PREVIOUS QUESTION SOLUTION-2020

HINDU LAW
1. Adoption under Hindu Law in Bangladesh

In Bangladesh Adoption is only approved under Hindu Law but as it follows the principal of
traditional Hindu Law and customs there are many surprising facts we need to know. This
article will give you an overall legal state of Adoption under Hindu Law in Bangladesh with
legal reference, case laws and a bit of necessary explanation.

Why do Hindus need to adopt?

Hindu philosophers say “a man born with three debts:

1. Debts to rishis (sages),

2. Debt to Gods and
3. Debts to ancestors.” These debts are discharged by giving birth to a male child who
studies the Vedas and offers sacrifice. For the same reason, Son is given great
importance in Hindu Law.
In the Hindu religion, it is believed that, a son

1. Saves his ancestors from going to hell called “put” therefore he (Son) is called puttra in
various Indian languages.
2. The son saves his ancestors by “Panda-dan” [offering funeral cakes and libations of
water] on occasion of “Shraddha” which is a ceremony performed by the son in honor of
a dead ancestor.
3. He continues his father’s bloodline or family.
Now, this is very straightforward that for both present life and afterlife a Hindu man requires a
son and that’s the basic philosophy of adoption in Hindu law. Yes, you guessed it right only a
son can be adopted in traditional Hindu law and Bangladesh follows the same as our Hindu
personal law never changed in this regard like India or other countries. Now, let’s know
another important element of adoption in Hindu Law.

First question that may come to once mind is; what would be the legal status of an adopted
son and what would be the consequence of an adoption? Regarding this question scholars of
Hindu law wrote that; Adoption is the civil death of a son in the natural family and legal
birth of a son in the adoptive family. On adoption ties of the son with his old family are
severed and he is taken as being born in the new family, acquiring rights, duties and status in
the new family and his ties with old family end there as if he born in the adopted family.
Hindu adoption case laws;
Adopted son stands equal to natural son;
The word “issue” includes “child”. Under the Hindu Law, the adopted son in relation to his
adopted father stands equally with the natural son in temporal and spiritual matters. Hindu
Law does not make a distinction between a natural son and adopted son in the matter of
inheritance, whether it is in the application of personal law or secular law, the adopted son
has the same status with the natural son. Adoption of a surda is not contrary to Hindu
Dayabhaga Law.

# Anath Bandhu Guha Vs. Sudhangsu She/chore Dey. 31 DLR (1979) (AD) 312.
Adoption in Hindu Law is a formal act
Adoption in Hindu Law is a formal act having far-reaching consequences material as well as
spiritual and it is generally evidenced by a document. By adoption, a person passes out of the
family to which he belonged by birth and is transplanted into the family which adopts him.

# Perumal Vs. Government of Pakistan. 15 DLR (1963) (SC) 58.

Therefore, we can say;

 An adopted son is creation of law

 An adopted son stats on an equal footing with natural son in the matter of both temporal
an spiritual fact.
Conditions of a valid adoption:
Who may or may not be adopted?
 Son only
 Son can be adopted because son can perform the religious/spiritual aspect of Hindu
law
 Not deaf or dumb
 He must not be deaf or dumb (for the same previous reason)
 Age; Generally before uponoyon
 According to Dayabhaga School [A part of /customs/type of practice in Hindu law
that is followed by Hindus of Bangladesh and Bangle, Assam in India], it is
considered 15 years is the age of Uponoyon
 The only son cannot be adopted
 Where one father has only one son that son cannot be adopted because that would
invalidate the spiritual right of his (son’s) natural father.
 The boy to be adopted must belong to the same cast, but not necessary that he should
belong to the same sub –cast.[3]
 Case Law;
Hindu Society is divided into four castes namely Brahmin, Kshatriya, Vaisya and
Sudra. There might be a question with regard to the validity of adoption between one
 caste and another caste. But If such adoption is found to have been taken place
within the broad range of one caste only, such adoption cannot be questioned on the
ground of difference in the sub-caste between the parties concerned. Kayastha of
Bengal is sudra. It is an admitted position in Hindu Law that there is no bar as such
for a “Kayastha” adopting a “Namasudra” both being “Sudras” as
such.# Sudhangshu Shekhar Vs. Anath Bandhu. 28 DLR (1976) 313.
 If the adopted father and the adopted son’s natural mother belongs in a relationship
where marriage is prohibited, then that son cannot be adopted.
 Example; Sister’s Son (nephew) cannot be adopted.
 An orphan cannot be adopted
 Because there are certain ceremonies to be conducted that require parents or
natural father; discussed later in this article.
Who may adopt?
 A man, who is sound mind and already achieved his uponoyon age.
 Adopted father must not have any son or son’s son how low so ever, whether that son or
son’s son is natural or adopted.
 He might be married, unmarried or widower; if he is married his wife’s consent is not
necessary.
 Adoption can be done if at the time of adoption, the adopted father’s wife is pregnant.
 A minor may adopt and give authority to his wife to adopt.
 Impurity by birth or death of a relation does not validate an adoption.
Can woman adopt?
 An unmarried woman cannot adopt.
 A married woman cannot adopt of herself but can adopt for her husband if the husband
permits her to do so.
 A widow can adopt for her husband if he permits her before his death.
Who can give adoption?
Adoption requires two formalities or ceremonies based on these formalities we can determine
who can or cannot give adoption.

2. Purpose of Hindu Marriage

In Hinduism, the four goals of life (Purusarthas) are regarded to be righteousness (dharma),
wealth (artha), pleasure (kama), and liberation (moksha). Marriage is considered to be
necessary to fulfil these goals. The three goals of marriage include allowing a husband and a
wife to fulfil their dharma, bearing progeny (praja), and experiencing pleasure (rati). Sexual
intercourse between a husband and wife is regarded to be important in order to produce
children, but is the least desirable purpose of marriage in traditional Hindu schools of thou
Types Of Hindu Marriages

Mythology says that there are eight different types of Hindu marriages. Historical records
support this perception, by saying that some of these types of marriages were prevalent in
ancient India, among the people following Hinduism. Although not all the eight marriages had
a religious sanction, it is said that they were observed among many communities of the
people, following Hinduism, in the ancient time. People argue that many of them are still seen
among the Hindus. In this article, we have discussed about the eight types of Hindu weddings
in India.

Eight Types of Hindu Weddings

Brahma marriage
According to the Brahma marriage, a boy is eligible to get married, once he has completed
his Brahmacharya (student hood). Parents, who search for a bride for their son, would
consider the family background of the girl, whom he is going to marry. On the other hand, the
bride's father would ensure that the boy has acquired knowledge of the Vedas. This is how a
Brahma marriage was arranged. There was no system of dowry. Among the eight types of
marriage, brahma marriage holds a supreme position.

Daiva Marriage
In this type of marriage, the girl's family waits for a particular time, to get her married. If they
do not find a suitable groom for their daughter, then they would marry her off to places,
where sacrifices are conducted. In this case, the girl is generally married to a priest, who
conducts sacrifices. According to the sastras, Daiva marriage is considered inferior to
Brahma marriage, because it is considered degrading for the womanhood.

Arsha Marriage
Arsha marriage is the one, wherein the girl is married to the sages or rishis. References from
dharmasastras tell us that in arsha marriage, the bride is given in exchange of two cows,
received from the groom. The girl is generally married to an old sage. The cows, which were
taken in exchange of the bride, shows that even the groom do not have any remarkable
qualities. According to sastras, noble marriages had no monetary or business transactions.
Therefore, these kind of marriages were not considered noble.

Prajapatya Marriage
Monetary transactions and Kanyadaan are not parts of Prajapatya marriage, unlike the
Brahma marriage, where these two forms an important and basic part. Unlike the Brahma
marriage, here, the bride's father goes in search for a groom for his daughter. The Brahma
type is considered better than prajapatya, because in the former, the groom's family goes out
to seek a suitable bride for their son.

Gandharva Marriage
Gandharva marriage is similar to love marriage. In this case, the bride and the groom get
married secretly, without the knowledge of their parents. It is not considered a right kind of
marriage, as it is done without the consent of the parents. This marriage reminds us of the
love affair of the mythological characters - Sakuntala and Dushyanta.

Asura Marriage
In the Asura marriage, the groom is not at all suitable for the bride. Although the groom is not
suitable for the bride, he willingly gives as much wealth as he can afford, to the bride's
parents and relatives. Therefore, the system of marriage is more or less like buying a
product, which makes it undesirable in the present time.

Rakshasa Marriage
According to Rakshasa marriage, the groom fights battles with the bride's family, overcomes
them, carries her away and then persuades her to marry him. This is not considered as the
righteous way to woo a girl for marriage, because forcible methods are used by the groom to
tie the wedding knot.

Paishacha Marriage
Paishacha marriage is the eighth and last type of Hindu wedding. It is considered as the
inferior type of marriage, because the girl's wish is not considered, even if she is not willing to
marry the person chosen for her. In fact, she is forced to marry. Moreover, the bride's family
is also not given anything in cash or kind. Literally, the girl is seized against her wish. Men
would marry a woman, whom he had seduced while she was asleep, intoxicated or insane.
This kind of marriage was later on prohibited.
Important Marriage ceremonies: The Hindu marriage ceremonies vary in different regions and
according to family traditions. The major ceremonies are the following.
• Ganesh Puja - Invoking Lord Ganesh to remove obstacles.
• Agni Puja - Evoking the holy fire as a witness and seeking his blessings.
• Kanyādāna - Giving away the bride to the groom. Of many auspicious charities. Giving your
daughter in marriage is considered one of the most auspicious. As a condition for offering his
daughter for marriage, the father of the bride requests a promise from the groom for assisting
the bride in realizing their spiritual and material duties The groom makes the promises by
repeating them three times.
• Mangalsutra - Tying of holy necklace on bride.
• Saptapadi/ Saat Phere - The Seven Holy Steps circling the fire
• Śilārōhana - Bride steps on the stone. The ceremonies involve the Pandit (priest) chanting
various prayers and mantras.
Saat phere is an important part of the wedding ceremony, undertaken by the bride and the
groom around a sacred fire. Saat means seven and Phere means circumambulation. The
vows taken in front of Agnidev, the fire God, who acts both, as a witness and one who offers
his blessings. The vows or promises are considered sacred and unbreakable. The bride and
groom circumambulate the fire seven times reciting the following prayers:
1. With the first step, the couple ask God for plenty of pure and nourishing food. They
promise to share this with the less fortunate.
2. With the second step, the couples pray to give them the mental, physical and spiritual
strength to lead a healthy life. They promise to share their joys and sorrows.
3. The third step is for preserving wealth, prosperity and virtuous, noble and heroic children.
They promise to live with honour and respect.
4. With the fourth step, they pray for attainment of happiness and harmony by mutual love
and trust between themselves and within the family including, respect for elders.
5. With the fifth step, they pray for the welfare of all living beings in the Universe. They
promise to protect and give in charity to the vulnerable in society, including children and the
elderly.
6. With the sixth step, to give them a long, joyous life and togetherness forever.
7. With the seventh, and last, step, for understanding, companionship. They promise each
other loyalty and unity with love and sacrifice.
3. See the notes
Exclusion from inheritance
There are certain grounds under which persons are excluded from inheritance. The Smrities
declare that, certain persons suffering from certain defects or disabilities are excluded from
inheritance. According to one author, the person who is incapable of work on account of
physical, moral or spiritual defects is excluded from inheritance.
Manu states that, “An impotent person, an outcaste persons, born blind or deaf or insane, an
idiot and the dumb as well those deficient in any organ ( of action or sensation ) receive no
share”.
It has been stated in Smrities that, the exclusion from inheritance was based upon the
incapacity to perform sacrifices and religious ceremonies. However, the fact is that, the bar or
disqualified persons was not imposed exclusively on religious grounds but partly on such
ground and chiefly it was imposed on physical and mental incapacity.
Under Hindu Law, the causes of exclusion from inheritance can be of 3 kinds.
a) Moral and religious grounds.
b) Physical grounds.
c) Mental defects.
a) Moral and religious grounds: A Hindu may be excluded from inheritance because of moral
or religious defects. Moral or religious defects may be divided into the following categories.
 Irreligion or renunciation of religion.
 Murderer.
 Unchastity, for example, characterless.
  Adoption of religious order.

i) Irreligious or renunciation of religion: On conversion to another religion or being declared an

outcaste, a person was excluded from inheritance. The renunciation of Hindu religion and
consequent excommunication are no longer grounds for exclusion from inheritance by virtue
of the Caste Disabilities Removal Act of 1850. This Act only operates to protest the actual
person who renounces or has been excommunicated from Hinduism. For example, A and B
are members of a joint Hindu family, A becomes a Muslim. He does not, by conversion, forfeit
his interest in the family property. The only effect is that, he will be deemed to have separated
from his family. Because, once a person has changed his religion and his personal law, that
law will covers the rights of succession of his children.
ii) Murderer: It is stated that, a murderer is excluded from inheriting on the grounds of justice,
equity and good conscience even though, he is not disqualified under Hindu law from
succeeding to the estate of the person murdered. A murderer is not only excluded from
inheriting, he is treated as non-existent when the succession opens on the death of the
victim. Therefore, no title can be claimed through the murder, to the estate of the victim and
he cannot be regarded as fresh stock of descent. In case of murderers, their descendants or
persons claiming through them also disqualified. Neither the murderer himself nor anyone
claiming through him cam claim right to inheritance in the property of the murdered person;
(but where the male descendant of the murderer has an interest by birth in the estate of the
deceased (murdered), he would not be disqualified to inheriting in that case).
iii) Unchastity: Under the Mitakshara school of law, unchastity as a ground of exclusion
applies to the widow only and not to the other female heirs. But under the Dayabagha School,
the disqualification of unchastity applies not only to the widow, but also to other female heirs,
namely, daughter, mother, etc. However, chastity is merely a condition precedent.
Disqualification excludes a female heir from inheritance if she happens to be unchaste at the
time of opening of the succession and property once vested in her cannot be divested on the
ground of subsequent unchastity. Unchastity is not a ground for exclusion from Stridhan
property.
iv) Adoption of religious order: When a Hindu enters into a religious order renouncing all
worldly affairs and becomes a Sanyasi, his action is tantamount to civil death and he is
excluded from inheritance.
v) Physical grounds: Under the religious texts as interpreted by the Court, the following
defects, deformities and diseases excluded an heir from inheritance.
a) Blindness, deafness and dumbness.
b) Want of any limb or organ.
c) Leprosy.
d) Other incurable diseases.

a) Blindness, deafness and dumbness: in order to exclude an heir on these grounds, it is

necessary to show that, these defects are incurable and congenital.
 b) Want of any limb or organ: Such lack is a disqualification if congenital. Lameness and
deprivation of the use of any limb must not be only congenital but also absolute and
complete.

c) Leprosy: When it is of such a virulent nature that it renders the sufferer until for social
interaction, it is a ground for exclusion from inheritance.

d) Other incurable diseases: In such a case, strictest proof of incurability must be given.

Mental Defects: mental defects include-

a) Lunacy or insanity
b) Idiocy

Lunacy or Insanity: In the case of lunacy, defects need not be incurable or congenital to
exclude the heir from inheritance. It is enough if it exists at the time of the opening of the
inheritance. Case: Muthammal vs. Subramaniaswami (1960).
Idiocy: idiocy means that a person is of such unsound mind that, he cannot differentiate
between a right and a wrong is not capable of instruction as opposed to incurable lunacy. In
case of idiocy, it has to be congenital, incurable, absolute and complete. That means, the
person should be from birth is of unsound mind and incapable of having instruction and of
differentiating between right and wrong. The Hindu Inheritance (Removal of Disabilities) Act
of 1929 lays down that, no person other than one who is and has been from birth, a lunatic or
idiot shall be excluded from inheritance but this Act only applies to the Mitakshara School.
Under this Act, congenital lunacy and congenital idiocy are the only defects which disqualify
an heir. In Triumanangal vs. Ramswami (1863), it has been held that, “idiocy is the term
implies congenital; mere want of sound mind or ordinary intelligence is not sufficient”. It is
sufficient only if the person is and has been from birth of such an unsound and imbecile mind
so as to be incapable of instruction or discriminating between right and wrong. So, idiocy has
to be complete or absolute.
Problem
i) A dies leaving an insane son and a daughter. Daughter will inherit as if the son
were dead because he is insane.
ii) A dies leaving two brothers B and B1. B1 is insane and he has a son (C). B will get
the property in order of priority and a nephew (C) cannot get the property as the
brother (B) is in existence.
iii) A dies leaving a son B who is insane and a grandson C by B. Here C will get the
property as an heir of A.
iv) A dies leaving a son B Who is an idiot, an adopted son (C) by B and a daughter D.
Here, daughter will get the property. The son B as an idiot cannot inherit the
property and an adopted son by disqualified heir is not entitled to succession.

4. Doctrine of representation:
Where a male Hindu dies, leaving his son, grandson and great-grandson, they will get per
stripes. b) Stridhan property: In this case of stridhan property, son's son, daughter's son and
daughter's daughter get per stripes. But brother's son, paternal uncles' son get per capita.
N.B: Rest of Q-4, see the notes
5. Powers and Obligations of Matha ‘Mahant’ and ‘Shebait’

The Powers and obligations of Mahant and Shebait are as follows:

The powers of a Mahant and Shebait with respect to the management of Matha and the
debutter property are quite large. So far the management and possession of the properties of
a Matha is concerned it belongs to the Mahant. Similarly, the Shebait enjoys extensive
powers with respect to the management and possession of the debutter’s properties. The
following powers of Mahant and Shebait are noteworthy:

(1) Power over the Income of the Matha or Debutter Property:

Both a Mahant and Shebait are under an obligation like a trustee not to spend any additional
income from Matha or debutter property on himself but on the other hand to invest the same
for the benefit of the estate. In order to preserve the dignity of his office a Mahant is not
supposed to use the additional income for his personal comforts. Similarly, a trustee cannot
invest the property given to a charitable institution for some purposes other than those
mentioned in the deed.

(2) Power to Compensate:

Where a Shebait in order to fulfil his duties invests some of his own property or draws some
money from his own accounts for purposes of carrying out the obligations thrust upon him by
the founder he has got the power to compensate his loss out of the debutter property.
Similarly, whatever revenues he pays out of his own accounts for the preservation of debutter
property in his custody that he can realize from the debutter property.

(3) Power to Acquire Property:

The law does not disqualify the Mahant or Shebait to earn separate property. Besides
discharging his duties in that capacity he can very well earn his separate properties but in
that case he has to prove that it was not connected with the trust property or the property
given to Matha or to idol. Where certain property is not shown to have been acquired by a
Mahant in his individual capacity, which would not be intended to mean for the office of
Mahant.
Removal and Replacement of Idol:
The Shebait has got the power to remove the idol from the place of worship or to replace it by
another in case he finds it desirable. But where an idol has been installed in a temple, he has
got no such power to replace it or to remove it unless the majority of the worshippers give
their consent to it. The Court also cannot interfere in the matters of replacement or transfer of
the idol to another place unless it is found to be covenient for the public and the very idea of
transfer has been favoured by the devotees and the worshippers.

Power to Contract Debt:

The power has been vested in the Shebait to contract debt or to take a loan for the
management of the temple and the idol installed therein. Such debt can be contracted for the
purposes of worship or repairs of the temple or for purposes of protecting the properties
belonging to the deity or to defend the suit filed against the interest of the temple or the idol.

The need for the loan can be considered in the context of the circumstances at a given time
and the power of the Shebait can be compared with the powers of a guardian of a minor. In
this connection the well-known decided case of Hanuman Prasad Pandey v. Mst.
Babooee can be considered to be a good case.
Whatever is necessary for the management of the temple or for the benefit of the same
belonging to the temple, can be done by the Shebait in his capacity as a Manager of the idol.
Whenever the Shebait considers that if the loan is not taken then the entire temple and the
idol will be damaged and the worship which is being offered to the deity, would become
impossible the debt taken by him would be held to be valid.
Whenever a creditor gives any loan to the manager of any religious institution, the onus to
prove the necessity of the loan is on the creditor himself and he has also to prove to the
satisfaction of the Court that he had made necessary enquiry about such necessity and was
fully satisfied to it, and hence the loan given by him was fully justified.

Alienation of Debutter Property:

The general rule is that property given for religious worship is inalienable, but the Shebait or
Mahant in the charge of property can alienate such property for purposes of keeping up the
religious worship and for the benefit and preservation of the property. The power of the
Shebait or the Mahant to alienate the debutter’s property is analogous to that of a manager
for an infant heir. He has no power to alienate the debutter’s property except in case of need
or for the benefit of the estate.
The Supreme Court reaffirmed the same principle when it held that where the debutter-
property is to be alienated permanently by a Shebait, it could be permitted only in case of
necessity or benefit of the estate. The rule applies when the debutter-property is to be given
on a lease. The Allahabad High Court observed that the power of alienation of a Shebait can
be compared with the power of a manager of a minor coparcener. Generally, the property
dedicated to the religious and charitable purposes is alienable.
But legal necessity is an exception to it. It is for the transferee to establish that the necessity
was so acute except the alienation there was no alternative. The burden lies on the alienee to
prove either that there was legal necessity or benefit of estate, or that he made proper and
bona fide enquiries as to the existence of the necessity and did all that was reasonable to the
existence of such necessity, or benefit.

The worshippers have a right to file a suit to set aside a transfer of the immovable property
comprising in a Hindu Religious and Charitable Endowment made by a manager thereof,
provided it was found that the transfer by sale done by the Shebait was unjustified. In a public
temple the real beneficiaries are the worshippers in the temple not the idol.

The legal position is well established that the worshipper of a Hindu temple is entitled, in
certain circumstances, to bring a suit for declaration that the alienation of the temple-property
by the de jure Shebait was not in the interest of deity and therefore, invalid and not binding
upon the temple.

The Calcutta High Court in Jogendra Nath v. Official Receiver, held that under the Hindu Law
and alienation of debutter property can only be made on the ground of legal necessity and it
can be made by all the Shebaits acting jointly. The Shebaits cannot delegate their authority to
any other person or a particular person or some Shebaits.

But the position becomes different when the debutter estate is operating under a scheme
framed by the Court. In such a case, the provisions of Hindu Law regarding the rights of the
Shebaits acting jointly are modified to the extent as provided in the scheme.

The Supreme Court in Vishwanath v. Sri Thakur Radhaballablta Ji, held that an idol is in the
position of a minor and when the person representing it leaves it in a lurch, a person
interested in the worship of the idol can certainly be clothed with an ad hoc power of
representation to protect its interest.

Now it is well settled that the Mahant or Shebait can alienate the property for purposes of
legal necessity. The Courts have held the following alienations as valid on the ground of legal
necessity:

1. To defend the office of Mahant,

2. To feed the Brahmins and to repair the damaged part of the institution or the temple.

3. Purchase of the essential commodities to feed the devotees and to perform the worship.
4. To perform the funeral rites of the Mahant or Shebait.

5. Repairs of the temple and the tradition to keep the worship going on.

A Shebait or Mahant cannot transfer the right of management of the debutter property or of a
Matha property nor can he give it on lease. The right is not liable to sale even in case of
execution of a decree. Where, there are more than one Shebait or Mahant, they can for the
benefit of the estate of the Matha or temple surrender their rights in favour of one person.

6. Rights and Duties of Maintenance in Hindu Law of Bangladesh

Maintenance under Hindu Law: A Hindu man has a personal obligation to provide
maintenance to certain persons including his wife whether or not he has any property,
ancestral or otherwise. So this duty is not dependent on possession of any property. It
depends on the specific relationship. A Hindu man, under classical law, has the duty to
provide maintenance to his wife, aged parents and minor children.
Manu said, "Aged parents, chaste wives and children should be protected despite
doing a hundred misdeeds."
In the case of children, a minor son is to be maintained under the Dayabagha School and in
the case of a daughter she is to be maintained till her marriage.
Manitenance of Wife: Maintenance of wife becomes husband's responsibility after marriage
in Hindu Society. A wife is entitled to maintenance from her husband, whether he has
property or not. When a man marries, with his eyes open, a girl accustomed to a certain style
of life, he undertakes to maintain her in that style [Prem Pratap Singh Vs. Jagar Pratap
Kunwari, 1944 A LL 118].
The maintenance of the wife by the husband is a matter of personal obligation arising from
the existence of the relationship and is not dependent on the husband's possession of
ancestral or self-acquired property.
And the duty of the wife is to live under the same roof with the husband and under his control.
If she leaves through no fault of her husband, her right to maintenance is suspended. Since
Bangladesh and Pakistan do not have divorce under Hindu law, the question of maintenance
after divorce does not arise under Hindu law.
Although divorce is not allowed, a wife can claim separate residence along with maintenance
from her husband under the Hindu Married Women's Right to Separate Residence and
Maintenance Act 1946. A Hindu wife can apply to the Family Court under the above Act.
Section 2 of the said Act allows the court to grant decrees in favor of the wife in certain cases
including desertion, polygamy, conversion, suffering from leprosy and cruelty etc.
“A wife is entitled to separate residence and maintenance if she can prove that by
reason of his misconduct or refusal to maintain her at her own residence or for any
other reasonable cause, she is compelled to live apart from him as if he habitually
treats her with such cruelty. by doing which endangers his personal safety” Matangini
v. Yogendra 1892, 19, CAL 84.
The Supreme Court of Bangladesh in the case of Gopal Chandra v Mitali Rani Chandra 16
MLR (AD) 2010 23-26 held,
"Hindu marriage is sacred and indissoluble. If the husband abuses and neglects his
wife and her cohabitation with the husband is not secure, she is entitled to separate
residence and maintenance.”
Where to sue: If a Hindu wife wishes to sue for maintenance, she has to file a suit in the
family court. (as per Family Courts Act, 1985, section 5)
7. What is Karta?
A better question would be: ‘Who is Karta?’ According to Hindu Law, Karta is the leader of a
Hindu Undivided Family who enjoys more control and authority over the property than other
family members and makes decisions for everyone's benefit. Apart from representing the
family in business and legal matters, they also manage and distribute the property amongst
family members.

Usually, the senior-most male member of the family is the Karta, provided they are fit and not
suffering from any mental or physical deficiency. Being the head of the family, they are the
guardian or custodian of the property and act in the interest of all family members.
Powers and Authority of the Karta
The Karta has vast powers. Here is a brief:

 Power of Management: As the head of the family, the Karta can run and manage the
HUF. They have inherent powers that no one can question until they are immoral or
illegal.
 Authority over Family Revenue and Expenditure: Since all members are parts of a
joint family and the Karta is responsible for managing everything, members who earn
money from outside their family business must pay their income to the Karta. Since no
family member can ask for their share of income, Karta is solely responsible for managing
and controlling accounts.
 Power of Representation: The Karta represents the family in all social, religious, and
legal matters.
 Power to Enter into Compromise: Karta has the power to enter into any compromise
related to the joint family’s debts and other transactions.
 Power to Enter into Contract: Karta can enter into a contract on behalf of the family.
 Power to Enter into Contract-Debts: If the Karta takes a debt for a business purpose or
another family purpose like the benefit of estate or legal necessity, other family members
will be equally responsible for its repayment.
 Power to Refer Arbitration: Karta can refer to arbitration for the family’s interest,
including minors.
 Power of Alienation: The Karta can alienate the property with the consent of all co-
parceners or for legal reasons.

Role of Karta in Alienation of Joint Family Property

Karta is usually the eldest male member of the family with great importance in a HUF (Hindu
Undivided Family). Responsible for managing the family's affairs and properties, they have
supreme powers for their management, representation, finances, and property alienation.
You must be wondering, can Karta sell HUF property without consent? Usually, the Karta
cannot do that except for the following circumstances:

 In case of a legal necessity

 For the estate benefit
 As an act of indispensable duty

The Karta is responsible for maintaining all co-parceners out of the HUF. If they improperly
exclude a family member or do not properly maintain them, they can be legally sued and
asked for maintenance arrears. In the event of partition, the family members severe their
interest and status, and the Karta divides the property according to the specified shares,
known as metes and bounds. The Karta takes all joint family assets into account and
prepares an inventory. The Karta is not accountable for any past dealings unless there are
fraud, conversion or misappropriation charges.
Property Alienation by Karta
Property alienation refers to the disposal or transfer of a property's ownership. It is a crucial
legal aspect that regulates property transfer rights in India. While the alienation of joint family
property is vital in the context of the Hindu Succession Act, the Karta plays a crucial role in
the process.
The Karta is the family’s sole representative and decision-maker responsible for the family’s
financial and property management. Although they do not personally own the property, they
act as a manager to safeguard the entire family’s benefit. The Karta holds the property
alienation power under the following circumstances:

 With consent from all family members

 Without consent from the family members

If express consent is not present, the HUF Karta must transfer the property for the family’s
benefit. Furthermore, the Karta must ensure that the property alienation is reasonable and
bona fide. If the family members have a disagreement, the Karta may seek the court’s
permission for property alienation. Once the partition happens, the status of a joint family
comes to an end and reuniting the family becomes difficult and complicated. Under the
Mitakshara Law, family members have the right to separate from the joint family and sever
their status and interests. Once that happens, the Karta must render the accounts like an
agent or trustee.

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. No member of the family
can be deprived of the right to maintenance and if they are they can challenge it before the
court and claim their right and arrears of maintenance.

 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. In the case
of Chandra Kishore v. Nanak Chand, it was held that It is the duty of the Karta to bear all the
expenses of the marriage from the joint family funds, or if in a case the expenses are incurred
by some other sources he’ll have to reimburse them when asked.

 Render accounts
In Hindu law, a Karta is not under the obligation to maintain the family business account, but
he is under the obligation to render the accounts if any coparceners demand it at the time of
partition. He can be held liable for any misappropriation or fraud.

 Representation
The senior-most member of the family commonly known as Karta is the one who represents
the Joint Hindu Family. The family does not have a corporate existence, it acts through its
Karta. 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
The Karta of the Hindu Joint Family is liable to maintain all the members of the joint family. All
the members of the Joint Hindu Family have a right to maintenance and residence. If the
Karta is unable to maintain them he can be sued for the same and the member can claim
their arrears of maintenance.

 Liability to spend reasonably

The Karta also has the power to spend funds from the joint family account. But such power is
limited to some restrictions such as the Karta cannot use the funds for unlawful purposes and
also he should spend it wisely. If any of the coparceners is not satisfied with the spending
made by the Karta he/she can file a suit against the Karta and discover the truth.

 Liability not to alienate property

The Karta is allowed to alienate the Joint Hindu Family Property only in certain cases such as
legal necessity, the benefit of the estate, in case of indispensable duties. Other than this the
Karta is not allowed to alienate the Joint Family Property. If he wrongfully alienates the
property then the coparceners have a right to challenge the alienation.

 Liability not to start a new business

The Karta of the family is under the obligation not to start a new business without the prior
consent/permission of coparceners of the Joint Hindu Family. Once the coparceners
expressly or impliedly have given their consent, the Karta can start a new business.

 Liability to render accounts

Until the family remains joint, the Karta has no obligation to maintain the accounts. But as
soon as the partition takes place the Karta is under an obligation to render the accounts of
Joint Family Property.

Conclusion
The Karta is the leader or head of a Hindu Undivided Family. Usually, they are the eldest
male family members, and their duties include property management, income distribution,
debt and liabilities management, family representation in legal matters, decision-making on
the family's behalf, etc. Understanding the Karta meaning and knowing their powers and
limitations will prevent unnecessary conflict when checking loan against property eligibility.
Hero FinCorp offers the best mortgage loan interest rates to handle family matters without the
alienation of joint family property.
Suraj Bunsi Koer V. Sheo Prasad (1880 ILR 5 Cal 148): In this case it was observed by the
court that the unique position of Karta in a Hindu Joint Family can be considered equivalent
to a manager with the power of handling the property.

The responsibility of Karta is not only of a manager but can be considered to be by birth. It
can be further managed by resignation or relinquishment where the post is not considered
indefeasible.

Eligibility to become Karta

1. It is considered that the senior most male member is the Karta of the Joint Family. It
was observed in Shreeama v. Krishnavenama, 1957 A.P. 434 that Karta must be a
coparcener.
2. This position of responsibility is not any positional agreement or can be owed on the
consent of other coparceners.
3. As long as the individual lives irrespective of age, infirm or ailing he will continue to be
the Karta.
4. In the case of Man v. Gaini, 1918 40 All. 77 it was observed by the court that even a
leper can be Karta
5. The accountability cannot be held to him as well as his discretions can not be
scrutinized when the act is done with a bonafide intention and in the best intrest of the
family. This was even observed in the case of Vaikuntam Pillai v. Avudiappa Pillai,
AIR 1937.
6. The wrongful use of Hindu Joint Family property for the purpose other than for family
property can held the Karta accountable. He may even have to refund the amount of
the HJF. This was observed in the case of Abhay Chandra Roy v. Pyari Mohan
Guho, 5 B.L.R. 347.
7. In the case of Siddappa v. Linappa (42 Mys. HCR 669) it was held by the court that
��if there is nothing to show that the father is in a remote country or his whereabouts
are not known or his return within a reasonable time is out of question, the next senior
most male member can not claim to be a Karta
8. The Karta can not be removed but can further relinquish himself on his right and
responsibility. In situations the family member can choose the next Karta.
9. In the case of Nemi Chand v. Hira Chand (2000)1 HLR 250 (Raj) it was held that
another coparcener, not necessarily next in seniority may be appointed as a Karta.
10. In the case of Mudit v. Rangal (1902) ILR 29 Cal 797 it was held by the court that it is
necessary for all the members of the HJF to be present while choosing the next Karta.
11. In the case of Nopany investments pvt ltd v. Santokh Singh AIR 2008 SC 673 the
Court has provided grounds for the younger male member to be a Karta:

1. When the whereabouts of the father is unknown or when senior most member
is not available.
2. while relinquishing the rights of Karta the individual has be convey it expressly
or by necessary implications.
3. In the absence of Karta in exceptional case such as distress or calamity
affecting the whole family and for supporting the family.
4. If the Karta is away in a remote place, due to compelling circumstances and his
return within a reasonable time is unlikely.
9. Self owned and ancestral property
There are various types of properties under the Indian law. In this answer I will explain about
self-acquired property and ancestral property. I will describe the thin line between what is
self-acquired property and ancestral property as many people have misconception between
these two terms.
Self-acquired property meaning
Any Property which is purchased by your own personal income is known as self-acquired
property. As per self-acquired property definition, it is a property on which the individual has
his own rights.
As per the laws, some of the following will be considered as self-acquired property.
 Property acquired from any person other than his or her paternal ancestors.
 Property acquired by the Hindu as his share of the partition of joint family property
provided he has no son in existence.
 Property gifted by the father to her daughter at her marriage is known as separate
property or self-acquired property.
 Self-acquired property can become ancestral property if passed in the pool of ancestral
property ventures.
Ancestral property.
Any property which is passed from four generations is known as ancestral property.The
grandson and granddaughter have equal rights on this type of property by birth.

Rights of a daughter on her Father’s self-acquired property

 According to the Hindu law a daughter can claim for father’s ancestral property any time
in his life or after his death.
 But in case of Father’s self-acquired property, she cannot claim for that property. The
self-acquired property owner has his rights to do whatever that person wants.
These are some points that I have explained about what is self-acquired property, its
important elements, and the difference between ancestral property and self-acquired
property.

10. What is the Effect of Migration on the Schools of Hindu Law?

When a Hindu family migrates from one State to another, the law draws a presumption that
it carries with it its personal law, i.e., the laws and customs prevailing in the State from which
it came. The presumption can, however, be rebutted, by showing that such a family has
adopted the law and usages of the new province where it has settled down.
Thus, for instance, where a Hindu family migrates say, from Maharashtra (where the
Mitakshara law prevails), to Bengal (where the Dayabhaga law prevails), the presumption is
that the family continues to be governed by the Mitakshara Law. This presumption may be
rebutted by showing that the family has abandoned the law of the province of its origin (i.e.
Maharashtra), and adopted the law of the province where it has settled (i.e. Bengal).

So also, if a Hindu governed by the Mitakshara migrates from Bombay to Calcutta, he is still
presumed to be governed by the Mitakshara, unless he displaces such a presumption in the
manner stated above. It is for this reason that it has rightly been said that Hindu Law is not a
lex loci, i.e., a local law, but it is, in every sense, a personal law.

ADVERTISEMENTS:

In Abdurahim v. Halimabai, (43 IA 34), the Court observed: “Where a Hindu family migrates
from one part of India to another, prima facie, they carry with them their personal law, and if
they are alleged to have become subject to a new local custom, this new custom must be
affirmatively proved to have been adopted.”

It is also to be noted that it is the law as it existed at the time of the migration that continues
to govern the migrated members. Thus, such persons are affected by decisions of the Courts
of their State of origin which declare the law as it existed at the time of the migration, but not
by customs incorporated in its law after the date of migration.

When such migration takes place to a country outside India, the Court may presume that
such a family has adopted the law of that country, if it is shown that the family has so acted
as to raise an inference that they have cut off all the ties of their earlier environment.

11. See the notes

12. Doctrine Of Factum Valet In Hindu Law: Issue With Protection Of Human Rights Of
Female
One of the most common and prevalent form of human rights violation in Indian comes in the
form of child marriage. This is detrimental to both male and female children but has more
grave consequences to the female child. Child marriages lead to premature sexual relations
and early pregnancies which can be disastrous towards the overall development of the child
in terms of mental, physical health and educational, employment opportunities etc.

The theory of factum valet, which allows legality to child marriages in many contexts, controls
court judgments in cases of child marriages. The courts end up stressing more on the
scriptures of Hindu religion and directory nature of such scriptures of the religion. This paper
 discusses the parallels between child marriage and courts interpretation of doctrine of factum
valet with the help of cases laws and legislative and judicial responses towards the practice.

Introduction
The doctrine of factum valet comes from a Roman Maxim 'factum valet quod fieri non debuit'
and found its way into the Hindu law through the authors of Dayabhanga and recognized by
the followers of Mitakshara school. Factum valet means that an act that should not have been
done becomes valid when it's done.

The idea that it is based on is that even a hundred texts or laws could not change the fact. In
India before the Hindu Marriage Act, 1955 had come into place there was no specific law or
regulation that provided guidelines with regards to the validity, capacity, ceremonial
requirements etc. Of Hindu marriages.

The British governed the personal law in accordance with the Dharmasastra and used the
doctrine of factum valet to overcome any contravention that occurred with the breach of any
guidelines of the scriptures. It was however used only when a breach had occurred with
respect to the texts that were directory in nature and this doctrine could not be held valid or
would not be effectual when breach had occurred with respect to mandatory texts.
13. Devolution of interest in coparcenary property - Section 6 of the HSA dealing with devolution
of interest to coparcenary property states-

"When a male Hindu dies after the commencement of this Act, having at the time of his death an
interest in a Mitakshara coparcenary property, his interest in the property shall devolve by
survivorship upon the surviving members of the coparcenary and not in accordance with this Act:

Provided that, if the deceased had left him surviving a female relative specified in Class I of the
Schedule or a male relative specified in that class who claims through such female relative, the
interest of the deceased in the Mitakshara Coparcenary property shall devolve by testamentary or
intestate succession, as the case may be, under this Act and not by survivorship.

Explanation 1.- For the purposes of this section, the interest of a Hindu Mitakshara coparcener shall
be deemed to be the share in the property that would have been allotted to him if a partition of the
property had taken place immediately before his death, irrespective of whether he was entitled to
claim partition or not.

Explanation 2, Nothing contained in the proviso to his section shall be construed as enabling a
person who has separated himself from the coparcenary before the death of the deceased or any of
his heirs to claim on intestacy a share in the interest referred to therein.

14. Natural Guardian & Powers

The Law: Section 6 of India's Hindu Minority and Guardianship Act, 1956 provides that the natural
guardian of a Hindu minor boy or unmarried girl is the father, and only after him, the mother. It also
provides that the guardian of a married minor girl is her husband. Section 6

Section 8. Powers of natural guardian.

(1) The natural guardian of a Hindu minor has power, subject to the provisions of this section, to do
all acts which are necessary or reasonable and proper for the benefit of the minor or for the
realization, protection or benefit of the minor's estate; but the guardian can in no case bind the
minor by a personal covenant.

(2) The natural guardian shall not, without the previous permission of the court,

(a) mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the immovable
property of the minor; or

(b) lease any part of such property for a term exceeding five years or for a term extending more
than one year beyond the date on which the minor will attain majority.

(3) Any disposal of immovable property by a natural guardian, in contravention of sub-section (1) or
sub-section (2), is voidable at the instance of the minor or any person claiming under him.

(4) No court shall grant permission to the natural guardian to do any of the acts mentioned in sub
section (2) except in case of necessity or for an evident advantage to the minor.

(5) The Guardians and Wards Act, 1890 (8 of 1890), shall apply to and in respect of an application
for obtaining the permission of the court under sub-section (2) in all respects as if it were an
application for obtaining the permission of the court under section 29 of that Act, and in particular--

(a) proceedings in connection with the application shall be deemed to be proceedings under that
Act within the meaning of section 4A thereof;

(b) the court shall observe the procedure and have the powers specified in sub-sections (2), (3) and
(4) of section 31 of that Act; and

(c) an appeal shall lie from an order of the court refusing permission to the natural guardian to do
any of the Acts mentioned in sub-section (2) of this section to the court to which appeals ordinarily
lie from the decisions of that court.

(6) In this section, "Court" means the city civil court or a district court or a court empowered under
section 4A of the Guardians and Wards Act, 1890 (8 of 1890), within the local limits of whose
jurisdiction the immovable property in respect of which the application is made is situate, and where
the immovable property is situated within the jurisdiction of more than one such court, means the
court within the local limits of whose jurisdiction any portion of the property is situate.
15. Inter-caste Marriage: Jurisprudential Analysis

Abstract
Under the ancient Hindu texts, exogamous and endogamous restrictions apply during the
marriage. However, under the present law, prohibition on intercaste marriages are not
recognized. But large sections of Hindu Society continue to prohibit inter-caste marriages.
This gap between the posited law and the social practices raises pertinent questions: whether
social practices can be considered ‘Law’? What characteristics of social practices make them
Law?

Ehrlich sees formal law as an adjunct of the living law. The norms emanating from the State,
and customs, morality, etc. are not distinct as both are obeyed due to social pressure. By
applying this idea of law, the prohibition of intercaste marriages should be seen as part of the
living law.

However, Ehrlich conception of law can be criticized for overemphasizing the importance of
living law, and simultaneously denuding formal law of its role in social progress. Also, there
remain no objective criteria to ascertain the scope of the law. Ehrlich does not draw a line
between law (as traditionally understood) and other norms that influence social life. Kelsen’s
pure theory is capable of filling up these theoretical gaps. It better explains the difference
between norms emanating from the State and other norms that do not carry legal
significance.
N.B: Also see the forms of Hindu Marriage from Q-2 (2021)
16. Sapinda Relationship (see the Notes)