HINDU LAW

Q. ORIGIN OF HINDU LAW AND NATURE OF HINDU LAW

In Dharmasastra there is no word such as ‘Hindu’. It is a foreign origin. The
word ‘Hindu’ came into existence through Greeks who used to call the
residence of the Indus Valley nation as ‘Indoi’. Later it becomes a ‘Hindu’. This
nation came to be known as ‘Hindustan’ and its people as Hindu. In history, the
word ‘Hindu’ not only indicates a religion, but it also indicates a nation
basically. The Hindu law has been modified through centuries and been also
existing since last 5000 years and has also continued to govern the social and
moral figure of Hindu life by following the different elements of Hindu cultural
life. Basically there are two origin theory:
1. Divine theory- According to this theory, Hindu law has its origin from the
divine sources. It is supposed to have originated from the Vedas that
themselves are the revelation from the almighty. The one who disobeys
law would incur the displeasure of God and has to suffer in the next
world.
2. European or Western theory: According to western or European jurists,
Hindu law is based upon immemorial customs and usages that exist prior
to the rise of Brahmanism.
Despite the other schools of Jurisprudence, the Hindu Jurisprudence takes
more care over the duties more than the rights. The nature of these Dharma
changes from person to person. There are many duties of many people in this
world like earlier, the king’s duty was to uphold the religious law and the
other hand a farmer’s duty is to produce food, the doctor has to cure the
people, the lawyers have to fight for justice. Being a highly religious concept
in nature, Dharma is multi-faceted. It contains many laws and customs in a
large range of subjects which is essential and needed to be followed by each
and every person. For example, Manusmriti deals with religion,
administration, economics, civil and criminal law, marriage, succession, etc.
These we study mainly in our law books.
Q. SOURCES OF LAW
As far as sources are concerned, the ancient texts, Upanishads, commentaries,
legislation, judicial decisions, and customs are the reliable and authentic sources
of law. The main sources of Hindu law are as follows –
Ancient sources:-
Shrutis:-
It means what is herd from the above and is meant with Vedas. It supposedly
contain the words of deity and paramount in theory as a source of Hindu law but
do not have a practical as well as legal significance.
Smritis:-
It means what was remembered and is of human origin and is believed to be the
recollections of rishis handed down to us, henceforth constituting the orinciple
sources of Hindu law.
Customs:-
Customs is regarded as the parent source of all personal laws in the world. It is a
rule that a particular family, class, community, possess due to prolonged use
and has the effect of law. it should be noted that customs have the effect of
modifying personal laws but it cannot override statutory laws. According to
section 3 (a) of the Hindu marriage act the customs and usages signify any rule
that has been continuously and uniformly observed among the Hindus.
Modern sources:-
Commentaries and Digests:-
The commentators introduced few changes in order to bring into harmony with
usages followed by the people governed by the law. Atmarao vs Bajirao, the
court held that in case of conflict between the ancient text and commentaries,
the opinion of the latter is accepted.
Judicial pronouncements:-
It cannot be denied that the early English judges with the help of pandits had
brought to bear their own notions and thus influenced the development of Hindu
law these decisions constitutes a import source of law.
Enactments:-
Enactments are an important source of Hindu law. Some of them tried to reform
the law while others superseded it. Prior to the British era, the laws related to
Hindus were scattered. To make uniform legislation for the matters governing
Hindus, the English made an effort to codify them.
Equity, justice and good conscience:-
Equity as a branch is a branch of legal study means certain principles emerging
out of the administration of justice and if the law is inadequate then the judges
shall evolve the law. It is the fairness in dealing with any issue the modern
system always try to be unbiased and thus justice can only be delivered by
equity and good conscience.
Legislation:-
This is the important source of Hindu law. The legislation is an act of
parliament that plays an important role in the formation of Hindu law. In a
modern era, this is the only way to bring recent laws. The parliament, under the
needs of the society, makes up recent laws.
Those legislations which were passes before independence of India is
called Pre-independence Act and those which are passed after independence
are Post-independence Act. The Hindu customary laws has been codified and
important enactments are- Hindu marriage act 1955, Hindu succession act
1956, etc. a uniform and comprehensive system governing all the Hindus,
consequently Hindu law came into force and it amends and codifies the law
relating to marriage. Various act enacted…
The importance of the legislation- it is the present and an important source of
law in the administration of the Hindu law in the country. Legislation, as
created and implemented by the Indian government, is the strongest source of
law in all Indian courts. In the case of two conflicting sources, legislation holds
the highest jurisdiction. While it is not a traditional source of law for the Hindu
legal system, it is the latest and most legitimate form.
Q. WHO IS A HINDU
A person can be called hindu if he/she:
Is a Hindu by religion in any form- if any one follows the religion by practising
it or by claiming it can be called a Hindu.
Conversion and reconversion: if any person who follows the religion by
practising it or by claiming it can be called as a Hindu. Under the codified
Hindu law if a person is converted to Hinduism, Buddhism, Jainism or
Sikhism can be called a Hindu.
1. If a person converting shall a bona fide intention and no reason to
convert.
2. Reconversion in Hindu after converting into any other non-Hindu.
3. If a person born in Hindu.
4. When the child parents are hindu and bought up the child as a Hindu.
5. When a child is born from Hindu mother but Muslim father but bought up
as a Hindu then it will be considered to be a Hindu.
 6. The person who is not a Muslim, Parsi, Christian or Jew is a hindu and
governed by the same.
The Supreme Court of India in the landmark case of Shastri vs
Muldas expressly defined the term ‘Hindu’. This case is related to the Swami
Narayan temple in Ahmedabad. There are a group of people called the Satsangi
who were managing the temple and they restricted non-Satsangi Harijans to
enter the temple. They argued that Satsangi is a different religion and they are
not bound by Hindu Law. The Supreme Court of India held that the Satsangi,
Arya Samajis and Radhaswami, all these belong to the Hindu religion because
they are originated under Hindu philosophy.
To whom Hindu Law does not apply?
1. To an illegitimate child whose father is a Hindu and mother is Christian
and the child is brought up as a Christian. Or also, the illegitimate child
of a Hindu father and a Mohammedan mother, because these children are
not Hindus either by birth or by religion.
2. To the Hindus who are converted to Muslims, Christians, Parsi or Jews.
3. To the Hindus who don’t follow the principles of Sastra.
Q. SCHOOLS OF HINDU LAW AND DIFFERENCE
These schools have widened the scope of Hindu law and explicitly contributed
to its development. The two major schools of Hindu law are as follows-
 Mitakshara
 Daya Bhaga
Mitakshara School: Mitakshara is one of the most important schools of Hindu
law. It is a running commentary of the Smriti written by Yajnvalkya. This
school is applicable in the whole part of India except in West Bengal and
Assam. The Mitakshara has a very wide jurisdiction. However different parts of
the country practice law differently because of the different customary rules
followed by them.
Mitakshara is furrher divided into five sub-schools namely
 Benaras Hindu law school (north India including Orissa)
 Mithila law school (North Bihar)
 Maharashtra law school (Gujarat Karna and part of Marathi language)
 Punjab law school (east Punjab)
  Dravida or madras law school (southern parts)
Dayabhaga School: predominantly prevailed in Assam and West Bengal. This
is also one of the most important schools of hindu laws. It is considered to be a
digest for the leading smritis. Its primary focus was to deal with partition,
inheritance and joint family. According to Kane, it was incorporated in between
1090-1130 A.D.
Dayabhaga school was formulated with a view to eradicating all the other
absurd and artificial principles of inheritance. The immediate benefit of this new
digest is that it tends to remove all the shortcomings and limitations of the
previously established principles and inclusion of many cognates in the list of
heirs, which was restricted by the Mitakshara school.
Q. DIFFERENCE BETWEEN BOTH SCHOOLS
The difference in relation to the joint property
1. Under Mitakshara school right to ancestral property arises by birth.
Hence the son becomes the co-owner of the property sharing similar
rights as of fathers. While in Dayabhaga school the right to ancestral
property is only given after the death of the last owner. It does not
recognise the birth right of any individual over an ancestral property.
2. Under the Mitakshara school the father does not possess the absolute
right to alienate the property but in daya bhaga the father has absolute
right of alienation of the ancestral property as he is the sole owner of that
property during his lifetime.
3. Under Mitakshara school the son attains the right to become the co-owner
of the property he can ask for the partition of the ancestral property even
against the father and can demand for his share but in case of Dayabhaga
school son has no right to ask for the partition of ancestral property
against his father.
4. Under Mitakshara school the survivorship rule is prevalent. In case of the
death of any member in the joint family, his interest shall pass to other
members of the family. While in case of Dayabhaga school the interest of
the member on their death shall pass on to their heirs like widow, son,
daughters.
5. Under the Mitakshara school the members can’t dispose of their share of
property while undivided while in daya bhaga the members of the family
enjoys absolute right dispose off their property.
The difference as regards to inheritance
 Under Mitakshara the rule of blood relationship or consanguinity is
followed in case of inheritance whereas in case of Dayabhaga school the
inheritance is governed by the rule of the offering of pinda.
 Mitakshara school expanded its recognition to a very limited extent in
regards to the recognition of the doctrine of factum valet but Dayabhaga,
on the other hand, has expanded it recognition to the full extent.
 Under the Hindu law the difference between the Mitakshara school and
the Dayabhaga school is not recognised as in the present scenario there
exists one uniform law of succession for all the Hindus.
Q. KARTA OF JOINT HINDU FAMILY
In Hindu joint family, the senior-most male ascendant is the head of the family
and known as Karta. Karta is the manager of the family. He takes care of the
family and its property. The relationship of Karta with the other members of the
family is not that of a partner, agent or principal. He stands in a fiduciary
relationship with the members of the family. The Karta of the family has
unlimited liability, also he is not responsible to any member of the family
except in case of fraud or misappropriation.
Powers of Karta
1. Power to represent
The family does not have a corporate existence, it acts through its Karta. The
Karta is the sole representative member of the joint family when it comes to any
legal or social matter. Whenever there is a suit filed by the family it is filed in
the name of Karta or if there is a case against the family then also it is in the
name of the Karta.
2. Power of management
In the case of Bhaskaran v Bhaskaran, it was held that the Karta of the family
has absolute power of management. As being the head of the family he cannot
be questioned by anyone. He can spend all the family funds without being
interrupted.
3. Power over income
All the members of the joint family hand over their income to the Karta of the
family. He looks after the allotment of the funds to the members of the family
according to their needs and looks after their requirements.
4. Power of alienation
The Karta’s power of alienation is limited and it can be challenged by the
coparceners. Karta can exercise the power of alienation in these 3
circumstances:
Legal Necessity, Benefit of the estate & Indispensable duties
Legal Necessity:
The scope of the word “necessity” is very broad. It depends upon case to case,
circumstances to circumstances. Still, for interpretation, it can be stated that
things which are deemed necessary for family members.
The benefit of the estate:
Anything done in furtherance of the benefit of the Hindu joint family is the
benefit of the estate.
Indispensable duties:
This term signifies pious, religious obligations. A Hindu Karta can alienate the
whole property to perform the indispensable duties.
5. Power to compromise
The power to compromise all the disputes related to family is also vested in
Karta. He can take all decisions regarding the compromise whether being
related to family or its management.
6. Power to contract debts
The Karta has an implied authority to contract debts and pledge the credit of the
family for the ordinary purpose of the family business. The members cannot
escape from this liability even after partition.
7. Power to enter into the contract
The Karta of the family can enter into a contract on behalf of the whole family
and such contracts are binding upon the family members. The reason behind
giving this power is that if such power is not conferred upon him then it would
become impossible to carry out business.
Duties of Karta
Maintenance
All the members of the Hindu Joint Family whether coparcenary or not have a
right to maintenance. It is the duty of the Karta to maintain all the members.
Marriage
Karta has a duty to engage the unmarried members of the family in wedlock
especially of daughters as their marriage is considered to be sacrosanct in Hindu
law.
Render accounts
In Hindu law, a Karta is under the obligation to render the accounts if any
coparceners demand it at the time of partition.
Representation
The senior-most member of the family commonly known as Karta is the one
who represents the Joint Hindu Family. The Karta is bound to perform functions
like paying all the taxes, dues etc on behalf of his family. Karta can also be sued
on behalf of his family.
Liabilities of Karta
Liability to maintain, Liability to spend reasonably, Liability not to alienate
property, Liability not to start a new business & Liability to render accounts.
Q. WHAT IS A JOINT HINDU FAMILY
Joint Hindu Family in present-day is governed by the Hindu Succession Act,
1956. It is a normal condition of Hindu society. For a Hindu, it is a never-
ending process, if in one generation it is brought to an end by the means of a
partition, it comes back into existence in the next generation automatically. This
rule gives support to the presumption that every Hindu family is a Joint Hindu
family. It shall be presumed that the family continues to be a joint family if it is
joint in affairs of food, worship and estate as in case of Rajagopal v. Padmini. It
is neither a corporation nor a juristic person, it is a unit which is represented by
the ‘Karta’ of the family in all matters.
It consist of all the family members i.e. all the male members descended up to
any generation from a common ancestor with their wives, mothers, widows and
unmarried daughters, a daughter remains a part of her parents joint Hindu
family till she is unmarried. If the daughter us deserted by her husband or
becomes widow then she will again become part of her parents joint Hindu
family but not her children as they continue to remain the part of their fathers
family.
Exit: The status of being a part of the Joint Hindu Family can be ceased in the
following cases:
  By conversion to another religion or faith.
 By marriage to a non-Hindu
 By being given in adoption to a third party by the competent parents.
 By marriage of a daughter.
Origin:
Without a common ancestor Joint Hindu Family cannot be brought into
existence. The presence of a common ancestor is a necessity for its beginning,
but it is not necessary for its continuation i.e. the death of the common ancestor
does not bring the Joint Hindu Family to an end. Upper links of the family are
removed and lower links are added by marriage, birth, or adoption of the child
in the marriage. This process continues as long as it does not become extinct.
The members are bound by the fundamental principle of ‘Sapinda’ relationship
(belonging to the same ancestors, up to three and five lines of ascent from
mother’s and father’s side, respectively) or family relationship.
COPARCENARY
The term ‘Coparcenary’ is used in matters related to Hindu Succession law. It is
a narrower part or institution within a Joint Hindu Family, It deals with property
related matters only. Unlike the Joint Hindu Family, coparcenary consists of all
male lineal descendants up to three generations from the last holder of the
property. Senior-most member is called the ‘last holder’ and from him up to
three generations i.e. son, son’s son, and son’s son’s son constitute the
coparcenary. There can be any number of male members in a particular
generation.
Origin: Like a Joint Hindu Family, the presence of the senior-most male
member is compulsory to start a coparcenary. The presence of at least two male
members is necessary to constitute and even to continue a coparcenary. Just like
a Joint Hindu Family, in a coparcenary, upper links are being removed
subsequently, and lower links are added to the chain, provided there are at least
two male members.
End: Coparcenary comes to an end either by the partition or by the death of all
the male members of the family or the sole surviving coparcener.
Q. VAILD AND ESSENTIALS OF A HIDU MARRIAGE
The Hindu Marriage Act 1955 provides for essential conditions for the validity
of a Hindu Marriage, registration of Hindu Marriages, Restitution of Conjugal
rights, Judicial separation, Nullity of Marriage, Divorce etc. (Given in Sections
5- 13 under the topic Marriage)
1. The marriage will not be valid if both the parties to the marriage are
Hindus. If one of the parties is a non-Hindu then the marriage shall be
void.
2. It will be solemnized if the conditions are not met:-
a. Incapable of giving a consent due to unsoundness of mind or;
b. If capable of giving valid but suffering from mental disorder of
such kind or to such an extent as to be unfit for marriage or of
procreation (giving birth) of children; or
c. Subject to insanity.
3. Bride to be age of 18 and the groom to be of age 21.
4. The parties are not within the prohibited degrees of relationship, unless
the custom governing them allow such.
5. The parties are not ‘Sapindas’ of each other unless the custom governing
allow such.
This section lays down five conditions for a valid marriage. They are:
1. Monogamy (Sec 5 Clause (1))-Under the Hindu Law a person can validly
marry if he or she is either unmarried or divorced or a widow or a
widower. If at the time of the performance of the marriage either party
has a spouse living and the earlier marriage had not already been set
aside, the later marriage is void. Bigamy is null.
2. Mental capacity (Sec 5 (2))-The parties should not be of unsound mind,
mental disorder or insanity. If the party do then it is voidable at the option
of the party.
3. Age (sec 5(3))-the age of the groom to be 21 while that of the bride to be
18. It is voidable if the at the option of the parties.
4. Degrees of prohibited relationship (sec 5(4))-the parties to the marriage
should not come within the prohibited relationship. A marriage between
two persons who come within the degrees of prohibited relationship shall
be void. However, if there is a valid custom or usage governing both the
parties allows they can marry even though they come with in the degrees
of prohibited relationship. All over India, there are such custom which
validate marriage between persons who come within the degrees of
prohibited relationship.
5. Sapinda relationship (sec 5(5))-the parties to the marriage should not be
related to each other as sapindas. If they do it shall be void. Under section
3(f) spinda is with reference to any person as far as the third generation in
 line of ascent through the mother, and fifth in line of ascent through the
father. Two persons are said to be “sapindas” of each other if one is a
lineal ascendant of the other within the limits of “sapinda” relationship, or
if they have a common lineal ascendant who is within the limits of
“sapinda” relationship with reference to each of them.
Q. CONCEPT OF GIFT UNDER HINDU LAW
Gift is regarded as the renunciation of the property right by the owner/donor in
favour of done. Man may lawfully make a gift of his property to another during
his lifetime; or he may give it away to someone after his death by will.
Meaning of gift
Under Hindu law it defined as “creation of another person’s proprietary right
after the extinction of one’s own proprietary right in the subject matter of gift.”
Under TPA, 1882 sec 122, gift is the transfer of certain movable or immovable
property done voluntarily with or without consideration by donor to donee.
Essentials of Gift
The only requirements for gift are that there should be transfer, by one person to
another, of any existing movable or immovable property. Further, the transfer
should be voluntary, and should be made without consideration of any money.
The same should be out of natural love and affection and the donee must also
accept the said gift.Ms Mayawati vs Dy Commissioner of Income Tax.
Absence of consideration, donor, donee and acceptance-all explained.
Gift of undivided interest- a coparcener cannot make a gift of his undivided
interest in the coparcenary property either in favour of a stranger of a relation.
Q. SACRIMENT NOT A CONTRACT
Hindu marriage is “a religious sacrament in which a man and a woman are
bound in a permanent relationship for the physical, social and spiritual need of
dharma, procreation and sexual pleasure.”
There are three characteristics of the sacramental nature of marriage:
 It is an enduring bond of the husband and wife which is permanent and
tired even after death and they will remain together after the death.
 Once it is tied cannot be untied.
 It is a religious and holy union of the bride and groom which is necessary
to be performed by religious ceremonies and rites.
Hindu marriage is considered as one of the most important sacraments. In
ancient times, there was no need for the girls’ consent. Fathers have to decide
the boy without asking for her advice or consent. It is the sole duty of the father
to find a suitable boy. If the person was of unsound mind or minor at the time of
the marriage, it was not considered as a void marriage. But in the present world,
consent and mental soundness of the person are a very essential part of the
Hindu Marriage, without the absence of any such element marriage will be
annulled or void or no legal entity.
CONTRACT ALSO:
Writers of Hindu law, both ancient and modern have generally taken a view that
Hindu marriage is a contract too. Mayne states that hindu marriage is a
sacrament but is also a civil contract, which takes the form of a gift.
Section 12 of the Hindu Marriage Act 1955 lays down that when one’s consent
is not obtained, the marriage is considered void. It shows that despite the
absence of consent of the bride, the marriage is valid and legal. The nature of
modern marriage is contractual. Thus, it accepts the idea of equality and liberty.
It has been adopted due to western Ideas. There must be an agreement of
voluntarily entering into it by both parties. Thus, the Hindu marriage is not a
contract and neither is it a sacrament. But it can be said it is a semblance of
both.
The Court in Muthusami v. Masilamani, held that a marriage, whether a
sacrament or institution, is undoubtedly a contract entered into for
consideration, with co-relative rights and duties.
Q. CLASS ONE HEIRS
Sons, daughters, widows, adopted sons, mothers, sons of a predeceased son,
widows of a predeceased son, son of a predeceased son of a predeceased son,
widows of a predeceased son of a predeceased son, daughter of a predeceased
son, daughter of a predeceased daughter, daughter of a predeceased son of a
predeceased son, son of a predeceased daughter, son of a predeceased daughter,
son of a predeceased daughter, son of a predeceased daughter of a predeceased
daughter, daughter of a predeceased son of a predeceased daughter, daughter of
a predeceased daughter of a predeceased son.
All of them will inherit simultaneously and even if any of them is present, then
the property will not go to the Class II heirs. All Class I heirs have absolute
rights in the property and the share of a Class I heir is separate, and no person
can claim a right by birth in this inherited property. A Class I heir cannot be
divested of his/her property, even by remarriage or conversion, etc.
Son- it includes both, natural-born son or adopted son but does not include a
stepson or illegitimate child.
Daughter-it includes a natural or adopted daughter but not stepdaughter or
illegitimate daughter.
Widow-the widow gets a share that is equal to that of a son if there exists more
widow they have to collectively take one share that is equal to the son’s share
and divide it equally among themselves.
Q. RULES OF SUCCESSION
Section 8 lays down the general rules for succession in the case of males.
Section 8 applies in cases where succession opens after the commencement of
the Act.
CLASSIFICATION OF HEIRS:
1. CLASS 1-: Same as above.
2. CLASS 2-: when in heirs in Class III and IV are there, the property
would only go to them if no one from Class II is present.
3. CLASS 3-: This consists of the agnates of the deceased. Class III heirs
only inherit the property when none from the earlier classes gets the
property. An agnate is a person who is related to the intestate only
through male relatives. An agnate can be a male or a female.
4. CLASS 4-: A cognate (Class IV) is someone who was related to the
intestate through mixed relatives, in terms of sex. For example, an
intestate’s paternal aunt’s son is his cognate, but his paternal uncle’s
daughter will be an agnate.
Sections 14 to 16 of the Hindu Succession Act 1956 specify the rules for the
succession to the property of a Hindu female (succession of Hindu Female).
Section 14 of the Act specifies general rules while Sections 15 and 16 describe
and provide details for the rules laid down in section 14 of the Act.
As per the explanation of Section 14(1), the word ‘Property’ includes both
movable and immovable property acquired by a female Hindu. Can be acquired
by inheritance, by partition, in lieu of maintenance or arrears of inheritance, by
a gift from a relative or not, by her own skills, purchase or by prescription, in
any other manner, any property held by her as stridhan.
With the coming of The Hindu Succession Act, 1956, women are granted
ownership of property, whether it was acquired before or after the
commencement of the Act, thus abolishing their ‘limited owner’ status. The
property in case of a female Hindu intestate dying will devolve.
According to sub-section (2) the female Hindu does not become absolute owner
of the property acquired by gift, will or any other instrument, decree or order of
a Civil Court or an award if such gift, will or instrument, decree, order or award
gives her only restricted right.
In Pratap Singh v Union of India AIR 1985 SC 1694 case, the Court held
that Section 14 (1) is not violative of art 14 or 15(1) of the constitution. Nor is it
incapable of implementation.
Q. WILLS IN SUCCESSION ACT
"Will" means the legal declaration of the intention of the testator with respect
to his property which he desires to be carried into effect after his
death. Characteristics:
The essential characteristics of a will are as follows:-
a. It is a legal declaration of the intention of the testator;
b. The declaration is with respect to the testator's property;
c. The intention manifests only after the testator's death. Till the testator us
alive, the will has no validity, he can dispose of all his properties in a
manner contrary to that stated in the will.
d. The will can be revoked any time by the testator in his lifetime. Thus, the
will is a testamentary document executed by a living person which takes
effect on his death.
Valid conditions:
1. The testator should sign or affix his mark.
2. The will be attested by 2 or more witnesses.
3. Witnesses must sign or affix a mark to the Will, in presence of testator.
4. The witness should not be a beneficiary under the will.
Wills made are of many types such as:
Conditional / contingent will-A conditional or contingent will is one which
depends for its operation upon the happening of a specified condition or
contingency. If the condition fails, the will is inoperative and void thereafter.
Joint will-A joint will is a legal document executed by two (or more) people,
which merges their individual wills into a single, combined last will and
testament.
Mutual will-Mutual will is a type of will, usually executed by a married or
committed couple, which is mutually binding. After one party dies, the
remaining party is bound by the terms of the mutual will.
Duplicate will-As the name suggests, when there are two copies of a will, then
those wills are called Duplicate Wills.
Concurrent will-Concurrent Will are written by one person wherein two or more
Wills provide instructions for disposal of property for the sake of convenience.
For instance, one Will could deal with the disposal of all immovable property
whereas another Will deals with the disposal of all movable property.
Unprivileged Will-Will created by a person who is not a soldier employed in an
expedition or engaged in actual warfare or a mariner at sea is known as an
unprivileged Will.
Privileged Will-Privileged wills are wills that may be in writing or made by
word of mouth by those in active services like a soldier, airman or mariner.
Sham Wills-Sham Wills are executed but held invalid if the testator does not
intend to execute as per his/her wishes.
Holograph Wills-The testator writes this holograph wills entirely in its own
handwriting.
Q. VOID AND VALID MARRIAGE
The concept of marriage is to form a relationship between husband and wife.
Marriage is a religious tie which cannot be broken. According to Section 5 of
Hindu Marriage Act, 1955 it was accepted that a Hindu Marriage was a
religious ceremony and also a Sanskara (performed as a purification rite). It
was also established that every and any Hindu could marry. The exceptions to
this are the ones prohibition which is on the basis of caste, gotra, religion and
blood relationship. Such prohibition is based on some rules which are
endogamy and exogamy. Endogamy and Exogamy are illegal in the view
of Hindu Marriage Act, 1955.
Void marriage (section 11)-:
It will be considered if it doesn’t fulfil the condition as enumerated:
1. Bigamy- If any of the parties have another spouse living at the time
of marriage. It shall be considered as null and void.
2. Prohibited Degree-If the parties are within a prohibited relationship
unless the customs allows it.
 3. Sapindas- A marriage between the parties who are sapindas or in
other words a marriage between the parties who are of his or her
relations or of the same family.
CONSEQUESNCES OF A VOID MARRIAGE:
 The parties are not in the position of husband and wife in a void marriage.
 Children are called legitimate in a void marriage.
 Mutual rights and obligations are not present in a void marriage.
Voidable Marriages (section 12)
A marriage is voidable on either side of the party is known as voidable
marriage. It will be valid unless the petition for invalidating the marriage is
made. The grounds where the marriage can be termed as voidable:
1. The party to the marriage is not capable of giving consent due to the
unsoundness of the mind.
2. The party is suffering from a mental which makes her unfit for
reproduction of children.
3. If the party is suffering from the repeated attacks of insanity.
4. The consent of marriage by either of the parties is done by force or by
fraud.
5. If either of the parties are under aged.
6. If the respondent is pregnant with a child of someone other than the
bridegroom while marrying.

Void Marriage Voidable Marriage

A wife does not have the A wife has the right to claim maintenance
right to claim in the voidable marriage.
maintenance in the void
marriage.

In a void marriage, the Husband and wife have the status in the
parties do not have the voidable marriage.
status of husband and
wife.

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

 decree of nullity is required.
required.

A void marriage is none A void marriage is to be declared void by a

in the eyes of law. competent court.

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

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

Q. WHAT IS JUDICIAL SEPARATION

Judicial Separation is a medium under the law to give some time for self-
analysis to both the parties of a disturbed married life. Law gives a chance to
both the husband and wife to rethink about the extension of their relationship
while at the same time guiding them to live separately. By doing this, the law
allows them the free space and independence to think about their future path
and it is the last option available to both the spouses for the legal breakup of the
marriage.
Section 10 of the Hindu Marriage Act, 1955 provides the Judicial Separation for
both the spouse, those who are married under the Hindu Marriage Act, 1955.
They can claim the relief of Judicial Separation by filing a petition. Once the
order is passed, they are not bound to have cohabitation.
Grounds for judicial separation are:-
1. Adultery- it means where any of the spouses voluntarily had sexual
intercourse with any other person. Should be after the marriage.
2. Cruelty- when the spouse treats his/her partner with cruelty or inflicts
any mental or physical pain after the marriage.
3. Desertion- if spouse left the other spouse for any reason without
informing him/her for a period of not less than 2 years before filing this
petition.
4. Conversion- if any spouse gets converted into any other religion other
than Hindu.
5. Unsound mind- if any spouse suffering from any mental disorder.
6. Leprosy- suffering from any disease which cannot be recovered.
 7. Venereal disease- if any party has a type of disease which is incurable
and communicable and the spouse does not have the knowledge of such
during the time of marriage.
8. Renounced the world- In Hindu law, by renouncing the world means
“Sannyasa”. Renunciation from the world conveys that the person has
given up the world and leading a holy life. He is considered a civil dead.
9. Civil death- if a person is not found for 7 or more years and their friends
and relatives belief that they are dead.
Additional grounds for women:-
1. Bigamy- if the husband is remarried while he is already married, both of
his wives have a right to claim the petition for judicial separation.
2. Rape- The wife has a right to file a petition for judicial separation if her
husband is guilty of charges like rape.
3. A option of puberty- If a girl’s marriage happened before attending 15
years of age, then, she has a right to claim judicial separation.
Judicial Separation Divorce

 It is provided
 It is provided
under Section
under Section 13 of
10 of the Hindu
the Hindu Marriage
Marriage Act,
Act, 1955.
1955.
 A petition for
 A petition for divorce
judicial
can be filed only after
separation can be
one or more years of
filed at any time
the marriage.
after marriage.
 It only
temporarily  It is the end of the
suspends the marriage.
marriage.
 The husband and wife
 An act of adultery
must be living in an
is a ground, by
adulterous relation then
which anyone
only a party can file for
files the petition.
divorce.

Q. CONCEPT OF DIVORCE
The word ‘divorce’ had not been defined under any statutory provisions but it
could be defined as a legal dissolution of judicial ties established at marriages.
Which separates the united couple at their own wish with their own consent.
Thus divorce can be considered a means to break marriage that happens not just
between two individuals but also between two families.
Previously as per the Indian culture and tradition, there was no concept of
divorce which was considered to be existing however with the dynamic changes
in the society the very purpose of divorce is to punish the guilty party and also
to protect the innocent or the loyal one tied within the matrimonial bonds. The
very institution of marriage is to provide a happy, coordinating partnership
between two individuals, however, if this objective of marriage cannot be meted
out there is no point to continue the same. Therefore for a happy free separate
and independent living who were previously tied within the matrimonial bonds
the concept and purpose of divorce arose.
Grounds for divorce under the Hindu marriage act:
The grounds of divorce under the act has mentioned under section 13 of the act.
1. Adultery- if a married person with the ties of marital bonds is
having sexual intercourse with another person who is not his or her
spouse, is said to have committed adultery. Supreme court in the
case of Joseph Shine v Union of India had held that adultery had
been held unconstitutional and thus, it is also being struck down by
the Supreme Court.
2. Cruelty- Cruelty in simple terms means torturing or unreasonable
brutal behaviour against one.
3. Desertion- Desertion in simple terms can also be considered as an
act of abandoning a person.
4. Conversion- If one of the spouses within the matrimonial bond
ceases to be a Hindu and converts into another religion then the
very essence of the Hindu Marriage Act gets destroyed.
5. Insanity- The word insanity had been derived from the word
insane which means not in a correct state of mind. Thus a person
who is not able to understand the difference between right or
wrong or who is unable to provide consent or to approve or
disapprove the happenings around him.
6. Leprosy- suffering from any disease which cannot be recovered.
7. Venereal disease- if any party has a type of disease which is
incurable and communicable and the spouse does not have the
knowledge of such during the time of marriage.
 8. Renounced the world- In Hindu law, by renouncing the world
means “Sannyasa”. Renunciation from the world conveys that the
person has given up the world and leading a holy life. He is
considered a civil dead.
9. Civil death- if a person is not found for 7 or more years and their
friends and relatives belief that they are dead.
Special grounds of divorce-:
1. If the husband has one or more wives living after the initiation of
this Act, a wife may exhibit an appeal for divorce under.
2. Sodomy is committed by an individual who has sexual intercourse
with an individual from similar sex or with a creature.
Q. NATURAL GUARDIAN AND ITS POWERS AND WHO CAN BE
THE NATURAL GURADIAN
According to section 4(C) of the act a natural guardian assigns to the father and
the mother of the minor. For minor wife, his husband is the guardian.
Powers of a natural guardian
As per Section 8, the powers of the natural guardian to impose on the child are
as follows:
1. A natural guardian of a Hindu minor has to perform all the work which is
mandatory and valuable for the minor interests and its protection.
2. A natural guardian must take prior permission from the court to mortgage or
transfer any sale, gift or any other immovable property of the minor and before
leasing any of the minor’s property for a term of more than five years or for a
term more than one year from the date when the minor turns into a major.
3. The disposal of any immovable property by the natural guardian shall be held
as voidable at the instance of the minor itself or any other person claiming on its
behalf.
4. A court shall not permit the natural guardian to do any act stated above until
and unless it is proved that in is for the best interest of the minor.
5. For the application for getting the permission of the court, sec. 29 of the
Guardians and Wards Act, 1890 shall be applied and the applications should be
submitted to the Court within the local limits of whose jurisdiction the property
of minor is situated.
Q. STRIDHAN
The word Stridhan literally means women’s property. ‘Stri’ means women and
‘dhan’ means property togetherly constitute the word Stridhan. It includes all
type of movable and immovable property such as ornaments, cash, deposits, etc.
The historical background of Stridhan is as old as the Hindu law. The earlier
meaning of stridhana by the Mitakshara commentary is that, stridhan is what
was given to a women by father, mother, husband, or her brother or presented
on her succession.
Types of Women’s Property
The property of a Hindu women is divided into two types:
1. Stridhan – In Stridhan, the women have absolute power over the property.
She can enjoy it without any restrictions.
2. Women’s Estate – In Women’s Estate, the women have limited power over
the property. She can enjoy it during her life but after death it will not pass to
the heirs.
However under the Hindu Succession Act, 1956, all property in the possession
of a Hindu female either before or after the commencement of the Act will have
absolute control and power to it. Thus it have dispensed the difference between
stridhan and women’s property.
Q. SAPTAPADI
It is one of the most important rite of the Hindu marriage ceremony. The word ,
Saptapadi means “seven steps”. After performing of the priors rites of the
wedding the couple then take seven steps which is called saptapadi, after this
rite the couple said be legally become husband and wife.
The Saat Phere (Seven circles) around the sacred fire (yagya) of Hindu
Wedding Rituals as Explained by Mathematics… Each circle consists of 360°.
The only number from 1 to 9 which cannot divide 360 is 7. So the Bride and
Groom go round the Fire 7 Times Ensuring that Nothing Can Divide Their
Relationship.
Q. WHAT IS ENDOWMENTS
Introduction: Endowments are properties set apart or dedicated by gift or
devised for the worship of some particular deity or for the establishment or
maintenance of religious or a charitable institution in the nature of mankind’s
well-being.
Meaning:
  The term Endowment means the donation of property for religious, or
charitable or for the public benefit or for some section of the public in the
advancement of religious knowledge, commerce, health, safety, or for
any other object beneficial to mankind.
 The Establishment of idols, hospitals, schools, universities, etc., are some
of the examples of Religious and Charitable Endowments.
 Endowments form a special branch of the law of gifts and bequests.
Kinds of Religious Endowment:
There are two types of Religious Endowment:
1. Private- These endowments are only for the purposes of family idols.
2. Public- These endowments are for the benefit of the public at large or a
specified class.
Essentials of Valid Endowments
1. Absolute Dedication: The first condition provides that the donor must
dedicate the property absolutely for the worship of a deity or for a
particular charitable purpose. The donor must divest himself of the
beneficial interest in the property.
2. The object must be Definite: In order to create valid endowments, the
object must be definite. The object of the gift must be a definite idol or a
definite charitable object.
3. Property must be specific: Another essential of valid endowments is
property must be specific. No endowments are valid unless some definite
property is dedicated.
4. Settlers should be capable of creating endowments: In order to create
valid endowments, settlers should be capable of creating endowments.
The settler must be a major of sound mind, must not suffer from any legal
disqualification.
5. Endowment must not be opposed to any law: The fifth condition is that
endowments must not be opposed to any law.