayabhaga law a mother can-not herself
demand a partition but if a partition takes place between her sons, she is
entitled to a share equal to that of a son after deducting the value of Shridhana
if any, which She may have received from her husband or father in law 6.
Reference may also be made to the Hindu women’s right to property Act,
1937.

If a son dies before partition, leaving the mother as his heir the matter is
entitled upon a partition between her surviving sons to receive a share as
heirers of her deceased son as well as a share in her own right. The share
which she is entitled to receive as the heirs of her deceased son, is not
stridhana, for property inherited by a mother is not shridhana at all and it is
not, therefore, to be taken into account in determining the value of her share
on partition7.

Mitakshara Partition

Sons, Grandsons, Great Grandsons

Every adult coparcener is entitled to demand and sue for partition of the
coparcener is entitled to demand and sue for partition of the coparcenary
property at any time. In Bombay, it has been held that without the assets of his
father a son is not entitled to a partition if the father is joint with his own
father, brothers or other coparceners, though he may enforce a partition
against the father if the father is separate from them. The other High court do -
not recognize any such exception.

Daughters-
The Hindu Succession Act was amended in 2005 by virtues of this Amendment
daughter of a coparcener have been conferred equality of status as coparcener
along with the sons and the persons entitled to share would thus have to be
read accordingly.

Minor Coparceners
Where a suit is brought on behalf of a minor coparcener for partition the court
should not pass a decree for partition unless the partition is likely to be for the
benefit of the minor by advancing his interest or protecting them from danger.

Widow
For the right of a widow, a predeceased son’s widow and the widow of a
predeceased son of the predeceased son of the coparcener.

Adopted son –
Adopted son having all rights as a real son under the Mitakshara Partition.

Conclusion

The concept of Mitakshara and Dayabhaga play a prominent rule under the
Hindu law partition. So, by this article we have been aware of the concept of
Joint Family property under the Mitakshara and Dayabhaga School,
Coparcenary idea under Hindu law was mainly by the male associate of the
family where just children grandsons, and great-grandsons who have right by
birth, who has an interest in the coparcener property. No feminine of
Mitakshara coparcener could be a coparcener but she will always be a part of
the joint family. So, under Mitakshara a Son, son’s son, son’s, son’s, son can a
coparcenary i.e. Father and his three Lineal Male descendants can be a
coparcener.

4.Write a note on modern and ancient sources of Hindu law.

Introduction:
India is a country that has ample Personal laws. Every community has its own
law. Hindu have Hindu laws, Muslim have Muslim laws, Buddhist, Jains and
Sikhs all comes under Hindu law. Those who are born in Hindu, Buddhist, Jain
or Sikh parents. However, if only one parent is Hindu, Buddhist, Jain or Sikh,
then he must be brought up as a Hindu. In this category both legitimate and
illegitimate children are included. These laws are not applied for Muslims,
Christians, Paris or Jews. If any person born in Hindu or converted into Hindu
this would be enough, even though in actual blandishment he may be non-
religious, agnostic or decry his faith. There are many acts which comes under
Hindu law.
Traditional/Ancient Sources of Hindu law
Traditional sources refer to those ancient Hindu legal system which governed
the conduct of Hindus in that particular time. The traditional sources of Hindu
law is the guidelines of the law with modification. In ancient time Hindu law is
use for religion, dharma and marriage purpose. There are Four main sources of
traditional sources.
• Shruti
• Smrities
• Customs
• Digest and Commentaries
Shruti
The word Shruti derives from word Shru which means hear and the word Shruti
means heard. In Hindu law the word Shruti is the prime and supreme source of
Hindu law. It is the language of Gods through saints Shadu-Saints is the most
powerful personality in Hindu religion it believe that they have reached such a
high divine were they informed about Vedas. There are four type of Vedas.
Rigveda, Yajurveda, Samveda, Atharvaveda. Vedas has three Parts viz Sanhit,
Brahmin and Upanishad. Sanhit consist of hymns, Brahmins consist duties and
how to perform this duties and Upanishad consist essence of the duties. Veda
period exist between 4000 to 1000 BC. Veda informs about right and duties.

Smrities
The word Smrities derives from word Smri which means to remember and the
word smriti means the work created by virtue of memory. There are two types
of Smrities Dharamustras and Dharamshastras. There is very little difference the
difference is Dharamustras are written in form of Prose while Dharamshastras
written in form if shlokas.
Custom
The word custom defines the crystallized practices followed by a community or
group of people for a sizeable period. Customs became a governing norms in a
society. Custom is also a source of law. It is supreme to written law and it’s
position is next to Shruti and Smriti. Hindu law is based on custom. There are
four types of custom
• Local Custom(local custom means the custom use in there locality
or area like in Rajasthan there is a custom of child marriage)
 • Caste and community custom (caste custom means the custom
which follow by their particular caste of community. Like different
caste has different process of marriage. In Sikh marriage is
performed by Anand Karz)
• Family Custom (family custom means the custom followed by all
the family members of the family)
• Guild Custom (guild custom means the custom followed by
particular group)
Digests and Commentaries
Digest and commentaries comes in the period between 7th century to 1800 AD
after smrities. In early stages commentaries works on smrities but after that it
work like digests containing numerous smrities. The change of Hindu law is a
result of digests and commentaries. The most important commentaries are
Manunhashya, Manutika and Mitakshra and the most prominent digest is
jimutvahan’s Dayabhaga that applied in Orissa and Bengal. Mitakshara is one of
well known and supreme source of law in India. Mitaksara and Dayabhaga are
two main sources of Hindu law in India.

Modern Sources of Hindu law

Modern sources of Hindu law refers to modern and new generation and evolved
in the present form. There are three main source of modern Hindu law.

• Equity justice
• Legislation
• Precedent
Equity justice
Equity means fairness in dealing. Justice means the modern judicial system
delivered the true justice based on equity and good. In modern law the dispute
comes in court which settled by the application of law and rule in any sources.
The court cannot refuse the settlement of dispute while in the absence of law.
When British Administration clear that the absence of rule terminology.
Terminology means the principles of source. This principles enjoy the status of
source of law in our country.
Legislation
Legislation is the Act of parliament which play a vital role in the formation of
Hindu law. After the independence there are many Hindu law conflicted. After
confliction any point conflict is final. No matter it violet customs or other. In
modern time, the Only way to form new law is Parliament. First, it passes in
Parliament, then it come in work. The acts in Hindu law is Hindu Marriage Act,
1955 , Hindu Succession Act, 1956, Hindu Minority and Property Act, 1916.
Precedent
After the establishment of British rule the hierarchy of court was established.
The doctrine of precedent based on the principles of treating like cases alike was
established. Today, the decisions of council are binding on all the lower court
except where they modified or altered by the Hon’ble Supreme Court whose
decision are binding in all court except itself.
Conclusion
It has been seen that Hindu law needs evaluation of its conviction, patriarchal
character and does not look modern. Hindu law needs upgrade in many areas of
law. The main drawback of Hindu law is not any proper definition of Hindu law
in any source. According to Historians there are many Smriti yet to be found.
The Traditional/Ancient sources of Hindu law are written in sanskrit. And in
present time the knowledge of proper sanskrit is very less and sanskrit scolars
are also less in number. According to traditional/ancient sources, modern
sources of Hindu law are well-defined and more cleared.

5.Briefly explain the sources of Hindu law with special reference to the
customs.
‘Introduction:
Custom’. Custom can be considered as the principle source for the
development of the Hindu Law. Custom in common parlance is an act or
behaviour which is repetitive or is traditionally accepted or can also be defined
as a habitual practice that a person is uniformly following for a long time. It can
also be termed as ‘Rule of Conduct’.
Section 3 of Hindu Marriage Act, 1955 defines custom as a rule which is followed
for a long time and has obtained the force of law among people of the Hindu
community. It also stated that custom must be ancient, must be reasonable, and
it should not be in derogation to the laws of the country.

Types of Custom that shaped Hindu Law

Customs are mainly of four types. They are: Local Customs,General Custom,
Family Customs, Class or Caste Custom.
Local Custom

These are the customs or practises that are binding on people belonging to the
Hindu community of a particular geographical area. Thus the major part of that
particular place culture.

General custom

These are the customs or practises that prevail in the country as a whole.
Example indian customs and traditions are the major attraction for tourists.
Some of them are the ‘Namaste’ which is used to greet people, ‘Tilak’ a ritual
remark which is a sign of blessings or auspiciousness.

Family Custom

Family Custom can be defined as family tradition or family culture, which they
are following from a long time which was given by their ancestors long back. It
can also be stated as the environment in which a person is born and brought up
by their parents and ancestors.

Class or Caste Custom

These are the customs for a particular caste or sector or class of people such as
traders, agriculture , businesses etc. Every caste or class has different traditions
to be followed which they have been following for a long time which can be
named as class or caste custom.

Essentials of valid Custom

Customs can be anything which explains the behavioural pattern of a certain
group of people, it can be an act on the basis of which group of people can be
classified. They are one of the earliest sources of law. It can alternatively be
called as traditions, cultural ideology and cultural philosophy.

There are various essentials for a custom to be a valid custom and to have the
force of law:
Ancient

The custom must be ancient, which should have been established much earlier
and have existed for a long time uniformly. Antiquity of a custom is an essential
and foremost element of a valid custom. Customs must belong to a very distant
past. It must be followed by people from time immemorial. Though Hindu Law
did not fix any particular period of time to judge the antiquity of the custom but
English Law fixed year 1189 to test the antiquity of the custom.

Invariable and continuous

Customs to be valid has to be practiced for a specific period of time and should
be still in existence. It could be taken as evidence for having the force of law and
for having custom accepted in the eyes of laws. It should be followed without
any interruption. If a custom is not continued for a period of time or is
discontinued it comes to an end and such tradition or practise is no longer
considered to be a custom.

Clear and unambiguous evidence

There should be clarity in giving the evidence of a custom. The group of people
who are following it must prove it through their actions or acts or general
instances for the existence of such custom. In collector of Madura v. Mootoo
Ramalinga, the court held that if there is clear proof of custom, it will supersede
the written text or laws.

Reasonable

The custom must be supported by the valid reasons for being followed. To
consider it as a valid custom it is necessary that such custom has been derived
from a series of reasons. It has some reasonableness for its existence. It should
be based on the right to be enforceable. It should not be based on certain
assumptions which are not acceptable.

Not opposed to morality or public policy

Customs should not be against the public policy which means it should aim at
the well being of the people, good of the people. Customs should not be against
the social rules. Customs should not be against the moral values or set of ethical
standards that the society follows.

Not opposed to any law

Customs to be valid and accepted in the eyes of law, it must not be in derogation
with the laws of the country. The customs must not be opposed
to dharmashastras. It must not be forbidden by any laws or enactment of the
legislature. It is necessary that customs are collateral with the laws to be
accepted as a valid custom.

6.Explain the salient features of Mitakshara school of Hindu law.

Introduction:
Mitakshara School: Mitakshara is one of the most important schools of Hindu
law. It is a running commentary of the Smriti written by Yajnvalkya. This school
is applicable in the whole part of India except in West Bengal and Assam. The
Mitakshara has a very wide jurisdiction. However different parts of the country
practice law differently because of the different customary rules followed by
them.
Mitakshara is further divided into five sub-schools namely

• Benaras Hindu law school

• Mithila law school
• Maharashtra law school
• Punjab law school
• Dravida or madras law school
These law schools come under the ambit of Mitakshara law school. They enjoy
the same fundamental principle but differ in certain circumstances.

Benaras law school

This law school comes under the authority of the Mitakshara law school and
covers Northern India including Orissa. Viramitrodaya Nirnyasindhu vivada are
some of its major commentaries.
Mithila law school

This law school exercises its authority in the territorial parts of tirhoot and north

Bihar. The principles of the law school prevail in the north. The major

commentaries of this school are Vivadaratnakar, Vivadachintamani, smritsara.

Maharashtra or Bombay law school

The Maharashtra law school has the authority to exercise its jurisdiction over
the territorial parts including Gujarat Karana and the parts where there is the
Marathi language is proficiently spoken. The main authorities of these schools
are Vyavhara Mayukha, Virmitrodaya, etc.

Madras law school

This law school tends to cover the whole southern part of India. It also exercises
its authorities under Mitakshara law school. The main authorities of this school
are Smriti Chandrika, Vaijayanti, etc.

Punjab law school

This law school was predominantly established in east Punjab. It had established
its own customs and traditions. The main commentaries of this school are
viramitrodaya and it established customs.

Salient features of Mitakshara School:

The following are the features of this school :—

1. A son [now daughter also after the commencement of Hindu Succession

(Amendment) Act, 2005] has an interest in the ancestral property since birth
and is a coparcener in such property along with his father.

2. Father has restricted power of alienation of the joint family property and
the son (or daughter) can claim partition at any time.
3. Members of the Mitakshara coparcenary cannot dispose of their share
while the coparcenary is not divided.

4. The rule of survivorship was applied for the devolution of interest in

coparcenery property. It has been now abolished by Hindu Succession
(Amendment) Act, 2005.

5. The principle of inheritance under the Mitakshara law is consanguinity.

6. According to school, ‘sapinda‘relationship is one arising between persons

through their being connected by particles of one body.

7.Explain the importance of customs.

Introduction:
‘Custom’. Custom can be considered as the principle source for the
development of the Hindu Law. Custom in common parlance is an act or
behaviour which is repetitive or is traditionally accepted or can also be defined
as a habitual practice that a person is uniformly following for a long time. It can
also be termed as ‘Rule of Conduct’.
Customs are mainly of four types. They are: Local Customs, General Custom,
Family Customs, Class or Caste Custom.

Local Custom

These are the customs or practises that are binding on people belonging to the
Hindu community of a particular geographical area. Thus the major part of that
particular place culture.

General custom

These are the customs or practises that prevail in the country as a whole.
Example indian customs and traditions are the major attraction for tourists.
Some of them are the ‘Namaste’ which is used to greet people, ‘Tilak’ a ritual
remark which is a sign of blessings or auspiciousness.
Family Custom

Family Custom can be defined as family tradition or family culture, which they
are following from a long time which was given by their ancestors long back. It
can also be stated as the environment in which a person is born and brought up
by their parents and ancestors.

Class or Caste Custom

These are the customs for a particular caste or sector or class of people such as
traders, agriculture , businesses etc. Every caste or class has different traditions
to be followed which they have been following for a long time which can be
named as class or caste custom.

Essentials of valid Custom

Customs can be anything which explains the behavioural pattern of a certain
group of people, it can be an act on the basis of which group of people can be
classified. They are one of the earliest sources of law. It can alternatively be
called as traditions, cultural ideology and cultural philosophy.

There are various essentials for a custom to be a valid custom and to have the
force of law:

Ancient

The custom must be ancient, which should have been established much earlier
and have existed for a long time uniformly. Antiquity of a custom is an essential
and foremost element of a valid custom. Customs must belong to a very distant
past. It must be followed by people from time immemorial. Though Hindu Law
did not fix any particular period of time to judge the antiquity of the custom but
English Law fixed year 1189 to test the antiquity of the custom.

Invariable and continuous

Customs to be valid has to be practiced for a specific period of time and should
be still in existence. It could be taken as evidence for having the force of law and
for having custom accepted in the eyes of laws. It should be followed without
any interruption. If a custom is not continued for a period of time or is
discontinued it comes to an end and such tradition or practise is no longer
considered to be a custom.

Clear and unambiguous evidence

There should be clarity in giving the evidence of a custom. The group of people
who are following it must prove it through their actions or acts or general
instances for the existence of such custom. In collector of Madura v. Mootoo
Ramalinga, the court held that if there is clear proof of custom, it will supersede
the written text or laws.

Reasonable

The custom must be supported by the valid reasons for being followed. To
consider it as a valid custom it is necessary that such custom has been derived
from a series of reasons. It has some reasonableness for its existence. It should
be based on the right to be enforceable. It should not be based on certain
assumptions which are not acceptable.

Not opposed to morality or public policy

Customs should not be against the public policy which means it should aim at
the well being of the people, good of the people. Customs should not be against
the social rules. Customs should not be against the moral values or set of ethical
standards that the society follows.

Not opposed to any law

Customs to be valid and accepted in the eyes of law, it must not be in derogation
with the laws of the country. The customs must not be opposed
to dharmashastras. It must not be forbidden by any laws or enactment of the
legislature. It is necessary that customs are collateral with the laws to be
accepted as a valid custom.

8.Distinguish between smrutis and shruthis.

Introduction:
Shruti
Shruti is a Sanskrit word that means
"what is said".
Shruti is an eye-opener.
Shruti is firsthand knowledge. The
universal truths of faith were heard by
Great Rishis, who recorded them for
posterity's gain.
Shruti is timeless.
The primary authority is Shruti.
The final authority is Shruti.
Shruti does not issue any orders. It just
provides guidance.
Shruti never goes out of style.
Shruti is eternal because it never changes. the requisite adjustments. As a result, Smriti's
Smriti
Smriti is a Sanskrit word that means
"remembered."
Smriti is a Hindu ritual.
Smriti is a reminiscence of the case.
Smriti was created by humans.
The Smriti is an afterthought.
If a Smriti contains something that contradicts
the Shruti, it must be refused.
Smriti gives orders and punishments in the
form of prayachits if they are not followed.
Smriti can become obsolete, necessitating
modification or amendment.
Smriti, when followed at a given time, makes
essence is complex.

The Vedic literature is divided into two sections, namely, Shruti and Smriti are
two sisters. Shruti is the name given to the sacred texts that make up
Hinduism's core corpus, i.e. Upanishads, Vedas, Brahmanas, and Aranyakas

The entire body of post-Vedic Classical Sanskrit literature is called Smiriti,

which literally means "that which is remembered". Vedanga, Shad darshana,
Puranas, Itihasa, Upveda, Tantras, Agamas, and Upangs are all part of it. Epics
are a post-Vedic category of Sanskrit literature that includes the Ramayana and
Mahabharata.

9.Hindu marriage is a sacrament and also a contract discuss.

Introduction
According to Hindu marriage act,1955 marriage is considered to be a
sacrament with solemn pledge and it is not a contract which is only entered by
the execution of a marriage. R.N Sharma has defined that a Hindu marriage is a
religious sacrament. ‘When a man and woman are into a permanent
relationship for the social, spiritual purposes of dharma, physical, procreation
and sexual pleasure’.

India is the only country which follows religions in that Hinduism has its own
culture, customs, traditions, laws.

Accordingly there are 16 Samskaras, in that Marriage i.e.(Vivah)is the most

important part which follows 7 steps and vows in presence of fire Sapta Padi.

Why is Hindu marriage a sacrament?

Sacrament is a symbolic religious ceremony. Marriages are considered as

divine between Hindus. In the ancient period, there was no need for the girl’s
consent. Where the fathers had to decide the boy without asking for her
advice or consent. It is a religious bond between a man and woman, but not
completely a contract. It is also believed that Hindu has its specified missions in
life which is expressed by the ‘purusharthas’ which comprises Dharma, Artha,
Kama, Moksha.

• As per the ceremonies of Hindu marriage there must be performed for

union to be finished, the fundamental customs are homa, offering of the
hand of the lady of the hour and saptapadi, then the lady and spouse
going seven steps together.
• In all the customs the Brahmin performs the rituals by telling the
Mantras.
• Hindu marriage is additionally viewed as a ceremony where the male
experiences the holy observances over a mind-blowing span and the
female experiences the basic, since this is the main ceremony which will
be remembered in their life.

The three main aspects of the sacramental nature of marriage:

• Once it is tied cannot be untied.

• It is a religious and holy union of the bride and the groom which is
necessary to be performed by religious ceremonies and rites.
• The bond between the husband and wife which is permanent and tied
even after death and they will remain together after the death.
As per the legal aspects of sacramental character of Hindu marriage

In the case Shivonandh v. Bhagawanthumma, the court observed that

marriage was binding for life because a marriage performed by saptapadi
before the consecrated fire was a religious tie which could never be united.
The three main characteristics:

1. It is a permanent union
2. It is an eternal union.
3. It was a holy or sacrosanct union.

In the case Tikait v. Basant, the court held that marriage under Hindu Law was
a sacrament, an indissoluble union of flesh with flesh, bone with a bone to be
continued even in the next world.

Or is it Contract

In the modern era the current idea of marriage is legally binding. Where the
western thoughts are combined. There should be an understanding between
the couple with balance and freedom in life.

Conditions valid for Hindu marriage act

UNDER SECTION 5

A valid marriage shall be solemnized between two Hindus with the following
conditions fulfilled.

• The groom shall attain the age of 21 and the bride should attain the age
of 18. It is very much necessary at the time of marriage the person shall
attain the specified age given in the act.
• The consent cannot be taken into consideration when there is a use of
coercion or threat. In the modern world, a father can’t get the girl
married to any without the girl’s consent. If in case that happens the will
be void.
• The person shall not be suffering from any insanity or mental disorder at
the time of marriage.
• During the time of marriage no person shall have a spouse living.
According to the Hindu marriage Act, it is not permissible to have two
living wives at the same point of time, which amounts to bigamy. Section
494 IPC gives punishment for the said offence.
• They don’t fall under the sapinda relationship, or within the decree of
prohibited relationship unless it is allowed by the custom or tradition.
Conclusion

Therefore, in the most Hindu marriage is a religious ceremony is followed. We

can conclude that marriage has some elements of contract but it is not purely
contract. Moreover it is a sacrament under Hindu marriage act. It is more of
sacrament as Hindu marriage is a holy and eternal union of two bodies.

10.Explain the constitutionality of restitution of conjugal rights with the help

of leading cases.
Introduction:
The concept of restitution of conjugal rights owes its origin to the ancient
times when the institution of marriage was based on proprietary rights of the
husband. Marriage imposes an obligation on both spouses to cohabit with
each other. The Indian judiciary had maintained a tremendously archaic and
platitudinous approach by holding that a wife’s first duty to her husband is to
submit herself obediently to his authority and to remain under his roof and
protection. The wife was considered as a property of the husband and was,
therefore, required to reside in the consortium of the husband at all times.
Even a mutual agreement between the husband and wife to live separately
was considered void as it was viewed to be contrary to public policy.
For a court to pass a decree in favor of the petitioner, three conditions require
to be satisfied:

1. The respondent has withdrawn from the society of the petitioner

without any reasonable excuse
2. The withdrawal was not a consequence of the actions of the
petitioner
3. There exists no legal ground why the relief should not be granted

Constitutionality of the provision relating to Restitution of Conjugal Rights

The question of the constitutionality of exercising the remedy of restitution of

conjugal rights had been initially presented before the Andhra Pradesh High
Court in 1983. In the case of T. Sareetha v. Venkata Subbaiah[11], it was
argued in this court that the right to privacy confers upon a party to a marriage
the ‘right of free choice as to whether, where, how and by who her body is to
be used for procreation of children’ and by recognizing the remedy of
restitution of conjugal rights under Sec. 9[12], the State is violating the
fundamental liberty, privacy and dignity guaranteed by Article 21 of the Indian
Constitution. Further, since the remedy was available to both to married men
and women it was contended that by treating the wife and husband, who are
inherently unequal, as equals, the impugned section offends the rule of equal
protection of laws and, hence, contradictory to the essence of equality given
under Article 14.

While declaring the judgment, Justice P. A. Choudhary had accepted the

abovementioned arguments and sided with the respondent. He viewed that
forceful cohabitation of two spouses unwilling to reside with each other would
lead to forced sexual intercourse against the wife. He had elaborated on the
opinions by articulating on this issue that by enforcing a decree for restitution
of conjugal rights the life pattern of the wife is likely to be altered irretrievably
whereas the husband’s can remain almost as it was before, since it is the wife
who has to bear the child. The judge had adopted an archaic approach by
further enunciating that the inevitable consequence of the enforcement of this
remedy cripples the wife’s future plans of life. With the perspective of the
wife, he had associated the right under Sec. 9 as a self-destructive remedy,
partial and one-sided, since it was practically available only to the husband. As
a result, Justice Choudhary had ruled Sec. 9 to be unconstitutional as its
provisions were anti-thesis to the fundamental rights guaranteed under
Articles 14 & 21 of the Constitution.

From the viewpoint of the judge, it can be concluded that he has considered
the entire question of restitution of conjugal rights from the point of view of
the husband. It seems that he completely overlooked that restitution of
conjugal rights can also be claimed by the wife.

Judicial Interpretation

Subsequently, within less than a year, the issue of the constitutionality of Sec.
9 had re-appeared, this time before the Delhi High Court in the case
of Harvinder Kaur v. Harmander Singh[13] where the view of the Andhra
Pradesh High Court was dissented from. The state of conflict with relation to
the disputed section’s constitutionality was resolved by the Hon’ble Supreme
Court in the same year, in the case of Saroj Rani v. Sudarshan Kumar[14] where
Justice Sabyasachi Mukhatji had upheld the Harvinder case and overruled
the T. Sareetha case for the following cause.
The purpose of the decree of restitution of conjugal rights is only to offer an
inducement for the husband or wife to live together and did not place
emphasis on the compulsion of an unwilling wife to engage in sexual
intercourse with her husband. The object of the decree was only to bring about
cohabitation between the estranged parties so that they can live together in
the matrimonial home in amity. Hence, restitution of conjugal rights aimed at
consortium and not merely sexual intercourse.

11.Write a note on void and voidable marriages.

Introduction:
The concept of marriage is to form a relationship between husband and wife.
Marriage is a religious tie which cannot be broken. According to Section 5 of
Hindu Marriage Act, 1955 it was accepted that a Hindu Marriage was a
religious ceremony and also a Sanskara (performed as a purification rite). It
was also established that every and any Hindu could marry. The exceptions to
this are the ones prohibition which is on the basis of caste, gotra, religion and
blood relationship. Such prohibition is based on some rules which are
endogamy (where a man cannot marry a woman, who is of his relation) and
exogamy (a man cannot marry a woman who belongs to another tribe).
Endogamy and Exogamy are illegal in the view of Hindu Marriage Act, 1955.

Provision of Void and Voidable Marriages under Hindu Marriage Act, 1955

Void Marriages (Section 11)

A marriage is considered void under the Hindu Marriage Act if it doesn’t fulfils
the following conditions of Section 5 of the Hindu Marriage Act:

Bigamy
If any of the parties have another spouse living at the time of marriage. It shall
be considered as null and void.

Illustration: there are three parties ‘A’,’B’ and ‘C’ where ‘A’ has a living spouse
‘B’, but he again marries to ‘C’ then this will be called as bigamy and it will be
void.

Prohibited Degree
If the parties are within a prohibited relationship unless the customs allows it.

Illustration: there are two parties ‘A’ and ‘B’ where, ‘A’ is the husband and ‘B’ is
his wife. They both went on a relationship which is prohibited by law. This
marriage can also be called void marriage.

Sapindas
A marriage between the parties who are sapindas or in other words a marriage
between the parties who are of his or her relations or of the same family.

Illustration: there are two parties ‘A’ and ‘B’ where ‘A’ is the husband and ‘B’ is
the wife, who has blood relation or close relation to A which can also be termed
as Sapinda. So, this process will be treated as void.

Voidable Marriages (Section 12)

A marriage is voidable on either side of the party is known as voidable marriage.

It will be valid unless the petition for invalidating the marriage is made. This
marriage is to be declared void by a competent court under the Hindu Marriage
Act, 1955. The parties of such marriage have to decide whether they want to go
with such marriage or make it invalid.

The grounds where marriage can be termed as voidable:

• The party to the marriage is not capable of giving consent due to the
unsoundness of mind. Illustration: There are two parties ‘A’ and ‘B’,
where ‘A’ is the husband and ‘B’ is his wife. ‘B’ gave the consent of the
marriage when she was suffering from an unsound mind. After some
years, ‘B’ gets cured and raised that her consent was invalid and this
marriage is voidable because during the time of the consent of ‘B’, she
was in an unsound mind. So, this a ground of voidable marriage.

• The party is suffering from mental disorder which makes her unfit for
reproduction of children. Illustration: There are two parties ‘A’ and ‘B’,
where ‘A’ is the husband and ‘B’ is his wife. If ‘B’ is suffering from
mental disorder due to which she is unfit for reproduction of children.
Then this can be a ground for voidable marriage.

• If the party has been suffering from repeated attacks of

insanity. Illustration: There are two parties ‘A’ and ‘B’, where ‘A’ is the
 husband and ‘B’ is his wife. Anyone from ‘A’ or ‘B’ is suffering from
repeated attacks of insanity, then this can also be a ground for voidable
marriage.

• The consent of marriage by either of the parties is done by force or by

fraud. Illustration: There are two parties ‘A’ and ‘B’ where A is the
husband and B is his wife. If either party gave consent to the marriage
by force or fraud, then it will be a voidable marriage.

• If either of the parties are under-aged, bridegroom under 21 years of

age and bride under 18 years of age. Illustration: There are two parties
‘A’ and ‘B’, where ‘A’ is the husband and ‘B’ is his wife. If ‘B’ is under
the age of 18 years then this marriage will be considered as voidable or
if A is under the age of 21 years then it can also be considered as
voidable marriage.

• If the respondent is pregnant with a child of someone other than the

bridegroom while marrying. Illustration: There are two parties ‘A’ and
‘B’ where ‘A’ is the husband and ‘B’ is his wife. During the time of the
marriage if ‘B’ is pregnant through another person. Then the marriage
would be voidable.

Difference between Void and Voidable Marriage

Void Marriage Voidable Marriage

A wife does not have the

right to claim A wife has the right to claim maintenance in the voidable
maintenance in the void marriage.
marriage.

In a void marriage, the

parties do not have the
Husband and wife have the status in the voidable marriage.
status of husband and
wife.

In a void marriage, no
decree of nullity is In a voidable marriage decree of nullity is required.
required.
A void marriage is none in
A void marriage is to be declared void by a competent court.
the eyes of law.

The children in a void The children in a voidable marriage are treated as

marriage are treated as illegitimate but this distinction is deleted by the Supreme
legitimate. Court and said a child cannot be said termed as illegitimate.

12. Customary practices and legislative provisions relating to dowry

prohibition act.
Introduction:
Dowry” is a word that is very prevalent and common in Indian households. It is
a practice that has become a parasite for the Indian society and which has
eroded the beautiful institution of marriage. It is not a new practice but has
been followed from ages, and its impact is such in Indian society that one can
make efforts to reduce it, but it cannot be totally eradicated. Several laws have
been enacted to prohibit the practice of dowry, but the legal clutches are
weaker than the ambit of the practice of dowry. Further, the article shall
enumerate the social and legal consequences of practicing dowry along with its
other various aspects.
Dowry Prohibition Act, 1961

Penalty for giving and taking dowry (Section 3) – According to section 3, if any
person after the commencement of the Act gives or takes, abets the giving or
taking of dowry shall be punished with an imprisonment for a term not less than
five years and with fine which shall not be less than fifteen thousand rupees or
the amount of the value of dowry, whichever is more.

• Penalty for demanding dowry (section 4) – According to section 4, if

any person directly or indirectly demands dowry from the parents,
relatives or guardians of the bride or the bridegroom shall be punished
with an imprisonment of not less than six months and which shall
extend to two years and with fine which may extend to ten thousand
rupees.
The Supreme Court has held in Pandurang Shivram Kawathkar v. State of
Maharashtra[3] that the mere demand of dowry before marriage is an offence.
In Bhoora Singh v. State of Uttar Pradesh, [4]the court held that the deceased
had before being set on fire by her in-laws written a letter to her father that she
was being ill-treated, harassed and threatened with dire consequences for non-
satisfaction of demand of dowry. Thus an offence of demanding dowry under
section 4 had been committed.

• Ban on advertisement (section 4-A) – According to section 4-A, the

advertisement in any newspaper, journal or through any other medium
or a share in the property, business, money, etc by any person in
consideration for marriage shall be punished with an imprisonment
which shall not be less than six months and which may extend to five
years or with fine which may extend to fifteen thousand rupees.
• Cognizance of offence– According to section 7, a judge not below the
rank of a Metropolitan Magistrate or Judicial Magistrate of First Class
shall try an offence under this Act. The court shall take cognizance of
the offence only on the report by the victim, the parents or relative of
the victim, police report or on its own knowledge of the facts of the
offence.
• According to section 8 certain offences under this Act shall be
cognizable, non-bailable and non- compoundable.
Indian Penal Code, 1860

• Dowry Death (section 304 B)- Section 304(B) reads as follows-

1. Where the death of a woman is caused by any burns or bodily injury or

occurs otherwise than under normal circumstances within seven years
of her marriage and it is shown that soon before her death she was
subjected to cruelty or harassment by her husband or any relative of
her husband for, or in connection with, any demand for dowry, such
death shall be called “dowry death” and such husband or relatives shall
be deemed to have caused her death.
Explanation – For the purposes of this sub section, “dowry” shall have the same
meaning as in section 2 of the Dowry Prohibition Act, 1961.

2. Whoever commits dowry death shall be punished with imprisonment

for a term which shall not be less than seven years but which may
extend to imprisonment for life.
In Vemuri Venkateshwara Rao v. State of Andhra Pradesh[5], the court has laid
down the following guideline for establishing an offence under section 304(B)
and they are-

1. That there is a demand of dowry and harassment by the accused,

2. That the deceased had died,
3. That the death is under unnatural circumstances. Since there was
demand for dowry and harassment and death within 7 years of
marriage, the other things automatically follow and offence under
section 304-B is proved.

• Husband or relative of husband subjecting women to cruelty (section

498-A) – Section 498- A reads as follows-

1. Husband or relative of husband of a woman subjecting her to cruelty-

Whoever, being the husband or the relatives of the husband of a
woman, subject such woman to cruelty shall be punished with
imprisonment for a term which may extend to three years and shall
also be liable to fine.
Explanation – For the purpose of this section “cruelty” means –

1. Any willful conduct which is of such a nature as is likely to drive the

woman to commit suicide or to cause grave injury or danger to life,
limb or health (whether mental or physical) of the woman, or
2. Harassment of the woman where such harassment is with a view to
coercing her or any person related to her to meet any unlawful demand
for any property or valuable security or is on account of failure by her
or any person related to her to meet such demand
In Bhoora Singh v. State[6], it was held that the husband and in-laws subjected
the wife the cruelty for bringing insufficient dowry and finally burnt her down,
thereby inviting a sentence of three years rigorous imprisonment and a fine of
Rs.500/- for an offence committed under section 498-A of Indian Penal Code.

Indian Evidence Act, 1872

• Presumption as to dowry death (Section 113 B) – Section 113 B reads

as follows-
When the question is whether a person has committed dowry death of a woman
and it is shown that soon before her death such woman had been subjected by
such person to cruelty or harassment for, or in connection with, any demand for
dowry, the court shall presume that such person had caused the dowry death.

Explanation – For the purpose of this section “dowry death” shall have the same
meaning as in section, 304B of the Indian Penal Code (45 of 1860).

Conclusion

“DOWRY” as a practice is deeply rooted in Indian society, and it cannot be totally

eradicated. The major reason that this practice cannot be eradicated is the
mentality, thought and mindset of Indians. In India, a boy is made highly
educated so that parents can demand a huge dowry for him in the marriage. The
more educated the man is, and the more stable his financial situation is, the
more he gets dowry.

13.Explain the grounds on which a Hindu marriage can be dissolved by

divorce.
Grounds of Divorce

Under the Hindu Marriage Act,1955 there exists following grounds of divorce
such as:-

• Fault Ground (section 13(1))

• Breakdown Ground (section 13(1A)(i), 13(1A)(ii))
• Divorce By Mutual Consent (section 13-B)
• Customary Divorce (section 29(2))

Fault Ground

Under the Hindu Marriage Act 1955, section 13(1), lays down nine fault ground
of divorce. Some of there are Adultery, Desertion, Cruelty, Insanity, Leporacy,
Verenal Disease, while others such as Conversion, Or Renunciation of words are
typically Hindu grounds.

I. Desertion

In explanation to sub-section (1) of Section 13, Hindu Marriage Act, 1955,

Parliament has explained desertion: “The expression ‘desertion’ means the
desertion of the petitioner by the other party to the marriage without reasonable
cause and without the consent or against the wish of such party, and includes
the willful neglect of the petitioner by the other party to marriage, and its
grammatical variations and cognate expressions shall be construed
accordingly”. In other word Desertion means permanent leave or forsaking of
one spouse by the other without any sensible reason without the consent of the
other.

For the offence of desertion so far as deserting spouse is concerned, two

essential conditions must be there

• the reality of the split and

• the desire to finally put an end to cohabitation (animus deserendi).

Similarly, two elements are essential so far as the deserted spouse is concerned:

• the lack of consent, and

• the lack of a valid cause of action for the partner leaving the
matrimonial home to render the required purpose referred to
above.

In Savitri Pandey v. Prem Chand Pandey[2] court held that “ there can be no
desertion without previous cohabitation by the parties”

In Case Bipin Chander Jaisinghbhai Shah vs Prabhawati[3] court held that “The
offense of desertion is a path of behavior which exists independently of its
duration, however as a ground for divorce it needs to exist for a duration of as a
minimum 3 years at once previous the presentation of the petition or, in which
the offense seems as a cross-charge, of the answer. Desertion as a ground of
divorce differs from the statutory grounds of adultery and cruelty in that the
offense founding the purpose of motion of desertion isn't always complete,
however is inchoate, till the healthy is constituted. Desertion is persevering with
the offense”

II. Cruelty

Before 1976, Cruelty was not ground for divorce. It was ground for judicial
separation. By the Amendament Act, Cruelty is made a ground for
divorce. Oxford Dictionary defines The word “cruelty” has not been outlined and
it's been utilized with respect to human conduct or human behavior. it's the
conduct with respect to or in respect of marital status duties and obligations. it's
a course of conduct and one that is adversely moving the opposite. The cruelty
is also mental or physical, intentional, or unintentional[4].
In Savitri Pandey vs Prem Chandra Pandey[5] court held that Cruelty has not
been outlined underneath the Act however in respect to marital matters it's
contemplated as the conduct of such sort that endangers the living of the
petitioner with the respondent. Cruelty is an act that is dangerous to life, limb,
or health. Cruelty for the aim of the Act suggests that wherever one spouse
equivalent has therefore treated the opposite and manifested such feelings
towards her or him on have inflicted bodily injury, or to own caused cheap
apprehension of bodily injury, suffering, or to own bruised health. Cruelty could
also be physical or mental. Mental cruelty is that the conduct of other spouse
equivalents that causes mental suffering or worry about the marital life of the
opposite. Cruelty "therefore postulates the petitioner's approach with such
cruelty as to trigger an accessible apprehension that it may be detrimental or
harmful to him.

In Smt. Nirmala Manohar Jagesha vs Manohar Shivram Jagesha[6] Court held

that “case for divorce, false, baseless, scandalous, malicious and unproven
allegations made in the written statement may amount to cruelty to the other
party and that party would be entitled to get a decree of divorce on that
ground”.

In Gurbux Singh vs Harminder Kaur[7] court held that Simple minor

aggravations, squabbles, normal wear, and tear of married life which occurs in
everyday life in all families would not be satisfactory for an award of separation
on the ground of cruelty.

III. Adultery

Reydon defines Adultery as “consensual sexual intercourse between a married

person and a person of the opposite sex, not the other spouse, during the
subsistence of marriage”.

In the case of a divorce petition, it is not appropriate, or sufficient, to show that

the correspondent had information or reason to believe that the respondent
was the petitioner's wife or husband. If the respondent had a partnership with
the complete understand exactly-how co-respondent that he or she wasn't a
wife or husband then that was appropriate.

In Subbaramma v. Saraswati Court[8] held that one single act of adultery is

enough for divorce or judicial separation. In the same case court also held that
“the unwritten taboos and rules of social morality in this country and particularly
in village areas must necessarily be taken into account. If an unknown person is
found alone with a young woman after midnight, in her apartment, in an actual
physical juxtaposition, unless an excuse is given which is consistent with an
innocent interpretation, the only conclusion that the Court of Justice can draw
must be that the two have committed an act of adultery together”.

So we can conclude that in contest of Indian law actual penetration is not

required for act of adultery.

IV. Insanity

Under The Marriage Laws (Amendment) Act, 1976, Section 13(iii) petitioner may
get a decree of divorce or judicial separation if the respondent has been
experiencing consistently or irregularly mental turmoil of such a sort and so
much that the petitioner can't sensibly be required to live with the respondent.

In Ram Narayan v. Rameshwari[9], Supreme Court held that in schizophrenic

mental disorder, the petitioner should prove not merely the said mental
disorder, but also establish that account the petitioner could not reasonably be
expected to live with the respondent.

In Smt. Alka Sharma v. Abhinesh Chandra Sharma[10], t was discovered that

the spouse was so cold and sub-zero and apprehensive on the first evening of
marriage as not to have the option to coordinate in a sexual act. She was
discovered incapable to deal with homegrown machines. She fizzled to clarify
the direction of peeing within the sight of all relatives. The court held that she
was experiencing schizophrenia, and the spouse was held to be entitled to the
nullity of marriage.

V. Leprosy

Section (1)(iv) in the Hindu Marriage Act, 1955, Leprosy is both ground for
divorce and judicial separation.

But for divorce under Section (1)(iv) in Hindu Marriage Act, 1955, Leprosy must
be in the form of

a. Virulent and
b. Incurable

a mild type of leprosy which is capable of treatment is neither ground for divorce
nor for judicial separation[11].

VI. Venereal Disease

Section 13(V) of the Hindu Marriage Act, 1955 provides ground for divorce
against communicable Venereal Disease.

In Mr. X v. Hospital Z[12] Supreme court held that on the ground of venereal
disease Either husband or wife can get a divorce, and a person who has suffered
from the disease can not be said to have any right to marry even before
marriage, as long as he is not completely cured of the disease.

In Sm. Mita Gupta vs Prabir Kumar Gupta[13] court held that Venereal disease
is a cause of divorce, but the partner may be denied relief even though the other
partner suffers as much if the former is responsible for the contagion

VII. Conversion

Under the Hindu Marriage Act, Section (13)(1) clause (ii) divorce maybe obtain
if the respondent converted from Hindu to other Religion and ceased to be a
Hindu. Under the clause two conditions must be satisfied:

1. Respondent has ceased to be a Hindu, and

2. He has converted to another religion

Ceased to be Hindu means a person got converted to a non-Hindu faith such as

Parsis, Islam, Christianity, or Zoroastrianism. A person not ceased to be Hindu if
he converted into Jain, Buddhism, Sikhism because Sikh, Jain, Buddhist by
religion is a Hindu.

In Teesta Chattoraj vs Union Of India [14] court held that Conversion to another
religion is a ground for divorce, but a spouse may be denied divorce even if the
other spouse has embraced some other religion if the former goaded the latter
to such conversion.

14.Define and distinguish between judicial separation and divorce.

Introduction:
In Indian Society, marriage is considered as a sacrament. It is an irrevocable
relationship between husband and wife established through rituals and
customs. Before 1955, there was no relief available to either party in case of a
failed marriage. They had to continue with the marriage and couldn’t break the
marriage. After the passage of Hindu Marriage Act, 1955 things changed in
favor of both parties to the marriage. Now, in case of a failed marriage, the
 parties do not need to suffer in the marriage and can easily break their
matrimonial alliance through Judicial Separation or by a decree of Divorce.

JUDICIAL SEPARATION DIVORCE

• Can file a petition at any time post

marriage.
• Can file only after completion of
• Only one stage of judgement. If one year of marriage.
grounds are satisfied, decree
• Judgement is a two-step process.
granted.
First reconciliation, then divorce.
• Temporary suspension of
• Brings marriage to an end.
marriage.
• Can remarry once decree in favor
• Cannot remarry after the passage
of divorce is passed.
of decree.
• Living in an adulterous
• It is a ground for divorce.
relationship necessary.
• A single instance of adultery
sufficient for Judicial Sep. • No possibility of reconciliation.
• The possibility of reconciliation.

Conclusion:
Before 1955, there was no provision for separation or divorce. Reforms
introduced in the Hindu Law by way of legislation and amendments is a welcome
step by the government. The two relieves granted by the HMA,1955 have
proven to be effective in resolving disputes between parties by giving them an
opportunity to reconcile their difference or by releasing them from marital ties.

15.Write a note on divorce by mutual consent.

Introduction:

Divorce by mutual consent – (Section 13B)

In a case where none of the aforementioned grounds is available, but the parties
decide they do not want to remain married to each other or can not live with
one another they can seek divorce by mutual consent under Section 13B of the
Hindu Marriage Act.
Essentials of divorce by mutual consent

Parties should be living separately

Section 13(B) of the Act prescribes that in order to mutually dissolve a marriage,
the spouses should be living separately for a period of at least 1 year before filing
the petition.

This period of one year where the parties have lived separately must be
immediately before the filing of the petition. “Living Separately” in the context
of Section 13B does not necessarily mean physically living in different places.
The parties could be living in the same house, sharing the same roof but there
can still be a distance between the two.

If that is the case then they are not considered to be living as husband and wife,
which qualifies as living separately.

The same was held by the Hon’ble Supreme Court in the case of Sureshta Devi
v. Om Prakash. Wherein it was made clear that living separately does not
necessarily mean living in different places. The parties can be living together but
not as spouses.

Parties have not been able to live together

It is said that relationships are made in heaven, however sometimes the holy
relationships do not work for long on Earth. These days divorce is taken very
lightly and people go for it as a first resort whereas the intention behind the law
of divorce was to make it a last resort. Many times, in a marriage it so happens
that the spouses can’t stand each other and can no longer live together happily.
That is when they opt for divorce by mutual consent.

Sadly enough, it often happens that the parties are not able to live together even
after trying mediation and reconciliation and putting multiple efforts, before
filing a divorce petition by mutual consent.

In Pradeep Pant & anr v. Govt of NCT Delhi, the parties were married and had a
daughter from their wedlock. However, due to temperamental differences
between them, they were not able to live together and decided to live
separately. Despite putting their best efforts they were unable to reconcile their
marriage and could not see themselves living together as husband and wife ever
again. A divorce petition was jointly filed and issues such as maintenance and
custody of their child were decided and agreed upon by both.

The wife would get custody of their daughter and the husband would reserve
visitation rights, it was mutually agreed upon by both of them. Both parties gave
their free consent without any undue influence. The court observed that there
was no scope of reconciliation and granted a decree of divorce.

After filing a petition for divorce by mutual consent, the parties are given a
waiting period of 6 months, also known as a cooling period and it may extend
up to 18 months. During this time the parties must introspect and think about
their decision.

If the parties are still not able to live together after the cooling period, then the
divorce petition shall be passed by the district judge.

They have mutually agreed that marriage should be resolved

In some situations – the parties may choose to give their marriage another
chance and mutually resolve their marriage. During the waiting period, the
parties may sometimes be able to reconcile and make their relationship work.

After the first motion has been passed, the parties have a total of 18 months to
file for second motion and if they fail to do so within those 18 months, both
parties are deemed to have withdrawn their consent mutually.

Conclusion

Divorce is a serious issue and must be used only as a last resort, however, these
days people do not think twice before getting divorced. It splits families and the
child of the separating couple has to go through serious trauma growing up with
separated parents. Divorce by mutual consent is the best way of divorce as the
parties do not have to bad mouth each other in the courtroom and both parties
can mutually settle on all issues and end their marriage.

16.What is divorce? On what ground divorce can be obtained?

Introduction:

As we know that in ancient India there no such type of concept exists. Manu
announced that a spouse can't be delivered by her significant other either by
deal or by deserting, suggesting that the conjugal tie can't be cut off in any case.
But in modern India concept of divorce exist, Divorce put the marriage to end,
It ceases all the mutual obligation of husband and wife, they are free to go there
on way. This leads to end all bonds between them except concerning section 25
(maintenance and alimony) and section 26 (custody, maintenance, and
education of children). There is available much ground on which husband and
wife could take divorce.

Grounds of Divorce as per The Hindu Marriage Act

Adultery

The concept of Adultery may not be considered as an offence in many countries.

But as per the Hindu Marriage Act, in the matrimonial offence, the adultery is
considered as one of the most important ground for seeking divorce. Adultery
means the consensual and voluntary intercourse between a married person with
another person, married or unmarried, of the opposite sex. Even the intercourse
between the husband and his second wife i.e. if their marriage is considered
under bigamy, the person is liable for the Adultery.

The concept of Adultery was inserted under the Hindu Marriage Act by the
Marriage Laws Amendment Act, 1976.

In Swapna Ghose v. Sadanand Ghose

In this case, the wife found her husband with other girl lying on the same bed
and the neighbour also confirmed that the husband has committed an offence.
Here the wife gets the divorce.

Essentials of Adultery

1. One of the spouses involved in the intercourse with another person,

married or unmarried, of the opposite sex.
 2. Intercourse should be voluntary and consensual.
3. At the time of the act, the marriage was subsisting.
4. There must be sufficient circumstantial evidence to prove the liability
of another spouse.

Cruelty

The concept of cruelty includes mental as well as physical cruelty. The physical
cruelty means when one spouse beats or causes any bodily injury to the other
spouse. But the concept of mental cruelty was added as the spouse can also be
mentally tortured by the other spouse. Mental Cruelty is lack of kindness which
adversely affects the health of the person. Well it is easy to determine the nature
of physical cruelty but difficult to say about mental cruelty

1. What is considered as Mental Cruelty against Husband by wife:

2. Humiliating the husband in front of his family and friends.
3. Undertaking the termination of pregnancy without husband consent.
4. Making false allegation against him.
5. Denial for Martial Physical Relationship without a valid reason.
6. Wife having affair.
7. Wife living an immoral life.
8. The constant demand for money.
9. Aggressive and uncontrollable behaviour of Wife.
10.Ill-treatment to the husband parents and family.
In Balram Prajapati vs Susheela Bai

In this case, the petitioner filed the divorce petition against his wife on the
ground of mental cruelty. He proved that his wife that behaviour with him and
his parents was Aggressive and uncontrollable and many times she filed the false
complaint against her husband. The court accepts the petition and grants the
divorce on the ground of cruelty.

Desertion
Desertion means the permanent abandonment of one spouse by the other
spouse without any reasonable justification and without his consent. In General,
the rejection of the obligations of marriage by one party.

Essentials

1. Permanent abandonment of the other spouse.

2. Rejection of the obligation of marriage.
3. Without any reasonable justification.
4. No consent of another spouse.
In Bipin Chander Jaisinghbhai Shah vs Prabhawati

In this case, the respondent leaves the house with the intention to abandon his
wife. Later the wife approaches the court, but the defendant proved that even
though he left the house with the intention to desert, but he tried to come back
and he was prevented from doing so by the petitioner. Here, the defendant
cannot be held liable for desertion.

Conversion

If one of the spouses converts his religion to any other religion without the
consent of the other spouse, then the other spouse can approach the court and
seek the remedy of divorce.

In Suresh Babu vs Leela

In this case, the husband converts himself into Muslim and marries another
woman. Here the wife Leela filed a case and demanded the divorce on the
ground of conversion without her consent and cruelty.

Insanity

Insanity means when the person is of unsound mind. Insanity as a ground of

divorce has the following two requirements-

1. The respondent has been incurably of unsound mind.

 2. The respondent 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.
In Vinita Saxena vs Pankaj Pandit

In this case, the petitioner filed a case to get the divorce from the respondent
on the ground that the respondent was suffering from Paranoid Schizophrenia
which means mental disorder. She came to know these after her marriage. Here,
the court grants the divorce on the ground of insanity of husband.

Leprosy

Leprosy is an infectious disease of the skin, mucous membranes, nervous system

etc. this disease is transmitted from one person to another. Thus it is considered
as the valid ground for divorce.

In Swarajya Lakshmi vs G. G. Padma Rao

In this case, the husband filed the case for granting the divorce on the ground of
leprosy. He claimed that his wife is suffering from incurable leprosy with the
expert’s reports. Here he succeeds in getting the divorce on the ground of
leprosy.

Venereal Disease

Under this concept, if the disease is in communicable form and it can be

transmitted to the other spouse, then this can be considered as the valid ground
for divorce.

Illustration

A and B married on 9 September 2011. Later A suffered from a venereal disease

and it is incurable. There’s also a chance that B can also get infected by that
disease if she lives with A. Here, B can approach the court for dissolution of
marriage

Renunciation
It means when one of the spouses decide to renunciate the world and walk on
the path of the God, then the other spouse can approach the court and demand
the divorce. In this concept the party who renunciates the world is considered
as civilly dead. It is a typical Hindu practice and considered as a valid ground for
divorce.

Illustration

A and B got married and lives a happy life. One day A decides to renunciate the
world. Here, B has a right to approach the court and seek the remedy of divorce.

Presumption of Death

In this case, the person is presumed to have died, if the family or the friends of
that person does not hear any news about the person alive or dead for seven
years. It is considered as the valid ground for divorce, but the burden of proof is
on the person who demands the divorce.

Illustration

A was missing from the last seven years and his wife B does not get any news
about him of being alive or dead. Here B can approach the court and ask for the
divorce.

Conclusion
The Hindu Marriage Act, 1955 provides various provision regarding divorce. The
Hindu Marriage Act defines “Divorce as a Dissolution of Marriage”. The main
three theories related to divorce are Fault Theory, Mutual Consent Concept, and
irretrievable theory. In India, the Fault theory works in the matter of the divorce.
Under this theory, marriage can be ended when one of the spouses is
responsible or liable for the offence under matrimonial offences. The innocent
spouse can seek the remedy of divorce. Under the Hindu Marriage Act, the basic
grounds on which the Hindu women can seek the remedy of divorce are
Adultery, Desertion, Conversion, Leprosy, Cruelty etc. But many philosophers
criticise the concept of Divorce. The Hindu married women can also apply for
the maintenance under section 125 of the Criminal procedure code. So the
spouse who is innocent can approach the court and can seek the remedy of
divorce.
17.What is partition? Under what circumstances partition can be reopened?

What is a Partition?

Partition means a numerical division of property and bringing a Hindu Joint

family to an end. The joint family ceases to be joint and transforms into a nuclear
family after partition. In a coparcenary, the coparceners hold the property as
one common unit, partition means the fixing of the shares of each coparcener.

According to the Mitakshara Law, it is the adjustment of the diverse interests

regarding the whole, by distributing them into particular portions of the
aggregate. Thus, partition implies the crystallization of the fluctuating interest
of a coparcenary into a specific share in the Hindu Joint Family.

Types of Partition

There are two types of partition.

Total partition :In total partition, the whole property of a Hindu Undivided
Family undergoes a total division of property and the same will be divided in
between all the coparceners and family cease to exist as a Hindu Undivided
Family.

Partial partition: Partial partition can be made when some of the members go
out on partition & other members continue as being a member of the family. In
such a partition, the rest of the coparceners maintain the joint status with
respect to the remaining property.

Reopening of partition

Under the Shastric law, Manu says ‘once a partition is made, once a damsel is
given in marriage and once a gift is made is irrevocable and irretraceable.’

A partition is generally irrevocable. The logic behind is that erstwhile

coparceners hold their shares as their separate and exclusive property, they may
enter into transactions relating to them, so as to create valid titles in favour of
even third parties.

However, there are certain exception to the principle that “shares are divided
only once.”

It may become imperative in certain situations to have redistribution of the

properties in order to prevent gross injustice to the members of the family.
However, a plea that the partition was unfair cannot be countenanced when the
facts show that it has been undertaken after due and proper deliberations. Thus,
when readjustment of properties is not possible the entire partition has to be
reopened.

A partition can be reopened under the following circumstances-

Fraud

Fraudulent distribution of properties, unless the person affected by the fraud

acquiesces in with full knowledge of all material facts.

A partition may be reopened, if any coparcener has obtained an unfair

advantage in the division of the property by fraud upon the other coparceners.
A coparcener may conceal the Joint Family Property at the time of partition, to
gain an unjust and undue advantage over the others; the partition can thus be
reopened on the discovery of fraud. However, fraud cannot be added as a
ground at a later stage of trial and also if no fraud pleaded initially in the plaint,
the plea cannot be allowed to be changed belatedly that the partition was
fraudulent.

Son in womb or conceived and born after partition

Sons, grandsons and great grandsons have a right to partition. With respect to
the son conceived at the time of partition but born after partition, Hindu law
equates a person in a womb to a person in existence. The partition should be
postponed till the birth of the child if the pregnancy is known, but if the
coparceners do not agree with the delay, then the share equal to the share of
the coparceners should be reserved. But in cases where no share of the
posthumous child is reserved, then he can demand for the reopening of partition
after his birth through any representation. The right of such a son depends upon
whether his father has taken a share for himself at the time of partition from his
sons-

• When the father has not taken a share for himself, the after born son
has a right to get the partition reopened.
• But when the father has taken or reserved a share for himself, the after
born son becomes a coparcener with his father
such son born after the partition is entitled to have the partition reopened, but
in lieu thereof he is entitled, after the father’s death, to inherit not only the share
allotted to the father on partition, but also the separate property of the father.

Adopted son

According to Section 12 of the Hindu Adoption and Maintenance Act, 1956

adopted sons have the same right to partition as that of the natural son. Even if
after his adoption, a son is born to a father, then also shares of adopted sons
and natural sons will be equal. Thus, an adopted son is entitled to reopen the
partition.

Disqualified Coparcener

Persons suffering from any defect which disqualifies them from inheriting are
equally disentitled to a share on partition.

Various grounds of disqualification were recognised by the Hindu law, such as

congenital and incurable blindness, insanity, deafness, dumbness, virulent and
incurable leprosy and other incurable diseases that made sexual intercourse
impossible.

All these grounds except congenital lunacy or insanity have now ceased to exist
as a part of the Mitakshara law by virtue of the Hindu Inheritance (Removal of
Disabilities) Act,1928.

Further, if a member of the family has not a congenital disqualification, but later
becomes insane, he will not be deprived of his interest.

The disqualified coparcener who neither has a right to call for partition nor is
entitled to a share, after recovering from his disqualification can call for the
reopening of the partition.
Absentee Coparcener

A coparcener absent at the time of partition, who has a share in the coparcenary,
has a right to call for the reopening of the partition if the partition has taken
place in his absence.

Minor coparcener

In partition, the right of the minor coparcener is as same as that of the major
coparcener. A minor is a person of immature intellect and the court has the duty
to protect his rights by acting as parens patriae.

If minor’s interests are prejudiced by the Karta by squandering the Joint Family
Property, the minor’s guardian or the next friend of the guardian may file the
suit for partition on behalf of the minor.

The suit filed itself will bring the partition of the joint family property.

The court has the duty to look whether the partition is for the benefit of the
minor or not, if the partition is prejudicial to the minor, the court must demand
injunction and not allow the partition.

Property added after partition

The reopening of partition can also be affected when some properties were left
out, either by mistake or deliberately or when some properties which have been
earlier lost or seized were discovered.

If a distribution of the additional properties can be effectively made without

reopening the partition, then the earlier partition should not be disturbed.

Conclusion:
The partition is generally irrevocable in nature. However, for the purposes of
equity, it is advisable to reopen the partition already affected. Even the laws of
Manu advise the additional distribution of property which was added
subsequent to the partition. The rationale behind is to prevent gross injustice
to the member of the family.
18.Write a note on reunion?
Introduction
Reunion is the process by which families that have been divided after partition,
to be united again. However, the term ‘reunion’ under Hindu Law means a
situation when the status of the family which was joint earlier is established
again, after its partition. Despite having a complete partition, it is possible to
have a reunion under the Hindu law, among the Hindu Undivided Family.

Following are the conditions for the parties to reunite:

1. A partition is an essential condition for a reunion- No reunion can take

place if there was no partition in the first place.
2. The intention to reunite in any case is an essential factor which must
not be overlooked. Reunion shall not take place if there is no intention
of the parties to reunite. Such intention to reunite must be
communicated clearly. Where a person merely live together without
having an intention to reunite, it is necessary to note that such a person
shall also not constitute to be a part of the reunion.
3. The reunion can take place only if the person has separated with his
father, brother or paternal uncle but not with anyone else other than
them, which is the case of Mitakshara but in the Mithila school, it can
be with anyone, provided that they are a part of the original partition
that had taken place and thus have the shares, individually under their
name.
4. The reunion must be unilateral, i.e. there must be consent of each and
every person who is a coparcener. The consent of the parties or the
coparceners, shall not constitute to be formal agreements but merely
consensual agreements which may be either oral or written or even by
their conduct, depicting their agreements which are not mandatory to
be registered.
5. The reunion must be of effect only by the parties, who had been a part
of the partition.
6. There must be a property involved in the case of the reunion; as
reunion does not merely mean living together as tenants.
7. A minor cannot reunite, as he is not a competent party to the contracts.
The minor cannot be a party, either on his own or as someone on
behalf of him.
 8. The rules which are special for the inheritance will not take place in the
reunited property but will only be applicable in case of the separate
property which the reunited person holds.

Conclusion:
The intention of the reunion is to bring about the amalgamation of the interests
of the parties in the Hindu Undivided Family and therefore, it creates a right on
all the parties involved. In the case of reunion, it is possible that some of the
properties and some of the people involved in the partition may be left out or
choose not to be a part of the reunion at all. This means that there is a chance
of a partial reunion. Therefore, the interest has to be clearly established.

19.Who is Karta? Discuss his positions, duties and powers.

Introduction
The Joint Hindu family is a patriarchal body, and the head of the family is called
Karta. Karta is the senior most male member of the family who acts as the
representative of the family and acts on behalf of the family. There is a fiduciary
relationship between the Karta and the other family members because every
family needs a head member who can look after the welfare of minor members
and females in a Joint Hindu Family. The position of Karta is unique in a joint
Hindu family. Karta takes care of the whole family and its property and the
decision given by the Karta is bound to be followed by the members of Hindu
Joint Family. No one is equal to Karta in a Hindu Joint Family. The powers and
position of a Karta are wider than any of the members of the Hindu Joint Family.
No one can be compared with Karta among the other members of the joint
family.

Who can be a Karta?

Senior most Male Member

The senior most male member is entitled to become a Karta and it is his right.
Karta is always from the members of the family; no outsiders or stranger can
become a Karta. If the senior most male member of the family is alive then he
will continue as Karta, if he dies then the second senior most member of the
family will take the charge of Karta. Karta takes his position by consent or
agreement of all the coparceners.

Junior Male Member

If the coparceners agree, then a junior can also become a Karta of the family. By
making the agreement with the coparceners, a junior male member can be a
Karta of the family.

Female Member as Karta

According to Dharmastra, if there is an absence of the male member in a family

then in that situation female can act as a Karta. If in case male members are
present but they are minors, at that time also, females can act as a Karta.

he powers of Karta are:

Powers of Management

Karta’s power of management is absolute. No one can question the duties of the
Karta like, he can manage or mismanage the property, family, business any way
he likes. Karta cannot deny the maintenance and occupation of property to any
member. Karta is not liable for the positive failures.

Rights to Income or Remuneration and Expenditure

The income of the Joint Hindu family property in a whole must be given to the
Karta. Then it is the responsibility of the Karta to allot the funds to the members
for fulfilment of their needs. Karta controls the expenditure of the funds. The
scope of his power is only to spend such funds on family purposes like
management, maintenance, marriage, education etc.

Rights to Represent Joint Family

The Karta represents the family in legal, religious and social matters. The acts
and decisions of the Karta are binding on the members. Karta can enter into any
transaction on behalf of the family.
Right to Compromise

Karta has the power to compromise the disputes relating to management or

family property. He can compromise family debts, pending suits and other
transactions. The compromises made by the Karta, can be challenged in court
by heirs only on the ground of malafide.

Power to refer a Dispute to Arbitration

Karta can refer the disputes relating to management, family property to the
arbitration. If the award by the arbitration is valid then it will be binding on the
members of the joint family.

Power to Contract Debts

The Karta exercises an implied authority to contract debts and pledge the credits
and property of the family. Such acts are bound to be followed by the members
of the family. Even, Karta when taking a loan for the family purpose or for family
businesses then joint family is liable to pay such a loan.

Power to enter into Contracts

The Karta can enter into contracts and where contracts are enforceable against
the family. The contracts are binding on the members of the joint family.

Power of Alienation

No one among the family members can alienate joint family property. But Karta
has the power to alienate the property under three circumstances.

1. Legal Necessity
2. Benefit of estate
3. Indispensable duties

Legal Necessity

This term has not expressly defined in any judgement or in any law. It includes
all the things which are deemed necessary for the members of the family.
Dev Kishan Vs. Ram Kishan AIR 2002

In this case, the plaintiff filed a suit against the defendant. Both plaintiff and
defendant are members of the Joint Hindu Family. Defendant 2 is the Karta, who
is under the influence of Defendant 1, sold and mortgaged the property for an
illegal and immoral purpose which is for the marriage of minor daughters Vimla
and Pushpa. The defendant contended that he took the loan for the legal
necessity.

The court held that the debt was used for the unlawful purpose. Since it
contravened the Child Marriage Restraint Act, 1929, therefore, it can be called
as lawful alienation.

Benefit of estate

Benefit of Estate means anything which is done for the benefit of the joint family
property. Karta as a manager can do all those things which are helpful for family
advancement.

Indispensable Duties

These terms refer to the performance of those acts which are religious, pious or
charitable. Examples of indispensable duties are marriage, grihapravesham etc.
A Karta can alienate the portion of the property for the charitable purpose. In
this case, the power of the Karta is limited i.e he can alienate only a small portion
of the family property, whether movable or immovable.

Loan on Promissory Note

When Karta takes any loan for any family purpose or executes a promissory
note, then all the members and the members who are not the party to the note
will be sued if the loan is not paid. But, Karta is personally liable on the note.

Liabilities of a Karta

• Liability to maintain- Karta is to maintain all the members of the Joint

Family. If he does not maintain any member then he can be sued for
maintenance and also can be asked for compensation.
 • Liability of render accounts- As far as the family remains joint, Karta is
not supposed to keep accounts of the family, but when partition takes
place at that time he will be liable to account for family property. If any
of the heir is not satisfied with his accounts, then he can constitute a
suit against Karta to bring the truth and to know any misappropriation
is done by Karta or not.
• Liability of recovery debts due to the Family- He has the liability to
realize the debts due to the family.
• Liability to spend reasonably- He has the liability to spend the joint
family funds only for the family purposes.
• Liability not to eliminate coparcenary property- It is the liability of the
Karta not to alienate the coparcenary property without any legal
necessity or benefit to the state.
• Liability not to start new Business- It is the liability of the Karta not to
start a new business without the consent of other coparceners.

Responsibilities of Karta
The duty of a Karta is to provide clothing, food, shelter etc, to the members of
the joint family. There are several responsibilities of Karta which include:

Maintenance

Every member of the family including Karta has the right to maintenance. The
Responsibility of Karta is to maintain all the members of the family. If he does
not maintain any member properly, then he can be sued for both maintenance
and dues of maintenance.

Marriage

The Karta is responsible for the unmarried members especially the daughters.
The expenses for the marriage will be taken out of the Joint Family property.

Representation
Karta acts as a representative on behalf of the family. This is because he must
perform some responsibilities and liabilities on account of the family. He must
pay all the dues and the taxes. He can be sued on behalf of the family during any
agreement or dealings.

Accounts at the time of Partition

Status of a joint family comes to an end due to the partition. Under Mitakshara
Law, it means:

Severance of status and interest

It’s an individual decision, where a member wants to divide himself from the
joint family and enjoy undefined and unspecified share separately.

Actual division of Property

It is the consequence of the declaration of the desire to cut off. However, it is a

bilateral action.

Conclusion
Karta in a Joint Hindu family holds an extraordinary position with reference to
its understanding and complexity. The concept of Karta has its origin centuries
back and it still works due to some functional elements. Every joint family should
have a Karta to boost the cohesive aspect of such a family with reference to its
dealings and ventures. Looking at the position of the Karta, it can be said that he
has fewer liabilities and more powers.

20.Explain partition? Explain the various modes of partition?

Introduction:
Every coparcener has the right to partition of and is entitled to share on the
partition. Under Hindu law right of partition is restricted to 3 degrees that
include father, grandfather and great grand-father. All who have direct lineal
descendent of common ancestors up to 3 degrees, to the common male
ancestor constitutes coparcenary. And all such persons or members of the joint
family are entitled to share ancestral property.
Different Modes Of Partition of Property Under Hindu Law

A partition of property may be effected in many ways under Hindu law, namely
by agreement, by will, by notice, by arbitration, by conversion etc. intention is
the essence of the partition. Intimation by coparcener about his unequivocal
intentions brings into his right to obtain his share whether or not others agree
to separation and there is severance in the family[9]. The intention must be
communicated to be effective. It can be in different ways either explicit or by
the conductor of other members of the family.

1. Partition By Father:

Where coparcenary consists of a father and his sons only, he has a right to
affect the partition without the consent of the sons. It is binding on the sons by
virtue of the power conferred to father. However such partition must be in
good faith.

2. Partition By Will:

Coparcener through a will can intimate his desire to separate from a joint
family. He can make will and declare his desire to separate. He may assert his
right to separate. Mitakshara coparcener after the addition of Section 30 in
the Hindu Succession Act, 1956 can now make a testamentary disposition of
his shares in the joint property.

3. Partition By Agreement:

Partition where all coparceners jointly agree for the partition. It is an internal
arrangement mostly done in order to secure the respect and dignity of the
family and to be away from the litigation. Where the evidence on the face of it
declares the intention to separate no evidence of the subsequent acts of the
parties to alter the agreement is admissible.

4. Partition By Arbitration:

Coparceners may appoint arbitrators to lead and execute the partition. It may
be affected with the help of a mediator or arbitrators who will divide the
property. All the coparceners jointly appoint arbitrators, it shows common
intention to get separated even where no award is given, intention does not
vanish. The death of a coparcener does not affect the arbitration. He remains
separate where the intention to part from the other coparceners is clear. The
interest of the deceased coparcener shall descend as his separate property.

5. Partition By Conversion:

On conversion into Non-Hindu religion, a person is separated, no right of

survivorship remains as no longer he remains a coparcener. From his joint
family, he is not considered a coparcener. Person is entitled to get a share in
the joint property after conversion as it stood at the date of his conversion.
Reconversion does not necessarily bring back coparcenary relation in absence
of subsequent act. Such conversion has no effect on the rights of other
coparceners.

6. Partition By Suit:

It is the most common approach to severe rights. The partition can be

demanded by filing a suit thereof in court. Father’s consent is not necessary, an
eligible son during the father’s lifetime can file such a suit. A minor, as well as a
major coparcener, has the right to go to court for this purpose.

a) In case of an adult, severance of status begins at the time of filing a suit

thereof. The decree is required for allotting shares of the coparceners. In case
of death, the legal representatives have the right to substitute for him to
continue and obtain the decree for his share.

b) In the case of a minor, the suit is to be filed by his guardian or next friend.
Here filing of the suit does not itself result in the partition and only after the
decree is passed it is brought about. A court unlike in the case of an adult is not
bound to pass a decree, it’s the discretion of the court and if it is satisfied that
the partition is for benefit of the minor then the only a decree is passed.

7. Partition By special marriage:

When a person marries under the Special Marriage Act, 1954 he loses the
membership of a joint family and it affects his severance from the joint family.

8. Partition By Notice:

In partition, the intention is the essential element. Such intention can be

manifested by sending a registered notice to other coparceners. It must clearly
state the intention to severe his rights in the joint family property and to have
his share of the property. It might be followed by suit or not.

Conclusion

Partition of property under Hindu law consists of various layers and is mainly
regulated by two schools of thought are Mitakshara and Dayabhaga. It means
severance of status of joint family and creation of separate and individual
rights of each coparcener over their specific share. It leads to the end of all the
fluctuating rights and creates stability in respect of rights over the property
among coparceners.

21.Discuss the changes brought out before and after passing the Hindu
succession act 1956 in respect of the property rights of the female heirs.

Hindu woman’s right after the Hindu Succession Act, 1956

Holding of property

Section 14 of the Hindu Succession Act, 1956 states:

“Any property possessed by a female Hindu, whether acquired before or after

the commencement of this Act, shall be held by her as full owner thereof and
not as a limited owner.”

In the explanation, it explicitly states all types of property by whatsoever name

it may be called. It states, ““property” includes both movable and immovable
property acquired by a female Hindu by inheritance or devise, or at a partition,
or in lieu of maintenance or arrears of maintenance, or by a gift from any
person, whether a relative or not, before, at or after her marriage, or by her
skill or exertion, or by purchase or by prescription, or in any other manner
whatsoever and also any such property held by her as stridhana immediately
before the commencement of this Act.”

Thus, with the introduction of the Hindu Succession Act, 1956, a Hindu woman
now had absolute ownership of any property that she possessed. This meant
that now, there was no difference between her saudayika property, non-
saudayika property, and non-stridhan property. Thus, even in cases of property
other than saudayika property, she no longer needed her husband’s consent or
to follow any restriction.

Punithavalli Ammal v. Ramalingam and Anr. (1964)

The Supreme Court, in this case, held that Section 14(1) gives an absolute right
to women and it cannot be curtailed in any manner by making any
presumption or interpretation of the law. It further held that the date of
possession of such property is irrelevant as women in possession of the
property before the enactment of the provision would now be given absolute
rights which were previously limited.

Radha Rani Bhargava v. Hanuman Prasad Bhargava (1966)

The Supreme Court, in this case, reiterated its stand and held the woman to be
the absolute owner. Such ownership cannot be challenged on any basis.
However, it can be challenged if it can be proved that the widow transferred or
alienated the property before the enactment of Section 14 and such transfer
or alienation was made without any reasonable cause or legal necessity. Thus,
this is the only situation in which the absolute ownership rights of the woman
can be challenged.

Pratap Singh v. Union of India (1985)

Section 14(1) faced a lot of criticisms wherein the Hindu men stated it to be
unconstitutional on the ground that it infringes the right to equality
guaranteed under Article 14. However, the Supreme Court in Pratap Singh held
that the provision was, in no way, a violation of either Article 14 or Article
15(1). It was constitutional since the rights of women need to be strengthened.
Amendment in four states

In 1985, Andhra Pradesh became the first state to bring a tremendous

amendment in the succession laws by providing the status of a coparcener to
unmarried daughters. Thus, Andhra Pradesh succeeded in bringing this law two
decades ahead of other states. Inspired by this amendment, other states
including Tamil Nadu, Maharashtra and Karnataka also accorded the status of a
coparcener to unmarried daughters. These states became an inspiration and a
similar suggestion was then given by BP Jeevan Reddy in his Law Commission
Report for changes in centrally enacted law.

Disposition of property

Since Hindu women now had absolute ownership of all the property they had,
there was no question regarding the disposition of such property. Women
could freely transfer or sell such property and appropriate money gained
through such sale as per their wish. As regards the testamentary disposition,
she had a right to dispose of her self-acquired property by way of a will.
Enactment of Hindu Succession Act, 1956 gave way for intestate and
testamentary disposition of property. However, as regards the coparcenary
property, it was only men who could dispose it by a will whereas women were
not entitled to do so.

Agasti Karuna v. Cherukuri Krishnaiah (2000)

The Court held in this case that women had absolute right over the property of
the deceased husband under Section 14. Any transfer or alienation of such
property by the wife after the commencement of the Act cannot be challenged
by any of the heirs.

Hindu woman’s right after Hindu Succession (Amendment) Act, 2005

Holding of property

One of the most revolutionary changes brought in by the 2005 Amendment Act
is that now even daughters were eligible to be coparceners in the Joint Hindu
Family of his father. Moreover, her marital status would be irrelevant in this
regard. It substituted Section 6 of the 1956 Act and now states:

“On and from the commencement of the Hindu Succession (Amendment) Act,
2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of
a coparcener shall,-

1. by birth become a coparcener in her own right in the same manner as

the son;
2. have the same rights in the coparcenary property as she would have
had if she had been a son;
3. be subject to the same liabilities in respect of the said coparcenary
property as that of a son”
Thus, daughters are now considered at par with sons in terms of coparceners
and now have an equal right to hold coparcenary property. Thus, with the
2005 Amendment, the following incidents are now possible:

1. A Hindu woman has an equal right to become the Karta of Hindu

Undivided family if she is the senior-most member in the family,
which was previously not possible.
2. Secondly, she can now put her self-acquired property in the family
fund which was earlier not allowed by the Act.
3. In the case of the deceased father, a daughter has an equal right over
his property whether she is married or unmarried.
4. Daughters now have an interest in the coparcenary property and can
even demand partition for the same.
5. Women can now not only start their coparcenary but also their own
joint family.
Thus, Hindu women have now been brought at par with men and have all the
rights as those granted to sons in terms of the coparcenary.

Prakash & Ors. v. Phulavati and Ors. (2016)

In the case of Phulavati, the daughter acquired the property from her deceased
father who had acquired it from his adoptive mother. The appellant in the
present case contended that the respondent had a right over only the self-
acquired property of the father. However, at this time, the 2005 Amendment
was introduced and the respondent now claimed share as per the amendment.

22.Explain the requirements of valid adoption under the Hindu adoption and
maintenance act.
Requisites of a Valid Adoption
Under the Hindu Adoptions and Maintenance Act (HAMA), only Hindus can
adopt subject to their fulfilment of specific criteria. As per the provision of this
act, no adoption will be valid unless fulfilling the following conditions:

• The person adopting should have the capacity and also the right, to take
in adoption
• The person giving in adoption should have the capacity to do
• The person adopted should be capable of being taken in adoption
• The adoption should be made in compliance with the conditions of the
Hindu Adoptions and Maintenance Act (HAMA)

Eligibility of a Male Hindu to Take Adoption

Under HAMA, any male Hindu who is of sound mind and not a minor can take a
son or a daughter in adoption. If he has a wife living, he cannot adopt a child
except with the consent of his wife unless the wife has completely 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.

Note: In case the person has more than one wife living at the time of adoption,
the consent of all the wives is mandatory unless the consent of any one of
them is unnecessary for any of the reasons specified in the preceding clause.
The senior wife will be classified as the legal mother of the adopted child.

Eligibility of a Female Hindu to Take in adoption

The eligibility criteria for female Hindu to take a son or daughter in adoption
are given here:

• The female Hindu should be of sound mind

• The female Hindu should not a minor
• The female Hindu who is not married can adopt a child
 • In case of a married female, whose marriage has been dissolved whose
husband is dead or has completely 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,

Conditions for a Valid Adoption

In every adoption under Hindu Adoptions and Maintenance Act (HAMA), the
following conditions must be complied with:

Adoption of a Son
In case the adoption is of a son, the adoptive mother or father by whom the
adoption is made should not have a Hindu son, son’s son or son’s son’s son
living at the time of adoption. They must not have a son whether by legitimate
blood relationship or by adoption.

Adoption of a Daughter
If any adoption is of a daughter, the adoptive father or mother by whom the
adoption is made should not have a Hindu daughter, daughter ‘s daughter or
daughter ‘s daughter ‘s son living at the time of adoption. They must not have
a son whether by legitimate blood relationship or by adoption.

Adoption of a Female Child by a Male

If the adoption is to be taken by a male and the person to be adopted is a
female, the adoptive father should at least twenty-one years older than the
person to be adopted.

Adoption of a Male Child by a Female

If the adoption is to be taken by a female and the person to be adopted is a
male, the adoptive mother should at least twenty-one years older than the
person to be adopted.

Other Conditions

• The same child cannot be adopted simultaneously by two or more

persons
• The child to be adopted must be provided and taken in the adoption by
the parents or guardian concerned or under their authority with the
 intent to transfer the child from the family of its birth. In 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

23.Who is a guardian? Explain the powers of natural guardian?

Introduction:
A guardian is a person who takes care of the child until he is capable of
making the decisions on his own. In the Act of 1956, a guardian is a person
who takes care of the person of minor or of his property or of both his
person and property. It includes different types of guardians such as natural
guardian, guardian appointed by the will of the minor’s father or mother or
appointed or declared by the court. Under the Act there are three types of
guardians, they are: 1. Natural Guardians, 2. Testamentary guardians and 3.
Guardians appointed or declared by the court.

WHO IS A NATURAL GUARDIAN?

A natural guardian is a type of guardianship, where the father and the mother
or adopted parents are the guardians. They become so because of their natural
relationship with the minor. The natural guardian of a minor boy or an
unmarried girl is a father. After the death of the father, the mother is the next
in line to become a natural guardian.

Sec. 6 of the Act defines who is a natural guardian. The natural guardians of a
Hindu minor child and his/her property.

POWERS OF NATURAL GUARDIAN

A natural guardian has the following powers in respect of a minor child –

1. Right to custody,
2. Right to determine the religion of children,
3. Right to education,
4. Right to control movement, and
5. Right to reasonable chastisement
These powers are given to the guardians to take care of the interests of the
minor. Hence these powers are to be used for the welfare and to maintain the
interests of the minor and their property.

As per sec. 8 of the Act, the powers of the natural guardian to impose on the
child are as follows:

1. A natural guardian of a Hindu minor has to perform all the work which is
mandatory and valuable for the minor interests and its protection.

2. A natural guardian must take prior permission from the court to mortgage or
transfer any sale, gift or any other immovable property of the minor and
before leasing any of the minor’s property for a term of more than five years or
for a term more than one year from the date when the minor turns into a
major.

3. The disposal of any immovable property by the natural guardian shall be

held as voidable at the instance of the minor itself or any other person claiming
on its behalf.

4. A court shall not permit the natural guardian to do any act stated above until
and unless it is proved that in is for the best interest of the minor.

5. For the application for getting the permission of the court, sec. 29 of the
Guardians and Wards Act, 1890 shall be applied and the applications should be
submitted to the Court within the local limits of whose jurisdiction the
property of minor is situated.

CONCLUSION

Previously in Hindu law, there existed no guardianship rules as people used to

live in joint families. Therefore, to have proper guardianship laws in the
country The Hindu Minority and Guardianship Act, 1956 was introduced.

24.What do you mean by adoption? Discuss the changes brought about by

legislation relating to adoption.
What is Adoption?
The Act has no description of the word “Adoption” per se, but it is a Hindu law
derived from uncodified Hindu laws of Dharamsastra, specifically Manusmriti.

Adoption has been described in Manusmriti as ‘taking someone else’s son and
raising him as one’s own’.

Hindu Adoption and Maintenance Act has made the definition of ‘adoption’
much wider by using the word ‘child’ instead of ‘son’. Child includes both a girl
and a boy child, and not merely a son.

With the change in society over time a codified and uniform legislation was
required to serve the democracy, so, no adoption can be made without the
procedure mentioned in this act. If any adoption is made neglecting this act, the
adoption shall be rendered to be void.

Necessary conditions to be fulfilled for:

The Hindu Adoption and Maintenance Act prescribes a set of rules for a valid
adoption, which must be complied with. Such as:

Adoption of a son

Section 11(i) of the act states that if a Hindu male or female desires to adopt a
son, they must not have a living son, grandson, or even a great-grandson at the
time of adoption.

It is irrelevant whether the son is legitimate, illegitimate, or adoptive. They

should not already have a son who is living.

Adoption of a daughter

Similar to the conditions of adopting a son – Section 11(ii) states that one
wishing to adopt a daughter must not have a living daughter or a granddaughter
from their son at the time of the adoption.
It is immaterial whether the daughter or granddaughter is legitimate,
illegitimate, or adoptive.

Adoption of a female child by a male

A Hindu male willing to adopt a girl child must have the capacity to adopt a child
as prescribed in Section 7 of the act, and Section 11(iii) states that he must be at
least 21 years older than the girl child that is to be adopted.

Adoption of a male child by a female

If a Hindu female wants to adopt a male child she must first meet the
requirements prescribed in Section 8 of the act and have the capacity to adopt
a child.

Also, she has to be at least 21 years older than the child she wishes to adopt.

Other conditions

When adopting a child a person must comply with some additional conditions
along with all the aforementioned conditions.

These additional conditions are basic and are very important for the welfare of
the child.

• Section 11(v) of the act says that the same child can not be adopted by
multiple people at the same time.
• Section 11(vi) states that a child that one wants to adopt must have
been given up for adoption as per the guidelines of this act, by their
biological parents or guardian.
• The Section further states that the child shall be given up for adoption
with the intention to transfer him/her from their biological family to
the adoptive one.
• In the case of an abandoned child or whose parents are unknown, the
intention must be to transfer him/her from the place or family that
they have been brought up to their adoptive family.
Effects of adoption

Adoption will completely change the life of a child in many ways. He becomes a
part of a new family and will have rights in the property as well.

Section 12 of the act states: When a child has been adopted,

– They shall be considered as the child of their adoptive parents for all purposes.
– The adoptive parents shall have all the parental obligations and rights.
– The child shall have all the rights and obligations of a son/daughter.

However, there are some conditions that the child must abide by after he has
been adopted, such as:

• He/she must not have an incestuous relationship with anyone from

their biological family, and should not marry anyone from their birth
family. The rules of the Hindu Marriage Act, 1955 regarding ‘sapinda
relation’ shall be applicable to them towards their birth family.
• If the child had any property before the adoption, it shall continue to
be in their possession after. However, such property may bring some
obligations over him and he shall be liable to all those obligations,
including having to maintain his biological family if required.
• The adopted child shall not deprive any member of his birth family of
any property that he held before the adoption.

It is important for the adoption to be valid to have any effect at all. In Sri Chandra
Nath Sadhu & ors v. The State of West Bengal & ors, the High Court of Calcutta
stated that a void adoption will not create any rights in the adoptive family for
anyone that could have been obtained from a valid adoption, nor any existing
rights will end in the child’s biological family.

25.Enumerate the important changes brought by Hindus succession act.

Introduction:
Changes brought about by the Hindu Succession Act of 1956

The Act has drastically changed the old Hindu law of inheritance. The modern
law is applicable to all Hindus, they belong to Mitakshara or Dayabhaga school.
No longer are the schools and sub- schools of Hindu law relevant in respect of
the law of succession. The modern law also overrides the customary mode of
succession. This does not mean, however, that the modern law is a complete
divergence from the classical law.

1. Section 4: Overriding effect of the Act –

Section 4 relates to the Act’s overriding effect. It repeals all pre- Act laws which
are inconsistent with the provisions of the Act. Any scriptural rule and
interpretation in force prior to the coming of force of this Act are abrogated so
far as they are inconsistent with the Act.

It has been a unique feature of Hindu law that a valid custom was given
overriding effect over the traditional Hindu law. As early as 1868, the Privy
Council laid down that ‘under Hindu system of law, clear proof of custom will
out- weigh the written text of law’.6 Thus, custom was part of Hindu law.
Clause (a) of Section 4 abrogates all those customs so far as those are
inconsistent with the provisions of the Act, unless expressly saved.7

However, if the intestate died before this Act came into force, his succession
would obviously be governed by pre- Act customs.8

2. Sections 8, 9 and 10: Succession to the property of a Hindu male –

The Hindu Succession Act, 1856, still retains the dictionary of the old Hindu law
where succession to the property of a Hindu male and a Hindu female was
dealt with separately. Sections 8 to 13 deal with succession to the property of
a Hindu male. The heirs of a Hindu male are broadly of four types – Class I,
Class II, agnates and cognates. The persons included in these categories are
mentioned in the Schedule to the Act.

Section 8 lays down the order of priority among these classes of heirs by laying
down that the property will first go to the Class I heirs and in their default to
Class II heirs, failing which to agnates and thereafter to cognates.

Section 9 lays down those Class I heirs are simultaneous heirs, i.e., no one
excludes the other, all take simultaneously in accordance with the rules of
distribution of property among them, while Class II heirs, who are listed in nine
categories in the Schedule, the heirs in the previous category are preferred to
later categories.

Section 10 lays down rules of distribution of property among Class I heirs.

Section 11 lays down rules of distribution of property among a category of
Class II heirs. Section 12 lays down that agnates, however remote, will always
be preferred over a cognate, however proximate. Section 13 provides
the modes of computation of degrees among the agnates and cognates for the
purpose of determining their order of succession.

This is a divergence from classical Hindu law, where all the coparceners
succeeded to the property of the deceased and all other relations, however
proximate and all the legal heirs of the deceased were excluded.

3. Section 14: Property of a female Hindu to be her absolute property

In traditional Hindu law, a female Hindu’s property were of two kinds;

stridhana and women’s estate. This Section of the Hindu Succession Act has
abolished the division of property belonging to a woman into these two
categories. It has converted a woman’s estate and stridhana into her full
estate. This Section is the continuation of the main object of this Act, namely
to grant better rights to women. It applies to those women’s properties which
were in the possession of the woman when the Act came into force.

Sections 15 and 16 of the Act deal with the general rules of succession to the
property of a Hindu female dying intestate and the order of succession. It is
interesting to note that although there is no such thing as stridhana and
woman’s estate after the coming into force of this Act, the source of
acquisition of a female Hindu’s property is still important, as the order of heirs
depends upon the source of the property of a Hindu female.

4. Section 21: Presumption in case of simultaneous deaths –

It may happen that two persons die in an accident or calamity under such
circumstances that it is impossible to ascertain which of them died first. In such
a situation, it may be presumed that both of them died simultaneously or that
one of them succeeded the other. There may be controversy regarding
inheritance in such situations as to who will succeed to who’s property.

Before the enactment of this Section, there was no answer to such questions.
The burden of proof was on the party who asserted the affirmative.9 If the
evidence before the Court was balanced, the balance of probabilities was
considered to be in the favour of the younger.10

According to this Section, the presumption of survivorship applies, by which

the younger is presumed to have survived the older. In this Section, ‘younger’
means younger instatus not in age and only when the status is the same,
younger in age. Thus if an uncle aged thirty years and a nephew aged thirty five
years, die in a plane crash or a ship wreck, it will be presumed that the nephew
died later, even though he is older in terms of actual age. On the other hand, if
two brother die simultaneously in any accident or calamity, the brother
younger in age is presumed to have died later.

This is a peculiar feature of this Act, as it was altogether not provided for at all
in the classical law or the previous legislations regarding Hindu succession.

5. Section 24 repealed: Certain widows remarrying may not inherit as a

widow -

In classical Hindu law, certain female heirs if they had remarried after the
death of their spouses, before the succession opened were disqualified from
inheriting the property of the deceased intestate, for being unfaithful to their
obligations widows. Under the Hindu Widow Remarriage Act, 1956, if a Hindu
widow remarried, she could not inherit the property of her deceased husband.

Under this Section of the Act, only three female heirs were disqualified on
such grounds, namely:

- Son’s widow

- Son’s son’s widow

- Brother’s widow

Now, this Section has been omitted11, rendering such disqualification null and
void, which is a great diversion from Hindu traditional law.

6. Section 25: Murderer disqualified –

It is a general policy of practically all the systems of law that no one should be
allowed to reap the benefits of his crime. Such provision however, was not
specifically provided for in traditional Hindu law. It was a disqualification in the
Dayabhaga school, but not provided for in the Mitakshara school.
Furthermore, even in the Dayabhaga school, only the murderer himself was
disqualified, not the abettor of the murder. This Section however, disqualifies
both a murderer and an abettor to murder. The Joint Select Committee on the
Hindu Succession Bill observed:
“A murderer even if not disqualified under the traditional Hindu law from
succeeding to the estate of the person whom he has murdered is so
disqualified upon the principles of justice, equity and good conscience.”

In the case of Kenchava v. Girimallappa12, the Privy Council held that “the
murderer is not to be regarded as the stock for a fresh line of descent but
should be regarded as non- existent.”

7. Section 26: Convert’s descendants disqualified –

Under the old Hindu law, conversion of any Hindu person into another religion
was a disqualification which was later removed by the Caste Disabilities
Removal Act of 1850 and upheld by this Act.

However, although conversion does not disqualify a person form succeeding

to the property of an intestate under this Act, his descendants are disqualified
from inheriting such property.

Thus, the children of a convert and their descendants are disqualified. But if at
the time of death of the intestate, any of them are Hindu, they are no longer
disqualified.

8. Section 28: Disease, defect, etc. not to disqualify –

Under the old Hindu law dome diseases, deformities and unchastity were
disqualifications of heirs, though they were not the same in both Dayabhaga
and Mitakshara law. According to the Mitakshara law, some disqualifications
were: congenial lunacy or idiocy, adoption of a religious order (i.e. taking a
sanyas) and unchastity of widows. According to the Dayabhaga law, the
disqualifications were: blindness, deafness, dumbness, want of any limb or
organ since birth, idiocy, lunacy, unchastity of widows and, any virulent and
incurable form of leprosy rendering one unfit for intercourse.

9. Section 30: Testamentary succession –

The ancient Hindu laws of succession did not permit any alienation of the
coparcenary property by way of will. After the death of a coparcener, his
interest was to be distributed equally amongst the remaining coparceners. But
this Section has changed the principle and allowed a Hindu, male or female, to
alienate their property by way of a will nama, in accordance to the provisions
of the Indian Succession Act, 1925.
Conclusion

Although the Hindu Succession Act, 1956, and its amendments have gone a
long way in simplifying the rules regulating succession among the Hindus,
there are various discrepancies still to be solved.

26.Write a note on testamentary guardian.

Introduction:
Testamentary Guardian is a guardian who is appointed by way of will. It is done
to ensure that the child will have a guardian even after the death of the natural
guardian who may require supervision over themselves or their estate. A
testamentary guardian cannot act as a guardian if the natural guardians are
alive.

During the British period, testamentary powers were conferred upon the Hindus
and then, this was a way for a father to exclude the mother of her right of being
the natural guardian of the child.

Who may appoint a Testamentary Guardian?

Following persons have the power and authority to appoint a Testamentary

Guardian:

1. A Hindu Father, either natural or adoptive

2. A Hindu Mother, either Natural or Adoptive.
3. A Hindu Widowed Mother, either natural or adoptive.

Powers of Testamentary Guardian

Section 9 of the Hindu Minorities and Guardianship Act of 1956 states about
Testamentary guardian and its powers.

Section 9 (1) states that a Hindu father, who is the natural guardian of a minor
legitimate child, has the authority and power to appoint any person to be the
guardian of that child by including it into his will. He will be the guardian to take
care of the person and his/her property.
Who is disqualified from becoming a testamentary guardian?

In the case of Smt. Vinod Kumari v. Smt. Draupadi Devi, Hindu female
approached the court for the guardianship of two of her sons. One was born out
of her wedlock with the deceased husband and one was born to her husband in
another wedlock. It was considered by the court that she is the step-mother of
the one born out of the previous wedlock and hence court held that a step-
mother can never be a testamentary guardian and in this case, the
grandmother was made the testamentary guardian of the step-son.

27.Write a note on will and Gift.

Introduction
Gifts and wills both are certain documents that are used while transferring
some property from one person to another. Although both these documents
are used for similar purposes, they are different from each other. A gift is more
or less an immediate process that does not take much time to prepare
whereas a will is more of a thoughtful process that takes a longer time.

Concept of gift
A gift in its general sense means a form of reward or a token of appreciation
given at weddings, birthday parties, etc. In terms of law, however, a gift is
considered as a transfer of ownership of property from one person to another.

Essentials of a valid gift

In the case of P. Kunheema Umma v. P. Ayissa Umma (1981), the Court held
that the valid essentials for an immovable property are, a declaration by the
donor, acceptance by the donee, and the transfer of possession from donor to
the donee.

A declaration by the donor

There should be an intention from the donor to enter into a gift. The gift can
be of any means oral or written. The declaration should not be taken by
coercion, threat, etc.
Acceptance by the donee

Under Muslim Law, the non-acceptance of a gift by the donee makes the gift
void. If the donee is a minor, then the gift is valid but it should be accepted by
a person who is a guardian of the minor. The guardians mentioned under the
provisions of the Muslim Law are:

• Father
• Father’s executor
• Paternal grandfather
• Paternal grandfather’s executor.

Transfer of possession from donor to the donee

The transfer of Hiba should be from donor to donee. Under Muslim law, as
soon as the gift is transferred to the donee and is accepted by the donee, the
transfer becomes valid. The delivery of possession can be actual and
constructive. The gift will be valid from the date of transfer to the date of
acceptance of possession. Registration of transfer under Muslim Law is not
necessary

Concept of will
A will is a legal document in which a person mentions how he/she is going to
distribute the property after death. The Indian Succession Act, 1925, mentions
the provisions regarding a valid will.

Essentials of a valid will

Legal Declaration

A will is a legal declaration of the person intending to distribute his/her

property. It is not a contract or a settlement.

The intention of the testator

A testator is a person making the will. The will is a declaration of the desires or
intention of the person to make the will. The will should be legal. The person
making the will should not be threatened or coerced into making a will. This
will make the will void and illegal.

With respect to the property

The testator can make a will of his or her own property. The person cannot
make a will out of something which he doesn’t have.

Signature and details of beneficiaries

The will should be signed by the testator and the date of the will should also be
mentioned. Further, the details of the beneficiaries of the will should also be
mentioned.

Property of minor

In case, a minor is a beneficiary, then he/she should appoint a guardian to take

care of the property till the minor attains turns 18.

In the case of Gnanambal Ammal v. T. Raju Ayyar (1950), it was held by the
Court that the main point of observation while making a will should be, the
intention of the testator.

28.Essential of endowments.
Introduction:
A dedication or entrustment of property, either for a religious purpose or for a
charitable purpose or both religious and charitable purposes, is called an
Endowment.

In Dwarkanath v Burroda [(1878) 4 Cal 443], the Court observed that the
endowments are the dedication or entrustment of property either for a
religious purpose or for a charitable purpose or both: religious and charitable
purposes. It may be called a religious endowment or a charitable endowment
depending upon its objects.
A Hindu who is sound and not a minor may dispose of his property by gift or
will for religious and charitable purposes, such as the establishment and
worship of an idol, feeding the Brahmins, and the poor, performance of
religious ceremonies like shradh, an endowment of a hospital, etc.

The following requirements are the requisites of a valid endowment.

1. Competency of the author: The author or settler of the endowment must be

competent to settle it.

2. Object: The object must be either religious or charitable. or both.

3. Bonafide dedication: The dedication by the settler must be bona fide and
unambiguous.

4. Definite purpose: The object or purpose of dedication must be definite or

certain.

5. Ascertainable property: The property dedicated must be ascertainable.

6. Not contrary to law: The dedication must not be made in contravention of

any provision of law.

29.Discuss the types of property owned by a Hindu woman state the changes
brought to women’s estate.

Introduction
Before the Hindu Succession Act of 1956 came into force, women’s property
was broadly categorized under two heads, namely:

1. Stridhan (or women’s property); and

2. Women’s estate.
It was the Hindu Women’s Right to Property Act, 1937 that conferred a set of
new rights of inheritance on Hindu females which had the effect of increasing
the weightage of women’s estate. The Hindu Succession Act, 1956 introduced
key changes in women’s property as have been expressly mentioned
under Section 14 of the Act. This provision has erased the concept of
“women’s estate” and has introduced Vijnaneshwara’s interpretation of
Stridhan. The difference between Stridhan and women’s estate mostly
depends on the source from which either of them is obtained. The Hindu
Succession (Amendment) Act, 2005 (39 of 2005) was passed to amend the
Hindu Succession Act, 1956, to eliminate gender discriminating elements.
According to the amendment, a coparcener’s daughter, like his son, becomes a
coparcener in her own right upon birth. In this article, the subject matter of
women’s property under Hindu law will be discussed through the lenses of
case laws and judicial viewpoints.

Women’s property under Hindu Law

The Hindu Women’s Right to Property Act was enacted in 1937 as a result of
the efforts of several social reformers. The doctrine of all schools of Hindu law
was altered as a result of the stated Act, giving Hindu women greater rights.
This Act affected not only the law of coparceners, but also the laws of
alienation, inheritance, partition, and adoption, resulting in revolutionary
changes. It allowed a widow to take an equal portion with her son, but it
prevented her from becoming a coparcener. As a result, widows had only a
limited estate in their deceased husband’s property, with the ability to request
partition.

Stridhan

The Smritikars perceived the concept of “Stridhan” as those properties which a

female received by way of gifts from her relatives which majorly comprises
movable property. Stridhan is said to also include those gifts that are provided
by her wedding guests at the time of both the bridal procession and during the
marriage ceremony. The Privy Council had observed in the case
of Bhagwandeen Doobey v. Maya Baee (1869) that the properties that a Hindu
female inherits from males will not be falling within the ambit of Stridhan.
Instead, those properties will be categorized under “women’s estate”.

The Supreme Court of India had observed in the case of Pratibha Rani v. Suraj
Kumar & Anr (1985) that according to Mitakshara and Dayabhaga Schools,
Stridhan consists of the following items in the hands of a woman (maiden,
married, or widow):

1. Gifts given before the nuptial fire.

2. Gifts given at the time of the bridal procession.

3. Gifts given as a gesture of love by her mother-in-law or father-in-law at the

occasion of her marriage.

4. Gifts created by the women’s mothers, fathers, and brothers.

Stridhan vis a vis dowry

Despite the fact that ‘Stridhan’ and ‘Dowry’ are completely different words,
they are sometimes confused to mean the same thing. Dowry is defined as any
property or valued security given or agreed to be given by the bride’s family to
the bridegroom’s family before, after, or during the time of marriage under
domestic law. The most significant distinction between ‘dowry’ and ‘Stridhan’
is the presence of “demand, undue influence, or compulsion” in the former but
not in the latter. Stridhan is a present given to women voluntarily, rather than
as a result of pressure, undue influence, or force. The Indian courts have
established a distinction between Stridhan and dowry. The fundamental
reason behind such distinction is that if any marriage breaks down in the
future, the woman will be able to recover the goods she received as Stridhan,
which will not be the case with the dowry gifts.

In the case of Pratibha Rani v. Suraj Kumar (1985), the Apex Court had laid
down the difference between dowry and Stridhan after witnessing the anguish
of an alienated wife. It was decided that the lady would be the sole owner of
her Stridhan and that she was free to utilize it however she wished. It was also
decided that while the husband had no right or interest in the Stridhan in usual
circumstances, he could utilize it in times of acute suffering and must restore it
when he would be able to.

Women’s estate
The following are the two categories which are considered as woman’s estate:

1. Property obtained by inheritance – A property inherited by a female

from another female falls under the ambit of Stridhan under the
Bombay School. As a result, whatever is deliberately given to a female
will be her Stridhan, according to this notion.
 2. Share obtained on partition – On partition, a female is entitled to
obtain her fair share in the property but she undertakes it only as a
limited owner as her rights are subject to two limitations:

1. She cannot alienate the corpus (things or shares obtained in partition)

in an ordinary manner, and
2. After her death, her property will be entrusted to the next heir of the
last full owner.

Source

The meaning of Stridhan has been broadened in Yajnavalkya’s text to cover all
properties acquired by a woman by inheritance, partition, seizure, purchase,
and findings. This viewpoint was rejected by the Privy Council while deciding
the case of Janki Ammal v. Narayansami Aiyer (1916). This had resulted in the
emergence of the concept of women’s estate. The list of properties that have
been mentioned hereunder will be constituting women estate:

1. Property received in lieu of partition (Section 14 of Hindu Succession

Act, 1956) : In the case of Chinnappa Gounder And Anr v.
Valliammal (1968), the father-in-law died after leaving some property
to his widowed daughter-in-law under a maintenance deed for her
support. The daughter-in-law requested her portion for maintenance
when the coparcenary property was partitioned, but the other family
objected on the grounds that she needed to include the properties
that were provided to her in the maintenance agreement in order to
claim her share from the coparcenary property. In this case, the court
found in favour of the daughter-in-law, holding that she was not
required to surrender the properties she had under the maintenance
deed because the father did not specify it anywhere in the deed.
2. Property given under an Award or Decree (Section 14 of Hindu
Succession Act, 1956) : Although a woman’s portion may be
restricted estate in the decree or award, the Supreme Court declared
in Seth Badri Prasad vs Srimati Kanso Devi (1969) that a property
received in a partition is her absolute property under Section 14(1) of
the Act of 1956. The judges believed that Section 14 of the Act should
be read in its entirety rather than in parts since they appear to be
more complimentary when read collectively than when read
 separately. Furthermore, whether a property is under subsection (1)
or (2) is determined by the facts and circumstances of each case.
3. Property under an agreement or compromise : Both the cases
of Mahadeo Pandey v. Mt. Bensraji (1971) and Likhmi Chand And Ors.
v. Smt. Sukhdevi and Ors (1970) established the distinction between
Sections 14(1) and 14(2). The courts established certain criteria for
determining the difference between the two. It held that if the decree
or award recognizes a pre-existing right, then Section 14(1) applies,
and if the property is transferred to the female for the first time
through an award, then Section 14(2) will be applied.
4. Property received in inheritance : According to Section 14 of the Act
of 1956, any property inherited by a Hindu female from any of her
relatives after the Act’s inception shall be her absolute property, and
it will pass to her heirs in line with Sections 15 and 16 of the Act after
her death.
5. Property received in gift : The Punjab High Court ruled in Vinod
Kumar Sethi v. the State of Punjab and Anr (1982) that all traditional
gifts given to a woman at the time of her marriage, including the
dowry, will be considered her Stridhan.
6. Property received under a Will: In the case of Mst. Karmi vs Amru
And Ors (1971), a Hindu man gave his life estate to his wife Nihali
through a published Will, with the provision that the property would
pass to his two collaterals, Bhagtu and Amru, after his wife’s death.
The wife died in 1996, and the collateral seized ownership of the
property, which the Court ruled was legitimate because anything
received by a woman through a Will was her absolute property.

Conclusion
The judicial view of women’s rights has also changed since the Act of 1956 was
enacted, as previously, the Privy Council held in Bhugwandee Doobey v. Myna
Baee (1869) that a property acquired by a woman from her husband is not her
Stridhan, and that such property will devolve upon the heirs of her husband,
not her heirs, upon her death. Further, in Debi Sahai vs Sheo Shanker Lal And
Anr (1900), the Privy Council held that a property obtained by a daughter from
her mother is the Stridhan of the mother, not the Stridhan of the daughter and
that such property will devolve upon the heirs of the mother, not the heirs of
the daughter, upon the death of the mother.
30.State the dependents under Hindu adoption and maintenance act 1956.
Introduction:
Dependent is someone who relies on parents, brother or some other relative for
sustaining themselves.

Section 21 of the act says that in the context of this act dependents refer to the
following relatives of the deceased:

• A father.
• A mother.
• A widow who has not remarried.
• A minor son, grandson, or great-grandson with predeceased father and
grandfather. Provided he has not been able to obtain maintenance
from any other source.
• Unmarried daughter, granddaughter, or great-granddaughter with
predeceased father and grandfather. Provided she has not been able
to obtain maintenance from any other source.
• A widowed daughter who has not been able to obtain maintenance
from the estate of her husband, children, or from her in-laws.
• Widowed daughter-in-law, or widowed granddaughter-in-law, who
has not been able to obtain maintenance from any other sources.
• An illegitimate minor son or illegitimate unmarried daughter.

Do dependents need to be maintained?

Now that we have already seen who dependents are and why they need
maintenance, let us proceed further and see how to maintain them and who is
obligated to maintain them.

Section 22 of the act states:

• That dependents of a deceased Hindu must be maintained by his heirs

with the aid of the estate that they inherited from the deceased.
 • When the dependents have not been left with any share in the
property or estate by way of will or succession, they are still entitled to
be maintained by whoever takes over the estate.
• If multiple persons have taken over the property of the deceased, each
one of them will be liable to maintain the dependents.
• The amount of maintenance to be paid will be divided among them
depending on the value of the share they hold in that property.
• In case a dependent has obtained some part of share in the property
of the deceased, they will not be liable to maintain other dependents.
• Others who have taken over the property will still have to maintain
other dependents but the dependent holding a share shall be excluded
and maintenance will now be paid from the remaining property.

Amount of Maintenance

There is no fixed amount for maintenance that shall be paid. It is at the discretion
of the court to determine the amount of maintenance.

Section 23 of the act states that while deciding the amount of maintenance to
be awarded to a wife, children, or old and infirm parents – the court must do so
considering the following:

• Status of parties and their current position;

• The claims of the parties within reasonable limits;
• If the claimant living separately have justified grounds in doing do;
• All sources of income of the claimant and the value of their property;
• The number of people that are entitled to be maintained.
Section 23(3) further simplifies the process of deciding the amount of
maintenance payable to other dependents. It says that the amount of payment
to be made should be with regard to:

• The net value of the deceased’s property after clearing off all his debts;
• Will of the deceased if any;
• Degree of the relationship between the claimant and the deceased and
their past relationship;
 • What the dependents want within reasonable limits;
• All sources of income of the dependent and the total value of all their
properties;
• The number of dependents that can be entitled to maintenance.

31.Distinguish between obstructed and unobstructed heritage.

Obstructed property

The property to which right accrues not by birth but on the passing of the final
owner is called obstructed property. It is called obstructed since the accrual of
the right to it is obstructed by the existence of the final owner. Hence the
property devolving on parents, brothers, nephews, uncles, etc. upon the passing
of the last owner, is obstructed property. These relatives are not vested
intrigued by birth. Their right to it arises only on the passing of the last owner.

In this way, any property acquired by a male Hindu from relations other than
father, father’s father and father’s father’s father would be called obstructed
heritage. The owner of this property holds the property as Separate and
absolute one and there is no chance of combining property.

Obstructed property rights gained by the owner after the succession of the final
owner but there are some exceptional cases where the ownership passes by
survivorship. The exception cases were mentioned below:

• Two or more than two sons, grandsons, and great-grandsons

succeeding as heirs to the separate property of their paternal ancestor
take as joint tenants with survivorship.
• Two or more grandsons of a daughter who is a member of a joint family
succeed as heirs to their maternal grandfather as joint tenants with the
right of survivorship.
• Two or more widows succeeding as heirs of their husband take as joint
tenants with survivorship rights.
• Two or more daughters succeeding as heirs of their father take as joint
tenants.
These are the only 4 conditions or exceptional circumstances in which
ownership of the obstructed property transfers to another before the
succession of the previous owner.

Illustration

An acquired the certain property from his brother who passed on issueless. The
acquired property within the hands of A will be a discouraging legacy for the
children of A. The children of A will acquire the property from A as it were after
his passing.

Unobstructed property

The property in which an individual secures and is intrigued by birth is called

unobstructed property. It is called unobstructed since the accrual of the right to
it isn’t obstructed by the presence of the owner. Hence property inherited by a
Hindu from his father, grandfather, and great grandfather is unobstructed
heritage as regards his claim male issues, that is, his sons, son’s and son’s child.
These rights arise on account of their birth in the family and the male
descendants in whom the property vests, are called coparceners. Thus, the
hereditary property in the hands of the final male owner is unobstructed.

Illustration

‘A’ acquired certain property from his father. Two children born to A, M and N
are coparceners with A. M and N will procure an interest by birth within the
hereditary property of A. Thus the property within the hands of A is unhindered
legacy, as the presence of the father is no obstacle or obstacle to his children
procuring an intrigued by birth within the property.

It is seen that the distinction between obstructed and unobstructed property is

recognized by the Mitakshara School and according to Dayabhaga School all the
properties should be considered as Obstructed property because no one can
inherit the property just after the birth or no one can have interest in another’s
property by birth. This difference of thought of both the school demarcates
Obstructed and Unobstructed Property.

ANIL KUMAR K T LLB COACH