FAMILY LAW -I (HINDU LAW)

According to syllabus of Dr.
Bhimrao Ambedkar Law University, Jaipur 1
FAMILY LAW-I
(HINDU LAW)
Q.1. What is meant by Shruti in Hindu Law?

Ans. Shruti, literally, means that which was heard, this word has taken
from the word ‘Sru’ i.e., to hear. Manu has defined Shruti as follows-
“By Shruti or what was heard from above (from God) is meant the
Veda”. Shruti or Vedas are believed to contain the very words of Deity
(God). It is the paramount and primary sources of Hindu Law. They
are supposed to be the divine utterances to be found in the four
Vedas, the six vedangas and the eighteen Upanishads. They are mostly
religious in character and the means of attaining true knowledge and
Moksha or Salvation. Four Vedas are - (i) Rigveda (praise of forces of
nature), (ii) Yajurveda (Rituals etc.), (iii) Samveda (Prayers), (iv)
Atharvaveda (Magic, spell and incarnation).
Six vedangas are –
1. The Siksha or orthography
2. The Kalpa or treatises dealing with rituals
3. The Vyakaran or Grammar
4. The Chandas or prosody
5. The Jyotish or Astronomy
6. Nirukta or Lexicon.
Q.2. What is meant by Smriti in Hindu Law?
Ans. Smrities: They are utterances and precepts of the Almighty, which
have been heard and remembered and handed down by the Rishis
(sages) from generation to generation. The smrities are divided into
Primary and Secondary Smrities contained in Dharma Sutra (Prose)
and Dharmashastras (Poetry). Gautama, Baudhyana, Apastamba,
Harita, Vasistha and Vishnu are the chief Dharma Sutra writers and
Manu, Yajnyavalkya, Brihaspati and Narada belong to
Dharamashastra. The exact number of smrities is not definitely known,
but Manu Smriti is the earliest one.
2 FAMILY LAW -I (HINDU LAW)
There are two kinds of Smritis viz. Dharmasutras and Dharmashastras.
Their subject matter is almost the same. The difference is that the
Dharmasutras are written in prose, in short maxims (Sutras) and the
Dharmashastras are composed in poetry (Shlokas). However,
occasionally, we find Shlokas in Dharmasutras and Sutras in the
Dharmashastras. In a narrow sense, the word Smriti is used to denote
the poetical Dharmashastras.
The number of Smriti writers is almost impossible to determine but
some of the noted Smriti writers enumerated by Yajnavalkya (sage
from Mithila and a major figure in the Upanishads) are Manu, Atri,
Vishnu, Harita, Yajnavalkya, Yama, Katyayana, Brihaspati, Parashar,
Vyas, Shankh, Daksha, Gautama, Shatatapa, Vasishtha, etc.
The rules laid down in Smritis can be divided into three categories
viz. Achar (relating to morality), Vyavahar (signifying procedural and
substantive rules which the King or the State applied for settling
disputes in the adjudication of justice) and Prayaschit (signifying
the penal provision for commission of a wrong).
Although Smrities deal with rules of morality and religion, they are
more secular than the Shruties.
Q.3. Explain the commentaries and Digests as a Source of Hindu Law?
Ans. Commentaries and Digests: After the Smrities, the next step in the
development of Hindu Law was the composition of a number of
commentaries (tika) and Digests (Nibandha) based upon the Smrities.
The commentaries are to interpret the law as laid down in the Smrities.
The writing of a particular Smriti is called commentary while the
writing on different smrities is called Digests. There are a number of
commentaries but the main are:
a. Dayabhaga by Jimutavahana
b. Mitakshara by VUnamshwara
c. Nanda Pandit on the Vishnu Dharmasutra is called the
Vauayanti.
The commentaries are now considered to be more authoritative than
the original texts themselves.
The evolution of the different schools of Hindu law has been possible
on account of the different commentaries that were written by various
authorities. The original source of Hindu law was the same for all
Hindus. But schools of Hindu law arose as the people chose to adhere
to one or the other school for different reasons. The Dayabhaga and
Mitakshara are the two major schools of Hindu law. The Dayabhaga
school of law is based on the commentaries of Jimutvahana (author
of Dayabhaga which is the digest of all Codes) and the Mitakshara is
based on the commentaries written by Vijnaneswar on the Code of
Yajnavalkya.
According to syllabus of Dr. Bhimrao Ambedkar Law University, Jaipur 3
Q.4. Explain the importance of custom as a source of Hindu Law?
Ans. Custom is regarded as the third source of Hindu law. From the earliest
period custom (‘achara’) is regarded as the highest ‘dharma’. As
defined by the Judicial Committee custom signifies a rule which in a
particular family or in a particular class or district has from long
usage obtained the force of law.
Custom is a principle source and its position is next to the Shrutis
and Smritis but usage of custom prevails over the Smritis. It is superior
to written law. There are certain characteristics which need to be
fulfilled for declaring custom to be a valid one. They are:-
a. The custom must be ancient. The particular usage must have
been practised for a long time and accepted by common consent
as a governing rule of a particular society.
b. The custom must be certain and should be free from any sort of
ambiguity. It must also be free from technicalities.
c. The custom must be reasonable and not against any existing
law. It must not be immoral or against any public policy and
d. The custom must have been continuously and uniformly followed
for a long time.
Indian Courts recognize three types of customs viz: (a) Local custom
– these are customs recognised by Courts to have been prevalent in a
particular region or locality. (b) Class custom – these are customs
which are acted upon by a particular class. Eg. There is a custom
among a class of Vaishyas to the effect that desertion or abandonment
of the wife by the husband abrogates the marriage and the wife is free
to marry again during the life-time of the husband. (c) Family custom
– these are customs which are binding upon the members of a family.
Eg. There is a custom in families of ancient India that the eldest male
member of the family shall inherit the estates.
In Deivanai Achi v. Chidambaram ((1954) Mad 667)) case it was held
that in order to become legally sanctioned by law and binding on the
people a custom must be continuous in practice, it should not be
vague and ambiguous and should not oppose the well-established
public policy. A customary rule must be in the complete observation
of society.
In Laxmi v. Bhagwantbuva (AIR 2013 SC 1204) case, the supreme court
stated that a custom becomes legally enforceable when the majority
of people make the continuous use of such practice.
Q.5. What is Mitakshara School of Hindu Law?
Ans. Mitakshara School: The Mitakshara School (literally means ‘a concise
work’) is a running commentary on the code of Yajnavalkya, written
by VUnaneshwar (11th Century) and prevails in all parts of India as
a Supreme authority except in Assam and Bengal. But in some matters
Mitakshara prevails even in Assam and Bengal as authority on all
Q.s in respect of which Daya baga is silent. The Mitakshara is not
merely a running commentary on the Yajnavalkya Smriti but it is also
a digest of practically all the leading Smritis, and deals with all titles
of Hindu Law. It may also be noted that the Mitakshara is the orthodox
school. The Mitakshara School is divided into five sub-schools
prevailing in different parts of India. These different schools have
the same fundamental principles and acknowledge the supreme
authority of the Mitakshara, but differ in matters of details, especially
in the matters of adoption and inheritance. These five sub-schools
are namely –
a. Banaras Sub School
b. Mithila Sub School
c. Maharashtra or Bombay Sub School
d. Dravid or Madras Sub School
Q.6. What is Dayabhaga school of Hindu Law?
Ans. Dayabhaga School: The Dayabaga School which is followed mainly in
Bengal, is not a commentary on any particular code, but is a digest of
all the codes and written by Jimutavahana in 12th Century. The
Dayabaga is digest on leading Smritis and deals only with partition
and inheritance. The Dayabaga or the Bengal school as it is
sometimes called is the reformist school of Hindu Law. This school is
considered to be a dissident school of the old Benaras School and
this school propagated enlightened doctrines and theories. The
Dayabaga School is not divided into any sub-schools. The authorities
of this school are - Dayabaga, Dayatatva, Daya-sangraha,
Viramitrodaya and DattakaChandrika.
Dayabhaga school was formulated with a view to eradicating all the
other absurd and artificial principles of inheritance. The immediate
benefit of this new digest is that it tends to remove all the shortcomings
and limitations of the previously established principles and inclusion
of many cognates in the list of heirs, which was restricted by the
Mitakshara school.
In Dayabhaga school, various other commentaries were followed such as:
• Dayatatya
• Dayakram-sangrah
• Virmitrodaya
• Dattaka Chandrika
Q.7. What is meant by Gandharva Marriage?
Ans. Gandharva Marriage: This is a unique form of marriage and is different
from other forms of marriage. There is a mutual agreement between
the girl and boy to get married. This mutual agreement arises from
pure lust. The approval of parents does not play a role.
The concept of mutual consent for marriage was prevalent in the old
Hindu system, however, the solemnization of marriage coming out of
the mutual consent was very low. This was because:
1. This led to the Hindu culture shifting to child-marriage.
2. Possibility of inter-caste relation became high.
3. This form of marriage was not in accordance with Hindu
cultures and practices as there was no parental consent.
The Supreme Court in the case of Bhaurao Shankar Lokhande & Anr vs
State Of Maharashtra & Anr, (1965 AIR 1564), discussed essential
ceremonies required for performing Gandharva marriage. In this form,
there is a custom that the father of a female should touch the foreheads
of the female and male to each other and the Gandharva is completed
by the act. Along with this custom, another custom which required
the presence of a Brahmin priest and a barber was pleaded not to be
essential for Gandharva marriage. However, it was held that without
these essential ceremonies, a Gandharva marriage was not
solemnised u/s 17 of the Hindu Marriage Act and u/s 494 of Indian
Penal Code.
Q.8. What do you mean by Anulom and Pratilom Marriages?
Ans. Anuloma and pratiloma marriage, as a rule of marriage is an
inseparable part of the hindu caste system. The rule of anuloma and
pratiloma marriages has greater significance for the caste structure
of Hindu society than for the marriage pattern of the Hindus.
Anuloma Marriage: Anuloma Marriage in Hinduism refers to the
hypergamy form of marriage. During the Vedic Age inter-class
marriages used to take place in the form of Anuloma
marriage. Anuloma marriage is a social practice according to which
a boy from upper varna / caste / class can marry a girl from lower
varna/ caste / class.
Anuloma marriage was recommended by the ancient Hindu law writers
for the first three varnas or classes of the then society namely,
1. the Brahmins;
2. the Kshatriyas; and
3. the Vaishyas.
According to the Dharmashastrakaras, a girl should marry in her
own varna, failing which she may marry one in any of the higher
varna. In the Rig Vedic period, the priests who performed Yajnas
[sacrifices] arranged by the kings, married Kshatriya girls offered to
them as ‘dakshina” or fees for their services.
Pratiloma Marriage: Pratiloma refers to the Hypogamy form of
Marriage. Pratiloma is a type of marital practice in which a man of
lower class / caste / varna marries a girl of higher class / caste /
varna. Such cases of Shudra-Aryan connections are also recorded in
the Vedic texts.
Some Dharmashastrakaras had even permitted the practice of
‘pratiloma” while many condemned it. By the time of Dharmashastras,
greater disapproval was shown towards this practice. Even here, the
marriage of Brahmin / Kshatriya / Vaishya girl with Shudra boy was
more despised with, than the marriage of a Brahmin girl with a
Kshatriya / Vaishya boy.
Q.9. Explain the essential condition of a valid marriage?
Ans. Conditions of a Valid Marriage under the Act: There are five conditions
of marriage enshrined under Section 5 of the Hindu Marriage Act, in
absence of which the marriage will not be deemed to be a valid
marriage. According to Section 5 a marriage may be solemnized
between any two Hindus, if the following conditions are fulfilled,
namely: -
1. Neither party has a spouse living at the time of the marriage;
2. at the time of the marriage, neither partya) is incapable of
giving a valid consent to it in consequence of unsoundness of
mind; or b) though capable of giving a valid consent has been
suffering from mental disorder of such a kind or to such an
extent as to be unfit for marriage and the procreation of children;
or c) has been subject to re-current attacks of insanity or
epilepsy;
3. The bridegroom has completed the age of 21 years and the
bride the age of 18 years at the time of the marriage;
4. the parties are not within the degrees of prohibited
relationship, unless the custom or usage governing each of them
permits of marriage between the two;
5. the parties are not sapindas of each other, unless the custom
of usage governing each of them permits of a marriage between
the two.
If marriage contravenes anyone of the conditions under clause (i),
(iv) and (v), the marriage is null and void while contravention of the
condition under clause (ii) renders marriage voidable. The Act does
not provide for the situation where clause (iii) is violated. However, it
has been held that violation of the condition under clause (iii) does
not render a marriage either void or voidable.
Q.10. What is meant by Sapinda Relation in Hindu Law?
Ans. Sapinda relationship: All prohibited relationships are Sapinda but
all Sapinda relationships are not prohibited relationships. Sapinda
relationship is the chain of all the relationship from the side of the
brother and sister in the family; they can’t marry each other due to
prohibited relationship and also their generation till three
generations from the girl side and five-generation from the boy side,
till that they all are in Sapinda relationship. Avoidance of Sapinda
can be achieved as the girl reaches the fourth generation and boy
(brother) reaches the sixth generation after that both families can
have a marriage that will be neither prohibited relationship nor
Sapinda relationship.
Section 3 (f) (i) of the Act defines sapinda relationship as with reference
to any person extends as far as the third generation (inclusive) in the
line of ascent through the mother, and the fifth (inclusive) in the line
of ascent through the father, the line being traced upwards in each
case from the person concerned, who is to be counted as the first
generation.
Section 3 (f) (ii) of the Act says that two persons are said to be
“sapindas” of each other if one is a lineal ascendant of the other
within the limits of sapinda relationship, or if they have a common
lineal ascendant who is within the limits of sapinda relationship
with reference to each of them.
Q.11. When it is said that two person are within the degree of prohibited
relationship?
Ans. There are some relationships in Hindu marriage in which the marriage
cannot be solemnized, such type of relationships are called degrees
of prohibited relationship. The main purpose of this rule is to prevent
incestuous marriage that is marriages between peoples of prohibited
relationship such as brothers and sisters, children and grandchildren
etc.
According to Section 5(iv) of the Hindu Marriage Act, 1955 the parties
to marriage, are not within the degrees of prohibited relationship,
unless the custom or usage governing each of them permits of a
marriage between the two. It is clear from this provision that the
parties who are getting married must not be under any type of degrees
of prohibited relationship except if the custom or usage governing
them permits it. The marriage constituted within the degrees of
prohibited relationship will only become legal and valid if there
exists a valid custom.( Shakuntala Devi v. Amar Nath, AIR 1982 PH
221).
If a marriage comes under the degrees of prohibited relationship
then that marriage will be void by Section 11 of the Act and punishable
for simple imprisonment which may extend upto one month or with
fine or with both as per Section 18(b) of the same Act. In Kamani Devi
v. Kameshwar Singh (AIR 1946, Patna 316) it has been observed that
even where the marriage was void as being within the prohibited
degree, the obligation to maintain the wife would remain.
Provisions relating to Degrees of Prohibited Relationship: Section 3(g)
of the Hindu Marriage Act, 1955 states persons under prohibited
relationship, they are:
I. If one is a lineal ascendant of the other; or
II. If one was the wife or the husband of a lineal ascendant or
descendant of the other; or
III. If one was the wife of the brother or the father’s or mother’s
brother or the grandfather’s or grandmother’s brother of the
other.
IV. If two are brother and sister, uncle and niece, aunt and nephew,
or children of brother and sister or two brothers or two sisters.
The relationship also includes:
a. Relationship by half or uterine blood as well as by full blood.
b. Illegitimate blood relationship as well as legitimate.
c. Relationship by adoption as well as by blood.
Q.12. Is the registration of marriage under Hindu Marriage Act, 1955 is
compulsory?
Ans. Section 8 of the Hindu Marriage Act, 1955 lays down the element of
registration in a Hindu marriage even though it does not make the
provision compulsory for parties in a marriage. The section provides
five subsections which are elaborated in simple terms below:
1. Section 8(1) says that as a proof of the Hindu marriages, the State
Governments will be granted authorities to make rules which will
provide that the parties involved in the marriage have been so in
terms with the conditions that are provided by the Hindu marriage
Register and along with this the documents that are associated with
the marriage should also be kept with the parties for future references.
2. Section 8(2) provides that it is the responsibility on the part of the
State Governments to ensure that the parties to the marriage have
abided with the rules that have been provided in Section 8(1) and if
there are any signs of contravention by the parties, then it is the State
who will charge a fine of twenty-five rupees from the parties.
3. Section 8(3) says that the rules that have been talked about in Section
8(1) should be provided to the State Legislatures after their formation.
4. Section 8(4) lays down the duty of the Hindu Marriage Register that is
to inspect the marriage in order to have sufficient evidence as to the
marriage concerned to prove it to be legal.
5. Section 8(5) summarizes the fact that the validity of the Section will
not be affected in any way if the registration of a Hindu marriage
does not take place in the course.
For the registration to take place successfully, the presence of both
parties associated with the marriage needs to be present. It was in
the case of Nishana Mol v. Alappuzha Municipality (2009 (3) KLT 251)
that the court held that if the registrar of the marriage concerned is
hesitant or doubtful about the identities of either one of the parties
in the marriage, only then can the registration of marriage take place
and will amount to be necessary.
In the case of Pranav A.M. v. Secy Engandiyum Gram Panchayat,
(WP(C).No. 7574 of 2018) the court provided that if the marriage
between two individuals has taken place after conversion of one
individual into Hinduism then the registrar of the marriage has no
rights to inspect the same. He or she has to simply do her job of
registering the marriage.
The case of Valsemma v. Cochin Units (AIR 1996 SC 1011) had raised
the Q. as to the validity of the registration in a marriage. In this case,
the court made the observation that registration of any marriage will
be declared as null and void if the ceremonies of the marriage did not
take place. This judgement was passed in the year of 1996 focusing
on the societal framework of the nation. Such judgments were all
overturned in the case of Seema v. Ashwani Kumar, ((2006) 2 SCC 578)
the judgment of which was indeed welcoming for the entire country.
Q.13. Explain Irritivable break down theory of divorce?
Ans. There are three theories in which the grounds for divorce are
categorized. They are popularly termed as the Offence theory, the
Mutual Consent theory and Irretrievable Breakdown of Marriage
Theory.
The Irretrievable breakdown theory, which says that if the marriage
has irretrievably broken down, with not even a slight possibility of
conciliation and if it is continued, it will just add to the misery of the
partners, then it should be dissolved. But this theory still has not
found its way expressly into the personal laws.
In the leading case of Naveen Kohli v. Neelu Kohli (AIR 2006 SC
1675)the Supreme Court has strongly recommended to include the
irretrievable breakdown of marriage as a relevant ground for divorce.
In the recent case of R. Srinivas Kumar v. R. Shametha, (AIR 2019 SC
4919) has made it clear that “only in a case where one of the parties
do not agree and give consent, only then the powers under Article 142
of the Constitution of India are required to be invoked to do the
substantial Justice between the parties”, a significant transition from
the mutual consent theory, which is often said to encompass the
irretrievable breakdown theory.
Q.14. Distinguish between Void and Voidable Marriage?
Ans. The difference between the void and voidable marriage is following:-
Void Marriage Voidable Marriage
A wife does not have the right A wife has the right to claim maintenance in the voidable
to claim maintenance in the marriage.
void marriage.
In a void marriage, the parties Husband and wife have the status in the voidable
do not have the status of marriage.
husband and wife.
In a void marriage, no decree of In a voidable marriage de cree of nullity is required.

nullity is required.
A void marriage is none in the A void marriage is to be declared void by a competent

eyes of law. court.
The children in a void marriage The children in a voidable marriage are treated as
are treated as legitimate. illegitimate but this distinction is deleted by the Supreme
Court and said a child cannot be said termed as
illegitimate.
Q.15. What do you mean by mental impotency?

Ans. Impotency can be of two type mental and physical. When a person
has some psychological or moral abhorrent or repugnance to sexual
activity and on account of this a person is unable to consummate his
or her marriage. Thus when the person owing to mental psychological
model an emotional reasons is unable to consume it the marriage it
is known as mental or psychological impotency.
The only exception is if the disease is curable if important see physical
or mental is curable the aggrieved person is barred from moving the
court.
In Yuvraj Digvijay Singh v. Yuvrani Pratap Kumar ((1969) 2 SCC 279) the
Supreme Court of India stated that impotence can be both physical
and mental and a party is impotent if his or her mental or physical
condition makes consummation of marriage a practical impossibility.
In Urmila Devi Vs. Narinder Singh (AIR 2007 HP19) an appeal by the
wife was directed against the judgment of the learned District Judge,
Shimla whereby he has allowed the petition of the husband and
annulled the marriage of the parties under Section 12 of the Hindu
Marriage Act, 1955. This case was later appealed in the High Court of
Himachal Pradesh, the court decided that ,the husband has proved
beyond doubt that the attitude of the wife towards sex is cold and
repugnant. Therefore, she is psychologically impotent and the marriage
has not been consummated due to this reason,Therefore the court
dismissed the appeal by wife.
Q.16. Explain the principle of Factum Valet?
Ans. The doctrine of factum valet: The doctrine of “factum valet quod fieri
non debuit” means what ought not to be done becomes valid when
done. This principle was formulated by the authors of the Dayabhaga
school and was recognised to a limited extent by the followers of the
Mitakshara school. The doctrine of factum valet states that once an
act is done or a fact is accomplished it can’t be altered by the written
texts of laws. As the fact is considered to be a concrete establishment
and is deemed to be legally binding.
It has also been held that the non-observance of essential ceremonies
of a marriage cannot be overlooked or cured by applying the doctrine
of factum valet, as this is in contravention of the mandatory text of
Hindu Law. (Deivanai v. Chidambaram, A.I.R. 1954 Mad. 657).
Before the passing of the Hindu Adoptions and Maintenance Act, the
doctrine of factum valet was also applied to cases of adoption. Thus,
it was held that the texts which prohibit the adoption of an only son
are merely directory; so also are those which enjoin the adoption of
a relative in preference to a stranger.
Hence the adoption of an only son or of a stranger in preference to a
relative, if otherwise complete, was not invalid. In such cases, the
doctrine of factum valet would apply, and the act done (i.e. the
adoption) would be valid and binding. (Wooma Davee v. Gokoolanund,
A.I.R. 1878 3 Cal. 587).
Q.17. What is maintenance Pendente life?
Ans. Maintenance means providing children, wife or other persons in a
position of dependence, with food, clothing and other necessaries.
Pendent lite means “while a suit is pending”. So Maintenance pendent
lite means providing living expenses and financial support for the
children, wife and other person while a suit is pending
For such relief, under Section 24 one may file an application with the
main petition or during pendency of the proceedings under this Act.
Suppose you have filed a petition for decree of divorce while filing
the same or during its pendency, such a relief of maintenance can be
claimed. You are required to satisfy the Court that you have no
independent income sufficient for her or his support and that the
other party (husband or wife) has sufficient income.
While passing such an order, Court is to take into consideration
income not only of the petitioner but also that of the respondent and
further that the petitioner has no independent income sufficient for
her or his support
Maintenance pendente lite In Hindu Law: The provision of pendent
lite in Hindu Law is in Section 24 of Hindu Marriage Act, 1955. The
court is empowered to grant two specific reliefs, to the husband or
wife as pendent lite when the matrimonial suit is pending as per the
section, they are:
1. Expenses of the proceedings in respect of which the relief is
sought.
2. Monthly maintenance allowance during the proceedings.
This maintenance is available in cases of void marriages, nullity of
marriages, judicial separation, divorce, restitution of conjugal rights
and alimony. Either husband or wife can get this maintenance for
themselves or their child from their spouse irrespective of the fact
that who started the case or proceedings. Grant of maintenance
depends upon the fact that one party of the proceeding does not have
sufficient independent income, for support or necessary expenses of
proceedings; he/she can get it from other party who is financially
richer.
Q.18. What is Permanent Alimony?
Ans. Permanent alimony is a provision that comes into effect upon the
dissolution of the marriage or judicial separation. Here the amount
fixed by the court is required to be paid either as a lump sum amount
or as a fixed periodic payment. These payments stop upon the death
of either of the spouse or a date given by the judge.
Under the Hindu Marriage Act 1955, both husband and wife can ask
for it. “But, it’s usually the woman who gets the maintenance from the
husband. But there have been cases where the court has ordered the
wife to pay maintenance. For instance, in case of husband’s physical
disability that prevents him from earning.
The main factors in a judge’s decision for awarding permanent
alimony are:
a. The length of the marriage — This factor is often indicative of
how long the receiving spouse has been out of the workforce,
and without the burden of financially supporting themselves.
b. The contribution of one spouse to the career or lifestyle of the
other
c. Any significant financial inequity
Most cases in which permanent alimony is awarded are those that
involve a longer duration of the marriage; in some states, that could
take 30 years. However, if one spouse becomes disabled in a shorter
marriage, permanent alimony may still be awarded.
Q.19. What is Parental or Ancestral Property?
Ans. Property inherited by a Hindu male from his father, paternal
grandfather, and so on is ancestral property. The children,
grandchildren, and great-grandchildren of the person who receives a
share in it by birth.
Therefore, the word ancestral property is refined into a diminished
property of a father from his male ancestor in the male line, and in
that right only there are sons and now, the daughters also receive a
share together with, and equal to that of, their father. Property received
from other relatives would, therefore, not be ancestral property.
In the case Commissioner of Wealth Tax, Kanpur Others v. Chander
Sen Others, 1986 3 SCC 567 it was held that after passing at the
Hindu Succession Act, 1956 the standard view that on the legacy of
stable property from paternal ancestors up to three degrees,
automatically on HUF (Hindu Undivided Family) came into existence,
now not remained as the legal position onsight of Section 8 of the
Hindu Succession Act, 1956.
In the case of Yudhister v. Ashok Kumar, 1987 1 SCC 204 by following
the amendment and enforcement of the Hindu Succession Act in 2005,
women were also allowed to enjoy their ancestral property with equal
rights but those ancestral property rights had not been granted to
women before. Now, women and men have equal rights over their
ancestral property. There are certain conditions of the ancestral
property if the inheritance is before 1956 then it is not a HUF property.
In such cases, since a HUF (Hindu Undivided Family) already existed
before 1956, thereafter, as the same HUF with its structures continues,
the status of HUF (Hindu Undivided Family) continues, and in such a
case only, members of joint Hindu family are coparceners give them
the opportunity to a share within the HUF (Hindu Undivided Family)
premises.
Q.20. What do you mean by separate or self acquired property?
Ans. Self Acquired Property or Separate Property: Any property which is
not a part of joint family property is a self-acquired property. This
word separate here suggest that the property was once a joint family
property but now has been severed and is now separate. Thus this
property would be considered as a separate property in relation to
the brother of the person who holds that property and still joint
family property in terms of his sons. This also means that no other
person has any self-interest in the property.
The property acquired by any of the following mentioned manners
can be classified as a separate property:
a. The property which person acquired by his own efforts and no
other family member helps him. It is not a result of joint family
efforts and hence it is not a part of joint family property. When
the property is in possession of a property for more than 12
years.
b. Property acquired by a person other than his father, grandfather
or great grandfather would be termed as his own and not
anyone’s.
c. Any property acquired by a Hindu after the partition of joint
property is severed would be classified as his own property.
d. Any property which is devolved to a sole coparcener will be a
self-made property as there exists no other coparcener.
e. Property which is obtained by a person as a gift from his father,
or grandfather or great grandfather will also be counted as
separate property.
f. Property obtained by a Hindu as a grant of government will be
termed as a property which has not been borrowed from
ancestors.
g. When a joint family is lost and is again gained by a person of
the family without the help of any family funds will be classified
as a type of property which he has earned on his own.
Q.21. What is Unobstructed Heritage?
Ans. 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. ‘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.
b. 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.
Q. 22. What is Obstructed Heritage?
Ans. 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.
Q.23. Who are Coparceners?
Ans. Coparceners: Under the Hindu succession law, the term coparcener
is used to denote a person, who assumes a legal right in his ancestral
property, by birth in a Hindu Undivided Family (HUF). As per the
Hindu Succession Act, 1956, any individual who is born in an HUF
becomes a coparcener by birth.
The word coparcener has its origin in the Late Middle English era
and, according to Lexico, coparceners mean a person who has equal
shares with others in the inheritance of an undivided estate. The
Collins dictionary defines the term as a person who is a coheir and
inherits an estate with others. In the context of Hindu laws,
a coparcener is a person who has a legal right to his ancestral
property by birth
Coparcenary in HUF is a narrower body than the Hindu joint family
itself by definition. Before there is the commencement of the Hindu
Succession (Amendment) Act, 2005, a coparcener was the male member
of the family who acquired their interest in the coparcenary
property by birth. The eldest member of a HUF and the following three
generations constitute a coparcenary under the Hindu Law. This means
the list of coparceners in a coparcenary is made of the head of the
family or Karta along with his sons, grandsons, and great-grandsons.
Following the Mitakshara system, this interest over coparcenary
property is acquired by birth. Whenever there is a birth of a son in
the family, he becomes a coparcener in HUF and acquires his
undivided interest over the coparcenary property naturally. This
means the share of coparceners in a property is not static. It can be
diminished or enlarged by the birth or death of any other members of
the coparcenary respectively. However, one’s interest in the property
remains undivided.
Q. 24. What are the characteristics of coparcenary property?
Ans. Characteristic features of Coparcenary are as follows:
• Coparcenary consists of male members only. It is a creature of
law not of agreements. It does not include the persons from
outside except the persons who are admitted by adoption. The
ownership of coparcenary property is confined to the members
of coparcenary. On the death of a coparcener his share in the
coparcenary property does not devolve upon his own heir but
on the other hand devolves upon other surviving male member
on the basis of rule of survivorship.
• No coparcener could transfer his interest in coparcenary
property on his will but now after passing of the Hindu
Succession Act, 1956, Section 30 has empowered the coparcener
to transfer his undivided interest in the coparcenary property
by will. There is no determinate share of any coparcener in joint
Hindu family.
• So long the family remains joint no one can say definitely that
this is his property or that item of property belongs to him, even
if that property is in his possession or use. The interest fluctuates
with the birth and death of the persons in the family.
• Every coparcener has got the right to demand partition and to
prevent the alienation of any part of the coparcenary property
by the other coparcener. The coparceners in Dayabhag do not
enjoy this right. In Dayabhag the coparceners cannot demand
partition either of coparcenary property or separate property
during the lifetime of his father. It is only after death of the
father that sons acquire an interest in the property.
• In absence of any proof of partition there is presumption of
jointness of Hindu family with respect to common mess, worship
and estate. The presumption becomes stronger in the case of
real brothers. It weakens with the farther ones from the common
ancestor.
In State Bank of India v. Ghamandi Ram (A.I.R. 1969 S.C. 1330) the
Supreme Court observed that coparcenary property is held by the
coparceners in a quasi-corporate personality.
In the same case, the Court has listed the following as the incidents
of a Mitakshara coparcenary:
a. Firstly, the lineal male descendants of a person upto the third
generation acquire, on birth, ownership in the ancestral
properties of such a person. (Now, i.e., after the 2005 Amendment,
even females acquire such an interest.)
b. Secondly, such descendants can, at any time, work out their
rights, by asking for a partition.
c. Thirdly, till such a partition, each member has got ownership
extending over the entire property, jointly with the other
coparceners.
d. Fourthly, as a result of such co-ownership, the possession and
enjoyment of the properties is common.
e. Fifthly, no alienation of the property is possible without the
concurrence of the coparceners, unless it is for a necessity.
f. Lastly, the interest of a deceased member passes, on his death,
to the surviving coparceners
Q. 25. Who are excluded from succession?
Ans. A person is excluded from the succession on the following grounds:
a. Moral disabilities: The moral disability included the unchastity of a
woman. The unchastity of a widow excluded her from inheriting the
property of the diseased. But it is to be noted that once the husband’s
estate has vested in her under law, it cannot be divested by subsequent
unchastity, provided she remained chaste till the death of her husband.
Under Dayabhaga law the condition of chastity applied to widows,
daughters and mother.
b. Religious disabilities: On conversion to another religious or being
declared as an outcaste, a person is excluded from inheritance.
Similarly when a person renounces the world and becomes a Sanyasi,
he is disqualified to inherit as the renunciation amounts to civil
death for all practical purposes. But the Caste Disabilities (Removal)
Act, 1850 had done away with the disabilities based on the ground of
outcaste and conversion.
c. Disabilities based on equity: A murderer is disqualified to inherit the
estate of tine murdered one. Although a murderer is not disqualified
under Hindu law from succeeding to the estate of the victim yet he is
held to be so disqualified on the principles of justice and equity.
Neither the murderer himself nor anyone else claiming through him
can claim right to inheritance in the property of murdered person but
where the male descendant of the murderer had an interest by birth
in the estate of the deceased (murdered), he would not be disqualified
to inherit in that case. No one can claim right to inheritance from any
such person with whom he had been fighting throughout his life and
had been keeping malicious intent with him.
The disqualified heirs were deprived only of the right to inherit but
not of right to maintenance. Their right to maintenance remained
intact and the persons inheriting the estate of the deceased was
under the obligation to give maintenance to such disqualified heirs.
Q.26. What is meant by Escheat?
Ans. Section 29 of the Hindu Succession Act, 1956 embodies the principle
of escheat. The doctrine of escheat postulates that where an individual
dies intestate and does not leave behind an heir who is qualified to
succeed to the property, the property devolves on the Government.
Though the property devolves on the Government in such an
eventuality, yet the Government takes it subject to all its obligations
and liabilities.
The state in other words does not take the property “as a rival or
preferential heir of the deceased but as the lord paramount of the
whole soil of the country”, as held in State of Punjab v. Balwant Singh
((1992) Suppl (3) SCC 108) This principle from Halsbury’s Laws of
England was adopted by this Court while explaining the ambit of
Section 29. Section 29 comes into operation only on there being a
failure of heirs. Failure means a total absence of any heir to the
person dying intestate. When a Q. of escheat arises, the onus rests
heavily on the person who asserts the absence of an heir qualified to
succeed to the estate of the individual who has died intestate to
establish the case. The law does not readily accept such a
consequence.
In State of Bihar v. Radha Krishna Singh ((1983) 3 SCC 118), a Bench of
three Judges of this Court formulated the principle in the following
observation that It is well settled that when a claim of escheat is put
forward by the Government the onus lies heavily on the Appellant to
prove the absence of any heir of the Respondent anywhere in the
world. Normally, the court frowns on the estate being taken by escheat
unless the essential conditions for escheat are fully and completely
satisfied. Further, before the plea of escheat can be entertained, there
must be a public notice given by the Government so that if there is
any claimant anywhere in the country or for that matter in the world,
he may come forward to contest the claim of the State.
Q. 27. What are the essentials of valid adoption under Hindu Adoption and
Maintenance Act, 1956?
Ans. These essentials of a valid adoption under HAMA include the
following as under Section 6 to 11 of the Act:
• The person adopting should have the capacity, and also the
right, to take in adoption.
• The person giving in adoption should also have the capacity to
do so.
• The child who is going to be adopted must be in the proper
condition for an adoption
• The adoption must be in compliance with the other laws that
govern the same
• For an adoption to be valid, it needs to be proved that there was
an official acceptance ceremony wherein the child was
welcomed into the family as one of their own
• Under this act, the person is restricted from adopting an
additional child of the same sex.
• In case, a person adopts a child who belongs to the same sex,
then the parent should be at least 21 years elder to the child to
be adopted.
• In the case of the adoption of a child, more than single parents
are not allowed to adopt a particular child. This implies that
there must be an actual ceremony of the transfer of parents of a
child from his biological family.
Q. 28. Can a Hindu female is competent to adopt?
Ans. The HAMA also lays down the conditions for a female wishing to
adopt a child under Section 8 and they are as follows:
a. She must be of legal age
b. She must be of sound mind
c. She must be unmarried or
d. if she is married:
I. the husband must give his full consent to adopting a child or
II. he is of unsound mind,
III. he has renounced the Hindu faith and the world or
IV. he has dissolved the marriage
Q. 29. What is the theory of Relation Back?
Ans. Doctrine of Relation Back: According to the doctrine of relation back,
under old Hindu Law, if a Hindu widow adopts a son after the death of
his husband, then the adopted son will be deemed to have been
adopted on the death of the husband. It means that the adopted son
will be entitled in the interest of his deceased adoptive father. The
theory is against the rule that ‘a property once vested cannot be
divested’. The theory was based upon the legal fiction that the
continuity of the line of the adoptive father should not break held in
Tahsil Naidu & Anr vs Kulla Naidu & Ors, A.I.R. 1970 S.C 1673.
Doctrine of Relation under Modern Law: Under the Act, the doctrine
of relation back has been abrogated according to section 12 of the
said Act. Earlier, however, the adopted child came into being in the
adoptive family from the date of the death of his adoptive father, but
now, in accordance with proviso (c) to section 12 of HAMA, the adopter
came into being from the date of the actual adoption.
The new Act has abrogated/aboilshed the principle of relation back
only for a limited purpose of vesting and divesting land. The doctrine
of relation back still exists in a sense that, by making an adoption, by
a widow, the adopted child entails the relationship with the deceased
husband of the widow and is (the deceased husband) thereby becomes
the adoptive father of the child.
The principle has been revived in case Sawanram v. Kalawati (AIR
1969 SC 1961).
Q. 30. Who can be adopted?
Ans. Who may be adopted: According to Section 10 of the Act, only a child
who fulfils the following conditions can be adopted:
i. The child must be a Hindu – Since HAMA is applicable only.
ii. The child has not already been adopted – Since section states
that only natural parents or guardians can give a child in
adoption. Adoptive parents cannot give a child in for adoption.
Double adoption is not permitted under HAMA.
iii. He or She is not married unless there is a custom or a usage
applicable to the parties which permits persons who are married
or have been married be taken in adoption.
iv. A child has not completed the age of 15 years unless there is a
custom or a usage applicable to the parties which permit
persons who have completed the age of 15 years to be taken in
adoption: If custom is not pleaded, adoption of the child above
the age of 15 would be invalid held in case M.D. Gopalaiah v.
Smt. Usha Priyadarshini and Ors., (AIR 2002 Karnataka 73).
In a case where a married man was adopted and subsequent to the
adoption a child was born, it was held that the adoption was valid as
it was allowed in the custom and the child born would be a part of the
adoptive family Tarabai v. Bagonda, (AIR 1981 Bom. 13).
In Punjab, the general custom amongst the Jats is that a person who
is above the age of 15 years and married can be adopted. Hence, such
adoption is allowed held in case Amar Singh v. Tej Ram (AIR 1982
P&H 282) But such Customs must be pleaded and proved. If this
condition is not fulfilled that the adoption will be regarded as invalid.
Q. 31. Is Maintenance under section 3(b) and 20 of the Hindu Adoption and
Maintenance Act, 1956 includes Educational Expenses?
Ans. The definition of Maintenance under section 3(b) and 20 of the Hindu
Adoption and Maintenance Act, 1956 provides for the both includes
Educational Expenses. Children can claim for educational expenses
under both the section held in the L.K.R.V Sehrawat V Smt. Ujjwal
Sehrawat (AIR 2002, Punjab and Haryana 288).
Q. 32. What is meant by defacto guardian?
Ans. De facto guardian is a person who takes continuous interest in the
welfare of the minor ’s person or in the management and
administration of his property without any authority of law. Hindu
jurisprudence has all along recognized the principle that if liability
is incurred by one on behalf of another in a case where it is justified,
then the person, on whose behalf the liability is incurred or, at least,
his property, is liable, notwithstanding the fact that no authorization
was made for incurring the liability.
The term ‘de facto guardian’ as such is not mentioned in any of the
texts, but his existence has never been denied in Hindu law. In Ethilulu
v Pathakal, (AIR 1950 Mad 390) & Kusicbai v. Chandrabtutga, (AIR
1918 Nag 100) said that Hindu law tried to find a solution out of two
difficult situations:
a. one, when a Hindu child has no legal guardian, there would be
no one who would handle and manage his estate in law and
thus without a guardian the child would not receive any income
for his property and
b. Secondly, a person having no title could not be permitted to
intermeddle with the child’s estate so as to cause loss to him.
The Hindu law found a solution to this problem by according
legal status to de facto guardians.
Q.33. What is to be taken into consideration while appointing guardian for
a minor?
Ans. Guardian is “a person having the care of the person of the minor or of
his property or both person and property.” It may be emphasized that
in the modern law guardians exist essentially for the protection and
care of the child and to look after its welfare. This is expressed by
saying that welfare of the child is paramount consideration. Welfare
includes both physical and moral well-being
In appointing a guardian, the court takes into consideration various
factors, including the age, sex, wishes of the parents and the personal
law of the child. The welfare of the children is of paramount
consideration. (Lalta Prasadv Ganga Sahay, AIR 1973, Raj 93).
Q.34. Who can be next friend for institution of suit on behalf of minor?
Ans. The following person can be appointed as a next friend for institution
of suit on behalf of minor:
• Any person who is of sound mind and has attained majority
may act as next friend of a minor or as his guardian for the suit:
Provided that the interest of such person is not adverse to that
of the minor and that he is not, in the case of a next friend, a
defendant, or, in the case of a guardian for the suit, a plaintiff.
• Where a minor has a guardian appointed or declared by
competent authority, no person other than such guardian shall
act as the next friend of the minor or be appointed his guardian
for the suit unless the Court considers, for reasons recorded,
that it is for the minor’s welfare that another person be permitted
to act or be appointed, as the case may be.
• No person shall without his consent in writing be appointed
guardian for the suit.
• Where there is no other person fit and willing to act as guardian
for the suit, the Court may appoint any of its officers to be such
guardian, and may direct that the costs to be incurred by such
officer in the performance of his duties as such guardian shall
be borne either by the parties or by any one or more of the
parties to the suit, or out of any fund in Court in which the minor
is interested or out of the property of the minor and may give
directions for the repayment or allowance of such costs as justice
and the circumstances of the case may require.
In a recent case, namely, Nagaiah v. Chowdamma, (2018) 2 SCC 504,
the Supreme Court held that It is by now well settled and as per the
provisions of Order 32 of the Code that any person who is of sound
mind, who has attained majority, who can represent and protect the
interest of the minor, who is a resident of India and whose interest is
not adverse to that of the minor, may represent the minor as his next
friend. Such person who is representing the minor plaintiff as a next
friend shall not be party to the same suit as defendant. Rules 6 and 7
of Order 32 of the Code specifically provide that the next friend or
guardian in the suit shall not without the leave of the court receive
any money or immovable property and shall not without the leave of
the court enter into any agreement or compromise. The rights and
restrictions of the natural guardian provided under the Hindu
Guardianship Act do not conflict with the procedure for filing a suit
by a next friend on behalf of the minor. Not only is there no express
prohibition, but a reading of Order 32 of the Code would go to show
that wherever the legislature thought it proper to restrict the right of
the next friend, it has expressly provided for it in Rules 6 and 7 of
Order 32 of the Code. Rule 9 of Order 32, apart from other factors,
clarifies that where a next friend is not a guardian appointed or
declared by the authority competent in this behalf and an application
is made by the guardian so appointed or declared who desires to be
himself appointed in the place of the next friend, the court shall
remove the next friend unless it considers, for reasons to be recorded,
that the guardian ought not to be appointed as the next friend of the
minor.
Q. 35. What is meant by Re- Union?
Ans. Reunion is the process of restoration of the Joint status of a family
after its partition is affected. In other words, reunion is the situation
where a family once joint, and later partitioned, then decides to
regain the status of a joint family and affects the reunion to the same
affect. Reunion is possible even after a complete partition among
Hindu families under Hindu family law. In the case of Bhagwan Dayal
v. Reoti Devi, (4 September, 1961). The Supreme Court held that, if
there is a separation of a joint Hindu Family, then the family or any of
its members can agree to reunite as Joint Hindu Family, although the
reunification can only take place for general reasons which would
apply in most general cases under the Mitakshara school of Hindu
Law.
Following are the conditions for the parties to reunite:
a. A partition is an essential condition for a reunion- No reunion
can take place if there was no partition in the first place.
b. 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.
c. 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.
d. 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.
e. The reunion must be of effect only by the parties, who had been
a part of the partition.
f. There must be a property involved in the case of the reunion; as
reunion does not merely mean living together as tenants.
g. 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.
h. 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.
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.
Q. 36. Explain the Rule of Damdupat.
Ans. According to this rule, the amount of interest which can be recovered
at any one time cannot exceed the principal amount. In other words,
this rule prohibits the recovery, at any one time, of interest in excess
of the principal amount of the loan.
Thus, A, a Hindu, lends Rs. 1,000 to Â (another Hindu), at 24 percent
interest per annum. A allows the interest to run into arrears until it
amounts to Rs. 1,500. If A sues Â to recover Rs. 2,500 (presuming that
the suit is not time-barred under the Limitation Act), A will not be
entitled to recover more than Rs. 2,000, i.e., Rs. 1,000 for the principal
amount and Rs. 1,000 by way of interest. It will be seen that, in this
case, the interest exceeds the principal amount, and hence, the rule
of Damdupat comes into play.
If, however, in the above example, Â has paid Rs. 700 to A by way of
interest, and A sues to recover Rs. 1,800, i.e., Rs. 1,000 for the principal
amount and Rs. 800 by way of interest, he will succeed in his claim.
The reason for this is that all that the rule of Damdupat lays down is
that A is not entitled, at any one time, to recover interest exceeding
Rs. 1,000. The rule does not provide that, in any case, A would not be
entitled to interest exceeding Rs. 1,000.
The rule applies not only to unsecured loans, but also to loans secured
by a pledge of movable property or by a mortgage of immovable
property. Although the Madras High Court has held that the rule of
Damdupat does not apply to mortgages executed after the Transfer of
Property Act, 1882, came into force, a contrary view has been
expressed by the High Courts of Bombay, Calcutta and Nagpur.
Q.1 Who is Hindu? What Categories of Person there to whom Hindu Law
Applies?
Or
Define Hindu and State the Various Categories of Persons to whom
the Hindu Law Applies?
Or
State the Categories of persons to whom Hindu Law Applies. Explain
whether the members of any schedule tribe coming within the clause
(25) of Article 366 of the Constitution are governed by the codified
Hindu Law.
Ans. The term Hindu has not been defined till this date there is no precise
definition of Hindu available in any statue or in any judicial
pronouncement.
It is very significant that the term Hindu even before the codification
of some branches of Hindu Law in 1955-56 had not been defined
strictly in terms of religion. Before 1955 a person who was a Hindu
by religion was certainly a Hindu but converse was not true. There
were many persons who could hardly called as Hindu still Hindu law
applied to them and since Hindu law applied to them, they were
called Hindu. Today the term Hindu has no territorial significance
nor it is a designation of nationality.
Hindu are the person to whom Hindu Law applies. The person to
whom Hindu Laws applies may be put in the following three categories:
a. Any person who is Hindu, Jain, Sikh or Buddhist by religion i.e.
Hindu by religion;
b. Any person who is born of Hindu Parents (i.e., when both the
parents or either of the parents are is a Hindu, Jain, Sikh or
Buddhist by religion) i.e., Hindu by Birth
c. Any person who is not a Muslim, Christian, Parsi or Jew and
who is not governed by any other law.
(a) Hindu by Religion: There are two types of person’s falls under this
category:
I. Those who are originally Hindus, Jains, Sikhs or Buddhist by religion:
The Supreme Court of India in the landmark case of Shastri vs Muldas
(1966 SC 1119) 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
II. Those who converts or reconverts to Hindu, Jain, Sikh or Buddhist
religion: Under the codified Hindu law, any person if converted to
Hinduism, Buddhism, Jainism or Sikhism can be called as a Hindu.
In Perumal v Ponnuswami (AIR 2352 1971 SCR (1) 49) case, Perumal
was the father of Ponnuswami who got married to an Indian Christian.
In the future due to certain differences, they were living separately. In
the future, the mother of Ponnuswami 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 Ponnuswami would get a share.
 Condition for the conversion into Hindu:
• 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.
(b) Hindu by Birth: Following persons are deemed to be Hindus by birth:
i. When both the parents are Hindu: Children born of Hindu parents are
Hindus. Such a child may be legitimate or illegitimate. It is also
immaterial that such a child does or does not profess, practice or
has faith in the religion of its parents.
ii. When one Parent is Hindu: When one of the parents of a child is
Hindu and he is brought up as a member of Hindu family, he is a
Hindu. It is clear by the explanation (b) of Section 2(1) of Hindu
Marriage Act, 1955 that child’s religion is not necessarily that of the
father. F or instance a child is born of Hindu mother and Muslim
father. The child is brought up as a Hindu. Subsequently, mother
converts to Islam. Nonetheless the child is Hindu. In Ram Prasad v.
Dahin Bibi, (AIR1924 Pat. 420) is a good example on the point.
(c) Persons who are not Muslims, Christians, Parsis or Jews: The codified
Hindu law lays down that a person who is not a Muslim, Christian,
Parsi or Jew is governed by Hindu law, unless it is proved that Hindu
law is not applicable to such a person. Those persons who are atheists
or who believe in all faiths or in conglomeration of faiths may fall
under this class. Under the codified Hindu law such persons will be
Hindus for the purpose of the application of Hindu law.
Application of Hindu law to the members of Schedule Tribe within
the meaning of clause (25) of Article 366 of the constitution of India:
The codified Hindu Law lays down the provision that it does not
apply to the members of Schedule Tribe within the meaning of clause
(25) of Article 366 of the constitution of India unless the central
government notifies in the official Gazette.
Q.2 Explain the different Sources of Hindu Law. State how far custom has
retained its importance as source of Hindu Law under the Codified
law.
Or
What is the various source of Hindu Law? To what extent custom still
continuous to be an important source of Hindu Law? Illustrate your
Ans.
Or
Under the Hindu system of law “Clear proof of usage will outweigh
the written text of law.’’ Comment and State whether Custom is still
a source of modern Hindu Law.
Ans. : Hindu system of law has the most ancient pedigree of the known
systems of law; it is about 6000 years old and has passed through
various phases. Originally, the sources came to sub-serve the needs
of pastoral people and now it has come to sub-serve the needs of
modern welfare society. It would be convenient to classify the various
sources under the following two heads:
(1) Ancient Sources:
a. Shruti
b. Smriti
c. Digests and Commentaries
d. Custom
(2) Modern Sources:
a. Judicial Decisions
b. Legislation
c. Equity, Justice and Good Conscience
(1) Ancient Sources:
A. Shruti: Shruti, literally, means that which was heard, this word has
taken from the word ‘Sru’ i.e., to hear. Manu has defined Shruti as
follows- “By Shruti or what was heard from above (from God) is
meant the Veda”. Shruti or Vedas are believed to contain the very
words of Deity (God). It is the paramount and primary sources of
Hindu Law. They are supposed to be the divine utterances to be found
in the four Vedas, the six vedangas and the eighteen Upanishads.
They are mostly religious in character and the means of attaining
true knowledge and Moksha or Salvation. Four Vedas are - (i) Rigveda
(praise of forces of nature), (ii) Yajurveda (Rituals etc.), (iii) Samveda
(Prayers), (iv) Atharvaveda (Magic, spell and incarnation).
Six vedangas are –
I. The Siksha or orthography
II. The Kalpa or treatises dealing with rituals
III. The Vyakaran or Grammar
IV. The Chandas or prosody
V. The Jyotish or Astronomy
VI. Nirukta or Lexicon.
B. Smrities: They are utterances and precepts of the Almighty, which
have been heard and remembered and handed down by the Rishis
(sages) from generation to generation. The smrities are divided into
Primary and Secondary Smrities contained in Dharma Sutra (Prose)
and Dharmashastras (Poetry). Gautama, Baudhyana, Apastamba,
Harita, Vasistha and Vishnu are the chief Dharma Sutra writers and
Manu, Yajnyavalkya, Brihaspati and Narada belong to
Dharamashastra. The exact number of smrities is not definitely known,
but Manu Smriti is the earliest one.
Although Smrities deal with rules of morality and religion, they are
more secular than the Shruties.
C. Commentaries and Digests: After the Smrities, the next step in the
development of Hindu Law was the composition of a number of
commentaries (tika) and Digests (Nibandha) based upon the Smrities.
The commentaries are to interpret the law as laid down in the Smrities.
The writing of a particular Smriti is called commentary while the
writing on different smrities is called Digests. There are a number of
commentaries but the main are:
I. Dayabhaga by Jimutavahana
II. Mitakshara by VUnamshwara
III. Nanda Pandit on the Vishnu Dharmasutra is called the Vauayanti.
The commentaries are now considered to be more authoritative than
the original texts themselves.
D. Custom: When human beings came to live in groups, it was but natural
that they should, for harmonious group life, conform to certain
patterns of human behaviour. In course of time, a pattern of behaviour
emerged and is called usage or custom. There are three types of
custom namely:
I. Local Custom: Such customs belong to some particular locality, State
or District and they are binding on the inhabitants of such place.
II. Class Custom: These customs are of a caste or a sect of the community
or of the followers of a particular profession or occupation, such as
agriculture, trade, mechanical art and the like.
III. Family Custom: These customs relate to a particular family.
Essentials of Customs:
i. It should be certain
ii. Reasonable
iii. It should not be immoral
iv. Reasonable
v. Must not be opposed to public policy
vi. It must not be forbidden by any express enactment of the
legislature.
The following are examples of customs, which the courts have refused
to recognise –
a. A caste custom, authorizing a wife to abandon her husband, and
marry again without his consent.
b. A custom permitting a husband to dissolve his marriage without
the consent of the wife by paying a fixed sum of money.
c. A custom in South India, according to which a man could marry
his daughter’s daughter.
In Deivanai Achi v. Chidambaram ((1954) Mad 667)case it was held
that in order to become legally sanctioned by law and binding on the
people a custom must be continuous in practice, it should not be
vague and ambiguous and should not oppose the well-established
public policy. A customary rule must be in the complete observation
of society.
In Laxmi v. Bhagwantbuva (AIR 2013 SC 1204) case, the supreme court
stated that a custom becomes legally enforceable when the majority
of people make the continuous use of such practice.
Onus of Proof:Generally, when a custom attains judicial recognition
no further proof is required, however in certain cases where the
customary practices do not attain the judicial recognition, the burden
of proving lies on the person who alleges its existence.
In Munna Lal v. Raj Kumar (AIR 1972 SC 1493)case the supreme court
stated that a custom brought before a court several times, the court
might hold that such custom has been enforced by the law with the
necessity of its proof
(2) Modern Sources:
a. Judicial Decisions: During British regime in this country Hindu law
was administered by British judges with the help of Hindu Pandits
because they interpreted the Sanskrit texts for them to apply them to
the dispute and to arrive at a decision. So the decision of the higher
courts becomes a law for the lower courts. The latest instance of it is
the Supreme Court decision in Lohar Amrit v. Doshi Jayantilal (1960),
on son’s pious obligation to pay father’s debts, where Gajindragadkar,
C.J. following certain dictas of the Privy Council held that the debt
should be tainted to the knowledge of the creditor. Today the doctrine
of Stare decisis is part of Indian Law. Supreme Court’s decisions are
binding on all courts, though Supreme Court is not bound by its own
decisions. The decisions of State High Courts are binding on all
subordinate courts of their respective states though decisions of the
one High Court are not binding on other High Courts.
b. Legislation: Legislation is the modern source of Hindu law and has a
colossal importance, in the evolution and development of Hindu law.
The Hindu law has been reformed and modified by the legislature
through various enactments in this regard. The British government
itself passed certain acts with a view to bring some reforms in certain
aspects of law. In post-independence era legislation of far-reaching
effects has revolutionized the law. Before the independence important
legislations passed were: -
1. The caste Disabilities Removal Act, 1850
2. The Hindu Widow’s Remarriage Act, 1856.
3. Inheritance (Removal of Disabilities) Act, 1928.
4. The Indian Succession Act, 1925.
5. The Child Marriage Restraint Act, 1928.The Hindu Women’s Right
to Property Act, 1937.
(c) Equity, Justice and Good Conscience: In the absence of any specific
law in the Smriti, or in the event of a conflict between the Smritis, the
principles of justice, equity and good conscience would be applied.
In other words, what would be most fair and equitable in the opinion
of the Judge would be done in a particular case. The Supreme Court
has observed in Gurunath v. Kamlabai (1955 SCR (1)1135)in the
absence of any clear Shastric text, the courts have the authority to
decide cases on principles of equity, justice and good conscience.
After independence following enactments of far-reaching importance
have been passed: -
1. The Hindu Married Women’s Right to Separate Residence and
Maintenance Act, 1949-The Act permitted a Hindu wife to reside
separately and to get maintenance from the husband in certain cases.
2. The Special Marriage Act, 1954. -It validated marriage between two
persons who belonged to two different religions.
3. The Hindu Marriage Act, 1955- The Act has completely overhauled the
law relating to marriage between Hindus including Jain, Sikh and
Buddhist.
4. The Hindu Minority and Guardianship Act, 1956 -lt supplemented the
existing law in the matter.
5. The Hindu Succession Act, 1956 - It introduced some remarkable
changes in the law of succession. It provided for the equal rights of
inheritance to Hindu females and granted absolute rights to them
with respect to a property acquired by them through any lawful means.
6. The Hindu Adoption and Maintenance Act, 1956 - It considerably
changed the old law of adoption and maintenance and conferred the
right on the Hindu female to adopt a child.
7. Marriage Laws (Amendment) Act, 1976 - It was meant to bring about
some changes in the Act of 1955. It introduced divorce by mutual
consent, common grounds for judicial separation and divorce and
also relaxation in the rigorous process of obtaining divorce.
8. The Child Marriage Restraint (Amendment) Act, 1978 - The Act
provides the eligibility as to the age of a male and female (21 years
and 18 years respectively) at the time of marriage.
Q.3 Discuss the main principles on which Mitakshara and Dayabhaga Schools
of Hindu Law differ from each other.
Or
What are the various Schools of Hindu Law? Differentiate Between
Mitakshara and Dayabhaga Schools
Ans. Schools of Hindu Law emerged with the emergence of the era of
commentaries and Digests. The commentator put his own glass on
the ancient texts, his authority having been received in one and
rejected in another part of India. Originally Hindu Law was applied
to the whole of India but subsequently it was divided into two main
schools and some sub-schools –
1. Mitakshara
2. Dayabhaga
1. Mitakshara School: The Mitakshara School (literally means ‘a concise

work’) is a running commentary on the code of Yajnavalkya, written
by VUnaneshwar (11th Century) and prevails in all parts of India as
a Supreme authority except in Assam and Bengal. But in some matters
Mitakshara prevails even in Assam and Bengal as authority on all
Q.s in respect of which Daya baga is silent. The Mitakshara is not
merely a running commentary on the Yajnavalkya Smriti but it is also
a digest of practically all the leading Smritis, and deals with all titles
of Hindu Law. It may also be noted that the Mitakshara is the orthodox
school. The Mitakshara School is divided into five sub-schools
prevailing in different parts of India. These different schools have
the same fundamental principles and acknowledge the supreme
authority of the Mitakshara, but differ in matters of details, especially
in the matters of adoption and inheritance. These five sub-schools
are namely –
a. The Benaras School: Excepting in Mithila and the Punjab, this
school prevails in the whole of Orissa. The main commentaries
or authorities of this school are - Viramitrodaya, Nirnayasindhu,
Dattaka Mimansa, Vivada Tandava, Subodhini and Balam-
Bhatti.
b. Mithila School: This school prevails in Tirhoot and North Bihar.
The traditional boundaries of Mithila are in the North, the Nepal
Border, in the South, the Ganges, in the east the river Koshi, and
in the west, the river Gandak. The main authorities areVivada
Ratnakar, Vivada Chintamani, Smriti Sara or Smrityarthasara
and Madana Paruata.
c. Bombay or Maharashtra School: This school prevails in almost
whole of the State of Bombay including Gujarat, Karana and the
parts where the Marathi language is spoken as the local
language. The main commentaries are- Vyavhara Mayukha,
Viramitrodaya, Nirnaya Sindhu, and Vivada Tandava.
d. Dravida or Madras School: This school prevails in Southern India
especially in Chennai State. The main authorities are - Smriti
Chandrika, Parasara Madhaviya, Saraswati Vilasa and
Vauayanti.
e. Punjab School: This school prevails in East Punjab and is chiefly
governed by customs. The main authorities are- Viramitrodaya
and Punjab customs.
2. Dayabhaga School: The Dayabaga School which is followed mainly in
Bengal, is not a commentary on any particular code, but is a digest of
all the codes and written by Jimutavahana in 12th Century. The
Dayabhaga is digest on leading Smritis and deals only with partition
and inheritance. The Dayabaga or the Bengal school as it is
sometimes called is the reformist school of Hindu Law. This school is
considered to be a dissident school of the old Benaras School and
this school propagated enlightened doctrines and theories. The
Dayabaga School is not divided into any sub-schools. The authorities
of this school are - Dayabaga, Dayatatva, Daya-sangraha,
Viramitrodaya and Dattaka Chandrika.
 Differences between the Mitakshara and the Dayabaga Schools: These
two schools of law differ in two main matters –
1. In some matters connected with the joint family system, and
2. In the rules of inheritance.
In the Mitakshara system, the right in the family property is acquired
by birth; a family is a unit and individual rights are not recognized
and females have no rights of succession to family property. This
right passes to the male members by survivorship. In Dayabhaga
system, the property is acquired by inheritance or by will. The share
of a deceased coparcener goes to his widow where there is no nearer
heir.
The fundamental points of difference between the Mitakshara and
Dayabhaga Schools of law may be summarized as follows -
Parameters of
Comparison Dayabhaga Mitakshara
The Dayabhaga system considers

Joint family both the male and the female of Mitakshara school considers only the male
system the family. members of the family under the joint family.
In Dayabhaga, children have no

right over property by birth and In the Mitakshara system, the son, grandson
Right to arise only after the death of their and great-grandson acquire the right to
property fathers. property by birth.
The Dayabhaga system considers

a physical separation of the
property and giving partitions of
property to their respective Mitakshara system does partition of property
Partition owners. only interns of shares.
Spindaship
The relationship of Sapinda Under the Dayabhaga it arises utilizing Pinda
arises according to Mitakshara offerings to deceased ancestors. The spiritual
by propinquity or community of benefit is the criterion for heirship under the
blood. Dayabhaga while consanguinity (blood
relationship) is the guiding principle under the
Mitakshara
Gives the right to stridhan to

Women have no rights and can’t demand
Rights of women and also the equal right
partition.
woman in husbands’ property.
Q.4 Discuss the essentials of a valid Hindu Marriage under the Hindu
Marriage Act, 1955.
Or
What is the nature of Hindu Marriage? What is the essential Condition
of a Valid Hindu Marriage? State.
Ans. Nature of Hindu Marriage - Sacrament or a Contract: Institution of
marriage has a paramount status in the social life of Hindus. It is one
of the oldest institutions. According to Raghunandan acceptance ‘the
of bride as his wife by the bridegroom in a gift by her parents is
defined as marriage. By marriage man and woman are united into
wedlock. A Hindu marriage is looked upon as something which is
more of a religious necessity and less of a physical luxury.” The
purpose of marriage is generally to give birth to the successor of the
family.
There are three characteristics of the sacramental nature of marriage:
• It is an enduring bond of the husband and wife which is
permanent and tired even after death and they will remain
together after the death.
• Once it is tied cannot be untied.
• It is a religious and holy union of the bride and groom which is
necessary to be performed by religious ceremonies and rites.
Hindu marriage is considered as one of the most important
sacraments. In ancient times, there was no need for the girls’ consent.
Fathers have to decide the boy without asking for her advice or
consent. It is the sole duty of the father to find a suitable boy. If the
person was of unsound mind or minor at the time of the marriage, it
was not considered as a void marriage. But in the present world,
consent and mental soundness of the person are a very essential
part of the Hindu Marriage, without the absence of any such element
marriage will be annulled or void or no legal entity.Section 12 of the
Hindu Marriage Act 1955 lays down that when one’s consent is not
obtained, the marriage is considered void. It shows that despite the
absence of consent of the bride, the marriage is valid and legal.
The nature of modern marriage is contractual. Thus, it accepts the
idea of equality and liberty. It has been adopted due to western Ideas.
There must be an agreement of voluntarily entering into it by both
parties.
Thus, the Hindu marriage is not a contract and neither is it a
sacrament. But it can be said it is a semblance of both. Similar
observations are to be found in several cases as follows:
1. In Purshottamdas v Purshottamdas (1946) 48 BOMLR 141) case
Court observed that Marriage of Hindu children is a contract
made by their parents.
2. In Bhagwati Saran Singh v Parmeshwari Nandar Singh ((1942)
ALL. 618) case, the Court expressed the view that a Hindu Marriage
is not only a sacrament, but also a contract.
3. In Muthusami vMasilama (5 Ind Cas 42) case, A marriage,
whatever else it is, i.e., a sacrament and institution, is
undoubtedly a contract entered into for consideration, with co-
relative rights and duties.
4. In Anjona Dasi v Ghose (6 Bengal Reporter, 243) case, the suits
relating to marriage deal with that which in the eye of the law
must be treated as a civil contract, and important civil rights
arise out of that contract.
On the basis of above mentioned and other cases, it can safely be
concluded that under the ancient, uncodified Hindu Law, a Hindu
marriage was not only a sacrament, but also a contract. In the present
Hindu Marriage Act, since now a provision has been made for a
divorce by mutual consent, it also indicates that marriage is a contract
dissoluble by mutual consent.
Conditions of a Valid Marriage under the Act: There are five conditions
of marriage enshrined under Section 5 of the Hindu Marriage Act, in
absence of which the marriage will not be deemed to be a valid
marriage. According to Section 5 a marriage may be solemnized
between any two Hindus, if the following conditions are fulfilled,
namely: -
1. Neither party has a spouse living at the time of the marriage;
2. At the time of the marriage, neither partya) is incapable of giving
a valid consent to it in consequence of unsoundness of mind; or
b) though capable of giving a valid consent has been suffering
from mental disorder of such a kind or to such an extent as to be
unfit for marriage and the procreation of children; or c) has
been subject to re-current attacks of insanity or epilepsy;
3. The bridegroom has completed the age of 21 years and the bride
the age of 18 years at the time of the marriage;
4. the parties are not within the degrees of prohibited relationship,
unless the custom or usage governing each of them permits of
marriage between the two;
5. the parties are not sapindas of each other, unless the custom of
usage governing each of them permits of a marriage between
the two.
If marriage contravenes anyone of the conditions under clause (i),
(iv) and (v), the marriage is null and void while contravention of the
condition under clause (ii) renders marriage voidable. The Act does
not provide for the situation where clause (iii) is violated. However, it
has been held that violation of the condition under clause (iii) does
not render a marriage either void or voidable.
i. Neither party has a spouse living at the time of marriage: Section 5(i)
recognizes the principle of monogamy and prohibits bigamy. Section
11 makes a bigamous marriage void and Section 17 makes it a penal
offence for both Hindu males and females under Section 494 and 495
of Indian Penal Code.
In Sambireddy v. Jayamma (AIR 1972 A.P) it was held that Section 5
read with Section 17 rendering a bigamous marriage void is not ultra
vires the Constitution on the ground that it contravenes Article 14, 15
or 25(1).
In Smt. Yamuna Bai Anand Rao Adhav v. Anant Rao Shiva Ram Adhava
((1988) 1 SCC 530), the Supreme Court held that in the event of breach
of first condition specified in Section 5 (1) the marriage is rendered
null and void under Section 11 (1) of the Act and since it is void ab
initio, the wife cannot claim maintenance under Section 125 of the
Code of Criminal Procedure. The offence of bigamy would be
constituted only when at the time of the performance of subsequent
marriage the spouse of such party to marriage was alive and that
marriage was not void or invalid. But in every case the offence would
be punishable if the essential requirements of law and religion had
not queen duly fulfilled and performed. This was confirmed by the
Supreme Court in Shanti Deo Verma v. Kanchan Prasad (AIR, 1991, S.C.
816).
ii. Lunacy: Clause (ii) of Section 5 was substituted by the Marriage Laws
Amendment Act, 1976. According to this clause one of the conditions
for a Hindu marriage is that neither party must be suffering from
unsoundness of mind, mental disorder, insanity or epilepsy at the
time of marriage. Section 12(1)(b) renders at the instance of aggrieved
party, the marriage voidable. The Madhya Pradesh High Court in Smt.
Alka Sharma v. Avinash Chandra (AIR 1991 MP 205) has laid down
that the word ‘and’ between expression unfit for marriage and
procreation of children in Section 5(2)(b) should be read as ‘and’,
‘or’. The court can nullify the marriage if either condition or both
conditions contemplated exist due to mental disorder making the
living together of parties highly unhappy. It was also held in this case
that the word “procreation” implies within it not only capacity to
give birth to children but also to look after them as well as so as to
bring them up. From the use of the expression “has been suffering”
under clause (c) it is clear that it is not necessary that a person
should be insane or suffering from epilepsy at the time of marriage.
It is sufficient if he or she had been subject to recurrent attacks of
insanity or epilepsy.
iii. Age of the Parties: Clause (iii) as amended by the Child Marriage
Restraint (Amendment) Act, 1978 prescribes the age of the bridegroom
and bride as 21 years and 18 years respectively to have capacity for
solemnizing a Hindu Marriage. But the marriage in contravention of
the age limits can neither be void nor voidable, though it is punishable
under Section 18. The Supreme Court also observed in Lila Gupta v.
Lakshminarayan (1978 S. C. 1351 at 1358), that a reference to the
Child Marriage Restraint Act would show that it was enacted to carry
forward the reformist movement of prohibiting child marriages and
while it made a marriage in contravention of the provisions of that
Act punishable, it did not render the marriage void.
iv. Prohibition as to prohibited Degrees of Relationship and Sapindas:
Clause (iv) lays down the condition that the parties to a Hindu
Marriage should not be within the degrees of prohibited relationship
unless the custom or usage governing each of them permits of a
marriage between the two, whereas under clause (v) the parties should
not be sapindas of each other. The expressions ‘degrees of prohibited
relationship’ and “sapinda relationship” are to be interpreted
according to the definitions given in sub clause (f) and (g) of section
3 of the Act.
Wherever, a custom is relied upon to validate a marriage, it must be
valid custom as defined in section 3(a) of the Act. Proving one instance
where marriage took place in contravention of either of these clauses
is not sufficient to prove custom.
Q.5 Describe the various grounds of Voidable Marriage.
Or
Distinguish Between Void and Voidable Marriage.
Or
What is meant by Void and Voidable Marriage?
Ans. Void Marriages (Section 11 of Hindu Marriage Act):A marriage is
considered void under the Hindu Marriage Act if it doesn’t fulfil the
following conditions of Section 5 of the Hindu Marriage Act:
a) 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.
b) Prohibited Degree: If the parties are within a prohibited
relationship unless the customs allow 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.
c) 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 Consequences of a Void Marriage.
In Yamunabai Anantrao Adhav Vs. Anantrao Shivram Adhav (A.I.R
1988 SC 644): In this Case, It was held that a marriage which is
in contravention of section 11 of Hindu Marriage Act, 1955 Shall
be treated as null and Void from the of its inception.
The consequences of void marriage are:
• The parties don’t have the position of husband and wife in a
void marriage.
• Children are called legitimate in a void marriage (Section 16 of
Hindu Marriage Act, 1955).
• Mutual rights and obligations are not present in a void marriage.
Voidable Marriages (Section 12 of Hindu Marriage Act): 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:
a) 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
is a ground of voidable marriage.
b) 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.
c) 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.
d) 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.
e) 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.
f) 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.
Impotency [Section 12(1)(a)]: Section 12(1) (a) can be dissected as under:
a. That the marriage has not been consummated; and
b. That the non-consummation is due to the impotence of the
respondent.
Consummation of marriages means full and normal sexual
intercourse between married people. A marriage is consummated by
sexual intercourse. It consists in the penetration by the male genital
organ into the female genital organ. Full and complete penetration is
an essential ingredient of ordinary and complete intercourse. Partial,
imperfect or transient intercourse of not Consummation. The degree
of sexual satisfaction obtained by the parties is irrelevant.
Consummation may be proved by medical evidence.
Regarding impotency, the various principles laid down by the courts
could be summarised as follows:
• Full and complete penetration is an essential ingredient of
ordinary and complete intercourse, though degree of sexual
satisfaction obtained by the parties is irrelevant. If one spouse
is oversexed and the other is not, it does not amount to
impotency.
• Impotency is usually either (a) physical, or (b) mental. Physical
impotency includes malformation of, or structural defects in
the organs, such as unduly large male organ or abnormally
small vagina.
• Mental or psychological impotency includes emotional,
psychological or moral repugnance or aversion to the sexual
act. In Shantabai v. Tara Chand(AIR 1966 MP 8)
• the wife was alleged to have an absolute repugnance towards
sexual intercourse although she had normal sexual organs. Held
that it amounts to impotency. Where immediately after marriage
the husband lived for three nights and days in the same room
with his wife and failed to consummate the marriage, it was a
fair inference that non consummation was due to husband knows
refusal arising out of incapacity, nervousness or hysteria. In
Nijhawan v. Nijhawana (AIR 1973 Delhi 200), liberal
interpretation of the word ‘impotence’ was made by the court. In
that case, the wife felt depressed and frustrated owing to the
failure of husband to perform full and complete sexual
intercourse. Held that vigorous and harmonious sexual activity
is the foundation of marriage and a marriage without sex is
anathema. The court considered the husband’s impotency to be
a cause of mental and physical cruelty to the wife.
• If impotency can be cured by medical treatment or surgery, it
would not amount to impotency, unless the respondent refuses
to undergo treatment. In Rajendra v. Shanti,(2 May, 1977) where
the size of wife’s vagina was after surgical operation one and
half inch, but was fit for intercourse, the court said that wife
was not impotent
• Mere barrenness or incapacity to conceive a child or sterility
does not amount to impotency. In Shewanti v. Bhaura(AIR 1971
MP 168), the wife was sterile but was capable of having sexual
intercourse held that she was not impotent.
Consent obtained by force or fraud [Section 12(1)(c)]: For marriage
the consent of the parties concerned must be free. This is not because
marriage is a contract but because the sweetness and success of a
married life depends upon harmony between both the parties. If the
consent to marriage is not free, this harmony is a remote possibility.
That is why it is quite just and reasonable that a party whose consent
is not free should be permitted to come out of the wedlock. Section
12(1) (c) allows this. It makes the marriage voidable where consent
to it was obtained by force or fraud. Section 12 (1) (c) provides that a
marriage is voidable on the ground that the consent of the petitioner
or of the guardian has been obtained by force or fraud. After the Child
Marriage Restraint Act the consent of guardian has become irrelevant
as the minimum marriageable age was set 21 years and 18 years for
bridegrooms and bride.
Provided no petition for annulling a marriage:
i) If the petition presented more than one year after the force had
ceased to operate or, as the case may be, the fraud had been
discovered [Section 12(2)(a)(i)]; or
ii) The petitioners have, with his or her full consent, lived with the
other party to the marriage as husband or wife after the force
had ceased to operate or as the case may be the fraud had been
discovered [Section 12(2)(a)(ii)].
Pre-marriage Pregnancy [Section 12(1)(d)]: Section 12(1) (d) provides
that a marriage is voidable on the ground that the respondent was at
the time of the marriage pregnant by some person other than the
petitioner. Section 12(1)(d) is to be read with Section 12(2)(b) which
lays down three further conditions which are to be satisfied in order
to avail of the remedy under Section 12(1)(d). These are:
i) That at the time of the marriage the petitioner was ignorant of
the facts alleged;
ii) That the petitioner has started proceedings under Section 12
within one year of the marriage; and
iii) That the petitioner did not have, with his consent, marital
intercourse with his wife ever since he discovered that the wife
was pregnant by some other person.
In Nishit v. Anjali (AIR 1968 Cal 105) where a bride gave birth to a
mature child within 167 days from the date of marriage, it was held
that it was for the wife to raise a reasonable doubt that she was
pregnant by the person who became her husband
Necessary conditions to be fulfilled by a petition under Section 12 for
nullity of a Voidable Marriage:
i) On the plea of fraud or application of force on marriage, a
petition can be filed before the court within one year of discovery
of such fraud or application of force.
ii) The allegation based upon which the petition is filed was beyond
the knowledge of the petitioner at the time of solemnization of
marriage.
iii) The petition on such an allegation must be presented in the
court within one year of knowledge of such facts.
iv) No sexual relationship is established after knowing about
alleged facts will be treated as void.
Difference between Void and Voidable Marriage:
Void Marriage Voidable Marriage
A wife does not have the right to A wif e has the right to claim maintenance in the voidable
claim maintenance in the void marriage.
marriage.
In a void marriage, the parties do not Husband and wife have the status in the voidable
have the status of husband and wife. marriage.
In a void marriage, no decree of In a voidable marriage decree of nullity is required.

nullity is required.
A void marriage is none in the eyes A void marriage is to be declared void by a competent
of law. court.
The children in a void marriage are The children in a voidable marriage are treated as
treated as legitimate. illegitimate but this distinction is deleted by the Supreme
Court and said a child cannot be said termed as
illegitimate.
Q.6 Discuss the remedy of restitution of conjugal rights under the Hindu
Marriage Act, 1955. Is the remedy Constitutionally Valid?
Or
What is the matrimonial remedy of restitution of Conjugal rights?
Discuss its Constitutional Validity.
Ans. Marriage as an institution gives rise to a relationship between two
partners: The Husband and the wife, which further gives rise to more
relations. This relationship also gives birth to different sets rights
and obligations. These rights and obligations cumulatively constitute’
Conjugal rights’ and can be termed as essence of the marital union.
The term ‘Conjugal Rights’ in literal sense means ‘Right to stay
together’
Section 9 of Hindu Marriage Act talks about the Restitution of Conjugal
Rights, “When either the husband or the wife has, without reasonable
excuse, withdrawn from the society of the other, the aggrieved party
may apply, by petition to the district court, for restitution of conjugal
rights and the court, on being satisfied of the truth of the statements
made in such petition and that there is no legal ground why the
application should not be granted, may decree restitution of conjugal
rights accordingly”.
When a spouse is guilty of staying away without any reasonable or a
just cause and if the suit of restitution of conjugal rights succeeds
than the couple would be required to stay together. Thus, it can also
be inferred that section 9 is the marriage saving clause or section.
This remedy was earlier applied in England and later on implemented
by the privy council in India, for the first time in a case
namely Moonshee Bazloor v. Shamsoonaissa Begum(Privy Council (Jul
4, 1867) However, this matrimonial remedy of restitution of conjugal
rights has been removed in England way back in 1970.
According to various judicial precedents, the petitioner can file the
plea of restitution of conjugal right under section 9 of this act, if there
is a presence of these essential conditions:
• Spouse is not cohabitating: First essential condition required
for the decree of Restitution of Conjugal Rights is intentionally
the spouse is not cohabitating but if any party or spouse has to
live separately from the matrimonial house or has to remain
out from the matrimonial house due to some circumstances in
that case it would not amount to intentionally devoiding from
cohabitation. Same judgment was held in case Mirchu V Devi
(AIR 1977 Raj. 113) that Decree of restitution of conjugal rights
would be granted in a case where the spouse has intentionally
devoid applicant from cohabitating.
• No rational purpose stated by the spouse for the separation
• No legitimate ground on which order of restitution of conjugal
rights cannot be granted.
In Sushila Bai v. Prem Narayan, (AIR 1986 MP 225) the court passed
the order of restitution as per the requirements stated above. In this
case, the court also mentioned some Circumstances in which the
respondent can take his/her guard in the plea filed by the petitioner:
• Another party against whom the suit was filed can claim conjugal
relief against the petitioner.
• The respondent can prove that the petitioner is at fault i.e., party
can prove the rational purpose of his/her separation.
• As a result of some acts or omissions, it is unfeasible for the
respondent to cohabitate with the petitioner.
Reasonable Cause for withdrawing from society: In Smt. Sumanbai vs
Anandrao Onkar Panpatil, 1976 case the court held that there can be
no more insulting injury to the wife than her own husband Q.ing her
chastity. And such a remark would amount to a reasonable excuse
for the wife to withdraw from the society of her husband.
In Iqbal Kaur vs Pritam Singh (AIR 1963 P H 242) A Punjab HC judgment-
the court held that allegation of unchastity was sufficient to amount
to cruelty and reasonable excuse within the meaning of Section 9 of
the Hindu Marriage Act.
In R.Natarjan vs Sujatha Vasudevan 2011, the court held that if a wife
is asking to live separately from husband’s aged parents, it does not
amount to a reasonable excuse of withdrawal and the wife can be
granted a decree for restitution of conjugal rights.
Constitutional Validity of Section 9: It is to be noted that there arises
a contention that restitution of Conjugal Rights clearly violates Right
to privacy of the wife. Although the Supreme Court is its judgment
of Kharak Singh vs. State of UP(1963 AIR 1295) has held right to
privacy “is an essential ingredient of personal liberty”. In Gobind v.
State of M.P(AIR 1975 SC 1378)again the court had to encounter the
issue raised in the case of Kharak Singh. In this case the honorable
Supreme Court came to a conclusion that right to privacy -among
other rights is included in right to liberty.
In T. Saritha Vengata Subbiah v. State (AIR 1983 AP 356)the court had
ruled that that S.9 of Hindu Marriage Act relating to restitution of
conjugal rights as unconstitutional because this decree clearly
snatches the privacy of wife by compelling her to live with her
husband against her wish. In Harvinder Kaur v. Harminder Singh (1984
Del 66) the judiciary again went back to its original approach and
help Section 9 of Hindu Marriage Act as completely valid. The ratio of
this case was upheld by the court in Saroj Rani Vs. S.K. Chad ((1984)
AIR 1562)
Q.7. Discuss the grounds for obtaining a decree of divorce. On what special
grounds a Hindu wife can claim a decree of divorce against her husband
under the provision of the Hindu Marriage Act, 1955?
Or
Enumerate the Various grounds upon which a party to a marriage
may present a petition for a decree for judicial separation on the
petition for divorce presented by the petitioner?
Ans. Section 13 of the Hindu Marriage Act describes the circumstances
which extend the right of divorce. Section 14 says that no petition for
divorce can be presented within one year of the marriage unless it
causes exceptional hardship to the petitioner or it becomes a case of
exceptional depravity on the part if the respondent. Section 15 of the
Act lays down the limitations on the right of divorced persons to
marry again.
The Marriage Laws (Amendment) Act, 1976 makes the grounds of
divorce and judicial separation common. An aggrieved party, if he or
she so chooses may choose for divorce or judicial separation.
Besides, by the Amendment a new mode of divorce i.e., divorce by
mutual consent has been introduced under Section 13(B). Section
13(B) is remarkable in the sense that it has substantially eroded the
sacramental character of Hindu Marriage. Besides the common
grounds enumerated under Section 13(1) and 13(b) there are some
specific grounds available only to a wife as a ground for divorce or
Judicial separation under Section 13(2).
Grounds of Divorce [Under Section 13(1)]: A lawful marriage can be
dissolved by presenting a petition for divorce by either party to
marriage on any of the following grounds: -
• Adultery: Before the coming into force of the Marriage Laws
(Amendment) Act, 1976 “living in adultery” was a ground of
divorce. On the other hand, a petitioner could obtain a decree of
judicial separation, if he could show that his spouse, after the
solemnization of the marriage, had sexual intercourse with any
person other than his spouse. Now adultery has been made
ground of divorce as well as of judicial separation. Clause (i) of
Section 13(1) runs as” has after the solemnization of the marriage
voluntary sexual intercourse with any person other than his or
her spouse”. To establish adultery, it is not necessary to prove a
continuous course of adulterous life for divorce. Only this much
is required to be established that the respondent has willfully
indulged into sexual intercourse with a person other than his or
her spouse. For instance, in Rajendra Agarwal v. Sharda Devi
(1993 M.P. 142), it was said that it is sufficient to prove that the
respondent had voluntary sexual intercourse with any person
other that the spouse. It need not be proved that the respondent
has been living in adultery. In Sanjuka Padhan v. Laxmi Narayan
Padhan (AIR, 1991, Ori. 39), a charge was levelled against the
wife, that she went away with some other person one evening
from her husband’s home and was seen moving with him. At
about 1 a.m. in the night they were again seen returning together
from a lonely place. In this way she was away from her parental
home and when her father-in-law went to call her back, she
bolted herself inside a room and visited her marital home no
further. The Court under the circumstances found sufficient
circumstantial evidence for adultery and granted the decree for
divorce. In another case Chandrawati v. Kailash Nath (1995 (1)
AIR 283 (All)), the husband filed a petition for divorce on the
ground of adultery and tendered in evidence an admission letter
written by the unchaste wife dated two years earlier, the Court
held that it would amount to condonation of bad conduct of the
wife as he had later continued to live as husband and wife.
The burden of proof is on the petitioner. In Chander Prakash v.
Sudesh Kumari (AIR. 1971, Del.208). it was held that it is a
presumption in law that the respondent charged with adultery
is innocent and the burden to prove adultery lies on the party
who has alleged it.
• Cruelty: Under clause (i)(a) of Section 13(1) “cruelty” is a ground
for divorce. This provision has been inserted by the Marriage
Laws (Amendment) Act 1976. This provision provides that divorce
can be granted on the ground of cruelty if the other party has,
after the solemnization of marriage treated the petitioner with
cruelty. The expression “cruelty” is not defined in the Act. In
Russel v. Russel in the year 1897 Lopes, LJ has defined cruelty as
“there must be danger to life, limb or health, bodily or mental or
a reasonable apprehension of it. to constitute cruelty.” This
definition is still important for the purpose of the clause.
Recently, In Rajan Vasant Revan Kar v. Mrs. Shobha Rajan (AIR
1995 Bom. 246) the Court held that “cruelty” contemplated by
Section 13(1)(i)(a) is a conduct of such type that the petitioner
cannot reasonably be expected to live with the respondent or
that it has become impossible for the spouse to live together.
• Desertion: The clause was added by the Marriage Laws
Amendment) Act, 1976. It provides “Desertion” for a period of
two years, as one of the grounds for divorce. It is the total
repudiation of the obligations of marriage. It is the intentional
permanent forsaking and abandonment of one spouse by the
other without that other’s consent and without reasonable cause.
Desertion may be actual, constructive or it may be by willful
neglect.
Under Section 13(1) (i)(b) the petitioner has to prove:
i) that there was desertion for a continuous period of 2 years
immediately preceding the presentation of the petition; and
ii) that the desertion was without reasonable cause and without
the consent oragainst the wish of the petitioner.
• Conversion: Section 13(1) (ii) States that if a spouse has ceased to be
a Hindu, by conversion to another religion, the other spouse can
obtain divorce under this clause. The conversion of the respondent
to a non-Hindu faith does not amount to automatic dissolution of
marriage. The petitioner has to file a petition to obtain a decree of
divorce. If a petitioner chooses to continue to live with his spouse
who has converted to another religion, there is nothing to debar him
from doing so.
• Unsound mind: Under clause (iii) of Section 13(1) a petitioner may
get a decree of divorce or judicial separation if 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.” The expression
“mental disorder” has been explained in the Act. Accordingly, it means
mental illness, arrested or incomplete development of mind,
psychopathic disorder or any other disorder or disability of mind
and includes schizophrenia. It was held by the Supreme Court in Ram
Narayan Gupta v. Smt. Rameshwari (AIR 1988 S.C. 2260), that the
context in which the idea of unsoundness of ‘mind’ and “mental
disorder” occurs in the section as grounds for dissolution of a
marriage require the assessment of the degree of the mental disorder.
In Smt. Alka v. Abhinesh (AIR 1991 M.P. 205), the wife was held to have
been suffering from schizophrenia therefore the husband was entitled
for divorce
• Leprosy: The Marriage Laws (Amendment) Act, 1976 has made leprosy
a ground both for judicial separation and divorce. No duration of
leprosy is specified. Under clause (iv) the petitioner is required to
show that the respondent has been suffering from virulent and
incurable leprosy, thus two conditions are necessary: it must be (i)
virulent, and (ii) incurable.
• Venereal Disease: The venereal diseases are only such diseases which
are communicated by sexual intercourse. Section 13(1) (v) requires
that the disease must be in a communicable form.
• Renunciation of the World: Section 13(1) (vi) provides a right for
having divorce if the other spouse has renounced the world by entering
any religious order.
• Spouse not Heard for Seven Years: Under Section 13(1) (vii) if spouse
has not been heard of as being alive for a period of 7 years or more by
those persons who would have naturally heard of it, had that party
been alive, the other spouse is given a right to obtain divorce. This
clause is based on the rule of evidence contained in Section 107 of
Indian Evidence Act.
• Non-resumption of Cohabitation after the passing of the decree for
judicial separation: Sub-section (1 )(A) of Section 13 provides that
whether the marriage was solemnized before or after the
commencement of this Act either party to the marriage may present a
petition for dissolution of marriage by a decree of divorce provided
there has been no resumption of cohabitation between the parties
for a period of 1 year or upwards after the passing of the decree for
judicial separation and where there has been no restitution of
conjugal rights between the parties for a period of 1 year or upwards
after the passing of the decree for restitution of conjugal rights. It
was held In Tulsa Bai v. Rajendra Singh (1996 (1) HLR 241 (M.P.)), that
a divorce petition before the expiry of the statutory period is not
maintainable. The one year period has to be noted from the date the
decree becomes final. It was held in Shruti Benedee v. Tapan Kumar
Banerjee (1986 Cal. 284). that where the decree for restitution passed
by the trial court is affirmed by the appellate Court time has to be
reckoned from the date of decree of the trial court. However, in
Sukhvinder Kaur v. Dilbagh Singh, (1996 112 Punj. LR 448) it was laid
down that “‘here the trial court had dismissed the petition for
restitution of conjugal rights and the decree was passed by the
appellant court, the statutory period of one year would commence
running from the date of appellate decree.
Grounds Available to the Wife Only:
i. Bigamy [Section 13 (2)(i)]: That in the case of a marriage solemnized
before the commencement of the Act (i.e., 18th May, 1955) the husband
has married before such commencement or that any other wife of
husband, married before such commencement, was alive at the time
of the petitioner’s marriage.
ii. Rape, Sodomy or Bestiality [Section 13(2)(ii)]: That the husband has
been guilty of rape, sodomy or bestiality after the solemnization of
marriage.
iii. Decree or Order Awarding Maintenance [Section 13(2)(iii)]: That in a
suit under Section 18 of the Hindu Adoptions and Maintenance Act,
1956 or in a proceeding under Section 125 of the Cr.P.C. 1973, a
decree or order has been passed against the husband awarding
maintenance to the wife (notwithstanding that she was living apart)
and after passing of such decree or order cohabitation between the
parties has not been resumed for one year or upwards.
iv. Option of Puberty [Section 13(2)(iv)]: That the wife’s marriage was
solemnized before she attained the age of fifteen years and she
repudiated the marriage after attaining that age but before attaining
the age of eighteen years, whether the marriage has been
consummated or not.
Divorce by Mutual Consent (Section 13 B):
1. That both the parties have been living separately for a period of
one year or more.
2. That both the parties have not been able to live together.
3. That both the parties have mutually agreed that their marriage
should be dissolved.
Q. 8. Explain the term Desertion and cruelty as ground of divorce.
Ans. Section 13 of Hindu Marriage Act, 1955 mentions ground of the divorce.
The two of these grounds are Desertion and Cruelty mentioned under
section 13(1)(i)(b) and under section 13 (1) (i) (a) of Hindu Marriage
Act.
Cruelty: Under clause (i)(a) of Section 13(1) “cruelty” is a ground for
divorce. This provision has been inserted by the Marriage Laws
(Amendment) Act 1976. This provision provides that divorce can be
granted on the ground of cruelty if the other party has, after the
solemnization of marriage treated the petitioner with cruelty. The
expression “cruelty” is not defined in the Act. In Russel v.Russel in the
year 1897 Lopes, LJ has defined cruelty as “there must be danger to
life, limb or health, bodily or mental or a reasonable apprehension
of it to constitute cruelty.” This definition is still important for the
purpose of the clause. Recently, in Rajan Vasant Revan Kar v. Mrs.
Shobha Rajan (AIR 1995 Bom. 246)the Court held that “cruelty”
contemplated by Section 13(1)(i)(a) is a conduct of such type that the
petitioner cannot reasonably be expected to live with the respondent
or that it has become impossible for the spouse to live together.
Cruelty includes both physical and mental cruelty. So far as physical
cruelty is concerned what acts of physical violence will amount to
cruelty will differ from case to case, depending upon the susceptibility
and sensibility of the party concerned. A single act of violence may
not amount to cruelty. A solitary incident of beating resulting in minor
injuries cannot be said as an act of cruelty. In Bhagatv. Bhagat(1994
AIR 710) the Supreme Court defined mental cruelty as that conduct
which inflicts upon the other party such mental pain and suffering as
would make it not possible for that party to live with the other. In
other words, mental cruelty must be of such a nature that theparties
cannot reasonably be expected to live together.
In a recent case R. Balasubramanian v. St. Vuyalakshmi Balasubramanian
(AIR. 1999, SC. 1319). The husband filed a petition for divorce against
wife on the grounds of cruelty; husband alleged that wife suspected
that he had extra-marital affairs and threatened to commit suicide.
But the court observed that as both were living together and husband
had condoned the cruelty of wife, cruelty and desertion set-up by
husband is not maintainable. In another recent case S. Hanumath
Rao v. V.S. Ramani (AIR. 1999, S.C. 1319). the Court held that mental
cruelty broadly means when either party causes mental pain, agony
or suffering of such a magnitude that it severs the bond between the
husband and wife and as a result of which it becomes impossible to
live together. Mere removal of mangalsutra by the wife does not
amount to mental cruelty within the meaning of Section 13(1)(i)(a).
1. False accusations of adultery or unchastity for instance in
Samptami v. Jagdish (1970 Cal. 272). The husband constantly
called his wife a prostitute, a woman of the street.
2. Persistent refusal to have marital intercourse amounts to cruelty.
3. Prosecution of a spouse by the other of a false criminal charge
amounts to cruelty.
4. Persistent charges of immorality against the husband and
causing injuries to the husband and filing complaints against
the husband amount to cruelty.
5. False, defamatory, malicious, baseless and unapproved
allegations made against the spouse to superior officers or
authority amount to cruelty.
6. Making false charge of adultery in the cross-examination of the
wife does not amount to cruelty.
7. Mere allegation of impotence against the wife is not cruelty.
8. The wife telling the husband on the first wedding night that he
had and that persons with ugly face have also an ugly mind,
does not amount to cruelty as understood in matrimonial law.
9. Outburst of temper without rancor, non-payment of interim
maintenance or desertion per-se, does not amount to cruelty.
Desertion: The clause was added by the Marriage Laws Amendment)
Act, 1976. It provides “Desertion” for a period of two years, as one of
the grounds for divorce. It is the total repudiation of the obligations
of marriage. It is the intentional permanent forsaking and
abandonment of one spouse by the other without that other’s consent
and without reasonable cause. Desertion may be actual, constructive
or it may be by willful neglect.
Under Section 13(1) (i)(b) the petitioner has to prove:
a. that there was desertion for a continuous period of 2 years
immediately preceding the presentation of the petition; and
b. that the desertion was without reasonable cause and without
the consent or against the wish of the petitioner.
In other words, two important elements are essential to constitute
desertion, viz. firstly, the fact of separation, and secondly, the intention
to bring cohabitation to an end permanently i.e., animus deserendi.
Further, the offence of desertion is complete only after the period of
two years is spent. For instance, in the case of Anand Prakash Dixit v.
Malti Dixit (1988 1 HLR 34 M. P), the petition for divorce on the ground
of desertion presented before the expiry of two years was dismissed
as premature. Desertion is not only a physical act but it also involves
essentially a mental act. Mere physical separation between the
spouses or mere intention of one to separate from the other without
any overt act would not by itself amount to desertion. Intention must
be to end cohabitation permanently.
In Sunil Kumarv. Usha (1944 M.P. 1) the wife had left the matrimonial
home due to unpalatable atmosphere in the matrimonial home and
reign of terror prevailing there drove her out. It was held that she was
not guilty of desertion.
In Teerth Ram v. Smt. Parvati Devi (AIR 1995 Raj 86) the wife living
separately only wanted that her husband should establish
independent matrimonial home where she would live with him as the
other brother of husband has done, although she had no intention to
break the matrimonial home, it was held that the wife could not be
said to have deserted the husband without sufficient reasons.
In Smt. Bhawna v. Manohar Advani (AIR 1992 M.P. 105), the wife was
guilty of neglecting her husband and on her opaque allegation of
misconduct as to demand of more dowry by her father in-law and use
of taunting language in the little period of her stay in her marital
home, she started living away from her husband, it was held to be a
case of desertion by the wife.
In Madan Mohan v. Smt. Chitra Manne (AIR 1993, Cal. 33), where the
wife refuses to stay with husband as the husband was already staying
with another woman not being his relative under the same roof, but
she expressed her willingness to live with him if that woman is
removed, it was held that husband was not entitled to divorce on the
ground of desertion or cruelty.
Recently, in Rajosh v. Rukmini, (AIR 2000 MP 227), the divorce petition
was filed by the husband on the ground of desertion. Wife states that
she was driven out by the husband and she was ready to co-habit
with husband. The husband’s explanation was not satisfactory for
divorce. The Court held that husband cannot be permitted to take the
benefit of his own wrong so the decree for divorce cannot be granted
on the ground of desertion.
The Desertion may be terminated in following three situations:
i) Resuming of Marital Life
ii) Resuming of Cohabitation or,
iii) Express willingness to return back to home.
Q. 9 How a husband and wife seek divorce on mutual consent? Can either
party withdraw his or her consent after the presentation of Divorce
petition on Mutual Consent? What will be the consequences?
Ans. 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 cannot live with one
another they can seek divorce by mutual consent under Section 13B of
the Hindu Marriage Act.
Essentials for divorce by mutual consent:
i. 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 (1992 AIR 1904) 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.
ii. Parties have not been able to live together: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.
In Pradeep Pant &Anr. v. Govt of NCT Delhi27 April, 2012 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
iii. They have mutually agreed that marriage should be resolved:
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
Whether consent can be unilaterally withdrawn by either party: After
the first motion, if the parties are provided with the waiting period,
they may sometimes decide to change their mind. Not all cases of
divorce are irreparable and some may still have some scope of
reconciliation and the parties may choose to withdraw their consent
and give their marriage a second chance.
The waiting period proves to be very useful for some cases as the
parties get to go for mediation which may change their mind. The
consent of the parties is also deemed to be withdrawn after the expiry
of the waiting period of 18 months, wherein a decree of divorce shall
not be granted.
The phrase “Divorce by Mutual Consent” is self-explanatory, it simply
means that the consent of both parties is required in order for the
court to grant the decree of divorce. In Sureshta Devi v. Om Prakash
(AIR 1992 SC 1904), the wife’s consent was fraudulently obtained by
the husband for filing a divorce. The wife was unwilling to give her
consent for divorce and therefore she did unilaterally revoke her
consent.
Upon reading the judgement of the Supreme Court we can conclude
that a party can unilaterally withdraw their consent if the same has
not been freely given.
After the first motion has been passed the parties will have agreed to
settle on various issues such as alimony, custody of children and
other marital expenses. Now, If one of the parties unilaterally
withdraws their consent the other party may suffer prejudice that
could be irreversible.
In Rajat Gupta v. Rupali Gupta (234 (2016) DLT 693), the court says
that the agreement between the parties to settle their issues and opt
for divorce by mutual consent is a binding agreement and a form of
undertaking. If a party now unilaterally withdraws their consent,
they would be in breach of their undertaking made before the court of
law, resulting in civil contempt of court by willfully disobeying an
undertaking. If the consent has to be withdrawn unilaterally, it must
be done so on a just and reasonable ground and the other party must
not suffer prejudice.
Therefore, consent can be unilaterally withdrawn only in exceptional
cases on reasonable grounds.
Q. 10. Who are the heirs of a male Hindu dying intestate? How will the
property be distributed among the class first heirs?
Or
Who are the heirs of deceased Hindu Male and what are the rules of
Distribution of his separate property among them under Hindu
Succession Act, 1956?
Ans. General Rules of Succession in the Case of Males (Section 8): The
property of a male Hindu dying intestate shall devolve according to
the provisions of this chapter-
1. Firstly, upon the heirs, being the relatives specified in class I of
the Schedule;
2. Secondly, if there is no heir of Class I then upon the heirs,
being the relatives specified class II of the Schedule;
3. Thirdly, if there is not heir of any of the two classes, then
upon the agnates of the deceased; and
4. Lastly, if there is no agnate, then upon the cognates of the
deceased.
Heirs in Class I and Class II Class I:
1. Son;
2. Daughter;
3. Widow;
4. Mother;
5. Son of a predeceased son;
6. Daughter of a predeceased son;
7. Son of a predeceased daughter;
8. Daughter of a predeceased daughter;
9. Widow of a predeceased son;
10. Son of a predeceased son of a pre-deceased son.
11. Daughter of a predeceased son of a pre-deceased son.
12. Widow of a predeceased son of a predeceased son.
13. Son of a predeceased daughter of a predeceased daughter.
14. Daughter of a predeceased daughter of a predeceased daughter.
15. Daughter of a predeceased son of a predeceased daughter.
16. Daughter of a predeceased daughter of a predeceased son.
Class II:
1. Father
2. Son’s daughter’s son; (b) Son’s daughter’s daughter; (c) brother;
(d) sister.
3. Daughter’s son’s son; (b) daughter’s son’s daughter; (c) daughter’s
daughter’s son;
4. daughter’s daughter’s daughter.
5. Brother’s son; (b) sister’s son; (c) brother’s daughter; (d) sister’s
daughter.
6. Father’s father; father’s mother.
7. Father’s widow; brother’s widow.
8. Father’s father; mother’s mother.
9. Mother’s father; mother’s mother.
Explanation: In this Schedule, references to a brother or sister do not
include reference to a brother or sister by uterine blood.
In N Rama Chandaran V. E. Varad Rajan (AIR 2007 NOC 2117 Madras)
it has been held that the son of deceased is considered as class one
heir and would be entitled under Section 8 of Hindu Succession Act
,1956 for the succession of property.
In case of Pati Ram V Mulla (AIR 2007 Madhya Pradesh 131) it has
been held that when there is no heir in class 1 then the property will
be distributed in class 2 heir.
Agnate: Agnate means a person related to wholly through males either
by blood or by adoption. The agnatic relation may be a male or a
female.
Cognate: Cognate means a person related not wholly through males.
Where a person is related to the deceased through one or more
females, he or she is called a cognate. Thus, son’s daughter’s son or
daughter, sister’s son or daughter, mother’s brother’s son, etc. are
cognates, whereas one’s father’s brother, or father’s brother’s son or
father’s son’s son or father’s son’s daughter are agnates.
Section 9: Among the heirs specified in the Schedule those in Cass I
shall take simultaneously and to the exclusion of all other heirs;
those in the first entry in Class II shall be preferred to those in the
second entry; those in the second entry shall be preferred to those in
the third entry, and so on in succession. Illegitimate son or daughter
is not included in the category of heirs of Class I, and in this respect
the settled old Hindu law that illegitimate children succeeded to
their putative father’s property has been abrogated.
Distribution of Property among Heirs in Class I of the Schedule (Section
10): The property of an intestate shall be divided among the heirs in
Class I of the Schedule in accordance with the following rules-
Rule 1- The intestate’s widow, or if there are more widows than one,
all the widows together, shall take one share.
Rule 2- The surviving sons and daughters and the mother of the
intestate shall each take one share.
Rule3- The heirs in the branch of each predeceased son or each
predeceased daughter of the intestate shall take between them one
share.
Rule 4-The distribution of the share referred to in Rule 3-
a. among the heirs in the branch of the predeceased son shall
be so made that his widow (or widows together) and the
surviving sons and daughters get equal portions; and the
branch of his predeceased sons gets the same portion;
b. among the heirs in the branch of the predeceased daughter
shall be so made that the surviving sons and daughters get
equal portions.
Illustrations -
a. A die leaving surviving him his widows Wand W1, his
mother M and two sons Sand S1 and two daughters D and D1. S,
S1, D, D1 and M will each take one share, that is one-sixth share;
and Wand W1 will together take one-sixth share. Therefore,
each widow will take one-twelfth of the property left by A.
b. A die leaving surviving him his widow W; a son B; CW
widow of a predeceased son C; XW, XS, XS1 and XD the widow,
two sons and daughters respectively of a predeceased son X; a
daughter D1 and DS, DD and DD1 the son and two daughters of
a predeceased daughter D as appears from the following diagram
There are among heirs enumerated in Class 1 of the Schedule and

therefore entitled to take the property of A simultaneously as his
preferential heirs. W takes one share in accordance with rule-
a. Band D1 as surviving son and surviving daughter take one share
each in accordance with rule.
b. The branches of C, X and D get one share each in accordance
with rule.
c. CW takes one share as the only heir of A in the branch of the
predeceased son C, in accordance with rule.
d. XW, XS, XS1 and XD between them take only one share as heirs
of A in the branch of X the predeceased son. XW, XS, XS1 and XD
will each take an equal portion of that one share in accordance
with rule 4 (I).
DS, DD and DD1 between them take only one share as heirs of A in the
branch of the predeceased daughter D, DS, DD and DD1 will each take
an equal portion of that one share in accordance with rule 4(ii). In
distribution W will take one-sixth; Band D1 will each take one-sixth,
CW will take one-sixth as constituting the branch of X, that is the
portion of each of them will be one-twenty-fourth of A’s property; and
DS, DD and DD1 will take a one-sixth share between them as
constituting the branch of D, that is the portion of each of them will
be one-eighteenth of A/s property.
Distribution of Property Among Heirs in Class II of the Schedule (Section
11): The property of an intestate shall be divided between the heirs
specified in anyone entry in Class II of the Schedule so that they
share equally-
1. A die leaving surviving him a brother’s son and sons and
daughters of his sister. They are all heirs in Entry IV of Class II
and will take A’s property simultaneously and in equal shares.
2. A die leaving surviving him three daughter’s daughter’s daughters
and a daughter’s son’s son, former being the grandchildren of
his predeceased daughter D and the latter being the grandson of
another predeceased daughter D1. The distribution will not be
according to the branches of the daughters D and D1 but all the
four heirs will share equally, that is, each of them will take one-
fourth of the property of the intestate.
Order of Succession Among Agnates and Cognates (Section 12): The
order of succession among agnates or cognates, as the case may be,
shall be determined in accordance with the rules of preference laid
down hereunder- Rule 1- Of two heirs, the one who has fewer or no
degrees of ascent is preferred. Rule 2- Where the number of degrees
of ascent is the same or none, that heir is preferred who has fewer or
no degrees of descent. Rule 3- Where neither heir is entitled to be
preferred to the other under Rule 1 or Rule 2 they take simultaneously
Certain exceptions: -If, and the heirs are both male and female, the
female heir is not allowed to request partition until the male heir
chooses to divide their respective shares. If this female heir is a
daughter, she has the right to reside in the home if she is unmarried,
divorced or widowed.
After the Hindu Succession (Amendment) Act, 2005; Section 6, the
difference between the female and male inheritor has been abolished.
Now even female inheritor [daughter] can also claim partition of the
ancestral property.
Further any person who commits murder is disqualified from receiving
any form of inheritance from the victim.
If a relative converts from Hinduism, he or she is still eligible for
inheritance.
Amendments: The Hindu Succession (Amendment) Act, 2005,
amended Section 6 of the Hindu Succession Act, 1956, allowing
daughters of the deceased equal rights with sons. In the case of
coparcenary property, or a case in which two people inherit property
equally between them, the daughter and son are subject to the same
liabilities and disabilities. The amendment essentially furthers equal
rights between males and females in the legal system.
In the case of Arunachal athammal v. Rama chandran, (AIR 1963 Mad
255) it was contended that the different heirs mentioned in one entry
(in this case Entry I of Class II) are subdivisions of that particular
entry and they do not inherit simultaneously but here again there is
a Q. of preference i.e. the first subdivision inherits and then in its
absence, the later. The Q. arose because there were, in his case, one
brother and five sisters of the intestate and no other heir and the
brother contended that in a brother being in subcategory (3) of entry
I, was to be preferred over sister who was in subcategory (4) of entry
I and thus he was entitled to the full property. However the same was
negated and it was held that all heirs in an entry inherit
simultaneously and there is no preference to an heir in a higher
subcategory within an entry to an heir in a lower subcategory in the
same entry. Thus, we find that the equality is between every individual
heir of the intestate and not between the sub-division in any particular
entry. In fact, the court went on to say that there were no subdivisions
in any entry in Class II. They were just roman numerals representing
the heirs in the entry.
Q. 11. Describe the rules of Succession in case of Intestate Hindu female
under Hindu Succession Act, 1956.
Or
Explain the various rule regarding the distribution of property of
Hindu female dying intestate.
Ans. Succession of A Hindu Female Dying Intestate Under The Hindu
Succession Act: The great ancient lawgivers Manu and Baudhyana had
described the good woman as a profoundly non-autonomous self,
ruled by father in childhood, by husband in youth, by son in old age.
In the 19th century debates, on the contrary, she came to be re-
envisaged as a person with a core of inviolate autonomy, possessing
a cluster of entitlements and immunities, even when the family, the
community or religion refused to accept them. The demand for the
new laws stemmed from an understanding about Indian a necessary,
autonomous core of female personhood that the state must
underwrite.
Under the Hindu law in operation prior to the coming into force of the
Act, a woman’s ownership of property was hedged in by certain
delimitations on her right of disposal and also on her testamentary
power in respect of that property. Doctrinal diversity existed on that
subject. Divergent authorities only added to the difficulties
surrounding the meaning of a term to which it sought to give technical
significance. Women were supposed to, it was held and believed, not
have power of absolute alienation of property. The restrictions
imposed by the Hindu law on the proprietary rights of women depended
upon her status as a maiden, as a married woman and as a widow.
They also depended upon the source and nature of property. Thought
there were some fragmented legislations upon the subject (regard
being made to the Hindu Woman’s Right to Property Act, 1937), the
settled law was still short of granting a status to woman where she
could acquire, retain and dispose of the property as similar to a
Hindu male. The Hindu Succession Act, 1956 and particularly Section
14 brought substantial change, thus, upon the aspect of a right of a
Hindu female over her property and thereby settled the conflict.
Section 15 General rules of succession in the case of female Hindus:
(1) The property of a female Hindu dying intestate shall devolve according
to the rules set out in Section 16, -
a. Firstly, upon the sons and daughters (including the children of
any pre-deceased son or daughter) and the husband;
b. Secondly, upon the heirs of the husband;
c. Thirdly, upon the mother and father;
d. Fourthly, upon the heirs of the father; and
e. Lastly, upon the heirs of the mother
(2) Notwithstanding anything contained in Sub-Section (1), -
a. Any property inherited by a female Hindu from her father or
mother shall devolve, in the absence of any son or daughter of
the deceased (including the children of any pre-deceased son or
daughter) not upon the other heirs referred to in sub-Section (1)
in the order specified therein, but upon the heirs of the father;
and
b. Any property inherited by a female Hindu from her husband or
from her father-in-law shall devolve, in the absence of any son
or daughter of the deceased (including the children of any
predeceased son or daughter) not upon the other heirs referred
to in sub-Section (1) in the order specified therein, but upon the
heirs of the husband.
This Section propounds a definite and uniform scheme of succession
in the property of a female Hindu who dies intestate after the
commencement of the Act. The rules laid down under this Section are
to be read with Section 16. This Section groups the heirs of a female
intestate into five categories as laid in sub-Section (1).
However sub-Section (2), similar to the scheme of Section 14, is in the
nature of an exception to the general rule as laid in sub-Section (1).
The two exceptions are, if a female dies without leaving any issue,
then,
i. in respect of property inherited by her from her father or mother,
that property will devolve not according to the order laid down
as in sub-Section (1) but upon the heirs of her father, and
ii. in respect of the property inherited by her from her husband or
father-in-law, that property will not devolve according to the
order laid down in sub-Section (1) but upon the heirs of her
husband.
It is important to note that the two exceptions herein referred are
confined to only the property inherited from the father, mother,
husband and father-in-law of the female and does not affect the
property acquired by her by gift or other by other device. The Section
has changed the entire concept of stridhana and the mode and manner
of acquisition of property by the female, which earlier determined
how the property would be inherited, has been changed and amended
by the Section. Considering Section 17, it is important to note that
Section 16 does not apply to persons governed by Marumakkattayam
and Aliyasantana laws.
As specified in the beginning of the sub-Section (1), in the devolution
of heritable property of a female intestate, those in a higher entry are
preferred to those in a lower entry.
In Ugre Gowda v. NageGowda, (AIR 2004 SC 3974), the Apex Court
observed that an adoptive mother cannot be deprived of her right to
dispose of her separate property by transfer or will that she possesses
if she has adopted a son. Thus, such relief the widow or the adoptive
mother of the suit property which vested in her by succession on the
death of her husband.
It may be noted that the date of the opening of the succession is not
the date of the death of the husband, but that of the deceased i.e.,
female Hindu held in Seethalakshmi Ammal v. M. Iyengar (AIR 1998
SC 1692).
The order of succession, as by the effect of rules under Section 15 can
be summarized as follows:
i. the general order of succession laid down in entries (a) to (e) in
sub-Section (1) applies to all property of a female intestate
however acquired except in case of property inherited by her
from her father, mother, husband or father-in-law.
ii. In case of a female intestate leaving a son or a daughter or a
child of a predeceased son or of a predeceased daughter, that is
leaving any issue, all her property, howsoever acquired, devolves
on such issue regardless of the source of acquisition of the
property and such issue takes the property simultaneously; and
if the husband of the intestate is alive, they take simultaneously
with him in accordance with entry (a). In such a case, sub-Section
(2) does not apply.
iii. In case of a female intestate dying without issue but leaving her
husband, the husband will take her property, except property
inherited by her from her father or mother which will revert to
the heirs of the father in existence at the time of her death.
iv. In case of female intestate dying without issue property inherited
by her from her husband or father-in-law (the husband being
dead), will go the heirs of the husband and not in accordance
with the general order of succession laid in sub-Section (1).
v. In case of a female intestate dying without issue property
inherited by her from her father or mother will revert to the
heirs of the father in existence at the time of her death and not in
accordance with the general order of succession laid down in
sub-Section (1).
The property which has been gifted to the Hindu female even from her
father will not be equal to inherited property, so Section 15(2) instead
of Section 15(1) will be applied here as held in the case Meyappa v.
Kannappa AIR 1976 Mad. 184.
Section 16. Order of succession and manner of distribution among
heirs of a female Hindu. - The order of succession among the heirs
referred to in Section 15 shall be and the distribution of the intestate’s
property among those heirs shall take place according, to the following
rules, namely:
• Rule 1.- Among the heirs specified in sub-Section (1) of Section
15, those in one entry shall be preferred to those in any
succeeding entry and those including in the same entry shall
take simultaneously.
• Rule 2.- If any son or daughter of the intestate had predeceased
the intestate leaving his or her own children alive at the time of
the intestate’s death, the children of such son or daughter shall
take between them the share which such son or daughter would
have taken if living at the intestate’s death.
• Rule 3.- The devolution of the property of the intestate on the
heirs referred to in clauses (b), (d) and (e) of sub-Section (1) and
in sub-Section (2) to Section 15 shall be in the same order and
according to the same rules as would have applied if the
property would have been the father’s, the mother’s or the
husband’s as the case maybe, and such person had died intestate
in respect thereof immediately after the intestate’s death.
Rule 1 explicitly declares that among the heirs enumerated in entries
(a) to (e) of Section 15, those heirs referred to in prior entry are to be
preferred to those in any subsequent entry and those included in the
same entry are to succeed simultaneously.
Rule 2 states that in case of the children of a predeceased son or
daughter, they shall not take per capita with the son and daughter of
the intestate but shall take per stripes i.e., the children and the
predeceased son or daughter shall succeed to the property of the
intestate as if the predeceased son or daughter was alive at the time
of inheritance.
Rule 3 is applicable only when succession is in terms of entry (b), (d)
or (e) of Section 15(1). This rule 3 is to be invoked when under rule 1
the heirs of the husband or the father or the mother are to be
ascertained for purpose of distribution of property.
Property inherited from mother or father (Section 15(2)(a)): This
section provides notwithstanding anything contained in Sub-section
(1). Any property inherited by a female Hindu from her father or
mother shall descend, if there is no son or daughter of the deceased
present including the children of any predeceased son or daughter
not upon the heirs cited in subsection (1) in the order described but
on the father’s heirs. Thus, Section 15(2)(a) is an exception to Section
15(1).
Section 15(2) governs only that property which was acquired by the
intestate by ‘inheritance’ as an heir and not received from parents
through gift or will. It may be taken into consideration that a gifted
property is not equal to the inherited property. Any property gifted at
the time of marriage is her Stridhan and succession to it is governed
by Section 15(1) (Meyappa v. Kannappa AIR 1976 Mad. 184). Similarly.
If she has converted the property she inherited from her parents into
some other property, succession will not be governed under Section
15 (2) (Emana v. Gudiseva AIR 1976 A.P. 337).
Property inherited from husband or father-in-law (Section 15(2)(b)):
Section 15(2)(b) provides that the husband shall be deemed to have
died immediately after the female Hindu died. It may be noted that a
woman inherits the property of her husband on his demise, as his
widow. She also inherits from her father-in-law as the widow of his
predeceased son (provided she does not remain before the date of
the opening of the succession).
Here, if the female had been married more than once, the properties
inherited by her from her respective husbands and their fathers
should go to heirs of respective husbands. However, if she remarried
after inheriting property from her deceased husband and died leaving
behind issues from her second husband, she has not died issueless
and her children and second husband will succeed to the property.
But if she dies issueless, the second husband will not succeed and
the property will revert to the first husband’s heirs. Likewise, where a
woman inherited property from her second husband and died leaving
behind a son from the first husband, a son would take the property
held in Chintaram v. Rushibaii (2000 AIHC 1308 M.P.).
Coparcenary interest acquired by Female as per Section 15(1) and
not by Section 15(2): After the 2005 Amendment to the Hindu
Succession Act (1956), a daughter (married or unmarried) has become
a coparcener like a son with occasions of coparcenary ownership.
As noted earlier, a coparcenary interest is acquired by a daughter by
birth and though it comes from the family of her father it is not an
interest that she has ‘inherited’ from her parents. under such a
situation, her heirs would be her husband, her children and children
of predeceased children. These heirs would succeed to her property
whether she dies without seeking partition or she dies after partition.
Thus, in case of a female dying intestate, her interest as determined
under Section 6(3) will be succeeded to her heirs following Section
15(1). Section 15(2) cannot apply here because the interest calculated
under Section 6(3) is not a share which she inherits from her father.
Q. 12. Which person are disqualified from inheriting the property of their
relatives under Hindu Succession Act, 1956?
Ans. The following are the persons disqualified from inheriting propery of
their relatives under Hindu Succession Act 1956:
i. Widow’s remarriage: Section 24 of the Hindu Succession Act, 1956
states that “certain widows remarrying may not inherit as a widow.
The person who is in a relationship with an intestate, as the widow of
a predeceased son or widow of a brother may not be entitled to
inherit the property of the estate as a widow if on the date of
succession, she has remarried. On such a basis, it was disposed of
the inheritance already which was vested on the widows on their
remarriage. As in law, remarriage incapacitates a widow of a gotraja
sapinda from succeeding to the property of a male Hindu on the date
the succession arrives Under the law, some of the family’s state that
if they had married before the succession had disqualified them
from inheriting the property of the deceased instate. Under the Widow
Remarriage Act, 1856 only three kinds of women are disqualified
from inheriting the property if they remarried before death.
a. Son’s widow
b. Son’s Son’s widow
c. Brother’s widow
In spite of all reasons, women cannot be disqualified from inheriting
the property. However, intestate women could also be disqualified as
in intestate widow women remarriage could not also be disqualified
before succession open arises, as if she married a person for the
second time, her marriage would be stated as void and in a law void
marriage is no marriage. In these sections, she still remains to be a
member of the intestate family even if she had married before the
intestate death.
The Supreme Court in Smt. Kasturi Devi v. Dy Director of Consolidation,
(1976 AIR 2595) held that a mother cannot be divested of her interest
in the property on the ground of remarriage. The provision laying
down disqualification of a widowed daughter-in-law to succeed is
based on a sacred and spiritual relationship of the wife with her
husband.
When she breaks away that relationship by remarrying and entering
another family, she becomes disqualified to inherit the property nor
is she entitled to retain the property inherited by her. The same cannot,
however, be said of a mother. She is absolutely in a different position,
that is why the Hindu law did not provide that even the mother would
be disinherited if she remarried.
In Cherotte Sugatlmn and others v. Cherotte Bharathi and others,
((2008) 2 SCC 610) the Supreme Court upheld that, if the widow
inheriting property of her husband on his death she becomes its
absolute owner of that property, subsequently remarriage of widow
does not divest her of property because in view of Section 24, of
Hindu Succession Act overrides provisions of the Hindu Widow
Remarriage Act, 1856.
ii. Person Committing Murder: Section 25 of the Hindu Succession Act,
1956 falls under these criteria. This Section states that any person
who commits the murder or assists the murder shall be disqualified
from inheriting the property of the person, or any property in the
promotion to succession to which he or she committed the murder.
So as, if any person found guilty for the murder of the deceased
intestate must forfeit his or her rights to come up with the property of
the deceased.
The provision of the statue of distribution is paramount and are
forbidden any disqualification not containing any statue, was
discombobulated by the Judicial Committee of Privy.
As the Section definitely applies to an area where there is the
inheritance of a property but this Act also applies to an area where
the testator has left behind the will. A murderer who is guilty of
murdering the testator cannot take any benefit under the will. The
Section applies to succession under the Act. It does not apply to any
other enactment under any other statue.
In the case of Smt. Kasturi Devi v. D.D.C AIR 1976 SC 2105, it was held
by the Privy Council that on the principle of equity and justice the
murderer should be disqualified from succeeding to the person whom
he had murdered and would not be regarded as the fresh descent as
he can be stated as the non-existent. Murder means to kill or
assassinate someone which is broadly understood in a popular sense
and not just to a technical resolute. This goes beyond the reasonable
doubt proof sense of the Indian Penal Code. In State v. Chetan
Chauhan16March, 2012, the wife was accused of murdering her
husband abetment to commit murder along with three other people
and was clearly denied with the succession certificate as in the view
of Section 25 of The Hindu Succession Act,1956. In the view of the
exoneration by the Criminal Court, the Bombay High Court stated that
there is nothing that she could be involved in murdering her husband,
she could be entitled to succeed to her property.
iii. Disqualification of the converted descendants: Section 26 of the Hindu
Succession Act, 1956 states about the Converted descendant’s
disqualification. Before the initiation of this Act, Hindus ceased to be
a Hindu by conversion to any other religion, after the conversion of
the religion the descendants. Therefore, they will be disqualified from
inheriting the property of any of their Hindu relatives in spite of any
of those children being Hindu at the time of succession opens. Under
the old Hindu law, conversion by a Hindu into some other religion
was considered as disqualification which was further removed by
the Caste Disability Removal Act, 1850. Under this Act as well when a
Hindu converted his religion, he still might have a right to all the
property of his or her relatives but descendants of a covert are
disqualified from inheriting the property.
The Hindu Succession Act, 1956 clearly states that a Hindu ceased to
be Hindu by converting to any religion whether before or after the
implementation of this Act. If the child was born to them before or
after the conversion of the religion, the descendants will be
disqualified from inheriting the property unless those descendants
are Hindu when the succession opens.
iv. No disqualification for disease and deformity:Section28 under The
Hindu Succession Act, 1956 states that there would be no
disqualification for any disease and deformity., which further
explains that no person shall be disqualified from inheriting the
property on the ground to any disease or defect or any ground
respectively. However, certain defects and deformities see notes that
exclude an heir from inheritance. As, this was substantially remedied
by the Hindu Inheritance Act, 1928.
In this case of Anhia Mandalanin & Anr v. Bajnath Mandal & Anr, (6
November 1973), a stepmother of the deceased intestate female
remarried prior to the commencement of the Act, though the intestate
women died after the commencement of the Act, it was suggested that
the mother was not entitled to inherit as she was disqualified.
Q. 13 What are the requisites of the valid adoption under Hindu Adoption
& Maintenance Act, 1956?
Or
What are the requisites of valid adoption under Hindu Law?
Ans. Essentials of Adoption: There are three main essentials which have to
be satisfied in order to make the child adopt. These are given as
follows:
1. Capacity to adopt a child: Under Section 6 of the Hindu Adoption and
Maintenance Act, the law specifying adoption says that both male
and female can adopt a child whether they are married or unmarried.
The main conditions with this respect are that they should be of
sound mind and should be at the age of majority or above. In case the
male or the female is married, he or she has to take the necessary
consent of the person that he is married to and in that case, the
consent of that party should be free. Under Hindu law, as per the
Hindu Adoption and Maintenance Act, there are certain special
conditions which are to be followed:
a. The individual should not have a living child at the time of
adoption. This concerns both legitimate and illegitimate child
being adopted by either a male or female.
b. Also, he/she should be equal or above 21 years of age.
c. Consent in cases, where the adopting individual is married.
In case of a female, the conditions have been given under the Section
8 wherein it is stated that apart from these conditions, a widower or
a divorced woman can adopt a child without any prior consent of her
husband if he has completely renounced from the world, is no longer
a Hindu by religion or has been declared to be of unsound mind by
the court.
The laws concerning the capacity of a person to adopt have also been
derived from the interpretations of various cases such as Dhanraj v.
Suraj Bai (1975 AIR 1103) which pointed out the necessary conditions
of religion, age and consent of his wife (in case of a married man). In
such conditions the consent would not be necessary if she has
completely renounced from the world, is no longer a Hindu by religion
or has been declared to be of unsound mind by the court.
Similarly, the case of Ambrish Kumari v Hatu Prasad (1981 HLR 781)
which specified that in case a person is deaf or blind, he can show
his consent during the time of adoption by any common gesture to
make the people understand.
In case the adoption is made without taking the permission of the
wife, then such adoption would be considered to be invalid adoption.
The consent in such cases can be taken in either an express or implied
manner.
2. Capacity to give one’s child in adoption: Section 9 of the Act tells us
about a person’s capability to give his/her child for adoption by
another person or married couple.
The capacity has been divided under 3 parties having rights:
I. Father: A biological father of a child is capable of giving his
child for adoption and has more or less the same duties and
rights in this regard as the mother of the child. The condition
under which this right would be ceased from him would be if he
has completely renounced from the world, is no longer a Hindu
by religion or has been declared to be of unsound mind by the
court.
II. Mother: Basically, the father and the mother of the child have
the same rights concerning this issue. If, however, the mother is
living separately in the marriage due to the reason of a marital
dispute, then she does not have this right. This has been
illustrated in the case of Ram Sakhi Kuer v. Daroga Prasad
SinghAIR 1981 Pat 204whereby the court said that a woman
loses the right to give her child in adoption after she remarries.
Here, the mother of the concerned child must be his biological
mother and not mother under any kind of other relationship.
Also, she has no right by herself in this case if the biological
father of the child is alive, however, she can take the permission
of her husband in the cases where the husband is disabled. In
addition to this, she has the right to give the child for the purpose
of adoption if he has completely renounced from the world, is
no longer a Hindu by religion or has been declared to be of
unsound mind by the court.
III. Guardian: In case of the absence of a biological father or mother
of the child, the guardian has this capacity. This also applies in
cases where the parents have been declared to be of unsound
mind by the court. In these cases, all the documents concerning
the adoption have been registered and stamped by the court of
law when the guardian has clarified his position in the court as
to the welfare of the child and his custody.
3. Capacity to be adopted: In order to be adopted, the child or the
person who is to be adopted also satisfies certain conditions for the
fulfillment of the procedure. These are as follows:
a. The child should be belonging to no other religion except Hindu.
b. He/she should not have been adopted before the valid process
of adoption has taken place.
c. Should be below the age of 15 years. (Depends on the customs, if
they allow then he can be adopted after 15 years also).
d. He should not have been married till the time he is adopted
(depends on the local customs)
In the case of Kumar Sursen v. State of Bihar (AIR 2008 Pat 24), the
court pointed out that if the person is not a Hindu by religion, then is
not allowed to give the child in adoption or hence it would constitute
void adoption. Also, in the case of Amar Singh v. Tej Ram, (AIR 1982
PH 282) if the custom of a particular community permits that a married
person can be adopted then this condition persists in cases of
adoption and there is no bar to it.
Some additional conditions:
1. Under this act, the person is restricted from adopting an
additional child of the same sex.
2. In case, a person adopts a child who belongs to the same sex,
then the parent should be at least 21 years elder to the child to
be adopted.
3. In the case of the adoption of a child, more than single parents
are not allowed to adopt a particular child. This implies that
there must be an actual ceremony of the transfer of parents of a
child from his biological family.
In Smt. Prafulla Bala Mukherjee v. Satish Chandra Mukherjee (AIR
1988 Cal. 86). It was held that for an adoption to be valid in nature,
not only the person adopting but also the person giving the child up
for adoption must be lawfully capable of doing so and that all the
prerequisites as under Section 5 of the HAMA are fulfilled before the
adoption takes place.
Q. 14 Who can give a child in adoption?
Or
Who can give and take in adoption?
Or
Who may be adopted?
Ans. Capacity of Indian Male and Female for Adoption: Under Hindu
Adoptions and Maintenance Act, 1956(HAMA) the capacity of Hindu
male and Female is mentioned under Section 7 and 8 of the Act which
is as follows:
i. Section 7 talks about the Capacity of Hindu Male to take in Adoption:
A major Hindu male of sound mind can adopt, whether he is a
bachelor, widower, divorcee or married person. But for a married
Hindu male, it is obligatory to take the consent of his wife, but if the
marriage is commenced before 1956 and the person has more than
one wife then he needs to take consent of all his wives. In the case of
Bholooram and Ors. vs. Ramlal and Ors(AIR 1989 MP 198) the Q. raised
was whether the consent of all the wives is necessary if a person has
more than one wife living at the time of adoption?
It was held that if a wife has absconded to an unknown place, it
cannot be construed as her death in eyes of law unless requirements
of Section 107 of Evidence Act are fulfilled. So long as a woman
continues to be a wife in eyes of law, her consent is necessary for the
validity of adoption under Section 7 of Act. The consent from all the
wives is mandatory, consent can be either express or implied.
But if he has a wife living, he shall not adopt except the consent of his
wife unless she has completely and finally renounced the world or
has ceased to be a Hindu or has been declared by a court of competent
jurisdiction to be of unsound mind. In the case of Divorce, the consent
is not necessary but in the case of Judicial Separation, consent would
be a valid requisite.
In Bhola & ors v. Ramlal & ors, (AIR 1989 MP 198) the plaintiff had two
wives and the validity of adoption was in Q. as he had not taken the
consent of one of his wives before adopting. It was the contention of
the plaintiff that his wife had absconded and could be considered as
good as dead.
The High Court of Madras observed that the wife of the plaintiff had
run away but could not be considered dead unless she had not been
heard from for at least seven years. It was held that as long as the
wives are alive, the consent of each wife is necessary for a valid
adoption.
If the wife has converted to some other religion or renounced the
world, her consent isn’t necessary for adoption. But, the existence of
a living wife is an essential requirement for a Hindu male to adopt
children
ii. Section 8 talks about the Capacity of Hindu Female for adoption: The
Act makes a fundamental departure from the old law empowering a
Hindu female. Earlier it was not allowed for a married woman during
the subsistence of marriage to adopt a child by virtue of amendment
in 2010 now valid women can adopt a child under certain restrictions
which are applicable on her husband and with due consent from the
husband.
Section 8 of the HAMA, 1956, enumerates that any female, who is a
Hindu, can adopt a child if she complies with the following conditions:
• who is of sound mind;
• who is not a minor; and
• who is not married or if married, whose marriage has been
dissolved or whose husband is dead or has completely and
finally renounced the world or has ceased to be a Hindu or has
been declared by a court of competent jurisdiction to be of
unsound mind.
Who can give a child for adoption: No one but the parents and guardian
of the child can give them up for adoption as per Section 9 of the
Hindu Adoption and Maintenance Act.
As per the act:
I. Only the biological father of a child has the authority to give
him up for adoption;
II. The consent of the child’s biological mother is necessary.
A mother will have the capacity to give the child up for adoption if:
I. The father is either dead;
II. Of unsound mind;
III. Has renounced the world; or
IV. Converted to some other religion.
The section clearly mentions that the father and mother mean
biological parents and not adoptive parents. Adoptive father or mother
cannot give the child up further for adoption.
Can the guardian give a child for adoption: A guardian as described in
Section 9 of the act means a person appointed by the parents of a
child or the court for taking care of the child and his/her property. If
the child’s biological parents are either dead, have renounced the
world, have lost their mind or have abandoned him – he can be given
up for adoption by the guardian.
But in order for a guardian to give up a child for adoption, he must
have the permission of the court for doing so. The court for giving
such permission must be satisfied that:
a. The adoption is for the welfare of the child;
b. No payment has been made in any form in exchange for the
child.
Who may be adopted: According to Section 10 of the Act, only a child
who fulfils the following conditions can be adopted:
i. The child must be a Hindu – Since HAMA is applicable only.
ii. The child has not already been adopted – Since section states
that only natural parents or guardians can give a child in
adoption. Adoptive parents cannot give a child in for adoption.
Double adoption is not permitted under HAMA.
iii. He or She is not married unless there is a custom or a usage
applicable to the parties which permits persons who are married
or have been married be taken in adoption.
iv. A child has not completed the age of 15 years unless there is a
custom or a usage applicable to the parties which permit
persons who have completed the age of 15 years to be taken in
adoption: If custom is not pleaded, adoption of the child abovethe
age of 15 would be invalid held in case M.D. Gopalaiah v. Smt.
Usha Priyadarshini and Ors., (AIR 2002 Karnataka 73)
In a case where a married man was adopted and subsequent to the
adoption a child was born, it was held that the adoption was valid as
it was allowed in the custom and the child born would be a part of the
adoptive family Tarabai v. Bagonda, (AIR 1981 Bom.13)
In Punjab, the general custom amongst the Jats is that a person who
is above the age of 15 years and married can be adopted. Hence, such
adoption is allowed held in case Amar Singh v. Tej Ram (AIR 1982
P&H 282) But such Customs must be pleaded and proved. If this
condition is not fulfilled that the adoption will be regarded as invalid.
Q. 15 What are the effects of adoption? Does this principle of Relation back
still apply in the relation to the divesting of property by adopted
child?
Or
“The Hindu Adoption and Maintenance Act, 1956 has abolished the
Doctrine of Relation Back but it has got back door entry through
Judicial Pronouncement.” Explain the doctrine of Relation Back with
help of decided cases.”
Ans. Legal effects of adoption: Section 12 sets out the legal effects of a
valid adoption: The adopted child is deemed to the child of the
adoptive father and adoptive mother for all purposes, and effects.
This is effective from the date of adoption and from such date all the
ties of the child in the natural born family are severed and replaced
by the new family. Hence, the adopted child cannot renounce and
return to his family. Further, adoption once made cannot be cancelled.
This has secured the position of the adopted child.
However certain exceptions have been provided:
i. The adopted child cannot marry any person whom it couldnot
have married if it were continued in the natural-born family.
ii. Any property vested in the adopted child before adoption in his
natural-born family continues to vest in him. Hence, he is entitled
to his property in his natural-born family including his
undivided coparcenary interest. Any obligations like
maintenance attached to that property continues and hence,
his such property is liable. But there is no personal obligation.
iii. The adopted child shall not divest any person of any estate
which is vested in or her, before the adoption, i.e., no divestiture
in the adoptive family.
iv. Doctrine of ‘relation back’: If a widow took a boy in adoption, it
related back to the death of the adoptive father for purposes of
continuing the line and of divesting of the property.
The leading case is Amarendra Vs. Santan Singh (1933) 35 BOMLR
859 in this case one Raja Brijendra died unmarried. His collateral
succeeded, to the estate. As the family custom prevented females
from succeeding to the Raja; Indumati the mother of the Raja, adopted
Amarendra to herhusband Brijendra. Q. was whether this adoption
dated back to the death of the Raja, and divested Benamali of the
estate. The Privy Council held that she could be divested. Hence,
Amarendra succeeded.
This was explained by the Supreme Court in Srinivas Vs.Narayan (1954
AIR 379) It stated that adoption dated back to the date of death of
Brijendra. This doctrine has no application now.
Doctrine of Relation Back:
Meaning: According to the doctrine of relation back, under old Hindu
Law, if a Hindu widow adopts a son after the death of his husband,
then the adopted son will be deemed to have been adopted on the
death of the husband. It means that the adopted son will be entitled
in the interest of his deceased adoptive father. The theory is against
the rule that ‘a property once vested cannot be divested’. The theory
was based upon the legal fiction that the continuity of the line of the
adoptive father should not break held in Tahsil Naidu & Anr vs Kulla
Naidu & Ors, (A.I.R. 1970 S.C 1673).
The principle has some variations that do not follow the law. Next, in
the event that an estate had already been inherited in the hands of
collateral and the collateral died prior to adoption, the adoptee
cannot sell the properties of the collateral’s successor. The principle
can only be enforced when there is a Q. concerning the succession of
the deceased father’s property. The second instance where the rule
cannot be applied is in case where the alienation is made by a female
heir after the death of the adoptive father and before adoption.
The adopted son is considered to be born on the adoptive father’s
death date. The ideas that arise are that the adoption of a widow
cannot be obstructed by the joint family’s anterior division, and the
adopted son can claim a share as if he were begotten and alive when
the adoptive father died. As a preferential heir, an adopted son could
divest his mother of the property of his adoptive father and his
adoptive mother of the property she gets as an heir of her son, died
after her husband.
The doctrine of relation back applies only when the claim is made by
the adopted son relates to the property of his adoptive father. A
coparcener continues as long as there is a widow of coparcener who
is capable of bringing a son into the family be adoption. The rights of
the adopted son are the same as if he had been there at the time when
his adoptive mother died and that his title as a coparcener will be
there as against any person’s title claiming as an heir held in
Krishnamurthi v. Dhruvaraj, (A.I.R. 1962 S.C. 59)
Doctrine of Relation Under Modern Law: Under the Act, the doctrine
of relation back has been abrogated according to section 12 of the
said Act. Earlier, however, the adopted child came into being in the
adoptive family from the date of the death of his adoptive father, but
now, in accordance with proviso (c) to section 12 of HAMA, the adopter
came into being from the date of the actual adoption.
The new Act has abrogated the principle of relation back only for a
limited purpose of vesting and divesting land. The doctrine of relation
back still exists in a sense that, by making an adoption, by a widow,
the adopted child entails the relationship with the deceased husband
of the widow and is (the deceased husband) thereby becomes the
adoptive father of the child.
Judicial Interpretation:
In Vasant v. Dattu, (A.I.R. 1987 S.C. 398) the SC clearly spelt out the
operation of doctrine of relation back with regards to the proprietary
rights of an adopted child. Proviso (c) of section 12 does not prevent
the adopted child from claiming his or her share in the adoptive
family.
There is no Q. of divesting of any person of any property already
vested in him before adoption if the share is given to the adopted
child.
The court held that by adopting a child to a joint Hindu family may
have effect of decreasing the shares of the members in the family. But
it can’t be taken as divesting any person of any property under clause
(c) to section 12. Thus, the adopted son can acquire an interest in the
property by survivorship on the footing of doctrine of relation back.
In a leading case of SC in Sawan v. Kalawanti, (A.I.R. 1967 S.C. 1761),
it has been said that the SC’s judgment had resulted in the revival of
the doctrine of relation back, but it was not really convincing. The
facts of the case were that one Ramji Das died leaving behind his
widow Smt. Bhagwani, who inherited the property of her husband as
a limited owner. Later on, she executed a gift deed in favour of her
grand-niece Smt. Kalawanti. Sawan Ram, the collateral of Ramji Das,
challenged the validity of the gift as it was made without having any
legal necessity and claiming that he was the nearest reversionary
heir of Ramji Das.
The trial court ordered the suit in favour of collaterals and held the
gift as invalid. Kalawanti went on appeal, and while the appeal was
pending in court, Bhagwani adopted a son Deep Chand in 1959 and
thereby subsequently died. Sawan brought another suit to recover
the possession of the property from Kalawanti. Now, the adopted son
Deep Chand brought a suit to claim his rights n the gifted property on
the ground that once gift made by her adoptive mother before the
commencement of the Act. His right in the property revived as from
the date of his being taken into adoption, he became the son not only
of his adoptive mother but also of her deceased husband.
Hence, he became a member of the joint family and in that capacity
his right in that property became revived. The critics have argued
that the said judgment resulted in the revival of the doctrine as the
adopted son acquired the right in the gifted property after the gift
was declared void.
But it is not so because the right to challenge the gift by the widow
before the act of adoption made by her, did not vest in the adopted
son. Hence it cannot be said that the doctrine has been revived.
In a case, the Supreme Court stipulated that Section 12 clause (c)
departs from Hindu law and makes it clear that the adopted child
will not deprive any person of any property that has invested in him
prior to adoption. In Dinaji v. Daddi & ors, (A.I.R. 1990 S.C. 1153), case
a widow who was the limited owner of estate after the death of her
husband and after Hindu Succession Act, has become an absolute
owner and the property of her husband vested in her and therefore,
by adopting a child she could not be deprived of any of her rights in
the property. The adopted child can claim his rights only after her
death.
Q. 16 State the provision of law as enumerated under Section 18 of the
Hindu Adoption and Maintenance Act, 1956 with regard to
maintenance of wife.
Or
On what grounds can a Hindu wife claim maintenance from her
husband even when living separately from him? When her right to
maintenance is lost?
Ans. Section 18 of the Act provides for maintenance of wife. Maintenance
has been so defined in clause (b) of Section 3 of the Hindu Adoption
and Maintenance Act, 1956 as to include therein provision for
residence amongst other things. For the purpose of maintenance the
term ‘wife’ includes a divorced wife.
Section 18 – Maintenance of Wife: This provision is especially created
to provide a support to the married women. It doesn’t matter that the
Hindu wife, whether married before or after the commencement of
this Act because every wife will get maintenance by their husband
during their life tenure. Section 18(1) is applicable to the wife who is
living with her husband. The wife who has ceased to be Hindu cannot
claim for the maintenance but an unchaste wife who has been living
with her husband under the same roof has the authority to claim for
the maintenance by the court.
In B.P. Achala Anand Vs. S. Appi Reddy and Anr. (2005 (2) SCALE 105)),
it was observed by the Court that a Hindu wife is entitled to be
maintained by her husband. She is entitled to remain under his roof
and protection. She is also entitled to separate residence if by reason
of the husband’s conduct or by his refusal to maintain her in his own
place of residence or for other just cause she is compelled to live
apart from him. Right to residence is a part and parcel of wife’s right
to maintenance. The right to maintenance cannot be defeated by the
husband, executing a will to defeat such a right. The right has come to
be statutorily recognized with the enactment of the Hindu Adoption
and Maintenance Act, 1956.
Maintenance includes the facility of residence. If there is a provision
for residence for wife in the decree of divorce, the wife is entitled to
defend eviction proceedings held in B.P Achala Anand v. S. Appi, (2005
SC 986).
No maintenance to wife if restitution of conjugal rights by husband
succeeds: In Manju Kamal Mehra V/s. Mr. Kamal Pushkar Mehra ((1993)
3SCC 406), it was held by High Court of Judicature of Bombay that no
maintenance to be paid to wife if restitution of Conjugal rights by
husband succeeds. The Court held that when the husband has
succeeded in obtaining a decree of restitution of conjugal rights
against the wife, it is implied that the wife was required to join the
company of the husband at her matrimonial home and therefore,
there is no Q. of maintenance at least from the date of the said order.
Grounds for award of maintenance without divorce (Section 18 (2)):
The sub section provides for the provision for grant of maintenance
to wife who lives apart from her husband. A wife who lives apart from
the husband is also entitled to maintenance if she lives separate
from her husband for a justifiable cause. Section 18(2) of the Hindu
Adoption and Maintenance Act, 1956 lays down the ground on which
wife may live separate and claim maintenance. Only upon proving
that at least one of the grounds mentioned under the Act, exists in the
favor of the wife, maintenance is granted. These grounds are as
follows:
I. The husband has deserted her or has willfully neglected her.
In Suvarna v. Ratnakar (6 July, 2011 Karnatka High Court) case
the following definition was given by the judge that Abandoning
her without reasonable cause and without her consent or against
her wish or on the ground of willful neglect by the husband, the
wife can live separately and claim maintenance.
In Raghvan v. Sangh Bhabha, (AIR 1985 Kerela 193) it was held
that the desertion may be voluntary or otherwise.
II. The husband has treated her with cruelty; Clause (b) of S. 18(2),
Hindu Adoptions and Maintenance Act, gives same definition to
cruelty as is given to it, in Hindu Marriage Act. The concept of
matrimonial cruelty no more confines to the physical violence.
It is no more necessary to prove the ground of cruelty by showing
the endangering of life, limb or health through physical or
personal violence. In the modern times the “cruelty” has widened
its net to mental cruelty also. Any conduct which causes such
mental pain and suffering as would make it impossible for the
aggrieved party to live with the guilty party comes within the
ambit of mental cruelty. The test is that the mental cruelty must
be of such that the parties cannot be reasonably be expected to
live together. The underlying reason is that a physical blow
speaks for itself whereas the insults, humiliations, and the like
may need the interpretation of underlying intention. Greater
suffering results from psychological sufferings than bodily harm
held in Anubha v. Vikas Aggarwal & ors. (AIR 1981 Andh Pra 123)
In Gurpreet Kaur case, (2 August, 2018) the husband by his
conduct made it evidently clear that she was not wanted in the
house and her presence was resented by him, it was held that
this amounted to cruelty and justified wife’s living separate.
The burden of proof that the husband treated her with cruelty is
on the wife
III. The husband is suffering from virulent form of leprosy/venereal
diseases or any other infectious disease; Leprosy as a ground
for separate residence may be of any duration, no period is
prescribed, but it must exist at the time-when the claim for
separate residence and maintenance is made.
IV. The husband has any other wife living; this clause has come for
interpretation in a number of cases. Any wife can claim separate
residence and maintenance provided one more wife is living at
the time when claim is made (Kiran v. Bankim, 1976 Gal. 603).
V. The husband keeps the concubine in the same house as the wife
resides or he habitually resides with the concubine elsewhere .
The point was held in these cases that if husband keeps
concubine then wife is allowed to claim maintenance while living
seperately Keshav Bhai v Haribhan, (AIR 1975 Bombay 115) &
Narayan Swami V Padmanabhan (AIR 1966 Madras 291).
VI. The husband has ceased to a Hindu by conversion to any other
religion.
VII. Any other cause justifying her separate living
Forfeiture of the claim of maintenance – A wife entitled to separate
residence and maintenance may forfeit her claim in the following
three cases:
1. An unchaste wife has no right to claim separate residence and
maintenance.
2. A wife who has ceased to be a Hindu by conversion to another
religion has no right to claim maintenance.
3. The wife who had resumed cohabitation with her husband
forfeits her claim for separate residence and maintenance
because the pre-condition of the claim is that the wife is living
separately from her husband, and if wife cohabits with the
husband, the wife cannot continue to claim maintenance. But in
Gurpreet Kaur case, (2 August, 2018) it was said by the bench
consisting of Judge Shabihul and Leo Kumar Singh the court said
that just because the wife had sexual intercourse with her
husband, while she continued to live separate from her husband,
may not extinguish the decree for separate maintenance and
residence.
Once a view was that when the wife who had cohabitation with her
husband forfeits her claim for residence and maintenance, because
the precondition of the claim is that the wife is living separately from
her husband, if that pre-condition ceases to exist, the wife cannot
continue to claim maintenance (Venkayya U Raghavamma, 1942 Mad
1).
But in Meenakshi v. Muthukrishna (1961 Mad 380) the court said
that just because the wife had sexual intercourse with her husband,
while she continued to live separate from her husband may not
extinguish the decree for separate maintenance.
Q. 17. Who are the persons who can claim maintenance against Hindu Male?
What are the considerations to which the court shall have regard for
exercising its discretion in fixing the amount of maintenance?
Ans. The following are the person entiled to be maintained under Hindu
Adoption and Marriage Act 1956-
1. Aged and infirm Parents
2. Minor Children
3. Widow Daughter-in-law and
4. Dependent
5. Member of joint Family
1. Maintenance of aged parents: Under Hindu Adoption and Maintenance
Act maintenance of aged parents it defines as such, that obligation to
maintain his or her aged or infirm parent or daughter who is unmarried
as the case may if they are unable to maintain themselves out of their
earnings or other property.
In case of Ramesh Rege v. Gauri Rege (1982 (1) SCR 124) which was
decided by the bench consisting of A.S. Oka and A.P. Bhangale, it was
held that an unmarried daughter of a Hindu father is entitled to
receive maintenance from her estranged father, even if she is not an
Indian citizen and is residing in a foreign country. In the present, the
respondent daughter had filed a petition in the family court for
monthly maintenance and a place of residence from her father. The
Family Court had ruled in her favour and the father had challenged
the Family Court order in the High Court. But his father told that her
estranged daughter had attained the age of majority and was neither
a citizen of India. The court rejected the contention and held that the
applicability of Hindu Adoption and Maintenance Act, 1956 does not
depend upon the nationality of the child or the domicile of the child.
If both the parents of the child are either Hindu or Buddhist or Jain or
Sikh by religion, the said act becomes applicable to such children.
In Pannalal V Phulmani (AIR 1987 Calcutta 368), it was held that a
childless step mother is also entitled for the maintenance form her
step child under Hindu Adoption and Maintenance Act.
A childless stepmother may claim maintenance from her stepson
provided she is a widow or her husband, if living, is incapable of
supporting and maintaining her held in Kirtikant D. Vadodaria v.
State of Gujarat, (1996) 4 SCC 479.
In the case of Mst. Samu Bai & anr v. Shahji Magan Lal, (AIR 1961 Raj
207) the High Court of Andhra Pradesh held that the maintenance to
aged and infirm parents must only be provided if the parents have no
means to sustain themselves, or are unable to maintain themselves
out of their own property or earnings. So, we can infer that if the old
parents have enough means to maintain themselves, the obligation
of children to maintain them can be relaxed.
2. Maintenance of Minor children: Section 20 of the act states that:
• A Hindu male or female is obligated to maintain their children
whether they are legitimate or illegitimate.
• Children shall claim for maintenance from their parents as long
as they are minor.
• An unmarried daughter shall be entitled to maintenance even
after attaining the age of majority, till the day she gets married.
An obligation to maintain one’s children is a personal obligation
and arises out of the personal relationship of parent and child. What
earlier used to happen is only father alone has the obligation to
maintain the legitimate son. The modern Hindu Law imposed the
obligation on both the parents and in respect of both legitimate and
illegitimate children.
In case of T Vimala and Others v. Ramakrishnan (Mad 24 June, 2016)
“Eligibility of Children to Claim maintenance” was discussed it was
held that children who become major and do not suffer any kind of
disability (mental or physical) can claim maintenance from their
fathers. Children can also claim for educational expenses under
section 125 of Code of Criminal Procedure.
Father to maintain the unmarried daughter: An unmarried daughter
unable to maintain herself is entitled to claim maintenance under
the Hindu Adoption and Maintenance Act, 1956. The father is obliged
to maintain her unmarried daughters even if they are living separately
with their mother (Jasbir Kaur Sehgal v. District Judge, Dehradun (1997)
7 SCC 7).
Daughter to be maintained until she gets married even after attaining
majority: Daughter is entitled to maintenance under CrPC when read
with Hindu Adoption and Maintenance Act, 1956 even after attaining
majority but till her marriage (Jagdish Jugtawat v. Manju Lata, (2002)
5 SCC 422).
Hindu earning mother is also obliged to maintain children: Both, a
Hindu divorcee father and a Hindu divorcee earning mother are obliged
to contribute for maintenance of their children under the Hindu
Adoption and Maintenance Act, 1956. Father is not exclusively
responsible to maintain children regardless of mother being affluent,
(Padmja Sharma v. Ratan Lal Sharma, (2000) 4 SCC 266)
3. Maintenance of Widow Daughter-in-law: Under Hindu Adoption and
Maintenance Act defines maintenance of widowed daughter-in-law
as an obligation of the joint family to maintain the wives and widows
of coparceners. A widowed daughter in law can claim maintenance
against the joint family property. The claim is enforceable against
the karta so long as the daughter in law has a right to claim
maintenance against the coparcenary property in the hands of the
father in law. But father has no obligation to maintain a widowed
daughter. On the death of the father, the moral obligation became a
legal obligation against the persons who inherited the property of
the father.
In Raj Kishore Mishra v. Smt. Meena Mishra, (AIR 1995 All. 70) was
decided by the bench consisting of judge D Trivedi and S. Mohapatra,
it was held that the obligation of father-in-law shall not be enforceable
if he has no means to maintain his daughter-in-law from any
coparcenary property in his possession out of which the daughter-
in-law has not obtained any share.
The object of this section is to make it clear that the widowed daughter-
in-law can claim maintenance from her father-in-law only where she
is unable to maintain herself out of her own property or from the
estate of her husband, father, mother, son or daughter. It is also
provided that the father-in-law except in cases where there is some
ancestral property in his possession from which the daughter-in-law
has not obtained any share.
Under Section 19 of HAMA the father-in-law shall only be liable to pay
maintenance if:
• His daughter-in-law has no sources of income;
• She has no property to sustain herself on her own;
• If she has some property, it is insufficient to meet her basic
expenses.
4. Maintenance of Dependents: Section 21 and 22 – It creates new rights
of certain persons, called dependants. Dependents are relatives of
deceased Hindu and they claim maintenance against the property of
the deceased in the hands of heirs. The term heir includes all those
persons on whom the estate of the deceased devolves. The right of
dependants exists against property and not against the heirs
personally. It does not arise during the lifetime of the person, they
are termed dependents only after his or her death.
Who are Dependents: According To Section 21, the following persons
are dependents of a Hindu, male or female:
a. The father,
b. The mother,
c. The widow,
d. The minor legitimate son,
e. The minor illegitimate son,
f. The minor legitimate unmarried daughter,
g. The minor illegitimate unmarried daughter,
h. The widow daughter,
i. The son’s widow,
j. The grandson’s widow,
k. The son’s unmarried daughter,
l. The grandson’s unmarried daughter,
m. Son’s son’s minor son.
In Prithee Singh v. Raj Rani Koer. (28 March Cal HC 1873) their
Lordships observed: “All that is required of her is that she is not to
leave her husband house for improper or unchaste purposes, and
she is entitled to her maintenance unless she is guilty of unchastity
or other disreputable practices after she leaves that residence.” Under
the Hindu Adoptions and Maintenance Act, there is no duty on the
widow dependent to reside with the relatives of her husband. Under
modern law, even her unchastity is no bar to her claim of maintenance.
When Dependents need to maintain - 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.
5. Maintenance of the Members of the Joint Family: Maintenance of the
members of the joint family is necessary. So long as the family remains
joint, all its members have a right of maintenance against the joint
family property. The persons who claim maintenance out of the joint
family funds may be classified under the following three heads:
a. Coparceners qualified as well as unqualified.
b. Wives, widows, and unmarried daughters of the coparceners,
and
c. Other members of the family. Under this head are included:
• Those male members who are not coparceners (just a
male descendant beyond the fourth degree) and
• Illegitimate children of the father.
The claim of maintenance of all the aforesaid persons is not
dependent upon the age but upon the status: so long as a person,
whatever be his age, is a member of the joint family, he can claim
maintenance against the joint family 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.
In Rita Chowdhury v. Kalyan Chowdhury (2017 (2) ILR (Ker)) 335 decided
by the bench consisting of R. Banumathi and Mohan M. (457 SC 2017)
in this case the court held that there is no hard and fast rule that can
be laid down for deciding the quantum of maintenance. The ability of
the husband, the strata of the society to which the couple belong, the
standard of living that the wife was used to at her husband’s residence.
In the case of Dr. Kulbhushan Kunwar, AIR 1971 SC 234 the maintenance
was fixed at 25 per cent of the income of the husband.
Q.18. What are the kinds of Guardians recognized by the Hindu Minority
and Guardianship Act, 1956? What are the powers of a natural
guardian to alienate his minor’s immovable property?
Or
Who are the Natural Guardians of a Hindu Minor? What are the
powers of such a guardian in a respect of a minor’s person and
property?
Or
Can a minor be a competent person to act as a guardian of another
minors’s property?
Ans. Guardian: A Guardian as defined u/s 4(b) of the Hindu Minority and
Citizenship Act, 1956 means a person taking care of the minor
physically or of his property or of both him and his property and
includes the following:
• A Natural Guardian: Father, Mother and Husband (impliedly
repealed).
• Testamentary Guardian: A person appointed by the will of the
minor’s father or mother.
• Guardian appointed by the court,
• De facto guardians (Self appointed Guardians) and
• Guardians by affinity (Guardians of a minor widow)
Natural Guardian of a Hindu Minor: Section 6 of the Hindu Minority
and Guardianship Act, 1956 recognizes three persons as natural
guardians:
a. The father,
b. The mother and
c. The husband.
Section 6 of HMG Act 1956 defines only three natural guardians:
• For a legitimate boy or a girl, the father, and after father, the
mother, provided that the custody of a child less than 5 yrs of
age will be with the mother
• For an illegitimate boy or a girl, the mother, and after mother,
the father.
• For a married woman, the husband.
• It further states that no person shall be entitled to be a natural
guardian of a minor if
a. he ceases to be a Hindu or
b. he renounces the world completely by becoming a sanyasi.
Here, by father and mother, natural father and mother are meant.
Step father or step mother do not have any right to guardianship
unless appointed by court.
a. Father: “Father is the natural guardian of his minor legitimate
children, sons and daughters.” Section 19 of the Guardians and Wards
Act, 1890, lays down that a father cannot be deprived of the natural
guardianship of his minor children unless he has been found unfit.
The effect of this provision has been considerably whittled down by
judicial decisions and by Section 13 of the Hindu Minority and
Guardianship Act which lays down that welfare of the minor is of
paramount consideration and father’s right of guardianship is
subordinate to the welfare of the child. The Act does not recognize the
principle of joint guardians.
The position of adopted children is at par with natural-born children.
In Essakkayal nadder Vs. Sreedharan Babu. (AIR 1992 Ker 200) case,
the mother of the minor died and the father was also not living with
the child, but the child was alive. the child was not declared to be a
Hindu or renounced the world and he was also not declared unfit.
These facts do not authorize that any other person adopts the child
and be the natural guardian and transfer the property.
b. Mother: The mother is the natural guardian of the minor illegitimate
children even if the father is alive. However, she is the natural guardian
of her minor legitimate children only if the father is dead or otherwise
is incapable of acting as guardian. Proviso to clause (a) of Section 6,
Hindu Minority and Guardianship Act lays down that the custody of
a minor who has not completed the age of five years shall ordinarily
be with the mother. Thus, mother is entitled to the custody of the child
below five years, unless the welfare of the minor requires otherwise.
In Jajabhai Vs. Pathakhan, (1971 AIR 315 )case, the mother and father
got separated for some reason and the minor daughter stayed under
the guardianship of the mother. Here, it will be determined that the
mother is the natural guardian of the minor girl.
In Gita Hariharan v. Reserve Bank of India 2 SCC 228 and Vandana
Shiva v. Jayanta Bandhopadhaya, AIR 1999 the Supreme Court has held
that under certain circumstances, even when the father is alive mother
can act as a natural guardian. The term ‘after’ used in Section 6(a)
has been interpreted as ‘in absence of’ instead ‘after the life-time’.
c. Husband– For a minor wife his husband is the natural guardian.
Under Section 6, it is given that no person will be designated to
perform like the natural guardian of a minor under this portion,
which is in the following:
1. If he/she ceased to be a Hindu.
2. If he/she has completely renounced the world that they are
becoming an ascetic (sayansi) or hermit (vanaprastha).
Powers of a natural guardian: As per Section 8, the powers of the
natural guardian to impose on the child are as follows:
1. The natural guardian of a Hindu minor has the power to do all
work, which are compulsory and which are beneficial for the
minor’s interest. Protection or benefits of the minor’s condition.
2. The natural guardian should bring the prior permission from
the Court, for the use of the gift transferred to him, mortgage or
any other valuable things of the minor.
3. For the lease of any part of minor’s property for about exceeding
5 years or for a term of extending one year beyond the date on
which the minor attains the majority. The prior permission from
the Court is very much needed for doing so.
4. Violation of any disposal of the immovable property by a natural
guardian, it will be voidable at the case of the minor or any
other person claiming on the behalf of him.
5. No Court shall grant permission to the natural guardian to do
any act which is not in the interest of the minor.
6. The Guardians and Wards Act, 1890 shall apply to the
application for getting the permission of the Court if the
application is for getting the permission of the Court under
Section 29 of that Act and in these grounds:
• The natural guardian requires permission from the District
Court or under the Court which empowered by the Guardians
and Wards Act, 1890.
• Should submit the application to the Court within the local
limits of whose jurisdiction, portion of the property of minor is
placed.
• An appeal would be declined, when the Court rejects the
permission to the natural guardian to do any acts of property
transfer and this remedy is usually the result of this Court
decision.
In the case of Manik Chandra vs Ram Chandra AIR 1981 SC has held
that the meaning of “necessity” and “advantage” of a minor are quite
wide and the courts have the power to widen their scope as per the
case facts before giving the permission. As per section 12, no guardian
can be appointed for the undivided interest in the joint property of
the minor. However, the court may appoint a guardian for the complete
joint family if required.
The expression used is “minor estate” it cannot include the minor’s
undivided share in the joint family property as under Section 6 there
cannot be a natural guardian in respect of such property which is
specifically excluded in cases Miriyalu v. Bodireddi Subbayamma 1966
(1) An WR 368, Sri Narayan Bal v. Sri Sridhar Sutar 1996 (1) HLR 174
(SC).
Rights of guardian of person-The natural guardian has the following
rights in respect of minor children:
a) Right to custody,
b) Right to determine the religion of children,
c) Right to education,
d) Right to control movement, and
e) Right to reasonable chastisement
These rights are conferred on the guardians in the interest of the
minor children and therefore of each of these rights is subject to the
welfare of the minor children. The natural guardians have also the
obligation to maintain their minor children.
Custody of a Minor: Custody of a minor is also subordinate to section
13, which declares the welfare of the child to be of paramount interest.
Regarding a child, who is at the age of discretion, his wishes are also
to be considered, though his wishes may be disregarded in his best
interest.
That a mother is preferred to father for custody is not right. Better
economic condition of the father than maternal grandfather is
considered to be in favor of the father. In Kumar vs Chethana AIR
2004, SC has held that mother’s remarriage is not a sufficient cause
in itself to lose custody of a minor. It was further held that convenience
of the parents is irrelevant. To ensure the welfare of the child, the
custody may even be given to the third person as was given to the
mother and grandfather by SC in case of Poonam vs Krishanlal AIR
1989.
In the case of Re Madhab Chandra Saha, 1997, a father was never
active in the interest a minor and after a long time demanded the
guardianship. His claim was rejected.
In the case of Chakki vs Ayyapan, 1989, a mother who says she will
keep living with friends and may beget children from others, was not
considered appropriate for custody in the minor’s interest.
Removal of a guardian: Court has the power to remove any guardian
in accordance to section 13:
• Ceases to be a Hindu.
• Becomes hermit or ascetic.
• Court can remove if it finds that it is not in the best interest of
the child.
Q.19. How is testamentary guardian appointed under Hindu Minority and
Guardianship Act, 1956? Discuss the power of testamentary guardian
in respect of the person and property of a minor.
Or
What are the powers of testamentary guardian regarding the person
and property of minor? Discuss with the case laws.
Ans. Testamentary Guardians: When, during the British period,
testamentary powers were conferred on Hindus, the testamentary
guardians also came into existence. It was father’s prerogative to
appoint testamentary guardians. By appointing a testamentary
guardian the father could exclude the mother from her natural
guardianship of the children after his death. Under the Hindu Minority
and Guardianship Act, 1956, testamentary power of appointing a
guardian has now been conferred on both parents.’ The father may
appoint a testamentary guardian but if mother survives him, his
testamentary appointment will be ineffective and the mother will be
the natural guardian. If mother appoints testamentary guardian, her
appointee will become the testamentary guardian and father’s
appointment will continue to be ineffective. If mother does not
appoint, father’s appointee will become the guardian. It seems that a
Hindu father cannot appoint a guardian of his minor illegitimate
children even when he is entitled to act as their natural guardian, as
Section 9(1) confers testamentary power on him in respect of
legitimate children. In respect of illegitimate children, Section 9(4)
confers such power on the mother alone.
Under Section 9, Hindu Minority and Guardianship Act, testamentary
guardian can be appointed only by a will. The guardian of a minor
girl will cease to be the guardian of her person on her marriage, and
the guardianship cannot revive even if she becomes a widow while a
minor. It is necessary for the testamentary guardian to accept ‘the
guardianship. Acceptance may be express or implied. A testamentary
guardian may refuse to accept the appointment or may disclaim it,
but once he accepts, he cannot refuse to act or resign except with the
permission of the court.
Under the old Hindu law, a Hindu father alone and no other had the
power to appoint a testamentary guardian of his minor children. A
husband had no power to appoint his minor wife’s father as her
testamentary guardian under his Will. (Kapila Annapumamma v.
Ramanujeya Ratnam AIR 1959 AP 40)
A father was entitled to appoint by will a guardian of the person of
his minor children even to the exclusion of their mother. (Alagappa v.
Mangatrai, IL 40 Mad 672).
A Hindu mother cannot appoint by Will a guardian even for the person
of a minor. Under Mitakshara law, the management of the whole
property including the minor’s share in joint family property would
be vested not in the mother but in the eldest male member. It would be
otherwise where the family is divided or where the minor has separate
property. (Anusitavathi v. Siromani, 1938 ILR 40 (Mad)).
A Hindu father or other senior coparcener of a Mitakshara family
has no power to appoint, by will or otherwise, testamentary guardians
for the coparcenary property of the minor (Chidambaram Pillai
v.Rangaswami, AIR 1941 Mad 561).
The present Act preserves the old law insofar as it excludes the
undivided interest of the minor in joint family property from the
operation of Section 9. A father cannot appoint a testamentary
gurardian in respect of the undivided interest of a minor in joint
family property (Pattayee v. Subbaraya, 1980 HLR 500 (Mad)).
Powers of testamentary guardian: A testamentary guardian assumes
all powers of a natural guardian subject to limitations described in
this act and to the limitations contained in the will. A testamentary
guardian is not liable personally for the expenses and he can ask the
guardian of the property of the minor to meet the expenses through
the property.
Q. 20. What is Partition? How it is affected?
Or
What are the various mode of partition and explain circumstances
under which partition mode can be reopened?
Ans. Under the Hindu law, partition means a division of property of a Joint
Hindu family in order to give separate conferment of status on the
undivided coparceners. It is pertinent to note that no partition is
possible if there is only a single coparcener in a Joint family. A
coparcener is a person who inherits estate as coheir with others.
A partition can be possible on the property which is capable of being
partitioned. If at all there is a separate property of any of the
coparceners in the Joint family it cannot be subjected to partition
(Bal Krishna v Ram Krishna, AIR 1931 PC 154).
In the case of Mrutunjay Mohapatra v. Prana Krushna Mohapatra, (ILR
1884 10 Cal 675) the Court stated that when the elder brother had
purchased the property from his persona funds it cannot be subjected
to partition and included in the Joint Family at the instance of a
younger brother.
Moreover, in the case of Prafulla Kumar Mohapatra v. Joy Kanta Krushna
Mohapatra (AIR 1994 Ori 173) the court stated that when the property
belongs to the paternal uncle and there is no substantial evidence
about the share of the property of claimant’s father, it would be
considered as separate property and not a property of Joint Hindy
family.
Partition under Mitakshara and Dayabhaga School:
1. Dayabhaga school: In a Dayabhaga school every adult coparcener
reserves a right to demand partition by the physical demarcation of
his shares. Such partition must be in accordance with the demarcation
of specific shares of partition i.e. partition by bounds and metes.
2. Mitakshara school: In Mitakshara school there is no demarcation of
property into specific shares, and essentials of a coparcener need to
be established, but the existence of Joint property is not an essential
element for demanding partition. All it takes to demand a partition is
a definite and unequivocal declaration that conveys his intention of
separating from the family.
There are two categories under a partition that is Division of Right
and Division of Property–
• De Jure Partition is a division of right, i.e. severance of status
here partition has taken place but actual possession has not
been given and
• De facto Partition means when the partition has actually taken
place by metes and bounds, here ownership, as well as
possession of a property, has been transferred.
In Mitakshara joint family these both categories of partition works
but In Dayabhaga joint family partition of property by meets and
bounds work (De facto).
In Raghvamma v. Chenchemma (AIR 1964), the supreme court held
that it is settled law that a member of the joint family can bring about
separate status by a definite declaration of his intention to separate
himself from the family and enjoyed their share severally.
Essentials of a valid Partition : It is pertinent to note that a coparcener
reserves a right to demand partition at any time without the consent
of the other coparceners. Therefore, in order to bring demand for
partition the following essentials must be established:-
1. There must be an intention to separate from the Joint Family.
2. There must be a clear, unequivocal and unilateral declaration
which conveys the intention to separate from the Joint Family.
3. The intention must be communicated to the Karta or to the other
coparcener in his absence.
Right to Demand Partition:
• Coparceners: Every coparcener in both Dayabhaga and Mitakshara
have right to take partition. Father, son grandson and great-grandson
also have the right to take partition.
• Alienee by way of gift, sale and will/ creditors by way of paying off
antecedent debts.
• Minor coparceners can sue through next friend (Kakamanu
Pedasubbhaya Akkamma, AIR 1968 SC 618) in both schools even a
minor coparcener can take partition. Any person can sue on behalf of
that minor and a minor can reopen the unfair partition and also get
their share if they have right.
• Daughter: In the case of Pachi Krishnamma v. Kumaran, (AIR 1982
Ker. 137) the court stated that the daughter claimed his share as
equal to the son in the partition of joint family property, but she
failed to prove her customs which says that a daughter can get an
equal share as to the son. But after the amendment of 2005 in Hindu
Succession Act, it gave the power that a daughter has the right to ask
for partition and can claim an equal share as to the son in the
partition of joint family property
In the case of Prakash & Ors. v. Phulavati & Ors ((2016) 2 SCC 36) full
Bench of the Bombay High Court in this case in Para No. 23 of the
judgement held that: Accordingly, we hold that the rights under the
amendment are applicable to living daughters of living coparceners
as on 9-9-2005 irrespective of when such daughters are born.
Disposition or alienation including partitions which may have taken
place before 20-12-2004 as per the law applicable prior to the said
date will remain unaffected. Any transaction of partition effected
thereafter will be governed by the explanation.
In the instant case of Danamma Suman Surpur & Anr. v. Amar & Ors,
(2018) 3 SCC 343 the Hon’ble Supreme Court of India in this case as
on 1st Feb 2018 held that: Daughters Have Equal Rights In Ancestral
Property, Even If They Were Born Before Enactment Of Hindu
Succession Act.
In the instant case of Nasimbanu Firozkhan Pathan. Vs. Patel Shantaben
Bhikhabhai & Others (CA 15258 of 2017) in this the Gujarat High
Court as on 26/09/2017 held that a Hindu daughter after marrying to
a Muslim guy does not lose her right to inherit property under The
Hindu Succession Act . It was further observed that:
Prima facie, I am of the view that for the purpose of getting her name
entered in the record of rights, all that was necessary to be indicated
was that the applicant is one of the Class-I legal heirs. It was not
necessary for her to declare that she is married to a Muslim and she
has embraced Islam by renouncing her Hindu religion. Once the Q. of
law is Ans.ed in favour of the applicant, I do not see any good reason
to lay much emphasis on the issue of an affidavit filed by the
applicant.”
• Convert cannot ask for partition but he is entitled to a certain share
for which he can sue. Marriage of a coparcener with a non-Hindu
under SMA, 1954, cannot ask for partition but he is entitled to a
certain share for which he can sue.
• A son born after partition: If a son born after partition and they have
in existence at the time of partition in mother womb then they have
their share in the property and if the child is not in the womb and not
known then also the partition can reopen after birth.
• A person who is allotted a share under a family arrangement
• Adopted child after partition: Revansiddappa and Ors. Malika
Arjun, (2011) 11 SCC 1. it was held that the word mentioned is
‘property’ and it is wide enough to include both Joint Family Property
and separate property, therefore even an adopted son has the right of
partition.
• Illegitimate child: Not entitled for partition or share but for
maintenance only.
• After Amendment of 2005, Female has the same right of partition as
that of a male.
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 (Girja Bai v. Sadashiv Dhundiraj, AIR 1916 PC 104). 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 coparceners consist 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.
Where the intention is clear, the subsequent conduct of parties is of
no use. Once the agreement is entered severance of status begins. The
coparceners can divide the property by mutual agreement. The
partition cannot be recognized by the court if the agreement of
partition is not acted upon. In case of Approver v Ram subha Iyer,
([1880] ILR 2 Mad. 317) the Privy Council has observed that, no
coparcener can claim any defined share in the property but where
the coparceners enter into an agreement to the effect that every
member will have a specific and defined share in future the joint
status is affected and very coparcener acquires right to separate his
specific share and use the same to exclusion of others.
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.
Reopening of Partition: Under the Hindu law, after the partition, has
made it possible to reopen the partition or revoke the partition. In the
cases of Mistake, Absentee Coparcener, Fraud, Son in Womb, Son
conceived and born after partition, Disqualified coparceners and
the additional property after the partition can be reopened in
accordance to the Hindu Law.
1. Mistake: If at all the members of the Joint family have left their
joint family properties by mistake and are left out of the
partition, then the partition can happen later.
2. Fraud: Any partition can be revoked which is done because of
the fraudulent activities. For example- If the assets are
fraudulently represented, then the coparcener can claim his
right for the reopening of partition.
3. Disqualified coparcener: There can be instances wherein due to
some technical constraint, the disqualified coparcener can fall
short of his share at the time of partition. He reserves a right to
get the partition removed by removing the disqualification.
4. Son in Womb: If a son is in Womb, and no shares were allotted
to him, at the time of partition then later it can be reopened.
5. Absentee Coparcenary: Coparcerner can reopen the partition if
he is absent at the time of partition and no share is allotted to
him.
6. Minor: Where minor has been given no share and when a partition
made during the minority of the applicant was unfair and
prejudicial to his interest. He can re-open the partition. It was
observed in case of Sukhrani v Hari shanker, 1979 2 SCC 463 that
a partition which was unfair to minor can be reopened even
there is no fraud or misrepresentation or undue influence. In
such cases, the entire partition does not need to be opened but
a separable part of the scheme of partition could be reopened.
The gap of time between partition and the demand for its
reopening is not material Ratnam v. S.M. Kuppuswami, AIR 1976,
SCR(1) 863.
Effects of Partition of Property Under Hindu Law: There are various
effects on the parties to the partition namely:
1. It leads to end of coparcenary membership. Every coparcener
acquires separate shares and individual rights over that share.
A person becomes free from rights, duties and responsibilities
towards the joint family that existed before the partition.
2. In case of death of separated member his shares devolves by
heirship and not by survivorship.
3. Ancestral business losses its essence and become subject to
the provision of the Partnership Act. Coparceners acquire
different businesses and they no longer are liable to give an
account of their business to a joint family.
4. Father as Karta of the family cannot extent limitation in regard
to pre-partition debt by means of part payment or endorsement.
5. In the case of partial partition, members who severed their rights
from the joint family lose the status that they enjoyed previously.
Q. 21. Explain the principle of Son’s pious obligation to pay his father debt.
Or
Under What circumstances and up to what extent are the son bounds
to pay ancestor debts? Explain what are the immoral debts?
Ans. Under the Hindu Law, a son is under a pious obligation to discharge
his father’s debts out of his ancestral property even if he had not
been benefited by the debts, provided the debts are not avyavaharika.
The sons get exonerated from their obligation to discharge the debt
of their father from the family assets only if the debt was one tainted
with immorality or illegality.
The duty that is cast upon the son being religious and moral, the
liability of the son for the debt must be examined with reference to its
character when the debt was first incurred. If at the origin there was
nothing illegal or repugnant to good morals, the subsequent
dishonesty of the father is in not discharging his obligation will not
absolve the son from liability for the debt.
In Hindu law there are two mutually destructive principles, one the
principle of independent coparcenary rights in the sons which is an
incident of birth, giving to the sons vested right in the coparcenary
property, and the other the pious duty of the sons to discharge their
father’s debts not tainted with immorality or illegality, which lays
open the whole estate to be seized for the payment of such debts.
According to the Hindu law givers his pious duty to pay off the
ancestors’ debts and to relieve him of the death torments consequent
on non-payment was irrespective of their inheriting any property, but
the courts rejected this liability arising irrespective of inheriting any
property and gave to this religious duty a legal character.
Doctrine of Pious Obligation: Joint families under Hindu Law are not
limited to succession and a coparcenary system. The succeeding
generation is also expected of some obligations, one of them being
from the sons for the repayment of debts incurred by their father
during his lifetime. Pious meaning religious, and under the doctrine
of pious obligation, an expectation is casted on a son to repay his
father’s loan and debts from the part of the ancestral property he
holds under a religious duty towards his religion. However, this duty
ceases to exist when the debts are avyavaharika, i.e. incurred for
immoral or illegal purposes. As laid down by the hon’ble Supreme
Court in the case of Sidheshwar Mukherjee vs. Bhubneshwar Prasad
Narain Singh (AIR 1953 SC 487) the doctrine finds its origin in the
historical smiritis. It was held that non-payment of debts was a
positive sin and thus to save the father from the consequences of
such a sin in the afterlife, it was a son’s duty to pay off the debts.
However, under law, the position has been modified to an extent
where a son is liable to pay off the debts only confining to the interest
in the coparcenary property he holds. He cannot be otherwise made
personally liable. Also, unlike the previous distribution where the
son was liable to pay off the whole debt and the grandson and great-
grandson only the principal amount, now all three generations are
equally obligated to pay off the principal amount and interests.
Now moving on to the other aspect of this doctrine, what are the
Avyavaharika debts. In the case of S.M. Jakati and Ors. vs. S.M. Borkar
and Ors., (AIR 1959 SC 282) the Hon’ble Supreme Court the term
‘avyavaharika debt’ was explained. The most plausible one it found
was the one translated by Colebrook as “a debt for a cause repugnant
to good morals”. Under the said doctrine, a son is off the liability to
pay-off the debts if they are taken for such ‘avyavaharika’ purposes.
These purposes may be for keeping a concubine, or gambling, or
bribing or any other immoral act.
This doctrine, as formulated in the original texts, has indeed been
modified in some respects by judicial decisions. Under the law, as it
now stands, the obligation of the sons (which expression includes
throughout sons’ sons and sons’ sons’ sons) is not a personal
obligation, existing irrespective of the receipt of any assets. It is a
liability confined to the assets received by the son as his share in the
joint family property or to his interest in the same.
The obligation exists whether the sons are major or minor, and
whether the father is alive or dead. If the debts have been contracted
by the father, and they are not immoral or illegal, the interest of the
sons in the coparcenary property can always be made liable for such
debts.” (Sidheshwar Mukherjee v. Bhubaneswar Prasad, 1954 S.C.R.
177)
The Madras High Court had held that a family debt, which was not
tainted with immorality or illegality, was binding on the sons, and
some provision has to be made for its discharge from the estate at
the time of the final partition. (M. Shanmugha Udayar v. Sivanandam,
A.I.R. Mad. 123)
The Supreme Court in Anthony Swamy V. M.R. Chinaswamy koundan
(AIR 1970 SC 223), the doctrine of Pious Obligation is not merely a
religious doctrine but has passed into the realm of law. The doctrine
is a necessary and logical corollary to the doctrine of the right of the
son by birth to a share of the ancestral property and both these
conceptions are correlated. The liability on the son to pay the debt of
his father is not a gratuitous Obligation thrust on him by Hindu law
but is a salutary counter balance to the principal that the son from
the moment of his birth acquires along with his father an interest in
the joint family property. The doctrine is in consonance with justice,
equity and good conscience
Again in Venkatesh Dhonddev Deshpande V. Son, Kusum dattatraya
Kulkarini (AIR 1978 SC 1791), the court observed that where the father
as karta contracted the debts for family purposes, the son’s as
members of the family are bound to pay the debts to the extent of
their interests in the coparcenary property,
Under Old Law, the doctrine (Obligation to discharge the debts) arises
after the death (of the father). But, according to the modern doctrine
(new law) the Obligation arises even during the life time of the father
(Brij vs. Mangal prasad, 46, all. 951 (PC). Further, under the old law, the
son had an obligation to pay the debts with interest. The grandson
was liable for the principal amount only (i.e. without interest). The
great grandson was not liable, unless he had received the property
from the ancestor. But according to the modern doctrine/law all i.e.
son, son’s son and son’s son’s son are liable to pay the debts with
interest.
Nature of Liability:
1. The liability is not personal. It is limited only to the son’s interest in
the coparcenary property.
2. The liability is limited only to sons who are joint with the father. The
separated sons are not liable for debts incurred by the father after
partition. A separated son would be liable for a pre-paration debt,
only to the extent of the share he has obtained on the partition.
3. The liability of the son subsisted so long as the liability of the father
subsisted. The pious obligation to discharge the lawful debts of the
father ceased on the debts becoming time-barred against the father.
The Full Bench of the Gujarat High Court has held that if a father is
adjudicated insolvent, the pious obligation of his son for pre-partition
debts of the father comes to an end. (Jayantilal v. Shrikant, A.I.R. 1980
Guj. 67)
4. The liability of the grandson and great-grandson was also similar to
that of the son.
5. The liability was not joint or joint and several with the ancestor. It
did not arise from contract, as in the case of the father, but from the
obligation of religion and piety imposed upon the sons under the
Hindu law to discharge those debts of the father which are not
immoral.
Enforcement of liability against son after partition:
1. If the suit was filed against the father before partition, the son would
be liable for the debt contracted before partition.
2. If the suit was filed against the father after the partition, the decree
could not be executed against the son.
3. But if the father died in the above case pending the suit, and if the son
was brought on record as the legal representative, the decree could
be executed against the son. (Pannalal v. Naraini, 1952 S.C.R. 544)
In a Bombay case, Surajmal v. Motiram (41 Bom. I.R. 1175), Lokur J.
has summed up the position of this aspect of Hindu law (as it then
existed) by laying down the following six propositions:
1. A son is under a pious obligation to pay his father’s debts (not immoral
or illegal) incurred when they were joint, and this obligation continues
even after a partition between them, but is limited to the extent of his
share in the joint family property.
2. The son is not liable for a debt contracted by the father after partition.
3. A decree against the father alone, passed when he was joint with the
son, is binding upon the son even after partition, though it is open to
him to impeach it either in execution proceedings or in a separate
suit, on the ground that the debt for which the decree was passed was
incurred for an immoral or illegal purpose.
4. So long as the father and the son are joint, such a decree may be
executed against the father alone, and the entire joint family property,
including the sons’s share, may be attached and sold for the
satisfaction of the decree, subject to the son’s right to oppose the
attachment and sale or to have them set aside on the aforesaid ground.
5. If such decree is to be executed after the son has separated from his
father, the son must be made a party to the execution proceedings, if
his separated share is to be proceeded against; otherwise, its sale
will not be binding on the son.
6. A decree passed after the partition against the father alone for his
pre-partition debts (not immoral or illegal) is not binding on the
separated son. After partition, a decree must be obtained against the
son if his separated share is to be held liable.
In Prasad v. Govindaswami Mudaliar, (1982) 1 S.C.C. the Supreme Court
examined the scope of this rule of Hindu law (as it then existed) and
reiterated the following propositions:
1. The privilege of alienating even the whole of joint family property for
payment of debts is available to the father, grandfather and great-
grandfather qua the son or grandson only. No other person of the
joint family has any such privilege.
2. The father in a joint Hindu family may sell or mortgage the joint
family property, including the son’s interest therein, to discharge a
debt contracted by him for his own personal benefit. Such an alienation
will bind the sons, provided that:
a. The debt was antecedent to the alienation;
b. The debt was not incurred for an immoral purpose; and
c. The father acted like a prudent man, and did not sacrifice the
property for an inadequate consideration.
3. The validity of such an alienation rests upon the pious duty of the
son to discharge his father’s debts.
4. An “antecedent debt” is one which is antecedent in fact as well as in
time, i.e., the debt must be truly independent, and not part of the
transaction which is impeached. The debt may even be one incurred
in connection with a trade started by the father.
Burden of proof that the debts are tainted is on sons: The obligation
on son to pay off their father’s personal debts is religious obligation
and if they want to wriggle out of it? They can do so only if the debts
are tainted the son also have to show that creditor had the notice or
knowledge that the debts was tainted.
The Apex Court in Luhar Marit Lal Nagji v. Doshi Jayantilal Jethalal,
(1960 AIR) 964relying upon the judgments of the Privy Council referred
to (supra), enunciated the principles thus: “the sons who challenge
the alienations made by the father have to prove not only that the
antecedent debts were immoral but also that the purchasers had
notice that they were so tainted.”
The learned judge points out that the doctrine, as formulated in the
original texts, has indeed been modified in some respects by judicial
decisions. That under the law as it now stands, the obligation of the
sons is not a personal obligation existing irrespective of the receipt
of any assets, and that it is a liability confined to the assets received
by him in his share of the joint family property or to his interest in the
same. The obligation exists whether the sons are major or minor or
whether the father is alive or dead. If the debts have been contracted
by the father and they are not immoral or irreligious, the interest of
the sons in the coparceners property can always be made liable for
such debts.
Q. 22. Who are Coparceners and what is their right? Whether a daughter
who want to remain unmarried, can claim partition under coparcenary
property?
Ans. Coparceners: Under the Hindu succession law, the term coparcener
is used to denote a person, who assumes a legal right in his ancestral
property, by birth in a Hindu Undivided Family (HUF). As per the Hindu
Succession Act, 1956, any individual who is born in an HUF becomes
a coparcener by birth.
The word coparcener has its origin in the Late Middle English era
and, according to Lexico, coparceners mean a person who has equal
shares with others in the inheritance of an undivided estate. The
Collins dictionary defines the term as a person who is a coheir and
inherits an estate with others. In the context of Hindu laws,
a coparcener is a person who has a legal right to his ancestral
property by birth
Coparcenary in HUF is a narrower body than the Hindu joint family
itself by definition. Before there is the commencement of the Hindu
Succession (Amendment) Act, 2005, a coparcener was the male member
of the family who acquired their interest in the coparcenary
property by birth. The eldest member of a HUF and the following three
generations constitute a coparcenary under the Hindu Law. This means
the list of coparceners in a coparcenary is made of the head of the
family or Karta along with his sons, grandsons, and great-grandsons.
Following the Mitakshara system, this interest over coparcenary
property is acquired by birth. Whenever there is a birth of a son in
the family, he becomes a coparcener in HUF and acquires his
undivided interest over the coparcenary property naturally. This
means the share of coparceners in a property is not static. It can be
diminished or enlarged by the birth or death of any other members of
the coparcenary respectively. However, one’s interest in the property
remains undivided
The Rights and Duties of Coparceners:
1. Community of interest and unity of possession: No coparcener is
entitled to exclusive possession of any part of the coparcenary
property; nor is any coparcener entitled to any special interest in
such property.
As observed by the Privy Council in Katama Natchairv. Rajah of
Shivagunga (1893 9 M.I.A. 539), “there is community of interest and
unity of possession between all the members of the family”
2. Share of Income: A member of a joint family cannot, at any given
moment, predicate what his share in the joint family property is.
Such a share becomes defined only when a partition takes place. The
reason is that his share is a fluctuating one, which is liable to be
increased by deaths, and diminished by births, in the family. It follows
from this that no member is also entitled to any definite share of the
income of the property.
According to the principles governing a Hindu undivided family, the
whole income of the joint family property must be brought to the
common purse of the family, and then dealt with as per the rights of
the members to enjoy such property.
3. Joint possession and enjoyment: Each coparcener is entitled to joint
possession and enjoyment of the family property. If he is excluded
from doing so, he can enforce this right by way of a suit. He is not,
however, bound to sue for partition. In a suit for joint possession, the
Court would declare his right to joint possession, and further direct
that he should be put into such joint possession.
4. Right against exclusion from joint family property: If a coparcener is
excluded by other coparceners from the use or enjoyment of the joint
property, the Court may, by an injunction, restrain such coparceners
from obstructing him in the enjoyment of the property.
In one case, A and Â were members of a joint family. A prevented Â
from using a door which was the only means of access to the rooms
which were in B’s occupation. It was held that, in the circumstances,
the Court could, by injunction, restrain A from disturbing Â in the use
of the door. (Anani v. Gopal, 1895, 19 Bom. 269)
In another case, A and Â were members of a joint family, which owned
a shop in Poona. A prevented Â from entering the shop, inspecting the
account books, and taking part in the general management of the
shop. Â sued A for an injunction, restraining A from excluding Â from
the joint possession and management of the shop, and the Bombay
High Court held that Â was entitled to succeed. (Ganpat v. Annaji,
1899 23 Bom. 144)
5. Right of maintenance and other necessary expenses: Every coparcener
is entitled to be maintained out of the estate of the family. For this
purpose, he is entitled to receive, from the coparcenary property,
maintenance for himself, his wife and children, as also for those
whom he is bound to maintain. Besides such maintenance, a
coparcener is also entitled to get money from the coparcenary property
for the purpose of the marriage of his children and for the performance
of the sradha and upanayana ceremonies.
6. Right to restrain improper acts: Every coparcener has the right to
restrain improper acts on the part of other coparceners, where such
acts cause substantial injury to his rights as a member of the family.
Thus, if a coparcener erects a building on land belonging to the joint
family, so as to materially alter the condition of the property, he may
be restrained by an injunction from doing so.
7. Right to enforce partition: Every adult coparcener is entitled to enforce
a partition of a coparcenary property. He cannot, however, file a suit
for a declaration of the amount of his share, as he has no definite
share, until partition.
In one leading case Appaji v. Ramchandra, (16 Bom. 29), the Bombay
High Court held that there is one important exception to the above
rule, namely, that where the father is joint with his own father or
other collateral members, a son cannot enforce a partition against
the will of the father. This exception is also recognised in the State of
Punjab also, but not in other parts of India.
8. Right to account: A coparcener has no right to ask for accounts from
the manager as regards his dealing with the coparcenary property
and the income thereof, unless of course, such coparcener is suing
for a partition, in which case, he would have such a right.
9. Right of alienation: No coparcener can dispose of his undivided
interest in coparcenary property by gift. Nor can he alienate such
interest for value, except in the State of Tamil Nadu, Madhya Pradesh,
Maharashtra and Gujarat. An unauthorized alienation is not however,
absolutely void; it is merely voidable at the option of the other
coparceners.
However, it is open to a creditor, who has obtained a decree against
the coparcener personally, to attach and sell his undivided interest,
and if this is done, the purchaser can have his interest separated by
a suit for partition.
10. Right to impeach unauthorized alienations: Every coparcener has the
right to impeach alienation by the manager, or any other coparcener,
in excess of their powers. Such alienation can be impeached only by
a coparcener or by a transferee who has acquired the entire interest
of a joint family in the property alienated.
11. Right to renounce: A coparcener has the right to renounce his interest
in the coparcenary property. He can do so by expressing his intention
to that effect, and if he does so, no other formalities would be
necessary. Such a renunciation must, however, be in favour of the
whole body of coparceners. Even if he renounces in favour of one
individual member, the renunciation will operate for the benefit of
all the coparceners.
12. Right of survivorship: All the coparceners of a joint Hindu family have
a right of survivorship in respect of the joint family property. Thus, if
one coparcener dies, his undivided interest in such family passes by
survivorship to the remaining coparceners, and not to his heirs by
succession. (The circumstances in which this right of a coparcener
does not exist have already been considered earlier.)
13. Right to make self-acquisition: A coparcener has the right to acquire
property of his own, and keep it as his self-acquired property. The
other coparceners would have ho claim on such property.
14. Right to manage: A coparcener, who is the senior-most member of
the family, is entitled to manage the coparcenary property and
business, and to look after the interests of the family on behalf of the
other coparceners, unless he is incapacitated from doing so by illness
or other like and sufficient cause.
Daughters’ right to ask for partition even when she remains
unmarried: With the amendment of Section 6 of the Hindu Succession
Act (the amendment in the law came into effect on September 9, 2005)
the daughters’ rights regarding ancestral property were made the
same as that of sons, with them being covered under the term
coparcener.
The amended Section 6 of the Hindu Succession Act, 1956, which
deals with devolution of interest in coparcenery property, states that:
“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: by birth, become
a coparcener in her own right in the same manner as the son; have
the same rights in the coparcenery property as she would have had if
she had been a son; be subject to the same liabilities in respect of the
said coparcenery property as that of a son and any reference to a
Hindu Mitakshara coparcener shall be deemed to include a reference
to a daughter of a coparcener.” Nothing contained in the sub-section
affects or invalidates any disposition or alienation, including any
partition or testamentary disposition of property, which had taken
place before December 20, 2004, it added.
Consequently, daughters now have all the coparcenery rights, they
can ask for the partition of the property and become the karta of an
HUF. However, this change, from being only a member to a coparcener,
is applicable only on daughters. This means only daughters born in
the family have the coparcenery rights. Women who join an HUF
through matrimonial alliance will be treated as members only. Note
here that a daughter, who gets married will discontinue to be a member
of her parental HUF. However, she will continue to be a coparcener in
the HUF. In case of her demise, her children will have the legal right to
receive the share in an HUF property at the time of its partition. In
case her children are not alive either, her share in the property could
be claimed by her grandchildren.
Q. 23. Explain who is Karta and the powers and positions of Karta in Joint
Hindu Family? What are the rights of the Karta?
Ans. Karta: Karta is a person who acquires a main position in the joint
family property. He is denoted a manager, occupier of the family. The
position of Karta is known as Sui Generic means he hold a unique
position in the Joint family property. There can be more than once
Karta in the Joint Family (Darshan v. Prabhu, AIR 1946 ALL 67). The
Karta can be the Senior most male member of the family. His main
duty is to represent his family members or act behalf of them. He is a
person to whom all the family members are depended upon just they
hold a fiduciary relation between them that they always wants a
person to manage and look after the wellbeing of the family without
any issues. So the Karta will look after the females, minors in the
joint family and also give them maintenance. If the Karta fails to give
maintenance then he can be sued or the maintenance as well as the
arrears of the maintenance. He is responsible to give maintenance to
unmarried daughters in the Joint family along with the debts if the
family is having at any point of time. Thus all this will be the liability
of a Karta to maintain the Joint Family member as well the business
carried on.
The following persons can be Karta in the Joint Family:
1. Senior Most Male Member: It is observed in Shreeama v.
Krishavenanama (AIR 1957 AP 434) that the Senior male can be
Karta without the agreement or consent of the coparceners and
he hold the Kartaship
2. Junior Male Member: it is observed in Narendra Kumar v.
Commissioner of Income Tax (AIR 1976 1953) that Junior Male
can be Karta by understanding or agreement among the
coparceners. In case M/s Nopany Investments (P) Ltd. V. Santokh
Singh (AIR 2008 SC 678) it was held that the Junior Karta will not
the capacity to file a suit. In Harihar Sethi v. Ladu Kishore Sethi
(AIR 1968 SC 678) it was held by the Orissa High Court that
junior coparcener can be the Karta when the senior most
coparcener waives his right of Karta then a junior member can
become Karta.
3. Female Member: It was observed in Pandurang v. Pandurang
(AIR 1847 Nag. 178) that the females can be Karta in the absence
of the male adult member. In the case Commr. Of Income Tax v.
Seth Govind Ram (AIR 1966 SC 24) it was held that the females
can’t hold the position of Karta as per the Hindu Law text. It is
contravention part of the Joint Family.
Characteristics of Karta: The characteristics of a Karta are:
• Karta’s position is unique (sui generis). His position is
independent and no one can be compared with him among the
family members.
• He had unlimited power but even if he acts on behalf of other
members, he can’t be treated as a partner or agent.
• He controls all the affairs of the family and has wide powers.
• He is responsible to no one. The only exception to this rule is, in
case of fraud, misappropriation or conversion, he is held
responsible.
• He is not bound to invest, save or economies. He has the power
to use the resources as he likes, unless he is not responsible for
the above mentioned charges.
• He is not bound to divide the income generated from the joint
property equally among the family members. He can
discriminate one with another and is not bound to be impartial.
The only thing is he should pay everyone so that they can avail
some basic necessities like food, clothing, education, shelter
etc.
Powers of a Karta: The powers of Karta are:
1. Powers of Management: Karta’s power of management is absolute.
No one can Q. 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.
2. 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 fulfillment 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
a. Legal Necessity
b. Benefit of estate
c. 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, griha pravesham 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.
Kartas Liabilities:- Karta has vast powers same time his position is
fiduciary and has lot of responsibilities and liabilities.
a. Liable to maintain:- Karta is responsible to maintain all the
members of joint family. If he improperly excludes any member
from maintenance, he can be sued for maintenance and also
arrears of maintenance.
b. Liability to render accounts:- As long as family remains joint,
Karta is not supposed to keep accounts, but when partition takes
place at that time he is liable to account for family property. If
any of the coparcener is not satisfied with his account can
institute a suit against Karta to discover the truth and to know
any misappropriation is made by Karta.
c. Liability to recover debts due to the family:- Kartas should realize
all debts due to the family within reasonable time but should
not allow them to bar by limitation.
d. Liability to spend reasonably:- As Karta of joint family has
control over the income and expenditure of the family, he is
custodian of surplus income. However he should spend family
funds reasonably and for the purpose of the family.
e. Liability not to alienate coparcenary property:- Unless it is for
benefit of family, estate or for necessity Karta cannot alienate
joint family property without the consent of all the coparceners.
f. Liable not to start new business:- Unless adult coparceners of
the family expressly or impliedly consents, Karta cannot start a
new business.
Q. 24. What are the powers of a Shebait to alienate debutter property? Can
a Hindu female succeed to the religious office of Shebaitship?
Ans. The person who manages the debutter property is known as the Shebait
in Bengal, Dharmakarta in Tamilnadu and Andhra Pradesh, and
Panchayatdar in Tanjore and Malabar. The Shebait is not really a
manager although in English he is referred to as the manager. The
Shebait is more like trustee since he is the holder of an office of
dignity and God.
In the words of Mayne: “The shebait is one who serves and sustains
the deity whose image installed in the shrine. The duties and privileges
of a shebait are primarily those of a one who fills a sacred office”. A
shebait is a mere manager, not the owner of the debutter property, the
idol is the owner, but only in an ideal sense. There is always a human
personality linked up with this ideal personality, and the shebait or
manager of the deity must of necessity be empowered to do whatever
may be required for the service of the idol and for the benefit and
preservation of its property. There is no provision that obliges a
shebait to take prior permission of any court for alienating a property
owned by the deity, it is only that if the alienation is challenged at a
future date, the alienee, in spite of the order, will have to prove as a
fact that there was legal necessity for the transfer or that he made
enquiries and was reasonably satisfied that such necessity existed.
A shebait is not a trustee in the proper sense of the word and the
Indian Trusts Act, 1882 has no application to the case of a Hindu
religious endowment. The court, therefore, has no jurisdiction to
grant an application by a shebait to sanction his transaction on the
ground of necessity.
The Supreme Court has held in Prafulla Charan v. Satya Charan, (1979
AIR 1682) that the property dedicated to an idol vest in it, is an ideal
sense only; ex-necessities, the possession and management has to
be entrusted to some human agent, called Shebait in the North. The
legal character of Shebait cannot be defined with precision and
exactitude. Broadly described he is the human ministrant and
custodian of the idol as its earthly spokesman, its authorised
representative entitled to deal with all its temporal affairs and
manage its property.
The Calcutta High Court has laid down in its decision in the case,
Jagannath Devraj v. Byomkesh Rai, (1958 SCR 938) that he may manage
the property of the deity as a reasonable man as per his own wishes.
Shebaitship is the mixture of rights and duties over the properties of
Matha over which the Hindu law of succession applies and which
devolves according to the Hindu Succession Act.
In S. Duthinam alias Kuppam Utha & others v. L.S. Mariappan & others,
(Appeal (civil) 6616 of 2002) the Court upheld that shebaitship can
be the subject-matter of Will and such will be valid, that will not be
barred by Transfer of Property Act and it does not apply in Hindu Law.
In Kacha Kant Seva Samity v. Kacha Kant Devi, ((2012)3 SCC 574) a
plaintiff has claimed that deity in temple was gifted to their ancestor
by the King, so it is their private deity and they are the shebaits. He
shows the ancient documents for showing appointments of fore-father
as Deshmukhya, local persons, testifying that since long plaintiff
were performing the puja and offering other services made to Goddess
by the devotees. The Supreme Court observed that, due to long
possession and services of the temple, he is entitled to be declared
as de facto Shebaits.
In Shambu Charan Shukla v. Sri Thakur Ladli Radha Chandra Madan
Gopal Ji Maharaj (1985 AIR 905) case the Supreme Court held that
“Shebaitship is in nature of immovable property heritable by the
widow of the last male holder unless there is a usage or custom of a
different nature in case where the founder has not disposed of the
Shebait’s right in the endowment created by him”.
Again the Calcutta High Court in Bhutnath Mandal v. Kalipad Mandal,
(AIR 1941 PC 38) held that where the founder’s disposition in the
deeds of endowment was that after the death of the son of his brother
to whom the Shebaitship was bequeathed, his male
descendants would become Shebaits one after another excluding the
female heirs or their descendants and only after the failure of
determination of these previous series of estates the nearest
descendant of the founder’s brothers or the senior most among them
if there be more than one of the same class, would become Shebait,
the incapacity of the legatee’s line to succeed because of the illegality
of such disposition contrary to the Hindu law of inheritance would
not entitle any of three nephews of the founder who were alive at the
time of deeds of endowment to any benefit under those deeds.
The court in Anath Bandhu Dey v. Krishnalal Das, (AIR 1979 Cal
168) where the court observed that if the founder of debutter had laid
down any mode of devolution of the office of Shebait, the office would
devolve according to that mode. In its absence, the office would devolve
in accordance with the Hindu Law of Succession i.e., the office of
Shebait would be hereditary one. In this case the founder had willed
that the existing Shebait was to appoint his immediate successor.
The Powers and obligations of Shebait: The powers of a Shebait with
respect to the management of Matha and the debutter property are
quite large. So far the management and possession of the properties
of a Matha is concerned it belongs to the Mahant. Similarly the Shebait
enjoys extensive powers with respect to the management and
possession of the debutter’s properties. The following powers of
Mahant and Shebait are noteworthy:
1. Power over the Income of the Matha or Debutter Property: Shebait
are under an obligation like a trustee not to spend any additional
income from debutter property on himself but on the other hand to
invest the same for the benefit of the estate. In order to preserve the
dignity of his office he is not supposed to use the additional income
for his personal comforts. Similarly a trustee cannot invest the
property given to a charitable institution for some purposes other
than those mentioned in the deed.
2. Power to Compensate: Where a Shebait in order to fulfil his duties
invests some of his own property or draws some money from his own
accounts for purposes of carrying out the obligations thrust upon
him by the founder he has got the power to compensate his loss out of
the debutter property. Similarly, whatever revenues he pays out of his
own accounts for the preservation of debutter property in his custody
that he can realise from the debutter property.
3. Power to Acquire Property: The law does not disqualify the Shebait
to earn separate property. Besides discharging his duties in that
capacity he can very well earn his separate properties but in that
case he has to prove that it was not connected with the trust property
or the property given to Matha or to idol. Where certain property is
not shown to have been acquired by a Mahant in his individual
capacity, which would not be intended to mean for the office of
Mahant.
4. Removal and Replacement of Idol: The Shebait has got the power to
remove the idol from the place of worship or to replace it by another
in case he finds it desirable. But where an idol has been installed in
a temple, he has got no such power to replace it or to remove it unless
the majority of the worshippers give their consent to it. The Court
also cannot interfere in the matters of replacement or transfer of the
idol to another place unless it is found to be covenient for the public
and the very idea of transfer has been favoured by the devotees and
the worshippers.
5. Power to Contract Debt: The power has been vested in the Shebait to
contract debt or to take a loan for the management of the temple and
the idol installed therein. Such debt can be contracted for the purposes
of worship or repairs of the temple or for purposes of protecting the
properties belonging to the deity or to defend the suit filed against
the interest of the temple or the idol. The need for the loan can be
considered in the context of the circumstances at a given time and
the power of the Shebait can be compared with the powers of a
guardian of a minor. In this connection the well known decided case
of Hanuman Prasad Pandey v. Mst. Babooee ((1856) 6 MIA 393 at 412)
can be considered to be a good case.
Whatever is necessary for the management of the temple or for the
benefit of the same belonging to the temple, can be done by the Shebait
in his capacity as a Manager of the idol. Whenever the Shebait
considers that if the loan is not taken then the entire temple and the
idol will be damaged and the worship which is being offered to the
deity, would become impossible the debt taken by him would be held
to be valid.
Whenever a creditor gives any loan to the manager of any religious
institution, the onus to prove the necessity of the loan is on the
creditor himself and he has also to prove to the satisfaction of the
Court that he had made necessary enquiry about such necessity and
was fully satisfied to it, and hence the loan given by him was fully
justified.
6. Alienation of Debutter Property: The general rule is that property
given for religious worship is inalienable, but the Shebait or Mahant
in the charge of property can alienate such property for purposes of
keeping up the religious worship and for the benefit and preservation
of the property. The power of the Shebait or the Mahant to alienate
the debutter’s property is analogous to that of a manager for an
infant heir. He has no power to alienate the debutter’s property except
in case of need or for the benefit of the estate.
The Supreme Court reaffirmed the same principle when it held that
where the debutter-property is to be alienated permanently by a
Shebait, it could be permitted only in case of necessity or benefit of
the estate. The rule applies when the debutter-property is to be given
on a lease. The Allahabad High Court observed that the power of
alienation of a Shebait can be compared with the power of a manager
of a minor coparcener. Generally, the property dedicated to the
religious and charitable purposes is alienable
But legal necessity is an exception to it. It is for the transferee to
establish that the necessity was so acute except the alienation there
was no alternative. The burden lies on the alienee to prove either that
there was legal necessity or benefit of estate, or that he made proper
and bona fide enquiries as to the existence of the necessity and did
all that was reasonable to the existence of such necessity, or benefit.
The Calcutta High Court in Jogendra Nath v. Official Receiver, (AIR
1975 Cal 389) held that under the Hindu Law and alienation of
debutter property can only be made on the ground of legal necessity
and it can be made by all the Shebaits acting jointly. The Shebaits
cannot delegate their authority to any other person or a particular
person or some Shebaits.
But the position becomes different when the debutter estate is
operating under a scheme framed by the Court. In such a case, the
provisions of Hindu Law regarding the rights of the Shebaits acting
jointly are modified to the extent as provided in the scheme.
The Supreme Court in Vishwanath v. Sri Thakur Radhaballablta Ji, (1967
AIR 1044) held that an idol is in the position of a minor and when the
person representing it leaves it in a lurch, a person interested in the
worship of the idol can certainly be clothed with an ad hoc power of
representation to protect its interest.
Now it is well settled that the Shebait can alienate the property for
purposes of legal necessity. The Courts have held the following
alienations as valid on the ground of legal necessity:—
a. To defend the office of Mahant,
b. To feed the Brahmins and to repair the damaged part of the
institution or the temple.
c. Purchase of the essential commodities to feed the devotees and
to perform the worship.
d. To perform the funeral rites of the Mahant or Shebait.
e. Repairs of the temple and the tradition to keep the worship
going on.
A Shebait cannot transfer the right of management of the
debutter property nor can he give it on lease. The right is not
liable to sale even in case of execution of a decree. Where, there
are more than one Shebait, they can for the benefit of the estate
of the temple surrender their rights in favour of one person.
Termination of the Offfice of Shebaitship: The office of shebait falls
vacant on the death of the shebait; the office may also fall vacant by
resignation or by relinquishment. When a shebait resigns or
relinquishes his office, the office will go to the person next in order.
It seems that supervening disability of the shebait will not divest him
of the office, unless there is a custom or usage to this effect. The
office also falls vacant on the removal of a shebait, if a shebait is
guilty of misconduct or abuse of his position, he can be removed by
the court. The court possess this power over both private and public
endowments. The court also has the power to frame a scheme for the
management of the endowed properties. However a shebait cannot
be removed merely for some mistake on his part or on account of
laxity of management. He may be removed for treating endowed
properties as his own, or for immorality or gross moral turpitude.
LEADING CASES
FAMILY LAW-I (HINDU LAW)
1. Shastri Yagnapurushadji vs Muldas Brudardas Vaishya (AIR 1996 S.C.
119) – This is the case of section 2 and 3 of the Bombay Hindu Public
Worship Place ( Entrance Authority) Act, 1956.
Facts of The Case:
The appellants who were the followers of Swaminarayan sect also
known as Satsangis, filed a suit on behalf of themselves and on behalf
of other Satsangis of the northern diocese of the sect at Ahmedabad.
They apprehended that the respondent Muldas Brudardas Vaishya,
who was the president of the Maha Gujarat Dalit Sang at Ahmedabad
intended to assert the rights of the non- satsangi harijans to enter the
temple of Swaminarayan sect situated in Northern diocese at
Ahmedabad in exercise of the legal rights conferred on them by Section
3 of the Bombay Harijan Temple (Entry Authorization Act 1947). Section
3 of the said act provided inter alia, that every temple on which the
act applied shall be open to Harijans for worship in the same manner
and at the same extent as other Hindus in general.
Issues Raised:
• Their case was that the Swaminarayan sect represents a distinct
and separate religious sect and was connected with the Hindus
and Hindu religion, therefore their temples were outside the
purview of the said act.
• The appellants had alleged that the Swaminarayan temple of
Shree Nar Narayan Dev of Ahmedabad and all the temple’s
subordinates thereto are not within the meaning of the former
act.
Judgement Given:
While announcing their judgement, the Supreme court with a view to
elaborate the meaning of Hindu religion, copiously and freely drew
from the works of the eminent scholars and writers of Hindu religion
and philosophy such as; Radhakrishnan, Tilak, Manvir, Williams
and Max Muller and observed that, “Beneath the diversity of
philosophical thoughts, concept and ideas expressed by various
philosophers who started different philosophical school, lie certain
broad concepts which can be treated as basic. Few among them are
the acceptance of Vedas as the highest authority in religious and
philosophical matters, all the existing systems have drawn their
principles from such Vedas. The other basic concept which is common
to the six systems of Hindu philosophy given by Max Mueller is that
all of them accept the view of the great world rhythm, vast period of
creation, and the belief that maintenance and dissolution follow
each other in endless succession. It may also be said that all the
systems of Hindu philosophy believe in rebirth and pre-existence.
Thus it is clear that unlike other religions and religious creeds, Hindu
religion is not tied to any definite set of philosophic concepts as
such.”
The learned judge after examining the basic tenet of the
Swaminarayan sect observed that even a cursory study of growth
and development of Hindu religion through the ages shows that
whenever a saint or a religious reformer attempted the task of
reforming Hindu religion and fought the irrational or corrupt practices
which crept into it, a sect was born which was governed by its tenets,
but was basically subscribed to the fundamental notions of Hindu
religion and its philosophy. Therefore it has never been suggested
that these sects are outside the Hindu brotherhood and the temples
they honour are not Hindu temples. The same was held to be true of
the Swaminarayan sect.
Justice Ganendragadkar quoting Bhagavad Gita said that, “Whenever
religion is on the decline and irreligion is in the ascendance, God is
born to restore the balance of religion and guide the destiny of human
race towards salvation.”, therefore even though Swaminarayan is
himself worshipped as a God, the birth of every saint and religious
reformer is taken as an illustration of the principles enunciated in
the Bhagwat Gita. Therefore, the court finally held that the High court
was right in coming to a conclusion that the Swaminarayan sect to
which the appellants belong is not a religion distinct and separate
from the Hindu religion and consequently all the temples belonging
to the Swaminarayan Sect do fall within the Ambit of section 2 of
Bombay Hindu Places Of Public Worship (Entry Authorization Act
1947). Thus the appeal failed and was dismissed with costs.
2. N.G Dastane V. Smt. Sucheta Dastane (AIR 1975 S.C 1534)
Introduction:
The present Indian society considers any matrimonial dispute as a
delicate relationship and disputes of judicial separation, divorce,
cruelty etc. are still considered inappropriate and thus many social
norms have to be followed by people. But with the changing era, the
disputes have now become part and parcel of life. Nowadays,
numerous matrimonial conflicts are reported in courts. And thus,
confirming the present situation, many laws have been amended
time and again. The Hindu Marriage Act, 1955 that governs Hindu
customs and practices has included cruelty as a ground for divorce
after the Amendment Act, 1976 and thus, the aggrieved party to the
dispute has to prove the infliction of cruelty. It can be both physical
and mental cruelty. The present case i.e. N.G. Dastane v. S. Dastane is
a landmark judgment after which cruelty was added as a ground of
divorce in the Hindu Marriage Act, 1955.
Facts of the Case:
In April 1956, the parents of the respondent in this case put a proposal
for marriage with the appellant. But prior to their marriage, the
respondent’s father informed the appellant through letters about the
medical health of the respondent and apprised him about the attack
of sunstroke that respondent had which had affected her mental
condition which was now recovered. The appellant was also informed
about the cerebral malaria of the respondent which was the main
cause of her deteriorating mental health. The respondent’s father
also informed him about the hospital where the respondent had been
undergoing her treatments. Consequently, the appellant confirmed
the doctor about the same and did not raise any further queries and
consented for marriage.
The respondent was three months pregnant in February 1961, when
the appellant asked for the police protection considering the
respondent as a threat to his life. Later, the respondent asked for
maintenance for herself and her 2 daughters from her husband and
also addressed a letter to the Ministry of Food and Agriculture stating
the cruel treatment and desertion by her husband and claimed
maintenance separately from the government. The relation between
the couple got so tense that the appellant moved to the court. Hence,
the proceedings got instituted in trial court in February 1962, and
appellant claimed for revocation of marriage under Section 12 (1) (c)
of Hindu Marriage Act, 1955 on the ground that his assent had been
fraudulently obtained. He subsequently requested the court for
divorce under Section 13 (1) (iii) of the said Act. Alternatively, he
claimed for judicial separation under Section 10 (1) (b).
Appellant’s Arguments
• The respondent got her treatment of Schizophrenia and her health
was fraudulently stated before the appellant to obtain his
consent.
• The respondent would lose her temper frequently and affront
the appellant and his family.
• The respondent used to behave viciously with her husband and
daughters at the workplace and at the residence.
• The respondent wrote letters to her family and husband
informing them about her disturbed condition of mind.
Respondent’s Arguments
• The letters were sent by her to her family due to the compulsion
of the appellant.
• The appellant took advantage of his own wrong and did not
comply with the conditions under Section 21(1) of Hindu
Adoptions and Maintenance Act, 1956 which mentions different
dependents who can claim the maintenance.
• The appellant compelled her to behave in such manner by
expecting rigid standards of behavior from her.
• The appellant had sexual relations with respondent while
deserting her that led to the birth of their third baby and which
amounted to condoning of cruelty.
Judgment:
The respondent i.e. Sucheta Dastane was held liable for cruelty by the
Trial Court. Later, the husband was ordered to pay Rs.400 per month
as interim maintenance and also to pay the arrears.The custody of
children till the age of majority was granted to the wife considering
their interest and well being.
Appeal was again filed by the Husband i.e. N.G. Dastane in Bombay
High Court, though it was dismissed. However, he was granted special
leave to appeal that would be filed only on strict grounds of judicial
separation on the basis of cruelty. Since there was no reliable and
authentic evidence as to the cruelty and behavior of the appellant, no
conclusion could be drawn on the same. The Supreme Court observed
that the former court should not apply the principle of ‘beyond
reasonable doubt’ since the matrimonial dispute could not be
adjudged on such principle but probabilities since it was not a
criminal dispute.
Eventually, the court held that since there was no valid justification
on the part of appellant regarding their sexual life in spite of the acts
of the respondent, since the same was apparent due to the birth of
their third child that too after six months of their separation which
indicated forgiveness and restoration. Also, it was evident that the
wife was not willing to leave the house in which they lived. The court
also observed that the conduct of respondent was mere reaction to
the allegations of unsound mind by her husband and therefore, the
ground of cruelty on her part post separation did not hold good.
Justice Chandrachud, Y.V. formulated a test in order to determine the
gravity or cruelty which included the following testaments:
1. The alleged acts that amount to cruelty should be proved as per
the law of evidence.
2. The petitioner should have an apprehension in mind with respect
to the actual injury or harm from the conduct of another person.
3. There should be a reasonable apprehension related to the
condition of parties.
4. The petitioner should not take the benefit of his position.
5. There should be no coadunation of cruelty by the petitioner.
Hence, the court observed that these conditions were not fulfilled as
there was no proper evidence on which, the Q. of cruelty could not be
decided with any probability. Also, there was no actual apprehension
in the appellant’s mind as to any harm from the other. Further, the
alleged act of cruelty by the respondent was also condoned by the
appellant who is evident from the fact that they had given birth to a
third child post separation.
Therefore, the court held that the allegations of appellant were false
and since the respondent was willing to stay with her husband after
realizing her mistakes and that the appellant condoned her cruelty
after which she did not act adversely and thus the respondent was
not held liable for cruelty.
Analysis:
In this case, cruelty was recognized as a ground for divorce and the
wife who suffers it shall be entitled to maintenance from her husband.
The acts which cause even mental agony also constitute cruelty. The
Hindu Marriage Act, 1955 did not mention cruelty as a ground for
divorce but only for judicial separation. The same was followed in
N.G. Dastane v. S. Dastane in 1975. Later, the Amendment Act of 1976
made cruelty as a ground for divorce. Prior to this, cruelty meant any
kind of reasonable apprehension in the mind of either person so as
to cause injury to his or her life. But the court after this case stated
that it is a subjective matter whether any cruelty has been suffered by
any party and this must be determined in s specific manner.
The ground of cruelty was similar to the ground that is mentioned in
Section 10(1)(b) of the Hindu Marriage Act, 1955 i.e. judicial
separation through a point of difference among these is that words “
persistently or repeatedly” were added” and therefore this ground
has been made more severe after the amendment. Although family
disputes cannot be solved solely on the basis of allegations since it
is not always possible to determine the guild of either party due to
lack of authentic evidence, the courts are given wider power to
interpret this Q. in a subjective manner that whether the act of the
party constitutes cruelty or not. Therefore, relevant circumstances
must also be considered by the courts and they must not rely only on
a few incidents. Therefore in the present case also, there were no
continuous acts of cruelty by wife and the fact of condonation of the
same by the husband eventually led to the decision of the case wherein
the respondent was not held liable for the fabricated allegations of
the appellant.
3. Bipin Chandra V Prabhawati (AIR 1957 SC 176):
Facts of the case:
• The Appellant and the Respondent were married on 20th April 1942
in Patan according to Hindu rites of the Jain Community. They had a
son who was born on 10th September 1945.
• The Appellant and the Respondent lived in a two-bedroom flat in
Bombay along with the Appellant’s parents and two sisters.
• The Appellant’s mother mostly lived in Patan as she was an asthma
patient.
• A family friend named Mahendra, after his discharge from the army,
began to live with the family from 1946 onwards.
• On 8th January 1947, the Appellant left for England on business.
• The Appellant alleged that during his absence, the Respondent became
intimate with Mahendra. When the Respondent left for Patan after
his departure to England, she continued an ‘amorous correspondence’
with Mahendra, who continued to stay with the Appellant’s family in
Bombay.
• The Respondent had written a letter to Mahendra from Patan in April
1947 while Mahendra lived with the Appellant’s family in Bombay.
• The Appellant returned to Bombay on 20th May 1947, and he was
received by his entire family, including the Respondent.
• According to the plaintiff, on his first night back, he slept away from
his wife as his bed had been made in the hall of their apartment.
• The next morning, the Appellant’s father handed him a letter, which
he immediately recognized to be written by his wife. The husband
gave the letter to a photographer to have its copies made. That very
evening, he asked his wife as to why she had written a letter to
Mahendra.
• The wife initially denied having written any letter and asked to see
the letter. Upon this, the husband said that the letter was with the
photographer for making copies.
• On receiving the letter from the photographer on 23rd May 1947, the
Appellant showed the letter to the Respondent.
• The Respondent allegedly admitted to writing the letter and told the
Appellant that Mahendra was a better man than him and that
Mahendra loved her and she loved Mahendra.
• The next morning, on 24th May, the Respondent informed the Appellant
that she was ready to go to her father’s place in Jalgaon as there was
a marriage in her father’s family. The Appellant said that since the
Respondent had made up her mind to go, he would send the car to
take her to the station and also offered Rs.100 for her expenses.
However, the Respondent refused this offer.
• The Respondent left for Jalgaon by the afternoon train while the
Appellant was at work.
• When the Appellant returned home in the evening, he “discovered
that she (respondent) had taken away everything with her and had
left nothing behind.”
• The Appellant’s mother had left for Patan with his son some days
previously.
• On 15th July 1947, the Appellant sent the Respondent a notice
mentioning that she had left against his wishes and that he no longer
intended to keep her in his protection and care. He also desired that
their minor son should be sent to him. No Ans. to this letter was
received by the Appellant.
• In November 1947, the Appellant’s mother came to Bombay from
Patan and informed the Appellant that the defendant might be expected
in Bombay in a few days.
• The Appellant sent a telegram to the Respondent’s father, which
mentioned that there was no need to send Respondent and that he
had posted a letter.
• On 15th November 1947, the Appellant’s father sent a letter to the
defendant’s father mentioning that it was absolutely necessary that
the plaintiff’s consent must be taken before sending the Respondent
back to Bombay.
• Three interviews took place between the Appellant and the Respondent
in the following years, but nothing fruitful happened.
• On 4th July 1951, the Appellant filed for divorce under Section 3(1)(d)
of the Bombay Hindu Divorce Act. The ground for the suit was that the
Respondent had been on desertion, since 24th May 1947, without
any reason or cause, against his will and consent, for a period of
over four years.
• At the trial held by Justice Tendolkar of the Bombay High Court, the
issue in the case was held to be affirmative, and a decree for divorce
in favour of the Appellant was granted. The learned judge observed
that the letter written by the Respondent to Mahendra read like a love
written by a girl to her paramour. He held that there was desertion
with the necessary animus deserendi and that the Respondent had
failed to prove that she had an honest and genuine interest in coming
back to her marital home.
• Following this, the Respondent preferred an appeal under the Letters
Patent, which was heard by Chief Justice Chagla and Justice Bhagwati.
The Appellate Bench held that the Respondent was not guilty of
desertion and set aside the order of the trial judge. The letter dated
15th July 1947 proved that it was the Appellant who had deserted the
Respondent.
• The Respondent obtained a special leave to appeal from the
judgement of the Appellate Bench of the High Court.
Issues: –
1. Whether leaving one’s marital home physically is tantamount to
desertion?
2. Does desertion on part of the deserting party subsist when the deserted
party refuses to accept the deserting party?
The contention by the Appellant:
• The Appellant alleged that during his absence, the Respondent became
intimate with Mahendra. When the Respondent left for Patan after
his departure to England, she continued an ‘amorous correspondence’
with Mahendra, who continued to stay with the Appellant’s family in
Bombay.
• After leaving from Jalgaon, the Respondent never came back to live
with him in Bombay, nor did she write any letters to him from Jalgaon.
• His marriage with the Respondent should be dissolved, and he must
be given the custody of their minor child.
• The Respondent’s refusal for sleeping in the same room with the
Appellant upon his return from England is proof that the Respondent
had already decided to end the cohabitation.
The contention by the Respondent:
• The Appellant, by his treatment of her upon his return from England,
made her life unbearable and forced her to leave her marital home
against her wishes.
• The Respondent denied any intimacy between her and Mahendra or
that she was confronted by the Appellant with a photocopy of the
letter, or that she confessed to any such intimacy to the Appellant.
• Her paternal uncle Bhogilal (since deceased) and his son Babubhai
saw the Appellant, at her insistence, in Bombay about taking the
Respondent back, but the Appellant turned down their request.
• The Respondent had always been ready to go back to the Appellant,
but it was the Appellant who refused to keep her and cohabit with her.
• The Appellant insisted that his bed be set up in the hall on 20th May
1947.
• The Respondent’s relationship with Mahendra was along the lines of
that between a sister and a brother.
Obiter dicta:
• For desertion, the following conditions must exist:
• For the deserting spouse- a) the factum of separation and b) animus
deserendi.
• For the deserted spouse- a) the absence of consent and b) the absence
of conduct giving reasonable cause to the spouse leaving the marital
home to form the necessary intention mentioned above.
• The burden of proof to prove that all four conditions exist is on the
Appellant.
• The offence of desertion commences when the fact of separation and
the animus deserendi co-exist. But it is not necessary that they should
commence at the same time.
• If a deserting spouse intends to come back to the deserted spouse
with a genuine and honest to resume marital life before the period of
separation is over, as prescribed in the Act, but the deserted spouse
unreasonably refuses the offer, then the latter is said to be in desertion
and not the former.
• The reading of the letter written by the Respondent to Mahendra
clearly indicates that there was something between her and Mahendra
that she intended to keep a secret. The correspondence between the
Respondent and Mahendra was uncharacteristic of a faithful wife.
• The Respondent’s contention that she had been forced out of her
marital home by the Appellant under duress cannot be accepted as
the evidence, facts, context, and testimonies do not indicate the same.
• The reading of the Appellant’s letter to the Respondent dated 15th
July 1947 indicates that when the letter was sent, the Appellant did
not believe that the Respondent was in desertion.
• The plaintiff was not prepared to fulfil his part of the marital duties.
• The court did not find any convincing evidence supporting the alleged
desertion by the wife (Respondent).
• It is not necessarily true that the party who leaves home is said to
have committed desertion.
• Instead, the party whose actions make it absolutely clear that they
have no intention of cohabitation is said to have committed desertion.
• The statements given by the defendant’s father and cousin provide
ample corroboration that the defendant had been ready and willing
to go back to her matrimonial home.
Judgement:
• The Appeal was dismissed.
• The Respondent was not held to be in desertion.
Rationale:
• ‘Permanence’ is a quality that differentiates desertion from wilful
separation.
• Desertion is a continuing offence.
• When allowed to explain the more contentious parts of the letter, the
Respondent could not come up with anything satisfactory.
• After having her illicit, amorous relationship with Mahendra was
discovered by her husband, the Respondent could no longer face her
husband, and as a result, she fled to Jalgaon.
• The letter dated 15th July 1947 makes no mention of the Respondent
being in desertion.
• To prove that the desertion of the deserting spouse, the deserted
spouse has to prove that he/she was willing to fulfill their part of the
marital duties and that the desertion was against their will.
• In an attempt to re-establish herself in her husband’s home, the
Respondent would go and live with the Appellant’s mother whenever
she was in Patan.
Conclusion:
The appellant-husband was unable to conclusively prove the
desertion by the respondent-wife. On the other hand, the respondent-
wife successfully established that she was willing to go back to her
matrimonial home. Desertion is a continuous offence. The plaintiff
must prove that the Respondent has been in constant desertion for
the statutory period mentioned in the Act.
4. Dharmendra Kumar v. Smt Usha Kumar (AIR 1977 SC 2218):
Introduction:
The Respondent, in this case, Mrs Usha Kumar, represented by
S.L.Watel, C.R. Somasekharan, R.Watel and M.S.Ganesh was granted
a decree of restitution of conjugal rights under Section 9 of The Hindu
Marriage Act,1955. But, there had been no cohabitation for more
than 2 years. Later, the Respondent has filed for a Decree of Divorce
against the Appellant, Mr Dharmendra Kumar, who was represented
by Naunit Lal, R.K. Baweja and Miss Lalita Kohli. A decree of divorce
had been granted to the wife based on Section 13(1A) (ii) of the Hindu
Marriage Act, 1955. The Appellant filed for an appeal against the
decree of divorce in the Supreme Court of India.
Background of the Case:
In this appeal filed by the Appellant, Mr Dharmendra Kumar, he argued
that the Respondent had not complied with the court’s order to
restitution of conjugal rights and had taken the benefit of it. The
restitution of conjugal rights states that “the guilty party has to stay
with the aggrieved party to resolve their marriage by cohabitation
for a period of time specified by law.”While to have a better
understanding of the appeal, the previous flow of the case has to be
also understood.
On 27th August 1973, the Respondent was granted a decree of
restitution of conjugal rights on her application by the Additional
Senior Sub-Judge, Delhi. On 28th October 1975. The Respondent
proceeded with a petition under S. 13(1A) (ii) of the Act which asked
for the dissolution of the marriage in the Court of Additional District
Judge, Delhi. A decree of divorce was petitioned stating there had
been no restitution of conjugal rights amongst the parties after the
decree was passed. Although, as claimed by the Appellant, he had
attempted to comply with the court’s order the Respondent had not
replied to the letters and was making capital out of her own wrong
which she was not entitled to do according to Section 23 (1) (a) of The
Hindu Marriage Act, 1955. Therewith, the Appellant filed an appeal
to the Supreme Court of India to hold his ground and get justice.
Facts of the case:
• The parties are married to each other. Usha Kumari, herein the
Respondent initially filed a petition for restitution of conjugal rights
under Section 9 of the Hindu Marriage Act, 1955 (hereinafter referred
to as the “Act”) and a decree was granted in her favour.
• After two years, she filed a petition against Dharmendra Kumar,
seeking dissolution of marriage under Section 13(1A)(ii) of the Act
and again a decree was passed in her favour.
• The Appellant Q.s the validity of the decree of dissolution of marriage
before the Court as she did not comply with the decree of restitution
which was passed in her own favour.
Part I of this case deals with the Decree of Restitution of Conjugal Rights:
According to the Hindu Marriage Act of 1955, Section 9 “When either
the husband or the wife has, without reasonable excuse, withdrawn
from the society of the other, the aggrieved party may apply, by petition
to the district court, for restitution of conjugal rights and the court,
on being satisfied of the truth of the statements made in such petition
and that there is no legal ground why the application should not be
granted, may decree restitution of conjugal rights accordingly.”In
this application made by the Petitioner (wife), the Additional Senior
Sub-Judge found that the application was valid and there was no
legal ground to reject the application. Thus, a decree was granted to
the wife that both the parties should cohabitate and try to resolve
their marriage.
Part II of this case deals with a decree of divorce:
More than over the two years, the husband claimed that he wrote
several registered letters to “invite” the petitioner to cohabitate and
comply with the court orders before the wife had filed for a decree of
divorce. There was an Amendment brought in Section 13 (1A) (ii) to
change the time period of 2 years of restitution of conjugal rights to
1 year. The objection taken is based on section 23 (1) (a) of the Act.
The court granted a decree of divorce.
Part III deals with an appeal- made by the Petitioner (husband) to the High
Court of Delhi regarding the dismissal of the decree of divorce which
was not granted. Mr Dharmendra Kumar later appealed to The
Supreme Court of India.
Issue: Whether mere non-compliance with decree for restitution
constitutes wrong within the meaning of Section 23 (1) (a) of the Act?
APPELLANT’S ARGUMENTS: The court agreed to hear the filed appeal.
The Appellant argued his case on two issues in the proceedings of
this decree:
The Petitioner pleaded that whether the Respondent had denied
replying to the letters even after receiving them for the taking capital
advantage for the purpose of relief.
The subsequent issue raised by the Petitioner was that according to
the new Amendment, the Petitioner of the restitution of conjugal right
(in this case: the wife) could only file for a decree of divorce and still
take advantage of the relief provided to them.
RESPONDENT’S ARGUMENTS: While the respondent argued the case
on the following basis:
• The letters which the Appellant claims to have sent were never received
by her. And the few that she had received were never ignored.
• There was no proof to the claims of the Appellant in the issue of
taking undue advantage of the relief provided under the law and the
decree of divorce provided by the court.
JUDGEMENT: Whereas, both the arguments made by parties were
substantial and focused on the loopholes of the law. The judgement
delivered by J. Gupta laid out as follows:
1. The Petitioner (the wife) was entitled on her part to file a petition
for a decree of divorce after there was no restitution of the
conjugal rights followed.
2. Reference of Ram Kali vs. Gopal Das (4 (1968) DLT 503 (India))
was used in this judgement that mere non- compliance with the
decree for restitution of conjugal rights could not result in a
wrong within the meaning of Section 23 (1).
3. Another reference of Gajna Devi v. Purushotam (AIR (1977)
Delhi,178) Giri was used in this judgement stating that if an
exception was made for both the parties to file for divorce then
the provision of section 13(1A) would practically be redundant.
4. On 27th August, 1973, the Court held that the application by
Respondent (wife) was granted a decree of restitution of conjugal
rights by the Additional Senior Sub-Judge, Delhi.
5. Even after not complying with the decree of restitution of
conjugal rights, a little over the two years, The court had granted
a decree of divorce to the wife was also upheld in the Supreme
Court.
While the arguments and precedents were heard by the Court, J. Gupta
dismissed the appeal on the basis that the Respondent was entitled
to defy the decree of conjugal rights if she didn’t want to cohabitate
with the Appellant. And to file for a decree of divorce was well within
her rights. The “wrong” mentioned in the Act isn’t substantial for
defying the decree. Thus, the appeal was dismissed and the Decree of
Divorce was upheld.
5. Hunooman Prasad Pandey V Muss Babooi Moonraj Kanwar ( (1856) 6
MLA 393):
Introduction:
This was an appeal from a decree of the Sudder Dewanny Court of
Agra, which reversed the judgment of the Principal Sudder Ameen of
the District of Goruckpore, pronounced in favour of the Appellant, in
a suit which was brought by Lal Inderdowun Singh, since deceased,
and now represented by the Respondent, his son, against the
Appellant, the chief Defendant, and Ranee Degumber Koonweree.
The object of the suit was, first, to recover possession of certain
ancestral estates called Daree Deha, Mohundur, & c. situate in the
Pergunnah Nugger Bustee, in the District of Goruckpore, with mesne
profits and interest; and, secondly, to set aside a mortgage Bond,
dated Assar Soodee Poornumashee, Fuslee (July, 1839), and to cancel
the Appellant‘s name as mortgagee in the Collector‘s records.
Facts of the case:
The Appellant, a Banker, carrying on business in the District of
Goruckpore, was in the habit of making advances and loans to the
neighbouring landholders. His father, Buccus Panday, before him,
had been engaged in the same business, and in the course of the
latter‘s transactions he had advanced the sum of Rs. 8,002, to Raja
Tobraj Singh, the paternal ancestor of Lal Seetla Buksh Bahadur Singh,
of whom the Respondent was guardian. On the occasion of this
advance, Raja Tobraj Singh executed several deeds, conveying certain
villages, part of his estate, by way of usufruct mortgage, to the
Appellant‘s father. In 1235 Falguni Samvat (F.S.), Fuslee, after the
death of Raja Tobraj Singh, an adjustment of accounts took place
between Appellant‘s father and Raja Sheobuksh Singh, the son and
heir of Raja Tobraj Singh, when a balance of Rs. 5,252, as against
Raja Sheobuksh Singh, was agreed on. For this sum Bonds were given
and certain lands and villages were assigned to Appellant‘s father by
Raja Sheobuksh Singh by way of usufruct mortgage. Raja Sheobuksh
Singh died shortly after this transaction, leaving an only son, Lal
Inderdowun Singh, an infant, whereupon his widow, Ranee Degumber
Koonweree, assumed the proprietorship of the estates of her late
husband, and the guardianship of his infant son. Her name was
registered with that of Lal Inderdowun Singh, the infant, on the records,
until he attained his majority, when a deed of gift having been executed
by the Ranee in his favour, her name was removed from the Government
register of landowners by a petition for mutation in the ordinary way.
In 1239, Fuslee, after the death of Raja Sheobuksh Singh, another
adjustment of accounts took place between the Appellant (who had
in the meantime succeeded to the business and property of his father,
then deceased) and Ranee Degumber Koonweree, as the representative
of her husband, in which a balance of Rs. 3,200 was agreed to be
debited to the Ranee. In the same year, the family estates being in
arrear of the revenue payable to Government, and in danger of
sequestration by reason of such arrear, the Appellant, under authority
of an order from Ranee Degumber Koonweree, paid into the local
Collectorate, to the account of such arrears, Rs. 3,000, for which sum
the Ranee afterwards executed three several Bonds, of Rs. 1,000 each,
and bearing date respectively Phagoon Soodee Poornumashee F. S.
1243, Assar Soodee Poornumashee F. S. 1243, and Katikbudee
Poornumashee F. S. 1244. Previous to executing the abovementioned
Bonds, the Ranee had, in consideration of Rs. 1,200 part of the balance
before found to be due to the Appellant, and of a further loan of Rs.
600 from Goordial Panday (which was afterwards repaid by the
Appellant), executed to the Appellant and Goordial Panday a Bond
and deed of mortgage, conveying to them the Mouzas Mohunder and
Dee Mar in usufruct, granting at the same time a lease of the same to
him for the whole term of the mortgage. In the month Sawun, in the
same year, the Ranee executed a mortgage to the Appellants, charging
200 beegahs of land lying in Bundeheree, in consideration of Rs.
1,000 part of the balance of Rs. 2,000, then remaining unsecured. In
F. S. 1244, the Appellant, having paid off certain incumbrances of the
amount of Rs. 4,000, which the Ranee had previously effected on the
lands of the Raj, received from her a Deed dated Teyt Soodee
Poornumashee F. S. 1244, conveying to him in usufructuary mortgage
the villages Dee Mar, Daree Deha, and Mohunder, also a pottah for
the same, bearing the same date; the consideration for the whole
being Rs. 5,000 of which sum Rs. 1,000 was the balance due on the
original account, and Rs. 4,000 the amount of incumbrance paid off
by the Appellant. In F. S. 1246 a final adjustment of accounts took
place between the Appellant and Ranee Degumber Koonweree, in which
the items stood as follows: –
Monies paid by Appellant to Tahsildah on account of Government
revenue due from the Raj, Rs. 5,186; amount of monies secured by
mortgage of Mohunder, Daree Deha, and lands in Dee Mar, Rs.. 5,000;
amount secured by mortgage of Bundeheree, Rs. 1,000; amount
secured by three several Bonds of Ranee Degumber Koonweree for Rs.
1,000 each, Rs. 3,000; amount due, being balance of Rs. 1,500 secured
by Bond, Rs. 814; making in the whole, Rs. 15,000. On this balance
having been ascertained, the Ranee and Lal Inderdowun Singh, then a
minor, by a mortgage Bond, dated Assar Soodee Poornumashee F.S.
1246, conveyed to the Appellant in usufructuary mortgage Daree Deha,
Dee Mar, Bundeheree, Raja baree, Mohunder, and Gundherea Faiz,
which transaction formed the subject of the present suit. In this Bond
the Ranee was described as being possessed of the mortgaged
property in proprietary right.
Apart from these transactions of loan and mortage, Raja Sheobuksh
Singh granted to the Appellant in Birt some thirty beegahs of waste
land lying in Bundeheree, in consequence of which grant Appellant
expended much money in reclaiming the waste, erecting buildings,
and otherwise improving the land. Ranee Degumber Koonweree
afterwards, finding that Appellant possessed no evidence of his Birt
title, compelled him to pay Rs. 500 for a Birt puttee, which she
executed. Besides this portion of Birt lands the Appellant had
purchased three and a half beegahs, lying in Dee Mar, from Gosain
Musan Nath Fakir, to whom they had been granted for religious services
by Raja Pirthee Pal Singh, the ancestor of the original Plaintiff.
On the 10th December, 1849, Lal Inderdowun Singh, having then
attained his majority, filed a plaint in the Zillah Court of the Principal
Sudder Ameen of Goruckpore against the Appellant and Ranee
Degumber Koonweree, for the possession of Zemindary right,
unincumbered by Birt, of Daree Deha, Mohunder, Gundherea Faiz and
of certain lands lying in Bundeheree, Dee Mar, and Rajabaree; also to
set aside the mortgage Bond before mentioned, bearing date Assar
Soodee Poornumashee F. S. 1246, and to oust the Appellant. The plaint
alleged that Ranee Degumber Koonweree had acted as the guardian
of the Plaintiff and managed his affairs for him during his minority;
that she being a Purdah Nasheen and totally ignorant of matters of
business, and been imposed on and deceived by her servants and
agents, who had, without her knowledge or authority, made contracts
of loan and mortgage with divers parties, and effected encumbrances
on the Plaintiff‘s property; that the Appellant, among others, had by
collusion and fraud obtained from them, under pretence of mortgage,
the possession of certain lands and villages; that the villages and
lands so unlawfully possessed by the Appellant were component
parts of Plaintiff‘s ancestral Raj, and inalienable by the act of a
guardian.
The Answer of the Appellant set forth the circumstances above stated
under which the debts were contracted and the mortgage Bonds
executed, and traversed the allegations respecting the Ranee‘s
ignorance of matters of business and the Appellant‘s collusion with
the Ranee‘s agents; and alleged that the Plaintiff, in F. S. 1255, after he
had attained majority, had personally acknowledged the validity of
the mortgage Bond and the debt due under it; that the Appellant in
expressing a desire to redeem Gundherea Faiz and Baree (which
second village was not included in the suit), had proposed to execute
a fresh mortgage of Mohunder, Daree Deha, and the lands in
Bundeheree, De Mar and Rajabaree, and that the Plaintiff, since
attaining majority, had borrowed money on Bond from the Appellant,
and the Appellant by his Ans. finally insisted that the amount of
mesne profits was greatly exaggerated.
The Answer of the Ranee Degumber Koonweree averred ignorance of
the matters in issue, asserting that the Appellant had been for some
time employed by her in the capacity of Manager.
Lal Inderdowun Singh having died, Mussumat Babooee Munraj
Koonweree, the Respondent, was admitted by the Court to prosecute
the suit as guardian of Lal Seetla Buksh Bahadur singh, the infant son
and heir of Lal Inderdowun Singh.
One Ranee Digambar Konwari was the guardian of her son, Inderdown
Singh, during his minority. She mortgaged some ancestral estate to
the defendant Hanooman ft asad.
When Inderdown Singh attained majority he challenged the mortgage
to the defendant on the ground that his mother was deceived by the
defendant.
The defandant denied the allegation. The lower Court dis-missed the
suit but the lower appellate court decreed the suit against which the
defendant appealed to the Privy Council.
The principal points submitted to the court in the argument, were:-
a. As to the validity of the mortgage Bond, whether it was executed by
the Ranee at all, and further, as the Bond purported to be executed by
her in a beneficial character, if it constituted a valid encumbrance on
the Raj
b. Whether the incumbrance created by Raja Sheobuksh Singh entitled
the Appellant to retain possession of the villages and lands in the
mortgage Bond executed by him until such incumbrance was paid off,
or whether it was a personal charge only on the heir; and the Appellant
had not a right to stand in the place of the Ranee in respect of the
monies he had advanced.
c. Whether it was competent by the Hindoo law to the Ranee, as the
registered proprietor of the family estate and curator of the infant‘s
property, to charge ancestral estates by way of mortgage, in
consideration of the advances made for the benefit of the minor‘s
estate, to prevent a sequestration and probable confiscation.
d. Whether after the Factum of the mortgage Bond was establised, and
proof of the advances made, the presumption of law was not in favour
of the charge, and the onus probandi was not upon the heir to disprove
the necessity of the advances.
Judgment:
They held that the mortgage was, in fact, exe-cuted but the mortgagee
took the mortgage from a limited owner, so the burden of proof of
necessity lay upon him. In the opinion of their Lordships the case of
mortgage for something had been made out prima facie.
But they remitted the case for further enquiry with the follow-ing
general principles to be applied in the decision of the cases:
1. Under the Hindu Law, the power of a manager of an infant heir to
change the estate, is a limited and qualified power which can only be
exercised in a case of need or for the benefit of the estate. The actual
pressure on the estate, the danger to be averted or the benefit to be
conferred upon it, in the particular instance, is thing to be regarded.
2. Where in the particular instance, the charge is one that a prudent
owner will make in order to benefit the estate the bona fide lender is
not affected by the precedent mismanagement of the estate, even
though it be shown that with better management the estate might
have been kept free from debt.
3. But if the danger to the estate arisen has from any mis-conduct to
which the lender was a party, he cannot take advan-tage of his own
wrong to support a charge, in his own favour grounded on a necessity
which is wrong and has helped the cause.
4. The lender is bound to enquire into the necessities for the loan, and
to satisfy himself as well as he can, with reference to the parties with
whom he is dealing, that the manager is acting, in the particular
instance, for the benefit of the estate.
5. If the lender makes proper enquiry as to the necessity for the loan,
and acts honestly, the real existence of the alleged ne-cessity is not a
condition precedent to the validity of his charge.
6. The lender is not bound to see to the application of the money
advanced.
7. By the Hindu Law, freedom of the son from the obliga-tion to discharge
the father’s debt, has respect to the nature of the debt and not to the
nature of the estate. Unless the debt is of such a nature that it is not
the duly of the son to pay the discharge of it, even though it affects the
ancestral estate, it will still be an act of pious duly in the son.

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FAMILY LAW -I (HINDU LAW)

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FAMILY LAW -I (HINDU LAW)

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According to syllabus of Dr.

Bhimrao Ambedkar Law University, Jaipur 1

Q.1. What is meant by Shruti in Hindu Law?

In a void marriage, no decree of In a voidable marriage de cree of nullity is required.

A void marriage is none in the A void marriage is to be declared void by a competent

Q.15. What do you mean by mental impotency?

1. Mitakshara School: The Mitakshara School (literally means ‘a concise

The Dayabhaga system considers

In Dayabhaga, children have no

The Dayabhaga system considers

Gives the right to stridhan to

In a void marriage, no decree of In a voidable marriage decree of nullity is required.

There are among heirs enumerated in Class 1 of the Schedule and

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