Hindu LawFrequently Asked Questions on Hindu Law
"The Indian soil has not only been productive in deep thinkers, eminent founders of world religions and gifted poets, but it has brought forth a system of law, which after having spread in the whole vast continent of India, has generated at an early period into Burma and Siam and has become the foundation of the written law in these two countries."Origin of Hindu Law There are two views about the origin of Hindu Law. The first view believes it to be of divine origin and other view is based upon immemorial usages and customs. (i) Hindu Law To Be Of Divine Origin - One view regarding origin of Hindu Law is that Hindu Law is revealed law which means that God or almighty has directed the human beings, ways of living. Hindu sages in ancient days had attained such great spiritual heights as they directly heard from God the revelation of sacred law. This revelation is contained in "Shruti" or "Vedas" which simply means what is heard. So "Shruti" or "Vedas" are considered to be revelation of God, dealing with various ceremonies, rituals etc. So "Shruti" was accepted as original utterings of Almighty. "Samriti" means, literally, re-collections. Samriti though accepted as precepts emanating from that source, were couched in the words of Rishis or Sages of antiquity who saw or received the revelation and proclaimed their re-collections. (ii) Hindu Law To Be Based On Immemorial Usage etc. - The other view is that Hindu Law is based upon immemorial Customs which existed prior to and independent of Brahmanism. It is said that, after arrival of Aryans into India, they found that there were number of usages either same or slightly different. They, accepted these usages with or without modification. According to this view, the ancient law promulgated in the smritis was essentially traditional and Law was not to be found in the text of the Smritis but also in practices and usages which had prevailed under it. The importance attached to the Law-creating efficacy of custom in Hindu Jurisprudence was so great that exponents of law were unanimous in accepting custom as itself constituent part of the law. Nature of Hindu Law An Eminent Jurist "Austin" has defined the law to be "Command of Sovereign". Sovereign means a specific person (king or parliament or legislator) who has power in society to impose law on its members. But Hindu Law is stated to be not coming fit with this definition. It has been remarked that as the Hindu Codes do not profess to embody the commands of any king on earth, it might seem that the Hindus had never such a thing as could be called their law. To this remark, the answer is that it is true that our codes do not embody the commands of any accepted monarch but it must be conceded by every one who knows anything of the mechanism of our society that the Brahmins were the dual rulers of the country. So long as at last Hindu Kings occupied the throne of the Hindu Community, the Brahmins enjoyed supreme legislative power and the commands imposed by them were generally obeyed. So, no doubt, Hindu Law cannot strictly be said to have been promulgated by any sovereign but inasmuch as Hindu Law is a body of principles or rules recognized and applied to govern the subjects inasmuch as what a Sovereign can command can be taken to have been impliedly commanded, by Hindu Law in a qualified sense, even the Hindu Law can be said to have been promulgated by the Sovereign within the definition of Austin. It is one of the most ancient systems of law known to the world. Maine recognized this fact in his treaty "Hindu Law and Usage", be observed that -
"Hindu Law has the oldest pedigree of any known system of jurisprudence and now it shows no sign of decrepitude."
(a) Any person who is a Hindu, Jain, Sikh or Buddhist by religion i.e. Hindus by Religion
(b) Any person who is born of Hindu parents (i.e. when both or one parents is Hindu, Jain, Sikh or Bhuddhist by religion) i.e. Hindu by birth.
(c) Any person who is not a Muslim, Christian, Parsi or Jew and whois not governed by any other law i.e. Hindu by Implication.(A) Hindu By Religion Under this category two types of persons fall :-
(i) Persons who are Hindu, Jain, Sikh or Buddhist by religion by birth.
(ii) Persons who converts or re-converts to Hindu, Jain, Sikh or Buddhist religion.Any person who follows Hindu religion in any of its form or development, either by practicing it or by professing it, is a Hindu. The most remarkable feature of Hinduism is that it has always permitted religious innovations and thus over the period of time new dimentions are added to Hindu religion. Prominent among modern developments are `Brahmos', `Arya Smajists', `Radha Swamis', `Satsangis' etc. All these movements or development purport to free Hinduism from orthodoxy practices and rigidity. Followers of Jainism, Sikhism and Budhism :- Even before codification of Hindu Law on certain aspects, it was well settled that Jainism, Sikhism and Buddhism were governed by Hindu Law and Codified Hindu Law also indudes them under the term "Hindu" Converts and Reconverts to Hinduism :- A person, who after renouncing his faith, adopts the Hindu religion, is said to be convert to Hindu by religion. Usual way of conversion is by undergoing the ceremonies of conversion prescribed by religion which is adopted. Under Hindu Law, a person does not lose his faith by mere renunciation of it nor does he belong to another faith by mere professing it or practicing it. Among Hindu it is only Arya Smajists who prescribe a ceremony of conversion known as "Sudhi". However in Peerumal v. Punnu Swami, AIR 1971 SC 2352 it was observed :-
"A person may also become Hindu if after expressing an intention, expressly or impliedly, he lives as a Hindu and the community or caste into the fold of which he is ushered in accepts him as a member of that community or caste. In such a case one has to look to the intention and conduct of the convert, and if the consensus of the community into which he was initiated is sufficiently indicative of his conversion, then the lack of some formalities cannot negative what is an accomplished fact. In such a case no formal ceremony of purification or expiation is necessary to effectuate conversion."In Commr. of Wealth Tax Madras v. R. Sridharan (1976) 4 SCC 489, it was observed - "Under the codifying Acts namely the Hindu Marriage Act, 1955, the Hindu Succession Act, 1956, the Hindu Minority and Guardianship Act, 1956 and the Hindu Adoptions and Maintenance Act, 1956, the orthodox concept of the term `Hindu' has undergone a radical change and it has been given an extended meaning. The aforesaid codifying Acts not only apply to Hindus by birth of religion i.e. to converts of Hinduism but also to a large number of other persons. According to Explanation (b) to Section 2(1) of the Hindu Succession Act, 1956, Hindu Adoptions and Maintenance Act, 1956 and Hindu Marriage Act, 1955 as also according to Expln. (ii) to Section 3(1) of the Hindu Minority and Guardianship Act, 1956, any child legitimate or illegitimate, one of whose parents is a Hindu by religion and who is brought up as a Hindu is a Hindu. (B) Hindu By Birth Under the modern Hindu Law, irrespective of fact whether a person is or is not a Hindu by religion, he will be Hindu -
(i) If he is born of Hindu parents i.e. when both mother and father of child are Hindu, the child is Hindu by birth.
(ii) If he is born to a Hindu parent i.e. One parent (either father or mother) is Hindu and child is brought up by such Hindu parent as Hindu. Under this category, a child will be Hindu by birth if - (a) at the time of his birth, one of the parents was Hindu and (b) child is brought up as member of tribe, community, group or family to which Hindu parent belonged at the time of birth of child.(C) Hindu By Implication As noted above Hindu Law does not confine its application only to those who are Hindu by religion or Hindu by birth, but it applies to all those person who may not be Hindu in strict sense, but law applies to them as they are not Muslim, Christian, Parsi or Jew by religion. In Hindu Marriage Act 1955 and Hindu Minority and Guardianship Act, 1956 while defining the term `Hindu' in Section 2(2) it is provided that, a person who is not Muslim, Christian, Parsi or Jew and who is domiciled in India shall be subject to above said law. However in Hindu Succession Act, 1955 and Hindu Adoption and Maintenance Act, 1956, while defining the expression on above said lines `condition of being domiciled in India is not there'.
(a) Shruti (c) Commentaries and Digests (Nibandhas)
(b) Smritis (d) Customs and Usages.(2) Modern Sources
(a) Equity, Justice and Good Conscience
(c) LegislationsAncient Sources (a) "Shruti" :- Hindu Law is considered to be divine law, a revealed law. The theory is that some Hindu sages had attained such a great spiritual height that they could hear the Almighty or God, they heard the scared law as revealed to them by God. This revelation is contained in "Shruti" - which liberally means "What was heard". So `Shruti' is considered to be fundamental source of Hindu Law. According to Mannu -
"By `shruti' or what was heard from above is meant veda. It (Veda) is believed to contain the very words of God. It is primary and paramount source of Hindu Law."In sum, the "Shruti" (or the Vedas) depict the life of our early ancestors, their way of life, their way of thinking, their customs, thoughts but does not deal with rules of law in any systematic manner, whatever rules of law exist, these have to be deduced from vast material. Contained in four vedas which are :-
(i) Rig Veda
(ii) Yajur Veda
(iii) Sam Veda
(iv) Atharva Veda.(b) Smritis :- The word "Smriti" literally means "what has been remembered". In theory the Smritis are based on the memory of the sages who were the repositories of the sacred Revelation. The Smritis may be divided into early Smritis and the later Smritis. The former are called, the Dharmasutras, and the later, the Dharmashastras. Both "Shruti" and `Samriti' refer to the utterance and precepts of the almighty which have been heard and remembered respectively and handed down by the Rishis from generation to generation. (i) `Dharama Sutras' :- The Dharmasutras were mostly written in prose. The main `Dharma sutras' are Gautama, `Boudhayana' `Apastamha' `Vasistha' and `Vishnu'. Dharmsutras deal with duties of men in their various relation. (ii) `Dharma Shastras' :- Dharma shastras are mostly in metrial verses and are later in age than `Dharma Sutras'. The most eminent authors thereof are, Manu, Yajnavalkya, Narada, Vishnu, Vyas and Vrihaspati etc. Although Smritis deal with rules of morality and religion, we find in them more of Secular law, than in the Srutis. For all practical purposes the interpretation put on the Smritis by the commentaries written on the Smritis form the basis of Hindu Law. (c) Commentaries and Digests (Nibandhas) All the Smritis did not agree with one another in all respects, and this conflict led to several interpretations put upon them. This, in turn, gave rise to commentaries called Nibandhas. Nibandhas are thus nothing but the interpretations put on the Smritis by various commentators. However, it is intersting to note that what these commentators did was not merely interpreting the Smriti, but they also recited the customs and usages which the commentators found prevailing around them. In other words, while professing to interpret the Law as laid down in Smritis these commentators introduced modifications in order to bring it in harmony with the current usages., One important result of such modifications has been that despite the fact that such commentators have modified the original texts in order to suit them to local customs and conditions, the commentaries are now considered to be more authoritative than the original texts themselves. The reason for this is that although the interpretations of the age old text may be inaccurate, they nevertheless have the sanction of usage. Thus it is considered to be the duty of courts to recognize the rules contained in such Nibandhas, the reason being that under the Hindu system of law "clear proof of usage will outweigh the written text of the law". (d) Custom and Usages :- One of the most important source of Hindu Law is `Custom' and `Usages'. In fact, one view is that the foundation of Hindu Law immomriable customs. Customs was main vehicle of legal development. Though `Vedas' and `Smritis' are said to contain divine revelation but in fact they incorporated mostly the customs of their times. After the law was reduced into writing by Samritikars, the process of legal development was carried on by the Digests and Commentaries. Digest writers and Commentators in their turn further incorporated the existing custom Regarding the origin of Customs in Rabindera v. State, AIR 1969 Cal. 55 it was observed :- "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. By experience man learnt that a particular mode of behaviour or conduct was conducive to collective living. In course of time a pattern of behaviour emerged, and by consistent adherence to it, it achieved spontaneous and conscious following by the members of the group. When this stage is reached, the pattern of human behaviour is called usage. As Mayne puts it, "A belief in the propriety of the imperative nature of a particular course of conduct, produces a uniformity of behaviour in following it; and a uniformity of behaviour in following a particular course of conduct produces a belief that it is imperative or proper to do so. When from either cause or from both causes, a uniform and persistent usage has moulded the life and regulated the dealing of a particular class of community, it becomes a custom." In modern law, before a custom can be enforced by a court it is necessary to prove the existence of custom. For a custom to receive recognition it is necessary that it should be ancient and invariable, it should be established by unambiguous evidence, and it should be continuous, certain and ancient." So following are essentials of valid Custom :-
(a) Custom should be ancient.
(b) Custom should be continuous.
(c) It should be certain
(d) If should not be unreasonable and immoral
(e) If should not be opposed to Public Policy and opposed to law.Modern Sources (a) Equity, Justice and Good Conscience - In its modern version, concept of equity, justice and good conscience is considered as important source of Hindu Law, which owes its origin to the beginning of British Administration. The charters of several High Courts established by British Government, directed that in the absence of any specific law in Hindu texts like `Samriti' or `Nibandh' or in the event of conflict between principles of Smritis, the principle of equity, justice and good conscience would be applied. In other words what would be most fair and equitable in the opinion of Judge would be done in any case. In Gurunath v. Kamla Bhai (1951) 1 SCR 1135, Supreme Court that said it is now well established that in the absence of any rule of Hindu Law the courts have authority to decide cases on principles of justice, equity and good conscience, unless in doing so, the decision would be repugnant to or in consistent with, any doctrine or theory of Hindu Law. (b) Judicial Decisions - About judicial decisions being source of law there are two views. One view is that judges are makers of law while other view is that judges do not make the law but they declare the law. First view is known as Judge-made-Law-Theory while second is known as Declaratory Theory. Strictly speaking it cannot be said that judicial decisions are a source of law. This is so because judge is supposed to interpret and explain the existing law, and not to create new law. Nevertheless, since all the important aspects of Hindu Law but have now found their way into Law Reports, these may be considered as a source of Hindu Law. Such decisions have played an important part in ascertaining and sometimes in development and crystallizing Hindu Law. The commentaries are silent on many points and the judges have filled in these blanks whilst deciding cases coming before them. Since the time the administration of Hindu Law was taken up by courts, Judicial decision have not only become a source of Hindu Law have been the chief agency by which changes have been effected in that law. The progress made by the Hindu Law in 19th and 20th centuries is entirely due to decisions of the courts which have superseded the commentaries. (c) Legislation - In modern era, efforts had been made to consolidate and codify the Hindu Law on different aspects like marriage, partition of Joint family, Adoption, Succession etc. Since British rule, many Enactments of Hindu Law came in force, to give uniform and consistent principles of Hindu Law, which though was difficult because of multidimensional principles of old Hindu Law. Therefore legislation is one of the important sources of Hindu Law. These legislative enactments declare, abrogate or modify the ancient rules of Hindu Law. The Hindu Law Committee appointed in 1941 recommended that this branch of law should be codified in gradual stages and most important enactments were those which came in force in 1955 and 1956. Indian Parliament passed four major enactments which made vital and dynamic changes in the law of marriage, succession, adoption, guardianship and maintenance. Though after enactment of certain Acts on certain aspects of Hindu Law importance of general Hindu Law cannot be overlooked as in Sitaben v. Bhanna Bhai Madari Bhai Patel, AIR 2000 Guj. 376, it was rightly observed that General Hindu Law does not stand abolished as a whole on account of enactment of these specific or particular Acts dealing with certain aspects of Hindu Law.
(1) General prevalence is necessary. The practice of a limited number of individuals cannot be recognised as custom;
(2) It must be territorial;
(3) It should be immemorial;
(4) It must be ancient and invariable; and
(5) It should not be opposed to public policy.Shariat Act, 1937 aims at restoring the law of Islam to all Muslim communities residing in India and abolishing customs contrary to the Shariat. Section 2 of this Act has abrogated customs and usage in so far as they had displaced the Rules of Muslim Law. But in the following matters a Muslim is still governed by customary law :
(i) agricultural land;
(ii) testamentary succession in certain communities; and
(iii) charities, other than wakfs.
(1) Mitakshara School
(2) Dayabhaga School(1) Mitakshara School - The Mitakshara School owes its name to Vijnaneshwara's commentary on "Yajnavlkya Smiriti" by the name of "Mitakshara". It prevails in whole of India except Bengal and Assam. The Mitakshara is not only a running commentary on Yajnavalkya Smriti but is digest of all leading Smritis and deals with all aspects of Hindu Law Mitakshara School of Hindu Law is sub-divided into following sub-schools :-
(a) Benares School - Which prevails in Northern and North-Western India
(b) Mithila School - Which operates primarily in Bihar
(c) Maharashtra School - Which prevails in Western India
(d) Dravida or Madras School - It covers Southern India.All these above stated sub-school of Mitakshara though subscribe to Mitakshara thoughts on Hindu Law barring certain exceptional aspects where there is conflict of opinion (2) Dayabhaga School :- Dayabhaga thought was originated from Jimutavahana's digest on leading samritis. It prevails in Bangal and Assam and dealing with partition and inheritance It may be noted that the Mitakshara is the orthodox school whereas the Dayabhaga, or the Bengal School, as it is sometimes called, is the reformed school of Hindu Law. The Mitakshara and Dayabhaga schools differ on important issues as regards the rules of inheritance. However, the branch of law is now codified by the Hindu Succession Act 1956 which has removed the differences between the two. However following are the points of difference : (1) Mitakshara school basically is commentary on old texts whereas Dayabhaga is digest of all codes. (2) Mitakshara thoughts are orthodox in nature whereas Dayabhaga is of reformatory (3) Mitakshara school bases its law of inheritance on principle of propinquity (nearness of blood relationship) which means one who is nearer in blood relationship succeds. However principle of propinquity has not been fully applied and limited by two exception i.e. (a) exclusion of female from inheritance and (b) preference of agnates over cognates, whereas Dayabhaga school bases its law of succession on principle of religious efficacy or spiritual benefit which means one who confers more religious benefits or `pindadana' on deceased is entitled to inheritance in preference to other -
This difference between these two school is no longer of any significance in view of enactment of Hindu Succession Act, 1956.(4) The concept of joint family property under Mitakshar school of Hindu Law implies the notion of community of ownership and unity of possession. Each coparcener's interest in joint family property keep on fluctuating by death or birth in family and no individual coparcener can say that he owns so much specific share in joint family property until actual partition of it whereas in Dayabhaga school there is no concept of birth right and coparceners have specified and ascertained share in joint family property which do not fluctuate by any happening (5) Mitakshara school propounds the doctrine of Son's (i.e. Son, Son's son, Son's Son's Son and so on) right by birth in joint family property which means, each son on his birth acquires equal interest with his father and doctrine of survivorship will be carried upon the death of any coparcener, interest in joint property will devolve to surviving coparceners equally whereas in Dayabhaga school, doctrines of son's birth right and devolution of property by survivorship do not find any place and son has no birth right interest in joint property and all properties devolve by inheritance (6) Doctrine of factum-valet i.e. a fact cannot be altered by hundred texts is recognised to limited extent only under Mitakshara school whereas it has been recognized to full extent in Dayabhaga.
"Joint Hindu family consists of all persons who are lineally descended from common ancestor and includes their wives and umarried daughters."On marriage a daughter ceases to be member of her father's family and becomes member of her husband's family. Ordinarily an undivided Hindu family is joint not only in estate but also in food and wordship. Existence of joint estate, however, does not ipso facto indicate existence of joint or undivided family. Joint estate is one of the factors for coming to conclusion whether there is joint family or not and it is possible to have joint family which does not own any estate. In V. Venugopala v. Union of India, AIR 1969 SC 1094, it was observed that the Mitakshara law of joint family is founded upon agnatic relationship : the undivided family is characterised by community of interest and unity of possession among persons descended from a common ancestor. In Rajeshwari v. Balchand Jain, AIR 2001 M.P. 179, it was observed that it is settled principle that there is no presumption that joint family possesses joint property. Merely because a family is joint, every property purchased or held by its member is not property of joint family. The burden of proving it to be so is on the party asserting it. So joint family system is organized on principle of family relationship or sapindaship. Hindu Joint family is an unit and in all affairs it is represented by "Karta" or Head. Following are generally understood as members of Joint Hindu family -
(1) Those who are lineally connected in male line.
(3) Wife of male member
(4) Widowed wife of male member
(5) Unmarried daughter
(6) Adopted son or daughterSo Joint Hindu family does not only consist of male members, but female member like wife of male members or widowed wife of male member and unmarried daughter are also members of Hindu undivided family. In Surjitlal Chadha v. Commr. of I.T., AIR 1976 SC 109, it was observed that joint Hindu family is a larger body, consisting of group of persons who are united by the tie of `Sapindaship' arising by birth, marriage and adoption Hindu Coparcenary. - Coparcenary is narrower body of males only within a joint family and consists of father, Son, Son's Son and Son's Son's Son. A coparcenary consists of father and his three male lineal descendants. However for its continuity it is not necessary that there should be father-son relationship and coparcenary can consist of grand-father and grand son, of brothers, of uncle and nephew and so on. In T.V. Venkata Subamma v. T. Rattamma, AIR 1987 SC 1775, it was observed that - The essence of a coparcenary under the Mitakshara School of Hindu Law is community of interest and unity of possession. A member of joint Hindu family has no definite share in the coparcenary property, but he has an undivided interest in the property which is liable to be enlarged by deaths and diminished by births in the family. As interest in the coparcen property accrues to a son from the date of his birth, his interest will be equal to that of his father. A copartner has on interest in joint family property by birth. However such interest keeps on fluctuating and enlarges by deaths and diminishes by births in family until actual partition takes place. Every coparcener is entitled to have joint possession and enjoyment of each part of joint family property. Every coparcener is bound by the alienation made by karta for legal necessity or benefit of estate. Every coparcener has right to object any challenge alienation made without his consent and made without legal necessity. It is also important to note that every coparcener has a right of partition and survivorship. So in State Bank of India v. Ghamandi Ram, AIR 1969 S.C. 2330 the Supreme Court has listed the following as the incidents of Mitakshara coparcenary viz.
(i) firstly that the lineal made descendants of a person upto the third generation acquire on birth ownership in the ancestral properties of such a person;
(ii) secondly that such descendants can, at any time, work out their right by asking for a partition;
(iii) thirdly that till such a partition, each member has got ownership extending over the entire property jointly with the other coparceners;
(iv) fourthly that as a result of such co-ownership the possession and the enjoyment of the properties is common;
(v) fifthly, that no alienation of the property is possible without the concurrence of the coparceners unless it is for a necessity; and
(vi) sixthly, that the intrest of a deceased member passes, on his death, to the surviving coparceners.Joint Family or Coparcenary Property. - Property according to Hindu Law may be divided into the following two classes viz.,
1. Joint family or coparcenary property; and
2. Separate propertyJoint family property which is also called coparcenary property is that in which every coparcener has joint possession and joint ownership. The coparcenary property consists of :-
(i) Ancestral property
(ii) Separate property of coparceners voluntarily thrown into the common coparcenary stock with the intention of abandoning all separate claims upon it.Ancestral property consists of the property inherited by a male Hindu from his father, grandfather or great grandfather. A business under Hindu Law is a distinct heritable asset. When a Hindu dies leaving a business, it descends like other heritable property on his heirs. In the hands of male issues it becomes joint family property. As a general rule there is no presumption that Joint family is possessed with only joint property, as in Harihar Sethi v. Ladu Kishore Sethi, AIR 2002 Ori. 110 it was observed that a Hindu, even if joint family may possess separate property. Such property belongs exclusively to him. No other member of the coparcenary not even his male issue acquire any interest in it by birth and on his death intestate, it passes by succession to his heirs and not by survivorship to surviving coparceners.
(1) `Apatkale' i.e. in the time of distress or emergency
(2) `Kutumbarthe' i.e. for the sake of family
(3) `Dharamarthe' i.e. for religious or spritual dutiesThe formulation of Vijnaneshwara has undergone modification in two respects -1st power cannot be exercised by any member except `Karta', IIndly joint family property can be alienated for :-
(1) Legal necessity
(2) Benefit of estate
(3) Acts of indispensable dutyKarta's Power Of Alienation - As noted above `Karta' of joint Hindu family has power to alienate the joint family property, provided alienation is for the purpose of (i) Legal necessity (ii) Benefit of estate (iii) Acts of indispensable duty. It has been in numerous decisions of `Privy Council' and `Supreme Court' held that when `Karta' exercises power of alienation in above said exceptional cases, consent of other coparceners will be implied. Let us discuss these exceptional circumstances :- 1. Legal Necessity :- Expression `Legal Necessity' has not been, in fact, cannot possibly be defined. Broadly speaking `Legal necessity' will include all those things which are lawfully, reasonably, necessary for welfare of family. Term "apatkale" as used in Vijnaneshwra's proposition is probably synonymous to `legal necessity'. Thus legal necessity does not mean actual compulsion. It simply means, a pressure upon the estate which in law may be regarded serious and sufficient prompting `Karta' to alienate the property. In Gangadharan v. Janardhan Mallan and others, AIR 1996 SC 2127, Supreme Court after relying the judgments reported in AIR 1927 P.C. 37, AIR 1967 SC 574 and 1971 SC 1028 has observed that in case of sale or alienation of joint property by `Karta' for legal necessity, where purchaser acts in good faith and after due inquiry and able to show that sale itself was justified by legal necessity even if small portion of sale consideration, might have been used for such `legal necessity'. He is under no obligation to inquire into the application of any surplus and therefore is not bound to make re-payment of such surplus to members of family who are later challenging the `sale' being not for `legal necessity'. 2. For the benefit of the estate -- An alienation may also be justified if it is made by the Karta for the benefit of the estate. It is not possible to give an exact definition of what would amount to benefit of the estate of the family. The preservation of the estate from extinction or protection of the estate against deterioration by inundation would obviously be `for the benefit of the estate. The difficulty, however, is in drawing a line between acts that are beneficial to the estate and those which cannot be said to be so. Broadly speaking, benefit of estate means anything that is done which will benefit the joint family property. Supreme Court in Bal Mukand v. Kamla Wadia, AIR 1964 SC 1385 has observed that to be for the benefit of estate', a transaction need not necessarily be of a defensive character. In each case court would have to be satisfied from material placed before it that it conferred benefit on the family. 3. Indispensable duties :- The term "indispensable duties" implies performance of those acts which are religious, pious or charitable. Vijnaneshwara gave one instance of dharmarthe, viz., obsequies of the father and added "or the like". It is clear that this expression includes all other indispensable duties such as sradha, upanayanama and performance of other necessary samskaras. Performance of marriage is a samskara and therefore performance of marriage of members of the joint family, particularly of daughters, is an indispensable duty, though it is also covered under legal necessity. Sole Surviving Coparcener's Right of Alienation - When all coparceners die leaving behind one, such a coparcener is known as sole surviving coparcener. When the joint family property passes into the hands of the sole surviving coparcener, it assumes the character of separate property, so long as he does not have a son. In Guruamma v. Mallappa, AIR 1964 SC 510, it was observed that the sole surviving coparcener has full power of alienating the property the way he likes, by sale, mortgage or gift since at the time of alienation there is no other member who has joint interest in the family property. Such an alienation cannot be challenged by a subsequently born or adopted son. But if another member was in the womb of his mother at the time of alienation, he does not have the power of alienation, and the member on his birth can challenge such alienation or he may ratify it on attaining majority.
Q. 13 A a Hindu alienates coparcenery property in the lifetime of his son B without B's consent and without justifying necessity. B dies 2 years after the sale. 6 months after B's death, another son C is born to A's wife from A. Advise about C's right to challenge the alienation of property made by his father.
(a) Legal necessity
(b) Benefit of estate
(c) Acts of indispensable duty
(d) For payment of antecedent debt of father.Karta can alienate the joint family property with the consent of coparceners even if none of the above exceptional cases exist. If alienation is neither for legal necessity nor for payment of antecedent debts etc. other coparceners are entitled to the declaration that alienation is void and is done without consent. However when there is sole surviving coparcener, then he has full right of alienation of joint family property but if at the time of alienation another coparcener is in the womb, on his birth, he can challenge such an alienation. However an alienation of joint family property made by father, when there being no male issue in existence at the date of alienation, then it is valid even though made without necessity. Such alienation can not be objected by son conceived and born after the alienation on the ground that it was made without legal necessity. Moreover, an alienation made neither for legal necessity nor for payment of antecedent debts, by a father, without consent of son living, cannot be challenged by a subsequently conceived and born son when living sons either have ratified it or have predeceased their father and no other son was conceived or born at the time of alienation. Therefore in this case, right to challenge alienation was vested in B. But he, during his life time did not challenge the alienation and predeceased his father `A'. Father become sole surviving coparcener and was free to alienate joint family property even without legal necessity. At the time of alienation `C' was not even in the womb of his mother. He was conceived and born subsequent to alienation made by A, therefore, he has no right to challenge the alienation of property made by his father.
(a) the debt was antecedent to alienation and
(b) it was not incurred for an immoral purpose.In Sashi v. Subhash, AIR 1972 Del 84 it was observed that the father can himself alienate the joint family property for the discharge of his personal debts and sons can challenge it only if debts is tainted i.e. debts were taken for immoral purpose. Doctrine of antecedent debts is an example of what father can not do directly he can do indirectly. Generally a father can not alienate joint family property for obtaining money for his personal use. But he can take personal debts and failing to pay it, alienate the joint family property, such alienation is binding on the sons. Mulla in his Principles of Hindu law has stated "Where the sons are joint with their father and debts have been contracted by the father for his own personal benefit the sons are liable to pay the debts, provided they were not incurred for an illegal or immoral purpose." (S. 298). In Prasad v. Govinda Swami, AIR 1982 SC 84 Supreme Court observed the validity of an alienation made to discharge an antecedent debt rests upon the pious duty of the son to discharge his father's debt not tainted with immorality. "Antecedent debt" means antecedent in fact as well as in time, that is to say, that the debt must be truly independent of and not part of the transaction impeached. The debt may be a debt incurred in connection with a trade started by the father. The father alone can alienate the sons' share in the case of a joint family. The joint family property for payment of an antecedent debt is the privilege only of the father, grandfather and great-grandfather qua the son or grandson only. No other person has any such privilege. There is, however, another condition which must be satisfied before the son could be held liable, i.e., that the father or the manager acted like a prudent man and did not sacrifice the property for an inadequate consideration. In the instant case on the finding arrived at that the consideration for the sale deed in question was thoroughly inadequate, the sale could not be upheld, an obligation of religion and piety which is placed upon the sons under Mitakshara law is to discharge the father's debt where the debts are not trained with immortality.' (ii) MITAKSHARA COPARCENARY : Coparcenary under Mitakshara school is a narrower body of persons within a joint family and consists of father son, son's son and son's son's son. Like joint family to begin with it consists of father and his three male lineal descendants in its continuance, the existence of the father-son relationship is not necessary. Thus a coparcenary can consist of grandfather and grand son. Mulla in his `Principles of Hindu Law' (12th edition) at page 313 has stated JOINT HINDU FAMILY consists of all persons lineally descended from a common ancestor and includes their wives and unmarried daughters. A daughter ceases to be a member of her father's family on marriage and becomes member of her husband's family. The joint and undivided family is the normal condition of Hindu society. An undivided family of Hindus is ordinarily joint not only in estate but also in food and worship. At page 314 Mulla stated Hindu Coparcenary is much narrower body than the joint family. It includes only those persons who acquire by birth an interest in joint or coparcenary property. The conception of joint Hindu family constituting a coparcenary is that of common male ancestor with his lineal descendants in male line within four degree counting from and inclusive of such ancestor. No coparcenary can commence without common male ancestor though after his death it may consist of collaterals. No female can be a coparcener under the Mitakshara law. Even a wife though she is entitled to maintenance out of her husband's property and had to that extent an interest in his property but she is not her husband's coparcener. In State Bank of India v. Ghamandi Ram, AIR 1969 SC 1930 Supreme Court observed that the coparcenary property is held in collective ownership by all the coparceners in a quasi corporate capacity. Coparcenary are : Firstly the lineal male descendants of person upto third generation acquire on birth ownership in ancestral properties of such persons. Secondly that such descendants can at any time work out their rights for partition. Thirdly that till partition each member has got ownership extending over the entire property conjointly with the rest. Fourthly that as a result of such coownership the possession and enjoyment of properties is common. Fifthly that no alienation of property is possible unless it is for necessity without the concurrence of coparceners. Sixthly that the interest of a deceased member passes on his death to surviving coparceners. (iii) PIOUS OBLIGATION : Under Mitakshara school of Hindu Law, the sons (Expression `son' throughout includes sons, and son's son and son's son) are under pious obligation to pay the debts of their male lineal ancestor i.e. father, grand father, great grand father provided the debts were not incurred for illegal or immoral purpose. The liability to pay the debts contracted by father though for his own benefit arises from an obligation of religion and piety to discharge the father's debt. It is thought that if a person's debt are not paid and he dies in the state of indebtedness, his soul may have to face evil consequences. In Sat Narain v. Sri Kishan Dass, AIR 1936 P.C. 277 the Privy Council held that the basis of doctrine is spiritual and its sole object is to confer spiritual benefit on the father. This doctrine was not based on pious obligation of the sons to see their father's debt is paid. The condition is that the debt must not be for an immoral or illegal purpose. (iv) HINDU : There has not been precise definition of the term `Hindu', available for all purposes. However, Hindu law applies to all those persons who are Hindus, it is necessary to know who are Hindus. In simple words, any person who follows Hindu religion in any of its form or development either by practicing it or by professing it, is a Hindu. Since Hindu religion is multifaced it is difficult to say with precision what is Hinduism. Any definition of `Hindu' in terms of religion will always be inadequate. For the purpose of Hindu law, a person may be (i) Hindu by birth (ii) Hindu by Religion i.e. convert to Hindu religion (iii) Illegitimate children where both parents are Hindu (iv) Illegitimate children, where one of his parents is Hindu and such child is brought up by such Hindu parent (v) Jain, Sikhs, Buddhists and Lingayats. Hindu Marriage Act 1955, Hindu Succession Act 1956, Hindu Minority and Guardianship Act 1956 and Hindu Adoption and Maintenance Act 1956 have extended the application of these Acts to all persons who can be regarded as Hindu, in this broad and comprehensive sense. Section 2 of Hindu Marriage Act, for instance provides: (1) This Act applies -
(a) to any person who is Hindu by religion, in any of its forms or developments including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Smaj,
(b) to any person who is a Buddhist, Jain or Sikh by religion, and
(c) to any other person domiciled in the territories to which this Act extends who is not a Muslim, Christian, Parsi or Jew by religion unless it is proved that any such person would not have been governed by the Hindu Law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed.Explanation : The following persons are Hindu, Buddhist, Jainas or Sikhs by religion as the case may be:
(a) Any child legitimate or illegitimate both of whose parents are Hindu, Buddhist, Jain or Sikh by religion.
(b) Any child legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jain or Sikh by religion and who is brought up as a member of tribe, community, Group or family to which such parent belongs or belonged.
(c) Any person who is a convert or reconvert to Hindu, Buddhist, Jain, Sikh religion.Sub-Section (3) of Section 2 says "The expression `Hindu' in any portion of this Act shall be construed as if it included a person who though not a Hindu by religion is nevertheless, a person to whom this Act applies by virtue of the provision contained in this Section" .
Q. 17 A Mitakshara Joint Hindu family consisted of A and his two brothers B & C. C posted a registered notice to `A', the Karta of the family communicating his intention to separate from joint family. Two days afterwards C withdrew the notice from the post office, but the news of C's intention to separate reached A indirectly. Subsequently C dies. Decide whether C died separated from Joint family.
Firstly: Severance of status or interest.
Secondly: Actual division of property, known as partition by metes and bounds. Partition or severance of joint status or interest is effected by clear and unequivocal expression by words or conduct of an intention to partition. In Syed v. Jorawar, AIR 1922 P.C. 353 it was observed by the Privy Council : "It is a settled law that a severance of estate is effected by an unequivocal declaration on the part of one of the joint holders of his intention to hold his share separately, even though no actual division takes place."So any adult coparcener may sever his interest by an unequivocal communication of his intention of partition. This proposition of law was accepted by Supreme Court in Rukhmabai v. Laxaminaryan, AIR 1960 SC 335 and then later in Raghvamma v. Chenchemma, AIR 1964 SC 136 wherein Subba Rao, J had observed that a member of Joint Hindu Family seeking to separate himself from others will have to make known of his intention to all interested parties (coparceners). It is necessary that there must be intimation, indication or representation of an intention to partition though in what form the manifestation of an intention is made will depend upon circumstances of each case. In case in hand A, B and C are coparcener of Mitakshara Joint Hindu family and A is Karta of the family. C posted registered notice indicating his intention of partition from joint family. Latter however C changed his mind and withdrew his notice from Post Office but his intention of petition became known to A. As said above, severance of estate does not require any formal procedure, clear and unequivocal declaration (in any form) communicating in any way of intention to severance from joint family status, is sufficient for effecting partition. Facts of the case in hand are taken from Putturangumma v. M.S. Rangamma, AIR 1968 SC 1018 wherein it was observed by Supreme Court that process of communication may vary with the circumstances of each particular case. The proof of formal despatch or receipt of communication by other members of family is not essential, nor its absence fatal to severance of the status. What is necessary is that the declaration to be effective should reach the person or persons affected by some process appropriate to the given situation and circumstances of the particular case. Supreme Court held in this case that communication was sufficient and effective and it could not be withdrawn. So in case in hand it can beheld that C's notice was sufficient declaration to bring severance in joint status even if later he had withdrawn and C died separated from joint family.
Q. 18 A and his brothers B and C are members of a joint family under the Mitakshara school. A sues B and C for partition. After the suit but before the decree A dies leaving the widow. Can the suit be continued, if so by whom ? If not whether B and C will get A's share by survivorship ? Discuss with reasons.
(i) Severance of status or interest.
(ii) Actual division of property according to shares which is also known as partition by `metes and bounds'.Severance of Joint Status or Interest : What is necessary to bring about severance is a clear and unequivocal expression by words or conduct, of an intention to partition. In Rukhma Bai v. Laxmi Narayan, AIR 1960 SC 335 it was observed that it is a settled law that any adult coparcener may sever his interest by an equivocal communication of his intention to partition. Coparcener expressing an intention to sever need not assign any reason nor does it matter in what form and what manner communication of an intention is made. However the expression of intention must be conscious and informed act of coparcener. In Giraja Nandini v. Bijendera, AIR 1967 SC 1124 it was observed by Supreme Court that a partition can be made by a definite unambiguous declaration of intention by any member to separate himself from the family, if this is done it would amount to division of status whatever mode of partition may be used. Partition may be effected by institution of suit by submitting the dispute as to division of properties to arbitration or by demand for share in the properties or by conduct which evinces an intention to sever the joint family. In the case in hand A, B and C all brothers are members of joint Hindu family governed by Mitakshara school of Hindu law. A sues against B and C for partition. Under Mitakshara school of Hindu law, filing of suit for partition amounts to clear and unequivocal declaration of intention to partition of joint family which immediately results in severance of joint status, as stated above, even before suit is finally decided. Decree in suit will bring formal and actual division i.e. division by metes and bounds. Privy Council in Palani v. Muthu Venkataharalu, AIR 1925 PC 49 has held when a coparcener files a suit for partition it amounts to an unequivocal intimation of intention to sever and consequently severance of status takes place from the date when suit is instituted. A decree may be necessary for working out the result of severance i.e. for division of property by metes and bounds. But severance has taken place from date of filing the suit. In view of above discussion, it is clear that institution of suit for partition by A had resulted in severance of his joint status from the date when it was instituted. Therefore A's share does not pass by survivorship to B and C but it descends to his widow as his heir and she as such is entitled to continue the suit.
(i) if one is a lineal ascendant of other
(ii) if one was the wife or husband of a lineal ascendant or descendant of the other, or
(iii) if one was the wife of the brother or of the father's or mother's brother or of the grandfather's or grandmother's brother of the other; or
(iv) if the two arte brother and sister, uncle and niece, aunt and nephew, of children of brother and sister or of two brothers or of two sisters.It should be noted that prohibited relationship includes :-
(i) relationship by half or uterine blood as well as by full blood;
(ii) illegitimate as well as legitimate blood relation;
(iii) relationship by adoption as well by blood; and all terms of relationship in those clauses shall be construed accordingly.Section 5(iv) of Act says marriage of two Hindus is not valid if parties are within degree of prohibited relationship, unless the custom or usage governing each of them permits the marriage between two. So only exception to rule prohibiting marriage of two Hindus related to each within prohibited degree of relationship, is custom or usage of each parties allowing such marriage, However such "customs" or "usage" should be of long time and continuously and uniformly observed and which have obtained force of law. Marriage between parties related to each other within the degree of prohibited relationship is for bidden apparently to prevent :-
1. Physical degeneracy of the race which the marriage between near relations would lead to.
2. Moral degeneracy and consequent evil results which affect the society built on the edifice of joint family system.The original Hindu text went to the extent of prohibiting a man marrying a girl even of the same `gotra', i.e., an agnate or `parawara' on the theory that his father and girl's father were both descendants of a common ancestor in the male line, and all such marriages were held invalid until the Hindu Marriage Disabilities Removal Act, 1946, was passed and the disability was removed by it. (C) Spinda Relationship - Section 5(v) of Hindu Marriage Act says that Marriage between two Hindus who are `Spindas' of each other is prohibited. Such marriage has been declared to be "void" by Section 11 of Act. Solemnization of such marriage in contravention of Section 11 is punishable under section 18(b) of Act. Meaning - The words `sapinda' etymologically means one of the same `pinda'. In the Hindu texts, the word has been used in two senses; in the one, it means a relation connected through the same body; and in the other, it means relation connected through funeral oblation of food. Before Vijnaveshwar, sapindas were recognised as those persons who offer `pindas' to the same ancestor. Thereafter Vijnaveshwar propounded the theory of `particles of the same body' by changing the meaning of `pinda'. According to him sapinda relationship arises between two persons on account of their being connected by particles of one and the same body. The Hindu Marriage Act, 1955, under section 3(f) lays down its own rules to determine whether a person is the sapinda of another or not. It says that :-
(i) Sapinda relationship with reference to any person extends as far as the third generation (inclusive) in the line of ascent through the mother; and the fifth (inclusive) in the line of ascent through the father, the line being traced upwards in each case from the person concerned, who is to be counted as the first generation;
(ii) two persons are said to be `sapinda' of each other if one is a lineal ascendant of the other within the limits of sapinda relationship, or if they have a common lineal ascendant who is within the limits of sapinda relationship with reference to each of them.The sapinda relationship includes :-
(i) relationship by half or uterine blood as well as full blood;
(ii) illegitimate blood relations as well as legitimate;
(iii) relationship by adoption as well as by blood; and all terms of relationship in those clauses shall be construed accordingly.So the sapinda relationship according to the clause of the Act extends as far as -
(i) the third generation (inclusive) in the line of ascent through the mother; and
(ii) the fifth generation (inclusive) in the line of ascent through the father.
(i) neither party has a spouse living at the time of marriage.
(ii) at the time of marriage neither party:
(a) is incapable of giving valid consent to it in consequence of unsoundness of mind or
(b) though capable of giving valid consent, has been suffering from mental disorder of such kind or to such extent as to be unfit for marriage and the procreation of children or
(c) has been subject to recurrent attacks of insanity or epilepsy.
(iii) the bridegroom has completed the age of twenty one years and the bride the age of eighteen years at the time of the marriage.
(iv) the parties are not within the degree of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two.
(v) The parties are not spindas of each other unless the custom or usage governing each of them permits of a marriage between the two.So Section 5 prescribes the essential requisites for a Hindu Marriage such as (i) Monogamy (ii) Mental capacity of parties (iii) Age of parties (iv) degree of prohibited relationship (v) Spinda relationship. These conditions of a Hindu marriage are supplemented by certain ceremonies as provided in Section 7 of the Act. In Swarajya Laxami v. G.G. Padama Rao (1974) SC C 58 it was observed : Original concept of Hindu marriage treating it as Sanskara or Sacrament is not destroyed by Hindu Marriage Act. This Act retains the character and nature of a Hindu Marriage as Sacrament and a holy union for performance of religious duties.
(1) A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto.
(2) Where such rites and ceremonies include the Saptapadi (that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and binding when the seventh step is taken.Thus the Act does not prescribe any special ceremony for marriage but leaves it to the discretion of the parties to follow any customary rites or ceremonies which are prevalent either amongst the bridegroom's party or bride's side. Under the ancient Hindu Law all the necessary ceremonies which were prevalent in any community whether prescribed by custom or by Shastras, must be observed : "The status to husband and wife is constituted by the performance of the marriage rites, whether prescribed by the Shastras or by custom" - Mayne. Under the textual law there were two essential ceremonies to the validity of Hindu marriage which were :-
(i) invocation before the sacred fire, and
(ii) `saptapadi' i.e., the taking of seven steps by the bridegroom and the bride jointly before the scared fire. Under the present law neither of these two ceremonies are essential and the party may follow any particular rites or ceremonies which are existing in any part of the country.
(iii) panigrahana ceremony.In -------------------, AIR 1969 Cal. 55 it was observed that validity of a marriage will depend on observance of `customary rites and cermonies' of either party as were prevlent in 1955. Expression, `Customary rites and cermonies' means such `Shastric' cermonies which the caste or community to which party belongs is customarily following. Customary rites and cermonies to be accepted must be shown to have been followed definitely as an essence of marriage ceremony from ancient times and recognized such cermonies as obligatory. The Supreme Court in Shanker Bhan Rac Lokhande v. The State (AIR 1955 S.C. 1664), clearly laid down that if the necessary ceremonies are not observed the marriage would become ineffective. A marriage in absence of performance of religious ceremonies will not be recognised in law.
Q. 24 In 1986 Janak, a Hindu boy aged 20 years married Rekha aged 17 years in accordance with religious rites and ceremonies. In 1988 Janak married another girl Rita in gandharva form of marriage by exchange of garlands in the presence of two witnesses. On being prosecuted for bigamy Janak contends that he was not liable for ligamy as his former marriage with Rekha was void ab initio. Decide with reference to case law on the subject.
(i) neither party has a spouse living at the time of the marriage.
(ii) at the time of the marriage, neither party:
(a) is incapable of giving 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 extent as to unfit for marriage and procreation of children or
(c) has been subjected to recurrent attacks of insanity or epilepsy.
(iii) the bridegroom has completed the age of twenty one years and the bride age of eighteen years at the time of the marriage.
(iv) the parties are not within the degree of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two
(v) the parties are not sapindas of each other unless the custom or usage governing each of them permits of marriage between the two.So above are essential conditions for any valid Hindu marriage. Apart of this Section 7 of Hindu Marriage Act 1955 requires that a Hindu Marriage may be solemnized in accordance with customary rites and ceremonies of either party thereto. Where such rites and ceremonies include the `Saptapadi' (i.e.) taking of seven steps by bride and bridegroom from Holy fire), the marriage becomes complete and binding when the seventh step is taken. Section 11 of Act provide about void marriage and Section 12 provide for voidable marriage. Section 11 of Act says any marriage solemnized in contravention of clauses (i), (iv) and (v) of Section 5 is null and voidable and can be so declared by decree of nullity. Section 12 inter alia provides that any marriage in contravention of condition specified in clause (ii) of Section 5 voidable and may be annulled by decree of nullity. Coming to case in hand Janak married Rekha who was aged 17 years in 1986 and thus marriage between Janak and Rekha contravene the condition specified in clause (iii) of Section 5. However marriage of Janak and Rekha is neither void nor voidable u/s 11 or 12 of Act. Contravention of clause (iii) of Section 15 only attracts penal provisions of Section 18. In Smt. Neetu Singh v. State and othera 1999, Family Law Cases 195 Delhi High Court has held that marriage in contravention of Section -15(III) of Hindu Marriage Act 1955 is neither void nor voidable and only attracts provision of Section 18 of said Act. So, it is clear from the above the discussion that marriage of Janak and Rekha solemnized in 1986 was valid and binding, now in 1988, Janak married another girl Rita in gandharva form of marriage by exchange of garlands in the presence of two witnesses. Question arises whether Section 17 of Hindu Marriage Act is applicable on Janak and thus he is guilty of Section 494 of Indian Penal Code (Bigamy). Section 17 of Act says any marriage between two Hindus solemnized after the commencement of this Act is void if at the date of such marriage either party had a husband or wife living and the provisions and Sections 494 and 495 of I.P.C. shall apply accordingly. Supreme Court discussed the scope of Section 17 of Act in L. Ohulamma v. L. Venkata Reddy, AIR 1979 SC 848 by observing `Unless a marriage is celebrated and performed with proper ceremonies and due form it can not be said to be `solemnized' within the meaning of this Section . It is therefore essential for the purpose of this Section that marriage to which Section 494 I.P.C. applies on account of provisions of this Act, should have been celebrated with proper ceremonies and due form. Merely going through certain ceremonies with intention that parties be taken to be married, will not make the ceremonies prescribed by law or approved by any established custom. In Santi Dev Beema v. Kanchan Prava Devi, AIR 1991 SC 816 Supreme Court held "When there is no plea that the marriage was solemnized in accordance with the customary rites and usage which do not include `saptapadi' there can not be inference as to the performance of essential ceremonies for valid marriage even if the accused and his alleged second wife were living as husband and wife. So in case in hand second marriage of Janak with Rita in 1988 was not in accordance of provisions of Section 7 of Hindu Marriage Act which provide for essential and customary rites and ceremonies for Hindu marriage specifically when there is no plea that customs and usage of either Janak or Rita dispense with ceremony of `Saptapadi' and thus marriage of Janak and Rita is not marriage in the eye of law and therefore Janak is not guilty of Bigamy.
1. For the purposes of facilitating the proof of Hindu marriages the State Government may make rules providing that the parties to any such marriage may have the particulars relating to their marriage entered in such manner and subject to such conditions as may be prescribed in a Hindu Marriage Register kept for the purpose.
2. Notwithstanding any thing contained in sub-section (1) the State Government may, if it is of opinion that it is necessary or expedient so to do, provide that the entering of the particulars referred to in sub-section (1) shall be compulsory in the State or in any part thereof, whether in all cases or in such cases as may be specified, and where such direction has been issued, any person contravening any rule made in this behalf shall be punishable with fine which may extend to twenty five rupees.
3. All rules made under this section shall be laid before the State Legislature as soon as may be, after they are made.
4. The Hindu Marriage Register shall at all reasonable times be open for inspection, and shall be admissible as evidence of the statements therein contained and certified extracts therefrom.Thus the omission to get the marriages registered, even when the registration is made compulsory, does not affect in any manner the validity of the marriage but will invite the penalty of a fine which may extend to twenty five rupees.
Q. 27 `A' a Hindu working as clerk in a Bank in Delhi marries `B' a school teacher at Ambala in Haryana. After marriage `A' wants `B' to leave her job and join him at Delhi but she declines to leave her job stating that she has no objection to join him during holidays and he is also welcome to come over to her at Ambala at any time. A does not agree to this and insist that after marriage B being his wife has to obey his orders. A files a petition for restitution of conjugal rights against B. Would A succeed ? Discuss with reference to Case Law.
(a) Monogamy i.e. neither party has spouse living at the time of marriage.
(b) Sanity i.e. each party is mentally sound to give free and voluntary consent to it.
(c) Age : i.e. bridegroom has completed twentyone years and bride has completed eighteen years.
(d) Beyond Prohibited Degree i.e. parties to marriage are not related to each other within `prohibited degree of relationship.'
(e) Beyond Spinda relationship i.e. neither party is spinda to each other.Section 11 of Hindu Marriage Act provides about void marriage in the following terms :-
"Any marriage solemnized after the commencement of Act shall be null and void and may, on a petition presented by either party thereto against the other party be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of section 5."The three conditions, as per section 11, are as follows and if breach of any one of these three conditions is made the marriage is void :-
1. (i) Neither party has a spouse living at the time of the marriage;
2. (iv) the parties are not within the degree of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two.
3. (v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two.The non-fulfilment of any of these three conditions renders a marriage void ab initio i.e., null and void from its very inception and either party to such marriage can obtain a decree of nullity from the court. Voidable Marriage According to Section 12 of Hindu Marriage Act, any marriage solemnized whether before or after commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely -
(a) Impotency : that the marriage has not been consummated owing to the impotence of the respondent.
This provision has been amended by the Marriage Laws (Amendment) Act, 1976, so that now she need not prove that the husband was impotent at the time of marriage and continued to be so when the petition was filed. It is enough if it is proved that the marriage has not been consummated and the non- consummation is due to the impotency of the husband. [Smt. Suvarna v. G.M. Achary, AIR 1979 A.P. 169].
(b) Insanity, Unsoundness of mind : that the marriage is in contravention of the condition specified in clause (ii) of section 5; or
(c) Consent obtained by force or fraud : that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner is required under section 5, the consent of such guardian, was obtained by force or by fraud as to the nature of the ceremonies or as to any material fact or circumstances concerning the respondent; or
(d) Pregnancy of the Respondent : that the respondent was at the time of marriage pregnant by some person other than the petitioner.Distinction Between Void and Voidable Marriage - The main distinction between the two is that :
(1) A void marriage is void ab initio and is a nullity. It is void ipso facto. A voidable marriage, on the other hand, is a marriage which is legal for all purposes whatsoever unless it is annulled by the Court on the petition of the aggrieved party.
(2) A fresh marriage contracted during the subsistence of a voidable marriage and before it is annulled by a decree of nullity will be considered a bigamous one, and either spouse of the second marriage is liable under the penal provisions of section 18 of the Act. But it is not so in the case of void marriage.Under section 11, a marriage, solemnised after the commencement of the Act, shall be null and void if it is in contravention of clauses (i), (iv) and (v) of Section 5. But any marriage may be declared void by a decree of nullity whether solemnised before or after the commencement of the Act, under section 12. The scope of section 11 of the Act wider than the scope of Section 12 in view of the fact that Section 11 restricts its application only to some of the conditions of a valid marriage, whereas several other grounds apart from some of the grounds of a valid marriage, also come within the purview of section 12.
(i) the petition is presented more than one year after the force had ceased to operate or as the case may be fraud had been discovered.
(ii) the petitioner has with his or her full consent, lived with the other party to marriage as husband or wife after the force had ceased to operate or as the case may be, the fraud had been discovered.Expression `Fraud' has not been defined in the Act. In Nand Kishor v. Smt. Munni Bai, AIR 1979 MP 45, it was observed that the term `fraud' means those conditions in which there is absence of real consent. The term fraud has been used in the sense which lacks the element of consent and there is an intention to defraud. Here it is not to be understood in that sense in which it has been used in Section 17 of Indian Contract Act. Similarly in Anurag Anand v. Sunit Anand 1997 Family Law Cases 178, Delhi High Court held that term fraud as used in Section 12 of the Act can not be given same meaning as has been assigned to it u/s 17 of Indian Contract Act. Word `Fraud' used in Section 12 of Act would only connote deception and misrepresentation. Important aspect of `fraud' in Matrimonial Law is that it is not every misrepresentation or concealment which amounts to fraud. The Marriage Law (Amendment) Act 1976, lays down that the `fraud' vitiative of the consent should relate to:
(i) Nature of ceremonies or
(ii) any material fact or circumstances concerning the respondent.In Rajender Singh v. Promila, AIR 1987 Delhi 285, it as observed : "the word `fraud' used in this clause connotes deception or misrepresentation. If there is misrepresentation or concealment of material fact concerning the respondent then the provisions contained in clause (c) would definitely be attracted for annulling the marriage. What is a misrepresentation or concealment of material fact depends upon the facts and circumstances of each case. In Bijender Bir Singh v. Mst. Vinod, AIR 1995 P&H 42 Punjab and Haryana High Court held that u/s 12(1)(c) of Act it is not necessary that consent is obtained by practicing fraud at the time of marriage. It is enough if it was obtained even at an earlier stage. In this case girl was represented to be graduate and legally divorced but later it was found that neither she was graduate nor legally divorced at the time of engagement with petitioner. It was held that consent of petitioner was obtained by fraud. In Rama Kanta v. Mohinder Laxami Das, AIR 1996 (P&H) 99 the fact that wife had already married twice before the present marriage and that she had given birth to a son in first wedlock was not disclosed to the husband and High Court held that non-disclosure of said facts to husband before the marriage amount to `fraud' on him and marriage may be annulled on this ground.
Q. 32 Are the following marriages valid under Hindu Marriage Act 1955 and what are the remedies are open to the wife?
i) The husband had a wife at the time of marriage, the first marriage having been performed in England before 1955.
ii) The age of the bride at the time of marriage was below 15 years.
Q. 34 A. What are the grounds on which a Hindu can seek divorce under the Hindu Marriage Act, 1955 ? B. Is there any provision for divorce by mutual consent in the Hindu Marriage Act, 1955 ? Discuss. C. A married B on 15.12.1978. B alleged that her husband A treated her with cruelty and she filed a petition for divorce on the ground of cruelty u/s 13(1)(ia) of the Hindu Marriage Act, 1955 in the Court of District Judge on 31.3.1979. Can B succeed in the Court ? Discuss.
(i) has, after the solemnization of the marriage had voluntary sexual intercourse with any person other than his or her spouse; or
(ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; or
(ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or
(ii) has ceased to be a Hindu by conversion to another religion; or
(iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.
(iv) has been suffering from virulent and incurable form of leprosy.
(v) has been suffering from venereal disease in a communicable form.
(vi) has renounced the world by entering into any religious order or
(vii) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive;(1A) Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground
(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or
(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceedings to which they were parties.(2) A wife may also present a petition for the dissolution of their marriage by a decree of divorce on the ground
(i) in the case of any marriage solemnized before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner:
Provided that in either case the other wife is alive at the time of the presentation of the petition; or
(ii) that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality;
(iii) that in a suit under Section 18 of Hindu Adoptions and Maintenance Act, 1956 or in a proceeding under Section 125 of the Code of Criminal Procedure, 1973 a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards; or
(iv) that her marriage (whether consummated or not) was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years.B. Section 13B of the Hindu Marriage Act, 1955 provides as under:
"(1) subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976, on the ground that they had been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.
(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in Sub-Section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such enquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree".C. Section 14 of the Hindu Marriage Act, 1955 states that notwithstanding anything in this Act it shall not be competent for any court to entertain any petition for dissolution of a marriage by a decree of divorce unless at the date of the presentation of the petition one year has elapsed since the date of the marriage. But under the proviso the court is conferred a discretionary power to entertain the petition before one year, if it finds on the allegations in the affidavit filed in support of the petition that prima facie there is exceptional hardship to the petitioner or exceptional depravity on the part of the respondent. Sub-Section (2) presupposes an application for leave of the court to present a petition for divorce before the expiry of one year from the date of the marriage and also emphasises that the court while dealing with such an application shall have due regard to the interests of any children of the marriage and to the question whether there is a reasonable probability of reconciliation between the parties before the expiration of the said period of one year. Thus, Section 14 provides restrictions presumably designed to prevent hasty recourse to legal proceedings before the parties have made a real effort to save their marriage from disaster. In the case in hand, the petitioner has alleged simple cruelty on the part of her husband A. No aggravating circumstances have been alleged or disclosed to point out exceptional hardship to the petitioner to file the petition within one year of her marriage. Nor even any application for leave as envisaged by Section 14 has been filed. In these circumstances, the petition is liable to be rejected as premature.
(a) if he is guilty of desertion, that is to say, of abandoning her without reasonable cause and without her consent or against her wish, or of wilfully neglecting her."Thus, a Hindu wife is entitled to live separately from her husband and claim maintenance, if he is guilty of desertion.
Q. 37 Explain whether a decree of divorce can be granted in following cases:
(a) After one year of marriage the husband of wife `W' has become impotent.
(b) Against a husband `H' a decree of judicial separation was passed on 5.2.97 on the ground of adultery. Now he applies for decree of divorce.
(c) On 19.8.97 an order of payment of maintenance was passed against the husband `H' under Section 125 of Criminal Procedure Code, since then he is paying the maintenance amount regularly to wife. The wife now applies for decree of divorce.
(d) The marriage of `W' was solemnized when she was only 14 years old. After attaining the age of 16 years she has withdrawn her company from her husband. Now after attaining the age of 18 years she applies for decree of divorce.
"Where in any proceeding under this Act it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner's own income and the income of the respondent, it may seem to the court to be reasonable."So once either party to marriage has initiated any proceedings under Hindu Marriage Act then during pendency of such proceedings, either party to marriage may demand maintenance and cost of proceedings from other party to the marriage and if this prayer is granted by court, then other party is bound to pay maintenance and cost as directed by court. In P.S. Krishna Murthy v. P.S. Mahadevi, AIR 1987 A.P. 237 it was observed : A reading of the provision of Section 24 of the Act would adumbrate that the condition precedent for an application under Section 24 is that the spouse, either wife or husband has no independent income sufficient to the spouse for his or her maintenance and of necessary expenses. In determining the quantum regard should also be had to the petitioner's own income and the income of the other spouse in computation of the monthly maintenance payable by the other spouse and that matter was left to court's discretion determine the quantum on the fact and circumstances in such case. In Jasbir Kaur Sehgal v. Dist. Judge Dehradun, AIR 1997 SC 3397 it was observed that Section 24 of the Act, no doubt talks of maintenance of wife during pendency of the proceedings, but this section cannot be read in isolation and cannot be given restricted meaning, therefore right of wife to maintenance u/s 24 of the Act would include her own maintenance as well as maintenance of her unmarried daughter living with her. Permanent alimony and Maintenance. - Section 25 of the Hindu Marriage Act, 1955, lays down that :
(1) Any court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, an application made to it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent's income and on other property, the applicant, the conduct of the parties and other circumstances of the case, it may seem to the court to be just, and any such payment may be secured if necessary, by a charge on the immovable property of the respondent.
(2) If the court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under sub-section (1), it may, at the instance of either party, vary, modify or rescind any such order in such manner as the court may deem just.
(3) If the court is satisfied that the party in whose favour an order has been made under this section has remarried, or if such party is the wife that she has not remained chaste, or if such party is the husband that he has had sexual intercourse with any woman outside wedlock, it may at the instance of the other party vary, modify or rescind any such order in such manner as the court may deem just.
(1) to evolve a fairly uniform system of law for all Hindus with respect to intestate succession, that is to say, succession to property in respect to which a deceased person has not made a will;
(2) to give a right to inheritance to daughters which previously under all systems of pure Hindu law was not given to them;
(3) to evolve a list of heirs entitled to succeed on intestacy based on natural love and affection rather than or religious efficacy;
(4) the law should be administered as it is found on the statute book and the customs ought not to hamper or alter statute law.Scope. - The scope of the Act has been widened to include, every citizen of India who is not a Muslim, Christian, Parsi or Jew by religion. Section 2 of the Act defines persons to whom the Act applies. It will apply to all Hindus domiciled in the said remaining territory; Hindus domiciled outside India, will be governed by the well-defined principles of international law. The Indian Courts should, therefore, give effect to the Act and its territorial nature brings all Hindus within the scope of the Act, irrespective of residence, provided the matter arises before an Indian Court. The differences prevailing up to this time in Mitakshara and Dayabhaga Schools of Hindu Law have been removed and now the followers of both the Schools are to be governed by the same simple statute law.
1. Where Indian Succession Act 1925 applies.
2. Estates devolving on single heir--Impartiable estate.
3. V.T.K. Estate.1. Where Indian Succession Act 1925 applies -- As per Section 5(i) of the Act, the Hindu Succession Act 1956 is not applicable to any property succession to which is regulated by the Indian Succession Act 1925 by reason of the provision contained in Section 21 of the Special Marriage Act, 1954 which deals with succession to property of parties married under Special Marriage Act and lays down that --
"Notwithstanding any restriction contained in the Indian Succession Act 1925 with respect to its application to members of certain communities succession to the property of any person whose marriage is solemnized under this Act and to the property of issue of such marriage shall be regulated by the provisions of the said Act and for the purposes of this Section that Act shall have effect as if Chapter III of Part V (Special Rules for Parsi Intestate) had been omitted therefrom."2. Impartible Estate -- As per Section 5(ii) of the Act, any estate which descends to a single heir by the terms of any covenant or agreement entered into by the Ruler of any Indian State with the Government of India or by the terms of the enactment passed before the commencement of this Act is exempted from the application of this Act. Thus it is not every impartible estate which is exempt from the application of the Act but only such impartible estate as enumerated in Section 5(ii) of the Act are exempt and rest are governed by the Act. 3. V.T.K. Estate -- Section 5(iii) of the Act provides that the Hindu Succession Act 1956 is not applicable in case the Valiamma Thampuran Kovilagam Estate and the palace fund administered by the palace administration Board by reasons for power conferred by proclamation dt. 29th June 1949 promulgated by Maharaja of Cochin. The Allahabad High Court has taken the view that the provisions of the Act cannot be made applicable to agricultural plots governed by the U.P. Zamindari Abolition and Land Reforms Act. Under the U.P. Zamindari Abolition and Land Reforms Act which regulated tenancy rights, there is no provision applying personal law to any of the tenures created under that Act and thus the provisions of the Hindu Succession Act are wholly inapplicable to the land tenures under the U.P. Zamindari Abolition and Land Reforms Act. [Prema Devi v. Jt. Dir. Consolidation, AIR 1970 All. 238]
Q. 46 A and his three sons, B, C and D constituted Mitakshara Coparcenary. B gets himself separated. Then A dies leaving behind the three sons and a widow W. B demands a share in the interest of A in the coparcenary property as well as his separate property. But other heirs refuse to give him. Decide.
Provided that if the deceased had left him surviving a female relative specified in class I of the schedule or male relative specified in that class who claims through such female relative, the interest of deceased in coparcenary property shall devolve by testamentary or intestate succession.Explanation No. 2 to Section 6 says that nothing contained in the provision of this Section shall be construed as enabling a person who has separated himself from coparcenary before death of deceased. Section 8 of Hindu Succession Act says that property of a male Hindu dying intestate shall devolve according to provisions of chapter (a) firstly upon the heirs being relatives specified in class I of the schedule...." Since under old Mitakshara School of Hindu Law, joint family property devolves the survivorship. This concept has been retained in Section 6 of the Hindu Succession Act. However proviso to Section 6 says if a deceased having interest in coparcenary property at the time of his death is survived by female relative of class I of schedule of Act or male relative of said class, claiming through such female then his interest in coparcenary property shall devolve by testamentary or intestate succession and then provisions of Section 8 of the said Act will apply, while keeping in mind, that as per Explanation 2 of Section 6, any heir, who has got separated from the family before the death of coparcener will be excluded from rule of succession as given u/s 8 of the Act. This rule of succession as provided under Section 6 read with Section 8 of the Act has its application only in respect of deceased's share in coparcenary property. But where there is no coparcenary property of deceased, or intestate has left behind only self acquired property, then same shall devolve according to Rules as provided under Section 8 of the Act and the fact that a son had separated himself from family before death of intestate will not affect his right to claim share in self acquired property of male Hindu died intestate. Turning to the case in hand, it is clear that originally coparcenary consisted of A and his three sons, B, C, and D. It is further clear that the son B separated himself during the life time of his father, and the coparcenary continued between A and his two sons C and D. A has died leaving behind his three sons and a widow W. The widow W is class I female heir of the deceased. Therefore, the interest of the deceased in the coparcenary property shall devolve upon his two sons C and D, and his widow W as provided in Sections 6 and 8 of the Act. B is not entitled to get any share in the said coparcenary interest of the deceased. However B is entitled to get 1/4th share in the separate property of the deceased as laid down in Section 8 of the Act.
Q. 47 Who will succeed to the property of the deceased and to what share in following cases under Hindu Succession Act 1956:
(a) In Mitakshara Coparcenary a male Hindu dies intestate leaving him surviving a widow, three sons, a daughter and a separated son.
(b) A male Hindu dies intestate leaving him surviving a widow, two sons, a daughter of a predeceased daughter, his mother and a brother.
(a) firstly, upon the heirs, being the relative specified in Class I of the Schedule;
(b) secondly, if there is no heir of Class I, then upon the heirs, being the relatives specified in Class II of the Schedule;
(c) x x x x x x
(d) x x x x x xSection 9 provides that among the heirs specified in the Schedule, those in Class I shall take simultaneously and to the exclusion of all other heirs. Section 10 lays down four Rules for distribution of property among heirs in Class I of the Schedule. In the case in hand, brother of the deceased is Class II heir and the remaining relatives are Class I heirs. Therefore, brother stands excluded. In accordance with the provisions of Sections 9 and 10, the property shall be distributed among the remaining five Class I heirs, each taking 1/5th share.
(a) The child cannot marry any person whom he or she would not have married if he or she had continued in the family of his or her birth.
(b) any property which vested in the adopted child before the adoption shall continue to vest in such person subject to the obligations if any attaching to the ownership of such property including the obligation to maintain relatives in the family of his or her birth.
(c) the adopted child shall not divest any person of any estate which vested in him or her before the adoption.Section 12 lays down very important provisions. It says that from the date of adoption of child adopted child ceases to be child of natural family and adopted child is deemed to child of the adopter. From the date of adoption, there shall be complete transplantation of child in adoptive family. Only tie of an adopted child which remains with his or her natural family is that he can not marry any person in his or her natural family whom he could not have married before his adoption. Though an adopted child from date of adoption is presumed to be child of his or her adoptive family for all purposes including inheritance by virtue of Section 12 of Hindu Adoption and Maintenance Act 1956 but Proviso (c) to Section 12 makes it clear that the adopted child shall not divest any person of any estate which vested in him or her before the adoption. That means if before adoption any property or interest has already been vested in any member or naturally born daughters, adoption shall not disturb such right. Therefore in case in hand, on the death of A his widow AW, two daughters ADI and ADII inherited property i.e. 60000/- in equal shares as stated above, because after the death of an intestate, inheritance of his property can not be kept pending. Latter AW adopted a son `X', after the death of her husband (a) Adoption of `X' shall take effect from date of his adoption and `X' will be deemed to be son of his adoptive family from date of adoption but adoption of X will not divest AW (Widow of A) and ADI and ADII (A's daughters) the estate which vested in them before his adoption in view of provision (1) to Section 12 of the Act.
Q. 49 A Hindu male died in 1987 leaving behind the following sets of heirs. Divide his property :
(i) Son (S), Daughter (DD), Father (F), Grand Son's Widow (SSW)
(ii) Daughter (D), Mother (M), Widow (W), Son's Widow (SW) and Father (F)
(iii) Brother (B), Son's daughter's son (SDS) and Daughter's son's son (DSS).
Firstly, upon the heirs being the relatives specified in class I of Schedule.
Secondly, If there is no heir of class I, then upon the heirs being relatives specified in class II of Schedule.
Thirdly, If there is no heir of any of the two classes then upon agnates of deceased.
Lastly if there is no agnate then upon cognates of deceased."Section 9 then provides "Among the heirs specified in the schedule, those in class I shall take simultaneously and to the exclusion of all other heirs and those in first entry in class II shall be preferred to those in second entry, those in second entry shall be preferred to those in third entry and so on in succession. So reading Sections 8 and 9 together it is clear that heirs of intestate as specified in class I of the schedule of Act will be preferred to class II and if there is no heir of class I, then heirs in first entry of class II shall be preferred to next entry in class II and so on. Section 10 then says that property of intestate shall be divided among heirs of Class I as Rule 1 says intestate widow and if there are more than one widow all widows together will take one share. Rule 2 Surviving sons and daughters and mother of intestate, each will take one share. Rule 3 Heirs in the branch of each predeceased son or each predeceased daughter will take between them one share. Rule 4 Distribution of share among the heirs in the branch of predeceased son shall be so made that his widow and surviving sons and daughters get equal portion and branch of his predeceased son get the same portion. (ii) Among the heirs in the branch of predeceased daughter shall be so made that surviving sons and daughter get equal portion. Section 11 then says property of an intestate shall be divided between heirs specified in any one entry in class II of the schedule so that they get equal share. That being the legal provision, let us now decide the succession of intestate's property in each set of heirs. Set I Son (S), Daughter (DD) and Grand Son's widow (SSW) being class I heirs, will succeed to intestate's property in equal shares and father (F) is class II heir, therefore will be excluded. Set II Daughter (D), Mother (M), Widow (W) and Son's Widow (SW) are class I heirs of intestate and therefore will succeed to intestate's property in equal share and father (F) being Class II heir of intestate will be excluded. Set III Brother (B), son's daughter's son (SDS) and Daughter's son's son (DSS) are class II heirs of intestate. Brother (B) and son's daughter's son are in second entry of Class II and will succeed to intestate's property in equal share. Daughter's son's son comes in IIIrd entry of Class II and thus has to be excluded.
Q. 51 A female Hindu died in 1995 leaving her husband `H', one son `X', two daughters `D' and `E', two sons of predeceased son `R' and `M', her brother B, her mother N and her step mother Y and a widow of her brother Z. The deceased had inherited the property from her father. Divide A's propriety among her heirs.
(a) Firstly, upon the sons, daughters (including children of any predeceased son or daughter) and 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 female Hindu from her father or mother shall devolve in the absence of any son or daughter of deceased (including the children of predeceased son or daughter) not upon the other heirs as referred to in Sub-section (1) in order specified therein but upon the heirs of the father and
(b) any property inherited by 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.In Bhagat Ram by L.Rs. v. Teja Singh, AIR 2002 SC 1, it was observed taht in view of provisions of Section 15(2)(a) of Hindu Succession Act, if property held by a female was inherited from her father or mother, in the absence of any son or daughter of deceased including children of pre-deceased son or daughter, it would devolve upon the heirs of the father. Similarly under clause (b) of sub-selection (2) of Section 15, the property inherited by a female Hindu from her husband or her father-in-law shall also under similar circumstances devolve upon heirs of husband. It is the source from which property was inherited by Hindu Female which is most important for the purpose of devolution of her properly. Fact that female Hindu originally had limited rights and latter acquired full rights in any way would not alter the rules of succession given u/s 15(2). Reading the Section 15 of the Act, keeping in view facts of case in hand, it is clear that Hindu female (a) has been survived by son (X) and two daughters (D and E) and two sons of a predeceased son (R and M) beside her husband. Therefore Sub-section (2) of Section 15 has no application to case in hand. Section 16 of the Act says: 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 following Rules namely: Rule 1 : Among the heirs specified in Sub-section (1) of Section 15, those in one entry shall be preferred to those in any succeeding entry and those included in 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 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 : x x x x x x x" Thus in the case in hand, property of female Hindu shall devolve upon Husband (H), son (X), daughters (D and E) and two sons of a predeceased son (R and M), being heir in clause (a) of Sub-section (1) of Section 15 of the Act and other relations of female Hindu shall not get anything in view of Rule 1 of Section 16. It is important to note that R and M being sons of a predeceased son of female Hindu would get that share to which their father would have been entitled to in view of Rule 2 of Section 16 of the Act. Therefore Estate of female Hindu dying intestate shall be divided in following ratio : son (X) and daughter (D and E) and husband (H) would get 1/5th share each. R and M would together get 1/5th share. R would get 1/10th and M would get 1/10th.
(a) Dwelling house should wholly be occupied by the members of the family of intestate.
(b) Female heirs of intestate shall have a right of residence in dwelling house. However, married daughters have no right of residence in the dwelling house.However if a married daughter becomes widow, separates from her husband or is deserted by her husband, her right of residence revives. In Narashimha Murthy v. Smt. Susheela Bai and others, AIR 1996 SC 1826, it was observed that when succession of a Hindu intestate is open his/her class I heirs are entitled at a partition to their respective shares. Succession cannot be post-poned. However, exception has been engrafted by Section 23 respecting tradition of preserving family dwelling house to effectuate family unity and prevent its disintegration by dividing it by meets and bounds------. A female heir's right to claim partition of the dwelling-house does not arise until the male heirs chose to divide their respective shares therein, but till that happens the female heir is entitled to the right to reside therein. The female heir already residing in the dwelling-house has a right to its continuance but in case she is not residing, she has a right to enforce her entitlement of residence in a Court of law. The proviso makes it amply clear that where such female heir is a daughter, she shall be entitled to a right of residence in the dwelling-house only if she is unmarried or has been deserted by or has separated from her husband or a widow. The proviso thus is meant to cover all daughters, the word "daughter" in the proviso is meant to include daughter of a predeceased son, daughter of a predeceased son of a predeceased son and daughter of a predeceased daughter. It was also observed that, Dwelling house is that house which is in actual, physical inhabited possession of one or more members of intestate's family and if some are absent due to exigencies of service or vacations, the dwelling house remains available to them to re-enter without obstruction or hinderance and on that premise enabling the female heir to assert a right of residence and entery therein. A tenanted house does not fit into this description.
(a) Save as otherwise expressly provided in this Act, per capita and not per stripes; and
(b) As tenants in common and not as joint tenant.Succession to the estate of the deceased shall be individual and not joint. Each heir shall take his or her share individually and not branch- wise. The heirs shall not succeed the estate of the deceased jointly but take their individual shares simultaneously as tenants in common. This system practically finishes off the joint family system which was the backbone of Hindu Society in good olden days. 3. Right of child in womb -- Section 20 of the Act provides about the right of a child in womb. It lays down that a child who was in the womb at the time of the death of intestate and who is subsequently born alive shall have the same right to inherit to the intestate as if he or she had been born before the death of the intestate, and the inheritance shall be deemed to vest in such a case with effect from the date of death of the intestate. A child in womb at the time of intestate's death has been given the right to share the property of the deceased if it is born alive subsequently. The inheritance in such a case shall be deemed to vest in the child with effect from the date of the death of intestate. If, however, a child is born he or she will divest the shares allotted to other heirs and there will have to be a re-adjustment of the shares. If, however, the other heirs upon whom the property might have vested belong to Class II of the schedule then they will be completely divested and excluded from their shares and therafter born child whether a son or a daughter shall alone inherit the entire property. 4. Presumption in case of simultaneous deaths -- Section 21 of the Act lays down that where two persons have died in circumstances rendering it uncertain whether either of them and if so which survived the other, then, for all purposes affecting succession to property, it shall be presumed until the contrary is proved that yonger survived the elder. 5. Right of pre-emption - Preferential Right -- Section 22 of the Succession Act embodies the law which is more or less analogous to the law of pre-emption as it is understood under the Mohammedan Law. It confers upon the heirs of Class I of the Schedule a preferential right to acquire an interest which any other heir of the same class may be contemplating to transfer to an outsider. This will be known right of pre-emption with regard to sales has been extended with scope to all kinds of transfers including sales, mortgages, gifts and leases etc. It has been further extended by including immovable property along with business. The provisions are as follows : Where after the commencement of this Act an interest in :-
1. any immovable property or
2. any business carried on by him or her whether solely or in conjunction with others :
(i) devolves upon two or more heirs specified in Class I of the Schedule; and
(ii) any one of such heirs proposes to transfer his or her interest in the property or business the other heirs shall have a preferential right to acquire the interest proposed to be transferred.Sub-section (2) of Section 22 provides that the consideration for which any interest in the property of the deceased may be transferred in the absence of any agreement between the parties will be determined by the Court on application made for the purpose and if any person proposing to acquire the interest is not willing to acquire it for the consideration so determined, such person shall be liable to pay all costs or incidents to the application. Sub-section (3) of Section 22 lays down that if there are two or more heirs specified in Class I of the Schedule proposing to acquire any interest under this section, that that one who offers the highest consideration for the transfer shall be preferred. 6. Remarriage by widow -- Section 24 of the Act provides that certain widows remarrying may not inherit as widows. It lays down that any heir who is related to an intestate as the widow of a predeceased son, the widow of a predeceased son of a predeceased son or the widow of a brother shall not be entitled to succeed to the property of the intestate as such widow, if on the date of succession she has remarried. In the case of Smt. Kasturi Devi v. D.D., C.A.I.R. 1976 S.C. 2105 it has been held by the Supreme Court that a mother cannot be divested of her interest in the property on the ground of remarriage. The essential condition for the exclusion of these widows from their shares of inheritance is that they have remarried before the death of the intestate. Remarrying will be a disqualification if it takes place before the succession opens i.e., before the death of the intestate but if once the succession has opened out and property has vested in such widows then their subsequent remarriage will not have the effect of divesting them of their shares of the property of the deceased which they have inherited as absolute owners. 7. Unchastity. --Under the present Act unchastity is no ground for exclusion from inheritance. 8. Murderer disqualified -- Section 25 of the Act lays down that murderer is disqualified from inheritance. It lays down that a person who commits murder or abets the commission of murder shall be disqualified from inheriting the property of the person murdered, or any other property in furtherance of the succession to which he or she committed or abetted the commission of the murder. 9. Convert's descendants disqualified -- Section 25 of the Act specified that where before or after the commencement of this Act, a Hindu has ceased or ceases to be a Hindu by conversion to another religion, children born to him or her after such conversion and their dscendants shall be disqualified from inheriting the property of any of their Hindu relatives unless such children or descendants are Hindus at the time when the succession opens. 10. Decease, Defect etc. Not to Disqualify -- Section 28 of the Act makes it clear that no person shall be disqualified from succeeding to any property on ground of any disease, defect or deformity, etc. 11. Succession When Heirs Disqualified -- Section 27 of Act lays down that if any person is disqualified from inheriting any property under this Act, it shall devolve as if such person had died before the intestate. Moreover such off springs of disqualified heirs mentioned in Sections 25 and 26 shall succeed to estate of intestate as if their father predeceased the intestate when the succession opened. 12. Failure of Heirs Escheat -- Section 29 of the Act lays down that if an intestate has left no heirs qualified to succeed to his or her property in accordance with the provisions of this Act such property shall devolve on the Government and Government shall take the property subject to all obligations and liabilities. 13. Will -- The present Act makes important changes with regard to the disposition of property by will. A male Hindu Coparcener, as per Section 30 of the Act has been empowered to dispose of his Mitakshara Coparcener interest by will.
(1) It has considerably enlarged the powers of Hindu female to adopt a child. A Hindu woman need not take prior permission of the husband to adopt a child. A widow and an unmarried Hindu female have full right to adopt a child.
(2) Now the Act provides the adoption not only of son, but also that of a daughter.
(3) The performance of Dattaa Homan, a religious ceremony is no longer necessary.
(4) The simple ceremony of giving and taking is only necessary. [Ranjit Kumar Jain v. Kamal Kumar Chowdhury and another (AIR 1982 Cal. 493)].
(5) The upper age limit of the child who is adopted has been fixed at fifteen years unless the custom permits such adoption.
(6) The law has been given an uniformity and all differences between various schools and sub-schools have been removed.
(7) The father, without the consent of the mother, cannot give a child in adoption except in certain circumstances.
(8) The adoptee must be below 15 years of age and unmarried unless the custom permits such adoption.
(9) Adoptive father or mother shall not be deprived of their power to transfer the property merely by reason of adoption of a child.
(10) Provisions relating to registration and presumption therefore has been made.
(11) Specific provisions regarding the maintenance of wife have been incorporated.
(12) The list of the persons entitled to maintenance has been clearly provided. Their rights to get it and the amount to which they will be entitled have been clearly laid down by the Act.
(1) the person adopting has capacity and also the right to take in adoption.
(2) the person giving in adoption has capacity to do so.
(3) The person adopted is capable of being taken in adoption.
(4) The adoption is made in compliance with other conditions mentioned in Chapter II of Act.Let us understand the requirement of law for valid adoption under following heads: (1) CAPACITY AND RIGHT TO TAKE IN ADOPTION (i) HINDU MALE : Section 7 of the Act says any Hindu male who is of sound mind and who is not minor has capacity to take son or daughter in adoption. However, if such Hindu male has a wife living, then consent of wife is essential for Hindu male to take a child in adoption. However consent of wife is not required where she has completely and finally renounced the world or has ceased to be Hindu or has been declared by court of competent jurisdiction to be of unsound mind. (ii) HINDU FEMALE : Section 8 says any Hindu female who is of sound mind and has attained majority and who is either not married or if married, such marriage has been dissolved or whose husband is dead or has completely and finally renounced the world or has ceased to be Hindu or has been declared to be of unsound mind by court of competent jurisdiction, shall have capacity to take son or daughter in adoption. So law does not give a capacity to married woman to take any child in adoption. She cannot adopt even with the consent of her husband. If there is to be an adoption, it must be made by her husband unless as provided in Section 8. (2) CAPACITY OF PERSONS GIVING IN ADOPTION (i) Capacity of Father to give in Adoption : Section 9 says father of the child if alive shall alone have right to give child in adoption. But father will not exercise this right except with the consent of mother. However consent of mother shall be dispensed with where (i) Mother has completely and finally renounced the world or (ii) ceased to be Hindu or (iii) has been declared by court of competent jurisdiction to be of unsound mind. (ii) Mother : A mother can give her child in adoption if father of child is dead or has completely and finally renounced the world or has been declared by court of competent jurisdiction to be of unsound mind or has ceased to be Hindu. (iii) Guardian : When both mother and father of a child is dead or have completely and finally renounced the world or have abandoned the child or have been declared by court of competent jurisdiction to be of unsound mind or where parentage of child is not known, Guardian of child can give the child in adoption with previous permission of court. (3) PERSONS WHO MAY BE ADOPTED Section 10 of Act says no person shall be capable of being taken in adoption unless (i) He or she is Hindu (ii) He or she has not been adopted (iii) He or she has not been married unless, their custom permits married persons being taken in adoption. (iv) He or she has not completed the age of 15 years unless custom or usage allows a person over the age of 15 years being taken in adoption. (4) OTHER CONDITIONS Apart from above said requirements, following conditions as mentioned in Section 11 of Act must be fulfilled for valid adoption :-
a) If adoption is of son, the Adoptive Father or mother must not have Hindu son, son's son or son's son's son, whether by legitimate blood relationship or by adoption.
b) If adoption is of daughter, Adoptive father or mother must not have Hindu daughter, son's daughter (whether by legitimate relationship or by adoptive) living at the time of adoption.
c) If a Hindu wants to adopt a child of the opposite sex, he or she must be older to the child by at least 21 years (clause (iii) and (iv) of Section 11)
d) One and same child can not be adopted simultaneously by two or more persons.
e) Child must be given and accepted by parties in form of ceremony and Adoption deed may be registered.
(a) If she has finally and completely renounced the world
(b) If she has ceased to be Hindu
(c) If she has been judicially declared to be of unsound mind.In no other case, consent of mother of child can not be dispensed with, even when marriage of father and mother of the child has been dissolved and are living separately, child can not lawfully be given in adoption by father without consent of mother. Expression `Father' as used in Section 9 does not include an adoptive father, putative father or step father. MOTHER : Mother of a legitimate child has, during the life time of father of child, no power to give child in adoption, even with the consent of the father. Mother of a legitimate child can give the child in adoption during the life time of child's father only when (i) Father of the child has ceased to Hindu or (ii) If he has finally and completely renounced the world or (c) If he has been judicially declared to be of unsound mind. The mother has power to give her legitimate child in adoption after the death of the father. However, mother of a illegitimate child has power to give the child in adoption and no question arises as to putative father's consent. A mother u/s 9 of the Act does not lose her right of giving child in adoption (if existing) even when she ceases to be Hindu in view of provision of sub-section (4). THE GUARDIAN : Section 9 (4) of the Act says when both father and mother are dead or have completely and finally renounced the world or have abandoned the child or have been judicially declared to be of unsound mind or where parentage of child is not known then, Guardian of child can give child in adoption with previous permission of court. The term `Guardian' includes dejure and defacto guardian. When a guardian exercise the power of giving the child in adoption, prior permission of court is necessary. No court will accord the permission to an adoption proposed by guardian unless it comes to the finding that adoption will be for welfare of the child. If child is capable of expressing his wishes, his wishes will be taken into account, though court may pass an adoption order contrary to wishes of the child as the welfare of child is of paramount consideration. (b) (i) Section 10 of the Hindu Adoptions and Maintenance Act, 1956 by its clause (i) requires that the boy or girl to be adopted must be a Hindu which expression is to be understood in the connotation given to it by Section 2 of the Act. A Parsi is expressly excluded from the definition of the term `Hindu' by the said Section . Therefore, a Parsi child is not capable of being adopted within the ambit of Section 10 of the Act. Any adoption in contravention of Section 10 would be null and void, as provided by Section 6 of the Act. Therefore, a Hindu male cannot validly adopt a Parsi child. (ii) The person adopted must be lawfully capable of being taken in adoption. According to Section 10 of the said Act, the child to be adopted must not have completed the age of fifteen years. However, this condition is subject to any custom or usage applicable to the parties. This means that where such a custom or usage permits, adoption of a child of the age of 15 year or more will be valid, otherwise the adoption of a Hindu boy aged 16 years is void.
(i) if the adoption is of a son, the adoptive father or mother by whom the adoption is made must not have a Hindu son, son's son or son's son's son (whether by legitimate blood relationship or by adoption) living at the time of adoption.
(ii) if the adoption is of a daughter, the adoptive father or mother by whom the adoption is made must not have a Hindu daughter or son's daughter (whether by legitimate blood relationship or by adoption) living at the time of adoption;
(iii) if the adoption is by a male and the person to be adopted is a female, the adoptive father is at least twenty one years older than the person to be adopted;
(iv) If the adoption is by a female and the person to be adopted is a male, the adoptive mother is at least twentyone years older than the person to be adopted.
(v) the same child may not be adopted simultaneously by two or more persons;
(vi) the child to be adopted must be actually given and taken in adoption by the parents or guardians concerned or under their authority with intent to transfer the child from the family of its birth (or in the case of an abandoned child or a child whose parentage is not known from place of family where it has been brought up to the family of its adoption).In Madhu Sudan Das v. Smt. Naryani Devi, AIR 1983 SC 114, it was observed that for a valid adoption, the physical act of giving and taking is an essential requisite ceremony imperative in all adoptions whatever the caste and this requisite is satisfied in its essence only by actual delivery and acceptance of boy, even though there exists an expression of consent or an executed deed of adoption. In some cases, to complete the adoption a "datta homam" has been considered necessary, but in case of the twice-born classes no such cermony is needed if the adopted boy belongs to the same gotra as the adoptive father. In Lakshman Singh Kothari v. Smt. Rup Kanwar, AIR 1961 SC 1378 it was observed that under the Hindu Law, whether among the regenerate caste or among Sudra, there cannot be a valid adoption unless the adoptive boy is transferred from one family to another and that can be done only by the ceremony of giving and taking. It is essential to have a formal ceremony. No particular form is prescribed for the ceremony, but the law requires that the natural parent shall hand over the adoptive boy and the adoptive parent shall receive him. The parents, after exercising their volition to give and take the boy in adoption may both or either of them delegate the physical act of handing over the boy or receiving him, as the case may be, to a third party.
Q. 60 Examine the validity of following adoptions:
(i) A adopts an orphan boy whose religion can not be ascertained.
(ii) A adopts a boy aged 3 years with the consent of the step mother of the boy.
(iii) A has two wives B and C in 1960. A adopts a son and a daughter with the consent of both the wives. After A's death in 1976 C adopts a son.
Provided that if he has a wife living, he shall not adopt except with the consent of his wife unless the wife has completely and finally renounced the world or has ceased to be Hindu or has been declared by Court of competent jurisdiction to be of unsound mind.Explanation: If a person has more than one wife living at the time of adoption, the consent of all the wives is necessary, unless the consent of any one of them is unnecessary for any of the reasons specified in the proceeding proviso." So under the Act a married male Hindu cannot make adoption without the consent of his wife. If he has more than one wife, consent of all the wives is necessary. Consent of wife may be expressed or implied. Section 14(2) of the said Act says where an adoption has been made with consent of more than one wife, then, senior-most in marriage among them shall be deemed to be adoptive mother and other to be step mother. So it is clear that when a Hindu male has more than wife, and takes a child in adoption then senior-most wife in marriage shall be adoptive mother of such child and other will be step mother. Section 11(i) of the Act says, if the adoption is of son Adoptive father or mother must not have son or son's son or son's sons son either by legitimate blood relationship or by adoption. Section 11(ii) says if adoption is of daughter, adoptive father and mother must not have Hindu daughter or son's daughter (whether by blood relationship or by adoption) living at the time of adoption. So reading together all the above said provisions it is clear in the case in hand that A having two wives (B & C) adopts son and a daughter with the consent of B and C (Both Wives) therefore adoption is valid under Section 7 of the Act. A is adoptive father and B (Being senior- most wife of A in marriage shall be adoptive mother in view of Section 14) and C will be step mother. Before adoption of a son and daughter both the wives of A were issueless therefore adoption of son and daughter was lawful also in view of Section 11 of the Act. After the death of A, C being issueless widow and nor she is adoptive mother of son and daughter, can lawfully adopt a son.
(a) the child cannot marry any person whom he or she could not have married if he or she had continued in the family of his birth;
(b) any property which vested in the adopted child before the adoption shall continue to vest in such person subject to the obligations, if any, attaching to the ownership of such property, including the obligation to maintain relatives in the family of his or her birth;
(c) the adopted child shall not divest any person of any estate which vested in him or her before the adoption.So Section 12 lays down a very important provision. It says that from date of adoption of child an adopted child ceases to be child of natural family and adopted child is deemed to be child of the adopter. From the date of adoption, there shall be complete transplantation of child in adoptive family. Only tie which remains of an adopted child with his or her family of birth that he or she can not marry any person in his or her natural family whom he or she could not have married before adoption. If any property is vested in adopted child, before adoption it shall continue to be so even after the adoption subject to any obligation attached with such ownership including obligation to maintain relatives of family of birth.
Q. 62 A was adopted by H and W (Both Hindus), a Husband and Wife. An Adoption deed was executed and duly registered wherein both H and W conferred rights of ownership on A in all their properties (including the stridhan of W). They also agreed that none of them will make any alienation of the properties mentioned in the adoption deed. Later on H dies. After sometime, the relation of A and W become strained. W sold a part of property out of her stridhan, which was in possession of A to P. P then filed a suit for possession against `A' who contested the suit on the ground that in the wake of the adoption deed, W has no right to alienate the property as at the time of adoption deed W had agreed not to alienate the property and it was so mentioned in the adoption deed. Discuss whether P can succeed and whether the restriction suffered by W is valid.
(1) where a Hindu who has a wife living adopts a child she shall be the adoptive mother.
(2) If the adoption is made with the consent of more than one wife, the senior-most in marriage among them shall be deemed to be the adoptive mother and the others to be step-mothers.
(3) If a widower of a bachelor adopts a child, any wife whom he subsequently marries after the adoption shall be deemed to be the step-mother of the adopted child.
(4) If a widow or unmarried woman adopts a child, any husband whom she marries subsequently shall be deemed to be the step-father of the adopted child.
(1) there must be a document;
(2) it must be registered under the law in force;
(3) it must support to record an adoption which has taken place;
(4) the document must be signed by both the giver and taker of the child in adoption and not by only one of them; and
(5) it must be produced before the court.In Jai Singh v. Shakuntala, AIR 2002 SC 1428, it was observed that presumption as contemplated u/s 16 of Hindu Adoption and Maintenance Act, regarding registered Adoption Deed is rebuttable, use of words "unless and until it is "disproved" make the definite mandate indicated by use of word "shall", flexible
(i) If he is guilty of desertion
(ii) If he has treated her with cruelty
(iii) If he is suffering from virulent form of leprosy
(iv) If he has any other wife living.
(v) If he keeps a concubine in the same house in which his wife is living or habitually resides with concubine elsewhere.
(vi) If he ceases to be Hindu by conversion to other religion.
(vii) If there is any other cause justifying her living separately.In V. Tulasamma v. Sesha Reddy, AIR 1977 SC 1944, Hon'ble Supreme Court held "Right of maintenance of the wife is pre-existing right. When his husband is alive, he is personally liable for wife's maintenance. This is also a legal charge upon his property. This charge being legal incident of her marital co-ownership in all her husband's property. But after his death, his window's right to maintenance becomes limited to his estate, which when it passes to any other heir, is charged with the same." In Panditrao C. Kalure v. Gayabai, AIR 2001 Bom. 445, it was observed that once a wife is divorced, she can not claim maintenance under Hindu Adoption and Maintenance Act, 1956 inasmuch as pre-condition for application under said Act is that marriage must be subsisting and she can claim any remedy under Hindu Marriage Act, 1955.
(i) if she is unable to maintain herself out of her own earnings or other property;
(ii) if she has no property of her own, she is unable to obtain maintenance from the estate of (i) her husband, or (ii) her father or (iii) her mother; or
(iii) if she is not able to obtain maintenance from her son or daughter, if any, or their estate.Under Section 19 the father-in-law's obligation to maintain the daughter- in- law is not a primary obligation, it is not even a secondary obligation. It is a remote obligation. The father-in-law's obligation will cease, if :-
(i) the father-in-law has not the means to do so from any coparcenary property in his possession out of which the daughter-in-law has not obtained any share; or
(ii) the widowed daughter-in-law remarries.Then, even if the obligation of the father-in-law arises it is very limited obligation; he is obliged to maintain the daughter-in-law only from any coparcenary property in his possession out of which daughter-in-law has not obtained any share. After the death of the father-in-law his moral obligation to maintain his daughter-in-law passes as legal obligation to those who inherit the property of such father-in-law.
(i) his or her father,
(ii) his or her mother,
(iii) his widow, so long as she does not remarry,
(iv) (a) his or her son, or (b) the son of his pre-deceased son, or (c) the son of a pre-deceased son of his pre-deceased son, so long as he is a minor, provided and to the extent that he is unable to obtain maintenance, in the case of a grandson from his father's or mother's estate in the case of a great-grand-son, from the estate of his father or mother or father's father or father's mother,
(v) (a) his or her unmarried daughter, (b) the unmarried daughter of his pre-deceased son, or (c) the unmarried daughter of a pre- deceased son of his pre-deceased son, so long as she remains unmarried, provided and to the extent that she is unable to obtain maintenance, in the case of a grand- daughter from her father's or mother's estate and in the case of a great grand-daughter from the estate of her father or mother or father's or father's mother.
(vi) his widowed daughter, provided and to the extent that she is unable to obtain maintenance :-
(a) from the estate of her husband, or
(b) from her son or daughter, if any, or his estate, or
(c) from her father-in-law or his father or the estate of either of them.
(vii) any widow of his son or of a son of his pre-deceased son so long as she does not remarry; provided and to the extent that she is unable to obtain maintenance from her husband's estate or from her son or daughter, if any, or his or her estate or in the case of a grandson's widow also from her father-in-law's estate,
(viii) his or her minor illegitimate son, so long as he remains a minor,
(ix) his or her illegitimate daughter, so long as she remains unmarried.Section 22 of the Act provides for the quantum of Maintenance. According to Section 22, three parties are involved regarding maintenance under the Act which are :-
(i) the deceased whose estate it is,
(ii) the dependant of the deceased who is claiming maintenance from it, and
(iii) the person who has taken the estate of the deceased and has to maintain the dependent.Persons entitled to get maintenance from the estate of the deceased Hindu are his or her dependents and must be Hindu. No dependant has such an entitlement if he or she has received any share in the estate of the deceased whose dependant he or she is. This general condition contained in Section 22(2) is applicable to all dependants. Any share referred to above may have been received -
(a) as an heir under the law of inheritance, or
(b) as a legatee under a will lawfully made by the deceased.In either case this share in the estate of the deceased will disentitle the dependent who got it from claiming the benefit of Section 22, but sub-section (2) clarifies it. The liability imposed by sub-sections (1) and (2) of Section 22 on the heirs and legatees of the deceased is not absolute. Each heir is liable under Section 22 in proportion to the share he or she has taken in the estate of the deceased. Each legatees is liable under this section in proportion to the part of the estate he or she has taken under the will of the deceased. Section 22(3) speaks of not the exact share or part of the estate but of the value of such share or part. So where the shares of two heirs and the parts taken by two legatees are mathematically equal but differ in value the latter will be taken into consideration to determine the extent of various heirs' liability under Section 22. Sub-section (4) of Section 22 curtains the liability of certain heirs and legatees under Section 22. According to the provisions only that heir or legatee would be liable who has got more as a share in or part of the estate than what he or she would have got as dependant of the deceased. Where he or she has got in value just as much as he would have been entitled to, by way of maintenance, the liability under Section 22 will not arise. Section 23 of Hindu Adoption and Maintenance Act deals with principles to be taken into consideration by court in determining the amount of maintenance. According to Section 23(1) in determining the amount of maintenance if any to be awarded to
(c) aged or infirm parents, regard shall be had to -
(i) the position and status of the parties
(ii) reasonable requirements of claimants
(iii) in case of claimant living separately, whether reasons of claimant living separately are justified
(iv) value of claimant's property (if any) and income derived therefrom
(v) claimant's own self earning or earning from other sources.In Kulbhusan v. Raj Kumari [AIR 1971 SC 234], their Lordships of the Supreme Court were of the opinion that the quantum of maintenance depends upon a gathering together of all the facts of the situation, the amount of free estate, the past life of the married parties and the families, a survey of the conditions and necessities and rights of the members on a reasonable view of change of circumstances possibly required in the future, regard being, of course, had to scale and mode of living and to the age, habits, wants, and class of life of the parties. Section 23(2) of Act deals with determination of amount of maintenance to be awarded to "dependants" as defined under section 21. According to Section 23(2) - In determining the amount of maintenance, if any to be awarded to a dependant under this Act, regard shall be had to :-
1. the net value of the estate of the deceased after providing for the payment of debts.
2. the provision, if any, made under a will of the deceased in respect of the dependant,
3. the degree of relationship between the two,
4. the reasonable wants of the dependants,
5. the past relations between the dependants and the deceased,
6. the value of the property of the dependant and any income derived from such property or from his or her earnings or from any other source,
7. the number of dependants entitled to maintenance under this Act.
a) In case of boy and unmarried girl: The father and after him the mother however custody of minor less than 5 years of age shall ordinarily be with the mother.
b) In case of illegitimate Boy and illegitimate Unmarried Girl : The mother and after her the father.
c) In case of Married Girl : The husband.Provided that no person shall be entitled to act as `Natural Guardian' of minor
a) If he has ceased to be Hindu
b) If he has completely and finally renounced the world.Section 13 of Hindu Minority and Guardianship Act 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. In Ms. Githa Hariharan v. R.B.I., AIR 1999 (SC) 1149, it was observed by Hon'ble Dr. A.S. Anand, C.J.I. (As he then was), in all situations where the father is not in actual charge of the affairs of the minor either because of his indifference or because of an agreement between him and the mother of the minor (oral or written) and the minor is in the exclusive care and custody of the mother or the father for any other reason is unable to take care of the mental incapacity, the mother can act as natural guardian of the minor and all her actions would be valid even during the life-time of the father, who would be deemed to be absent for the purpose of Section 6(a) of Hindu Minority and Guardianship Act and Section 19(b) of Guardians and Wards Act has to be similarly construed. POWERS OF NATURAL GUARDIAN : Section 8(1) of Hindu Minority and Guardianship Act lays down the general powers of natural guardian. A guardian may do all acts which are necessary or reasonable and proper for the benefit of the Minor and for realization, protection or benefit of Minor's estate. There are fairly wide powers and constitute and charter of guardian's power, whereby the guardian is empowered to act safely in the welfare of the minor and the third parties can also deal safely with the guardian within the ambit of their powers. Under the old Hindu law the natural guardian's power of alienation and of dealing with Minor's property were fairly wide and were considered practically co-extensive with the "Karta's" power. The law has now been modified by Section 8 of Hindu Minority and Guardianship Act. Sub-section (2) to Section 8 provides that Natural guardian cannot without the previous permission of the court, mortgage, or charge or transfer by sale, gift or exchange or otherwise any part of immoveable property or lease out any part of such property for a term exceeding five years or for a term extending more than one year beyond the date on which minor would attain majority. Sub- section (4) lays down that the court shall not grant permission to do any act as mentioned in sub-section (2) except in case of necessity for evident advantage of the minor. The procedure for obtaining the permission of court is regulated by "the Guardians and Wards Act, 1890." In Manik Chand v. Ram Chander, AIR 1981 SC 519, it was observed that in respect of alienation of Minor's property the touch stone of guardian's power continues to be necessity or benefit. Though expressions `Necessity' and `Evident advantage' used in Section 8(4) of the Act are wider than expression `legal necessity' and benefit of estate as used before commencement of Act of 1956. In Vishwambhar and others v. Laxami Narayan by L.Rs., AIR 2001 SC 2607, it was observed that in Section 8(2) of Hindu Minority & Guardianship Act, 1956 it is laid down inter-alia that natural guardian shall not without permission of court, transfer by sale any part of immovebale property of Minor. Section 8(3) specifically provides that disposal of immoveable property by natural guardian in contravention of sub-section (2) is voidable at the instance of Minor or any person for him.
Provided that nothing in this Section shall be deemed to affect the jurisdiction of a High Court to appoint a guardian in respect of such interest."In Sri Narayan Bal v. Sridhar Sutar, AIR 1996 SC 2371 it was observed that - Under Section 8 a natural guardian of the property of the Hindu minor, before he disposes of any immovable property of the minor, must seek permission of the Court. But since there need to be natural guardian for the minor's undivided interest in the joint family property, as provided under Sections 6 and 12 of the Act, the previous permission of the Court under Section 8 for disposing of the undivided interest of the minor in the joint family property is not required. The joint Hindu family by itself is a legal entity capable of acting through its Karta and other adult members of the family in management of the joint Hindu family property. Thus Section 8 in view of the express terms of Sections 6 and 12, would not be applicable where a joint Hindu family property is sold/disposed of by the Karta involving an undivided interest of the minor in the said joint Hindu family property.
(1) In the appointment or declaration of any person as guardian of a Hindu minor by a court, the welfare of the minor shall be the paramount consideration.
(2) No person shall be entitled to the guardianship by virtue of the provisions of this Act or of any law, relating to guardianship in marriage among Hindus, if the court is of the opinion that his or her guardianship will not be for the welfare of the minor.In considering as to what will be for the welfare of the minor, the court shall have regard to the age and sex of the minor; the character and capacity of the proposed guardian and his nearness of kins to the minor ; the wishes, if any, of a deceased parent; and any existing or previous relations of the proposed guardian with the minor or his property. If the minor be old enough to form an intelligent preference, the court may consider that preference. In case of S.L. Mohini v. Virendra Kumar (AIR 1977 S.C. 1389), the Supreme Court held that the welfare of the minor is the supreme consideration for the court. Where the decree of divorce has been passed between husband and wife the interest and welfare of the child is of utmost importance of the court. The question of appointment by the court, of a guardian can be considered on the application of :-
(1) the person desirous of being or claiming to be the guardian of the minor ; or
(2) any relative or friend of the minor ; or
(3) the Collector of the district or other local area in which-
(a) the minor ordinarily resides; or
(b) the minor holds property; or
(4) if the minor belongs to a class, the Collector who has authority with respect to that class.