HINDU LAW

Notes for Competitive Exams

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 INTRODUCTION TO FAMILY LAW

Types of law

1. Public law- deals with issues that affect the general public or state - society
as a whole
2. Private law- affects the rights and obligations of individuals, families,
businesses and small groups and exists to assist citizens in disputes that
involve private matter
➢ Personal Law- Personal law is defined as a law that applies to a certain class
or group of people or a particular person, based on the religions, faith, and
culture. In India, everyone belongs to a different caste, religion and have their
own faith and belief. Their belief is decided by the sets of laws. And these laws
are made by considering different customs followed by that religion.

Family law

• A family law is a set of laws which are trained in relation to matters such as
marriage, divorce, inheritance, succession, adoption, minority and
guardianship. The laws relating to such matters in India or governed through
different set of personal laws namely Hindu law [regulating all Hindus
including Jains, Buddhist and Sikhs], Muslim law, Christian law, Parsi law
and special law comprising of special Marriage Act.

• Family according to vedas is the smallest unit of the society.

Sources and Schools of Hindu Law

• Hinduism is one of the oldest religions of the world; the Indian civilization is
one of the oldest civilizations.

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• Hindu law is said to be of divine origin. One theory suggests that it is derived
from Vedas while western jurists believe that Hindu law is based on ancient
custom and usages.
• According to our Dharmshastras Hindu law is sacrosanct, inviolable and
immutable.
• According to Mayne Hindu law is the law of Smritis as expounded in the
commentaries and dig which are modified and supplemented by customs.
• “Hindu law has the oldest pedigree of any known system of jurisprudence, and
even now it shows no sign of decrepitude.”- Henry Mayne.
• Hinduism in the ancient period did not differentiate between religion, law and
morality. They were all the same back then which was called ‘Dharma’ at that
time
✓ Shruti (basically the Vedas)
✓ Smriti (which means the memorized word)
✓ Sadachara-which means the standards of morality and justice.

• Modern Hindu Law

The codified law and uncodified law are two types of Modern Hindu Law.
Codified law administers every Hindu. The concepts of schools of Hindu Law
does not exist in codified law, however, it exists in uncodified Hindu Law. Vedas
and Smritis were the form of sources in which, many scholars all around India,
wrote the commentaries which formed the basis for schools of Hindu Law.

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 Sources of Hindu law

Sources of Hindu Law

Commentaries Justice,
Judicial equity and
Shrutis Smritis And decision Legislation Custom
good
Digest s conscience

• There is the two-fold classification of the sources of the Hindu law

1. Ancient sources 2. Modern sources

➢ Shrutis ➢ Judicial Decisions

➢ Smritis ➢ Legislative Enactments
➢ Commentaries and Digests ➢ Rules of Equity, Justice and
➢ Customs Good Conscience

1. Shrutis (Shruti means ‘to hear’)

• The term 'shruti' is derived from the word 'shru' which means 'to hear'. It
is considered to be primary and paramount source of Hindu Law. It is believed
that words of deity were revealed to sages. Shruti’s are the sacred pure utterance
that has been enshrined in the Vedas and the Upanishads. No written material
was available at that time so the primary way to communicate the knowledge
was orally by sages to their families and disciples which supplemented it and
carried it forward.
• Shrutis are made up of 4 Vedas.
1. Rigveda
2. Yajurveda

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 3. Samaveda
4. Atharveda
• Originally there were only the first three vedas and Atharveda was added later.
Rigveda is considered a tree of which the offshoots are Yajurveda and
Samaveda.
• Vedas described Hindu Society made up of patriarchal families. Each family
was considered a unit of which the head was the oldest living ascendant called
‘Grihapati’

2. Smritis (which is remembered)

• Smriti refers to ‘ what is remembered’ The second source of Hindu Law

which is a body of texts which can be attributed to an author, unlike Shrutis
which are authorless because they were transmitted and supplemented solely
through generations. There is a further classification of the term Smrities
which are as follows

1) Dharma Sutra (Prose)

2) Dharmashastras (Poetry).
• There are many smritis but the well known Smritis are
✓ Manu Smriti- oldest Smriti written by ‘Manu’ but was supplemented
further by generations because writing was not invented and it was
transmitted orally. Manu Smriti gave Brahmins an eminent position is
society and there were not any right for women or shudras.
✓ Yajnavalikya Smriti- written between the period of Buddha and
Vikramaditya. It was more systematically arranged and was more concise
than Manu Smriti and it also was more liberal than manu smriti, it
recognized some rights for women in regard to inherit and hold property
and also gave a better status to Shudras than manusmriti.
✓ Naradas Smriti- This smriti was much progressive than Yajnavalkya and
manu because this Smriti recognized widow’s remarriage, a woman holding
property etc also postulated that king made law is higher than what is
provided in Smriti’s. This Smriti also laid down rules regarding pleadings,
evidence of witnesses which was not mentioned at all in the previous smritis.

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3. Commentaries and Digests
• After Shrutis came the era of commentators and digests. Commentaries (Tika
or Bhashya) and Digests (Nibandhs) covered a period of more than thousand
years from 7th century to 1800 A.D. In the first part of the period most of the
commentaries were written on the Smritis as it contains law.
• But the problem is the Smritis have conflicting tests, for example, Manu smriti
doesn’t give rights to woman and Shudras at all but Yajnavalkya smriti and
Narada Smriti do provide rights of varying degrees to both these communities.
So in the later period the works were in the nature of digests containing a
synthesis of the various Smritis and explaining and reconciling the various
contradictions.
• The evolution of the different schools of Hindu law has been possible on
account of the different commentaries that were written by various authorities
• Dayabhaga and Mitakshara are considered to be the two most important
commentaries and digests.

4. Custom
• Customs is the tradition that has been practiced in society since ancient times. It is the
type of practice which is under the continuous observation of the people has been
followed by the people.
• From the earliest period custom (‘achara’) is regarded as the highest ‘dharma’. As
defined by the Judicial Committee custom signifies a rule which in a particular family
or in a particular class or district has from long usage obtained the force of law.
Custom is a principle source and its position is next to the Shrutis and Smritis but usage
of custom prevails over the Smritis. It is superior to written law. There are certain
characteristics which need to be fulfilled for declaring custom to be a valid one.
• Custom to be law must be ancient, reasonable, certain, uniform, obligatory and
observed continuously without interruption and should not be immoral or opposed to
public policy or written rule of law or a statute unless and until it is expressly saved by
the statute and should be construed strictly.

• Essentials of a custom

✓ A customs must be continuous in practice

✓ A custom should not be vague or ambiguous

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✓ A custom must have time antiquity
✓ There must be a complete observation of the custom
✓ It should be certain and clear
✓ A custom must not oppose the public policy which will affect the interest of the
general public.

• Deivanai Achi v. Chidambaram (1954) Mad. 667-In the instant case it

was held that in order to become legally sanctioned by law and binding on the
people a custom must be continuous in practice, it should not be vague and
ambiguous and should not oppose the well established public policy. A
customary rule must be in the complete observation of society.

• Laxmi v. Bhagwant Buva AIR 2013 SC 1204- In the instant case, the
Supreme Court stated that a custom becomes legally enforceable when the
majority of people make the continuous use of such practice.

• Onus -Generally when a custom attains the judicial recognition no further

proof is required, however in certain cases where the customary practices do
not attain the judicial recognition, the burden of proving lies on the person who
alleges its existence.

• Munna lal v. Raj Kumar AIR 1972 SC 1493- In the instant case the
Supreme Court stated that a custom brought before a court several times, the
court might hold that such custom has been enforced by the law with the
necessity of its proof.

5. Judicial Decisions
• Judicial decisions are considered to be the most important ingredient of
modern sources. Judicial decision is considered to be authoritative and binding.
• Under British regime the courts solved disputes by applying the Smriti law from
the commentaries and digests and also adding their own interpretation and
understanding of the law. The doctrine of precedent was established and it was

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 applied in the cases resembling the same facts and circumstances of a case
already decided. So judicial precedents also got the same standing as law with
time along with the religious texts like shrutis and smritis.

6. Legislations
• Legislation is an important source of Hindu law. They have largely reformed,
altered and supplemented the old Hindu law. They have also tried to bring
uniformity throughout the country in application and practice of Hindu law.
• But the earlier legislations were made carefully so that they do not go against
the established rules of Hindu Law. Most legislation in the starting period were
reformative or were made to fill in on things which were not covered under the
prevailing law.
✓ The Caste Disabilities Removal Act, 1850- To protect rights over property
of a person who has converted his religion or has been expelled from the caste
or community
✓ The Hindu Widows Remarriage Act, 1856- To give Hindu Widows a right
to remarry.
✓ The Hindu Wills Act, 1870- Hindus did not have any law which allowed
them to make a will, this filled the gap.
✓ The Special Marriage Act, 1872- To allow inter-religious, inter-caste or
intra caste marriages.
• Modern Legislations
• In 1944 a Hindu law Committee was made under the Chairmanship of Sir
Benegal Narsing Rau.
• The purpose of the committee was to make a uniform code for Hindus and bring
all Hindus under this code. A draft code was made in 1948. But Hindus said did
not agree, they said this new code would be an attack to their ‘sacred law’
Jawaharla Nehru decided to drop this idea; Ambedkar didn’t like dropping this
idea so he resigned in 1951 as protest. The Code was anyway later implemented
in 4 parts.
✓ Hindu Marriage act, 1955
✓ Hindu Succession Act, 1956
✓ Hindu Minority and Guardianship Act, 1956
✓ Hindu Adoptions and Maintenance Act, 1956

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• These acts modernized the law applicable to Hindus by retaining the
fundamental framework and by reforming the framework to a certain degree
where needed.

7. Rules of Equity, Justice and Good Conscience.

• Equity, justice and good conscience is regarded as an important source of law.
In case of conflict between two sources or in case of conflict between rules of
Smritis and Commentaries the conflict is resolved by application of principles
of equity, justice and good conscience.
• No law can be exhaustive and Equity, Justice and Good conscience are required
for and law to be reasonable interpreted or created.
• The concept of ‘Dharma’ includes ‘Nyaya’ (Justice) and ‘Yukti’ (Equity)

• In Gurunath v Kamlabai 1951 the Supreme Court held that in the absence
of any existing law the rule of justice equity and good conscience was applied.
• Kanchava v. girimalappa (1924) 51 IA 368
• In the instant case, the Privy Council barred the murderer from inheriting the
property of the victim.

SCHOOLS OF HINDU LAW

• Schools of Hindu Law came into being when different commentaries appeared
to interpret “Smritis” with reference to different local customs in vogue in
different part of India
• In Rutchepatty v/s. Rajendra(1839) , it has been observed by the Privy
Council that the different local customs prevailed in different provinces of
India. The commentators of the smritis could not ignore the local customs and
usages and while interpreting the texts, they eventually incorporated different
local customs. The local conditions and customs of the different provinces have,
therefore, gone to mould the principles of law prevailing in each province.
• In Collector of Madhura v/s. Mooto Ramalinga, the Privy Council has
held that “The ancient sources of Hindu Law i.e., Smritis are common to all
different schools. The process by which those schools have been developed

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 seems to have been of this kind. It works universally or very generally received
becomes the subject of subsequent commentaries. The commentators puts his
own gloss on ancient texts; and his authority having been received in one and
rejected in another part of India, thus the school with conflicting doctrines
arose.”

• The two major schools of Hindu law are as follows-

1) Mitakshara

2) Daya Bhaga

Mitakshara-

✓ The literal meaning of Mitakshara is ‘A brief Compendium’. Mitakshara is

commentary by Vijananeshwara on ‘Yajnavalkya Smriti’ which was
written in later half of 11th century
✓ This school is applicable in the whole part of India except in West Bengal and
Assam
✓ We could majorly divide these into five categories, which are now known as
the five schools of Hindusim.
1. Mithila School
2. Benaras School
3. Dravida School
4. Maharshtra School
5. Punjab School

Dayabhaga-

✓ Written by Jimutavahana in the latter half of 12th century

✓ It is not commentary on a specific Smriti or Shruti but it is a digest of all the
codes.

✓ 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

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 1090-1130 A.D. Dayabhaga school was formulated with a view to eradicating all
the other absurd and artificial principles of inheritance.

Major Differences between Mitakshara and Dayabhaga

1) In regards to Joint Property:

✓ Mitakshara- Right to property arises by birth (of the claimant); hence the son
is a co- owner with the father in ancestral property. After the commencement
of the Hindu Succession (Amendment) Act, 2005, the daughter of a coparcener
is also a coparcener
The interest of a member of the joint family would, on his death, passed to the
other members by survivorship. Section 6(3) of the Hindu Succession Act, as
substituted by the Hindu Succession (Amendment) Act, 2005 abolishes the
principles of survivorship.
✓ Dayabhaga: Right to property by death (of the last owner); hence son has no
right to ancestral property during father’s lifetime. On death of the holder of the
property, the property will fall on his legal heirs according to the rule of
inheritance or succession. The interest of every person would, on his death, pass
by inheritance to his heirs, like widow or daughters.

2) In regards to Alienation:
✓ Mitakshara- Members of the joint family cannot dispose of their shares while
undivided
✓ Dayabhaga: Any members of joint family may sell or give away his share even
when undivided.
3) In regards to Inheritance:
✓ Mitakshara The Principle of Inheritance is Consanguinity (blood
relationship).
But in Mitakshara School of Law cognates are postponed to agnates.
✓ Dayabhaga: The Principle of Inheritance is spiritual efficacy(i.e., spiritual
efficacy)
Some nearer cognates like sister’s son are preferred to many agnates.

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 Mitakshara Dayabhaga

Basis of inheritance is principle of It rejects the preference of agnates over

propinquity/consanguinity i.e. Nearness cognates and the basis of succession is
in blood relationship. The person nearer based on the principle of religious
In blood relationship shall succeed to efficacy or spiritual benefits. Whoever
property. But Females were excluded and confers more spiritual benefits on the
agnates were preferred Over cognates Deceased is preferred

Son, Grandson and great grandson have No such right to son, grandson or great
right over Property from birth grandson until father is alive, he is the
Master of property and can dispose it at
his pleasure

So has right to partition during lifetime No right to partition during lifetime of

of father father

Doctrine of Survivorship: Surviving If coparcener dies issueless (without

coparceners take the share in case of child) his widow has a right to succeed
death of a coparcener to enforce a partition on her account.

THE HINDU MARRIAGE ACT,1955

• The Hindu Marriage Act, 1955 (HMA) received the assent of the President on
18 May, 1955 and became law on that day.

Overriding effect of the Act

• The Act has an overriding effect and it abrogates all the rules of marriage
previously applicable.

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• Section 4 provides that any text, rule or interpretation, custom or usage of
Hindu Law in force immediately before the commencement of this Act shall
cease to have effect with respect to any matter for which provision is made in
this Act.
• Any other law in force immediately before the commencement of this Act shall
cease to have effect in so far as it is inconsistent with any of the provisions
contained in this Act.

Extra-territorial application of the Act

• The Act will apply to Hindu domiciled in India even if they reside outside India.
• Section 1(2) provides for the extra-territorial application of the Act. It lays
down that the Act extends to the whole of India. It also applies to Hindus
domiciled in the territories to which the Act extends who are outside the said
territories.
• It is based on the principle of law that personal relations are governed by the
law of domicile.

Jammu and Kashmir Reorganization Act, 2019

• It was passed by both houses of Parliament and received the assent of the
President on 9th August, 2019. The Central Government by a gazette
notification appointed 31st October 2019 as the date on which this Act came
into force.
• The Act bifurcated the State of Jammu and Kashmir into Union Territory of
Ladakh and Union Territory of Jammu and Kashmir.
• Section 95(1) of the Act provides that All Central laws in Table -1 of the Fifth
Schedule to the Act, on and from the appointed day, shall apply in the manner
as provided therein, to the Union territory of Jammu and Kashmir and Union
territory of Ladakh

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• Fifth Schedule, Table 1, S.No. 35 pertain to The Hindu Marriage Act. It
provides that the words "except the State of Jammu and Kashmir" shall be
omitted.

WHO IS A HINDU

• Under Section 2 (1) of Hindu Marriage Act, 1955 any person would be
considered a ‘Hindu’ for the purpose of law if he is:
✓ A person who is Hindu by Religion in any of its forms or developments, which
includes a Virashaiva, a Lingayat or a follower of the Brahma, Parthana or Arya
Samaj.
✓ A person professing the Hindu, Buddhist, Jain or Sikh religion.
✓ A person who is not a Christian, Muslim, Parsi or Jew by religion will be
governed by Hindu law unless it is proved that such person will not be governed
by Hindu Law. It also applies to any person living outside the territory
✓ Any Child legitimate or illegitimate both of whose parents are Hindus,
Buddhists, Jains or Sikhs is Hindu.
✓ Any person who is a covert to the Hindu, Buddhist, Jain or Sikh Religion.

• Chandrashekhar v. Kulandaivela, AIR 1963 SC 185, held that any

person who is a Hindu, Buddhist, Jain or Sikh by religion is a Hindu if:
a) He practices, professes or follows any of these religions; and
b) He remains a Hindu even if he does not practice, profess or follow the
tenants of any of these religions.

• Perumal v. Ponnuswami (1971)

Perumal (Hindu man) married Annapazham (Christian lady), they were

married as per Hindu ceremonies and rights and they also entered into an
agreement that they shall be, henceforth, governed by Mitakshara Law. Later
they got separated and Annapazaham started living separately with their son
(Ponnu Swami)

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 Ponnuswami later filed a suit for half of the property of his father perumal,
Perumal contended that the marriage with Annapazaham was illegal as she was
Christian and Ponnuswami which was brought up by her can’t claim Joint
Family Rights.

Supreme Court said that Annapazaham and ponnuswami both are hindus
because Annapazaham was still living as a Hindu after separation and
Ponnuswami was also raised as a Hindu. Supreme Court held that Intention to
become Hindu and further conduct shall be proof of conversion to Hinduism,
no formal ceremonies are necessary for conversion.

✓ In case there is a difference of religion as between the spouses in the Indian

patriarchal set-up, usually the father’s religion is appended to the child.
✓ That however is not the requirement of law and it is merely a customary practice
that is not obligatory.
✓ If only one of the parents of a child is a Hindu then the point for determination
of his religion is not the time of birth but the upbringing of the child.
✓ If he is being brought up as a member of only his Hindu mother’s tribe or
community, then notwithstanding that his father was a non-Hindu, he will
carry his mother’s religion and Hindu law can be applied to him.

MARRIAGE UNDER HINDU LAW

• Marriage in Hinduism is one of the 16 sacraments (Sanskaar). Hindu marriage

harmonizes two individuals for ultimate eternity so that they can pursue
dharma, arth, and karma. It is a union of two individuals as spouses and is
recognized by livable continuity
• 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.”
• The concept of marriage is to establish a relationship between husband and wife.
Based on Hindu law, the marriage is a sacred tie and last of ten sacraments that
can never be broken. In India no concept of Divorce was recognized before 19th
Century.

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 • Primary Legislation for Hindu marriage- Hindu marriage Act,1955

Types of Hindu Marriage

4 approved

1. Brahma- When boy has completed his student hood (brahmcharya)he is

married with the girl on basis of his knowledge of vedas. The bride is given as a
gift to the groom by the father generally known as the arranged marriage that
is mostly followed in India.
2. Daiva- Daughter given in lieu of Dakshina if she gets over the age of marriage
and doesn’t get husband. The Daiva form of marriage was slightly different from
the Brahma form of marriage in the sense that the suitor was an official priest.
3. Arsha- the Groom (sage) presents a bull or a cow to girls father because the
Groom doesn’t have special qualities. (this is not considered a noble marriage
because noble marriages don’t have monetary transactions involved)
4. Prajapatya-The Prajapatya form of marriage is an orthodox form where the
parental approval figures and the economic complications of betrothal are
bypassed. The prajapatya form of marriage is construed to be inferior to the
first three forms because here the gift is not free but it loses its dignity due to
conditions which should not have been imposed according to the religious
concept of a gift the Father of Bride goes looking for a groom and not the other
way round.

4 unapproved

5. Gandharva- The Gandharva form of marriage is the union of a man and a

woman by mutual consent. According to Manu “The voluntary connection of a
maiden and a man is to be known as a Gandharva union which arises from lust”.
6. Asura- In the Asura form of marriage, the bride was given to the husband in
payment of a consideration called ‘sulka” or bride-price. When the bridegroom,
having given its much wealth as he can afford to the father or paternal kinsmen
and to the damsel herself, takes her voluntarily as his bride ‘ it Is called the
Asura Marriage. In short Groom is not at all compatible with bride but the
father of the bride likes wealth and the groom is happy to give him that.

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 7. Rakshsa- Groom will battle the bride’s family, take away the bride and
convince her to marry. In simple terms the ‘Rakshasa’ form of marriage may be
described as marriage by capture, resembling the right of a victor to the person
of the captive in war.
8. Paischacha- Worst kind of marriage, the groom will forcefully marry the bride
and won’t even give money or anything for it. It is the worst form of marriage
among the Hindus. When the lover secretly embraces the damsel, either
sleeping of flushed with strong liqueur, or disordered in her intellect, that sinful
marriage, called paishacha is the eighth and the lowest form. This form of
marriage was the most abominable and reprehensible, originating from a sort
of rape committed by man upon a damsel either when asleep or when made
drunk by administering intoxic

Sec.5- Conditions for a Hindu marriage.

• A marriage may be solemnized between any two Hindus, if the following

conditions are fulfilled:
i. Neither party has a living spouse at the moment of marriage
✓ It is not permissible to have two living wives at the same point in time,
which amounts to bigamy.
✓ Yamunabai vs Anant Rao 1988 Supreme Court held that in a bigamous
marriage the second wife has no status of a wife because the second
marriage is Null and void
✓ Apostasy to Islam: Supreme Court in Sarla Mudgal versus Union
of India held that there was no automatic dissolution of marriage by
apostasy of a spouse to another religion. The second marriage of Hindu
apostate to Islam during substance of first marriage is violation of the
provision of Hindu Marriage Act
✓ Decision in Sarla Mudgal case was a reviewed in Lily Thomas versus
Union of India 2006 the court held that marriage solemnized according
to one personal laws cannot be dissolved according to another personal
because of the change of religion of parties

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• Effect of contravention of Section 5(i)
a) The marriage will be null and void under section 11
b) The person will be liable for punishment for bigamy under section 17
of Hindu Marriage Act read with section 494 and 495 of Indian
penal code

ii. At the time of marriage, neither party-

a. Is giving consent because of unsoundness of mind
b. Suffering from mental disorder of such a kind or to an extent where
he/she is unfit for marriage and the procreation of children
c. Is subject to recurrent attacks of insanity

• Effect of contravention of Section 5(ii)

✓ If the marriage take place in contravention of 5(ii) of the marriage will
be voidable under section 12(1)(b)

iii. Bridegroom is 21 years, bride is 18 years

• Originally the age fixed by Hindu Marriage Act was 18 years for bride groom
and 15 years for the bride. The Child Marriage Restrain ( Amendment) Act
1978 fixed the minimum age of the bridegroom to 21 years and minimum
age of the bride to 18 years
• Effect of contravention of Section 5(iii)
✓ The Hindu Marriage Act does not provide for any effect of contravention of this
provision. Thus according to this the marriage in contravention of this section
is neither void nor voidable.
✓ The only consequence which Hindu Marriage Act provides is the punishment
under Section 18. It provides for rigorous imprisonment which may extend
to two years or with fine which may extend to 100000 rupees or with both
✓ Further if the requirements of the section 13(2) (iv) are satisfied then at
the instance of brides, a decree of divorce on the ground of option of puberty
can be granted.

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 ✓ The Prohibition Of Child Marriage Act, 2000 provide every marriage
shall voidable at the option of contracting party who was a child at the time
of marriage

iv. Parties are not within degrees of prohibited relationship unless the
custom or usage governing each of them permits for such a marriage
• Section 3 (g) Degrees of prohibited relationship
• Two persons are said to be within the degrees of prohibited relationship-
i. If one is a lineal ascendant of the other; or
ii. If one was the wife or husband of a lineal ascendant or descendant of the
other; or
iii. If one was the wife of the brother or of the fathers or mothers brother or of
the grand fathers or grandmothers brother of the other; or
iv. If the two are brother and sister, uncle and niece aunt and nephew, or
children of brother and sister or of two brothers or of two sisters;
• Rules for Prohibited relationship
✓ Full/half/uterine relationship
✓ Legitimate/illegitimate relationship
✓ Blood/adoption relationship

• Effect of contravention of Section 5(iv)

✓ A marriage in contravention of the section is void under section 11
✓ Section 18 also prescribed simple imprisonment which may extend to one
month or with fine which may extend to 1000 rupees or with both

v. Parties are not sapindas of each other, unless custom or usage permits.

• Section 3 (f) Sapinda

i. “Sapinda relationship” with reference to any person extends as far as the third
generation (inclusive) in the line of assent through the mother, and the fifth
(inclusive) in the line of assent through the father, the line being traced
upward in each case from the person concerned. Who is to be counted as the
first generation.

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 ii. Two person are said to be “spindas” 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;
• Rules for sapinda-
✓ Always goes upwards
✓ Mother-3rd generation
✓ Father-5th generation
✓ Full/half/uterine relationship
✓ Legitimate/illegitimate relationship
✓ Blood/adoption relationship

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 • Effect of contravention of Section 5(v)
✓ The marriage in contravention of the section is void under section 11
✓ Section 18 also prescribed simple imprisonment which may extend to 1 month or
with fine or which may extend to 1000 rupees or with both.

Sec.7- Ceremonies for Hindu marriage.

• The act does not prescribe any particular form of ceremony to be performed by
the parties.
i. A Hindu marriage may be solemnized in accordance with the customary rites
and ceremonies of either party thereto.
ii. Where such rites and ceremonies include the Saptapadi (that is the taking of
seven steps by the bridegroom and the bride jointly before the fire), the
marriage becomes complete and binding when the seventh step is taken.
• Saptapadi as well as Kanyandan is not a mandatory ceremony to make a Hindu
Marriage valid.
• This section gives statutory recognition to the marriage under Hindu law as a
sacrament
• In Bhaurao versus state of Maharashtra 1965 the supreme court held that
unless a marriage is celebrated on performed with proper ceremonies in due form
it cannot be said to have been solemnized

Sec. 8- Registration of Hindu marriages.

1. For the purpose of facilitating the proof of Hindu Marriages, the State
Government may make rules providing that the parties to any such marriage
may have the particulars relating to their marriage entered in such manner
and subject such to conditions as may be prescribed in a Hindu Marriage
Register kept for the purpose.
2. Notwithstanding anything contained in sub-section (1) the state
Government may, if it is of opinion that it is necessary or expedient so to do,
provide that the entering of the particulars referred to in sub-section (1)
shall be compulsory in the State or in any part thereof, in all cases or in such
cases as may be specified, and whether any such direction has been issued,

20
 any person contravening any rule made in this behalf shall be punishable
with fine which may extend to twenty-five rupees.
3. All rules made under this section shall be laid before the State legislature, as
soon as may be, after they are made.
4. The Hindu Marriage Registrar shall at all reasonable times be open for
inspection, and shall be admissible as evidence of the statements therein
contained and certified extracts there from shall, on application, be given by
the Registrar on payment to him of the prescribed fee.
5. Notwithstanding anything contained in this section the validity of any
Hindu Marriage shall in no way be affected by the omission to make the
entry.
• A registration of a Hindu Marriage is not compulsory.
• In Seema vs. Ashwani Kumar 2006 Supreme Court ordered compulsory
registration of marriage irrespective of their religion. it director at the Central
and the state governments to make relevant rules to the effect
• Gullipilli Sowria Raj v. Bhandaru Pavani (2009)
Christian man and Hindu women Marriage is not valid even after registration.
Under HMA only two Hindus can get married. Registration under HMA does
not make a marriage between a Hindu and non-Hindu valid. Special Marriage
act is for that purpose.
• V.D. Grahalakshmi vs T. Prashanth on 21 November, 2011 – non
registration does not make a marriage void.

21
 Void and Voidable Marriage

• A Void marriage is no marriage at all, court considers a void marriage as if the

marriage never existed in the first place. Void ab initio i.e. void from inception.
• A Voidable marriage is binding and valid until the decree from court is passed for
annulling it

Sec. 11 Void marriages.—Any marriage solemnised after the commencement of

this Act shall be null and void and may, on a petition presented by either party thereto
2[against the other party], be so declared by a decree of nullity if it contravenes any
one of the conditions specified in clauses (i), (iv) and (v) of section 5.

12. Voidable marriages.—

(1) Any marriage solemnised, whether before or after the commencement of this
Act, shall be voidable and may be annulled by a decree of nullity on any of
the following grounds, namely:—
(a) that the marriage has not been consummated owing to the impotence of the
respondent; or]
(b) that the marriage is in contravention of the condition specified in clause (ii)
of section 5; or
(c) that the consent of the petitioner, or where the consent of the guardian in
marriage of the petitioner was required under section 5 as it stood
immediately before the commencement of the Child Marriage Restraint
(Amendment) Act, 1978 (2 of 1978)], the consent of such guardian was
obtained by force or by fraud as to the nature of the ceremony or as to any
material fact or circumstances concerning the respondent; or
(d) that the respondent was at the time of the marriage pregnant by some person
other than the petitioner.
(2) Notwithstanding anything contained in sub-section (1), no petition for
annulling a marriage—
(a) on the ground specified in clause (c) of sub-section (1) shall be entertained
if—
i. the petition is presented more than one year after the force had ceased
to operate or, as the case may be, the fraud had been discovered; or

22
 ii. the petitioner has, with his or her full consent, lived with the other party to
the marriage as husband or wife after the force had ceased to operate or, as
the case may be, the fraud had been discovered;
(b) on the ground specified in clause (d) of sub-section (1) shall be entertained
unless the court is satisfied—
(i) that the petitioner was at the time of the marriage ignorant of the facts
alleged;
(ii) that proceedings have been instituted in the case of a marriage solemnised
before the commencement of this Act within one year of such
commencement and in the case of marriage solemnized after such
commencement within one year from the date of the marriage; and
(iii) that marital intercourse with the consent of the petitioner has not taken place
since the discovery by the petitioner of the existence of the said ground.
Summary

• If the condition number II and III are violated then it is a Voidable

marriage.
• Also Voidable under Section 12, if the marriage is not been consummated
owing to impotence of the respondent, the respondent is pregnant at the time
of marriage by some other person other than petitioner or if the consent is
obtained by fraud or force.
• In Hindu marriage Act, 1955 in Sec.5 (iii) the minimum age limit for marriage
is given, but we can also see that if the bride or groom are not of the minimum
age the marriage is ‘Voidable’ and not void’. This is not the case in Special
marriage Act, 1954 where it is considered a void marriage.
• This child marriage is still punishable under Section18 of Hindu marriage act
and also under Prohibition of Child Marriage act, 2006.
• P. Venkataramana v. State (1977)
• A woman filled complaint against his husband under section. 494 (bigamy)
Husband defended himself with the fact that his first marriage was void. As he
was 13 years old and his wife was only 9 years old at the time of marriage. Court
held the marriage was only voidable and not void so the 2 nd marriage would
constitute an offence under section 494 IPC.

23
Legitimacy of children of void and voidable marriage [section 16]

• section 16 provides that even if the marriage is Null and void under section 11,
any child of such marriage who would have been legitimate If the marriage have
been valid, shall be legitimate whether or not a decree of nullity is granted in
respect to the marriage under this act and whether or not the marriage is held to
void otherwise than on the petition under this act.

• where the decree of nullity is granted in respect to voidable marriage under

section 12, any child begotten or conceived before the decree is made, who would
have been legitimate child of the parties to the Marriage if at the date of the decree
it had been dissolved instead of being annulled, shall be Deemed to be their
legitimate child notwithstanding the decree of nullity.

• The above provision shall not confer any child of marriage which is Null and void
or voidable any rights in law to the property of any person other than the parents.

Section 9 –RESTITUTION OF CONJUGAL

RIGHTS

• Marriage entitles husband and wife to have society of each other. It is the
fundamental rule of the matrimonial law.
• Expression 'conjugal rights' connotes
a) Right of marital intercourse; and
b) Right of couple to have each other's society
• Section 9 provides the relief of restitution of conjugal rights. It is in the nature
of positive relief and it recognizes the conjugal relationship of husband and
wife.

• Essential Element of Section 9:

1. Either party (husband or wife) has withdrawn from the society of other;
2. Such withdrawal is without a reasonable excuse;

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 3. Court is satisfied of the truth of the statements made in the petition;
4. There is no other legal impediment in granting relief.

• When either the husband or the wife has, without reasonable excuse, with
drawn from the society of the other, the aggrieved party may apply, by petition
to the District Court, for restitution of conjugal rights and the Court, on being
satisfied of the truth of the statements made in such petition and that there is
no legal ground why the application should not be granted, may decree
restitution of conjugal rights accordingly.
• The expression 'withdrawal from society' may involve a mental separation
besides physical separation. It is withdrawal from totality of relationship.
• Explanation- Where a question arises whether there has been reasonable
excuse for withdrawal from the society, the burden of proving reasonable
excuse shall be on the person who has withdrawn from the society.

• The Decree for Restitution of Conjugal Rights will be issued under Order XXI
Rule 32 of C.P.C Four Conditions for this Decree have to be fulfilled:
1. The other spouse has withdrawn from the society of the petitioner.
✓ Withdrawing from society of other means without any reason terminating an
existing relationship with the intention of forsaking the other and permanently
or indefinitely abandoning such relationship.
✓ Even if husband and wife are living apart but maintain a regular social and
conjugal (relationship relating to marriage) relationship it would not constitute
‘withdrawing from society of other’
2. There is no reasonable excuse for such withdrawal. Should the
respondent allege reasonable excuse, the burden of proof lies on him/her.
✓ The wife working and not resigning her job to live with the husband a
reasonable excuse as long as she maintains a regular and frequent social and
conjugal relationship.
3. The court’s satisfaction as to the truth of the statements made in the
petition.
4. No legal grounds exist for refusing the decree.

25
 Effect of non-compliance of decree of restitution of conjugal rights

Order 21 Rule 32 of Code of Civil Procedure provides that if a party against

whom a decree of restitution of conjugal rights is passed willfully disobeys it then the
decree may be enforced by attachment of property.

If there is no resumption of cohabitation even after one year from the decree of
restitution of conjugal rights then that becomes a ground of divorce under Section
13(1A)(ii) of HMA.

Constitutional Validity of Section 9

• T- Sareetha v. Venkatta Subbaiah (1983)

✓ Andhra Pradesh High Court termed this section as violative of Article 21, 19
and 14, called it ‘uncivilised;, ‘barbarous’ and ‘an engine of oppression’
✓ The reasoning was that sexual cohabitation is integral part of the decree of
Restitution of Conjugal right, So the decree basically makes the choice for the
other person not only to live with their ‘spouse’ but also have sexual intercourse
with him.
✓ The decree is taking away the autonomy of a person over its own body and
nothing can conceivably be more degrading to human dignity and monstrous
to human spirit than to subject a person by the long rope of the law to a positive
sex act.
✓ It is violative of Article 14 because though it treats a man and a woman equally
but the husband and wife are not on the same footing in society so it is not
justice to treat them equally.
• HarvinderKaur v. Harmander Singh (1984)
✓ Delhi High Court took a very different approach on Section 9 and not only
upheld the validity of it but also discussed its advantages.
✓ Court said introducing Constitutional law in family law is like ‘introducing a
bull in a china shop’.
✓ The ‘Restitution’ is not only of sexual intercourse but it is for cohabitation and
there is nothing barbarous or coercive about it. The court said that ‘A

26
 disproportionate emphasis on sex, almost bordering on obsession, has colored
the views of the learned judge.
✓ The court cited Section 23 (2) and 23(3) which provides measures to
reconcile the couple before giving a decree of divorce. Court called Section 9
as the ‘litmus test’ for divorce, if the restitution decree is disobeyed, it is
ground for divorce.
✓ So section 9 provides 2 purposes, first is the attempt of reconciliation and
second as a measure of divorce because the law gives the parties a ground for
divorce under Section 13 (1-A) ‘if they don’t resume cohabitation for 1 year after
the decree of restitution is passed by court’
• Saroj Rani v. Sudershan Kumar (1984)
✓ In this case the Supreme Court agreed with HarvinderKaur v. Harmander
Singh.
✓ Court discussed that the financial sanction by way of attachment of properties
which has been provided for disobedience of the decree (under Order XXI Rule
32 of C.P.C), is only an inducement for the parties to live together in order to
give them an opportunity to settle their differences amicably.
✓ Court said the right of the husband or the wife to the society of the other spouse
is not merely a creature of the statute. Such a right is inherent in the very
institution of marriage itself There are sufficient safeguard in s. 9 to prevent it
from being a tyranny’

JUDICIAL SEPARATION
• It is a remedy which is lesser in degree than that of divorce. In judicial
separation husband and wife are absolved from living together and performing
matrimonial duties. However, the bond of marriage remains intact and the
marriage is not dissolved.
• If the marital relations between the husband and wife are strained then either
of them can seek remedy of judicial separation or divorce.
• In other words it can be said as a temporary suspension of marital ties.
• It Does not put an end to marriage, the real purpose of judicial separation is to
enable the spouses, now relieved of their matrimonial duties towards each

27
 other, to reconsider their position, taste “single” living again and attempt in a
less emotional and urgent atmosphere to piece their lives and their futures
together once again.
• After one year of Judicial Separation ‘Divorce’ may be granted.
• Section 10 of Hindu Marriage Act provides for Judicial Separation.

Incidents of decree of judicial separation

1. Marriage is not dissolved
2. Parties are not obligated to cohabit together
3. If there is no resumption of cohabitation between the parties to the marriage
for the period of one year or upwards after the passing of decree of judicial
separation it can be a ground for divorce

Section 10- Judicial Separation.

• Either party to a marriage, whether solemnized before or after the

commencement of this Act, may present a petition praying for a decree of
judicial Separation on any of the grounds specified in sub-section (1). of
section 13 and in the case of a wife on any of the grounds on which a petition
for divorce might have been presented [sec. 13(2)].
• Where a decree for judicial separation has been passed, it should no longer be
obligatory for the petitioner to cohabit with the respondent, but the Court may,
on the application by petition of either party and on being satisfied of the truth
of the statements made in such petition, rescind the decree, if it considers its
just and reasonable to do so.
• Under section 10 (2) if the parties take steps and if the court is satisfied by
the truth of the statements, the court can rescind the decree of Judicial
separation.
• The grounds under section 13 are actually grounds for divorce but Section 13
(A) provides for alternate relief of Judicial Separation even when the case is
filled for Divorce.

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 Section 13A - Alternate relief in divorce proceedings.

• In any proceedings under this Act, on a petition for dissolution of marriage by

a decree of divorce, except in so far as the petition is founded on the grounds
mentioned in clauses (ii), (vi) and (vii) of sub section (1) of section 13,
the court may, if it considers it just so to do having regard to the circumstances
of the case, pass instead a decree of judicial separation.
• So except for Sub section (ii)Conversion, (vi) Renunciation, (vii),
Presumed Dead

Judicial Separation may be granted for the remaining grounds of

divorce which are:

• The other party has had voluntary sexual intercourse with any person
other than his spouse [adultery]
• Treating the spouse with cruelty
• Deserted the spouse for a continuous period of 2 years immediately
preceding the petition.
• The spouse has been incurably of unsound mind, or has been suffering
continuously or intermittently from mental disorder of such kind and to such
an extent that the petitioner cannot reasonably be expected to live with the
respondent.
• The spouse is suffering from a venereal disease in communicable form

Additional Grounds for Wife Filling Of Judicial Separation [Section 13

(2)]

• Husband marries again (Bigamy)

• After Marriage husband has been proven guilty of Rape, sodomy or
bestiality.

29
 • A decree against husband for maintenance has been passed under Section 18
of Hindu Adoption and maintenance act, 1956 or under Section 125 of Cr. P.C
and the parties have not resumed cohabitation for one year or upwards.
• The marriage was solemnized before she attained the age of fifteen years and
she repudiated the marriage between the ages of 15-18.
• Since a decree of separation does not irretrievably break the legal tie and
chances of reconciliation are still kept alive, the courts, with deep concern over
the increasing number of divorce cases and its impact on the parties, the
children, the family and the society at large, sometimes grant a decree of judicial
separation instead of divorce sought, depending of course, on the
circumstances of the case.

DIVORCE UNDER HINDU LAW

• The word ‘Divorce’ comes from the Latin word ‘divortium’ which mean ‘to
separate’
• In a legal sense divorce means cessation of matrimonial bond. Decree of divorce
is an end to the marital bond and the party is no longer remains husband and
wife.
• Divorce was unknown to the old Hindu law. Marriage was considered to be and
indissoluble union.
• Hindu Marriage Act 1955 introduced the concept of divorce for the first time.
• Provisions relating to divorce have been dealt in section 13,
13[1A], 13A, 13B, 14 and 15 of Hindu Marriage Act 1955
• The Law of divorce has undergone a lot of changes since its Inception. Primarily
the changes were brought about by The Marriage Law [Amendment] Act
1976 and Personal Law [Amendment] Act 2019

Changes brought about by Marriage Law [Amendment] Act 1976 in the law
of divorce

30
 • A single act of adultery may constitute a ground for divorce. [section 13 (1)(i)]
• Cruelty and desertion were made the ground for divorce. Earlier they were
grounds for judicial separation only[ section 13 (1)(i-a) and 13(1)(i-b)]
• Minimum period prescribed under grounds like leprosy and venereal diseases
has been omitted. [Section 13 (1)(i), (iv) and (v)]
• The court can now grant alternative relief in case of divorce proceedings by
exercising discretion[ section 13 A]
• Divers by mutual consent had been introduced[ section 13 B]

Change brought by the personal law amendment act 2019:

• It omitted section 13 (1) (iv) Which makes virulent and incurable form of
Leprosy as a ground for divorce
• In R Srinivasan vs. R Shametha 2019, Supreme Court held that inherent
powers under article 142 can be invoked by Supreme Court to dissolve marriage
which has been broken down irretrievably.

Grounds of divorce

SECTION 13(1) SECTION 13 [1-A] SECTION 13(2) SECTION 13-B

• Adultery • No resumption of • Husband Married again • living separately for

• Cruelty cohabitation for (Bigamy) a period of one
• Desertion one Year or more • Husband proven guilty of year or more, not
after Judicial Rape, Bestiality or been able to live
• Conversion
Separation decree Sodomy together and that
• Mental Disorder they have mutually
• No Restitution of • Maintainence
• Venereal Disease Conjugal rights for decreepassed under 125 agree that the
• Renunciation one year or more Cr.P.C OR Sec. 18 HAMA marriage should be
• Presumed Dead after passing and no cohabitation for 1 dissolved.
decree year or more
• Marriage solemnized
when wife was U-15 and
she repudiated the
marriage before she was
18

31
Section 13 deals with the grounds of divorce. Section 13 [1] deals with Grounds which
are available to both husband and wife while section 13 [2] deals with ground which
are available only to the wife.

Grounds Available to both Husband and Wife-Section 13(1) [FAULT

THEORY]

1. Adultery [13(1)(i)]
• Sexual Intercourse (Voluntary) with any person other than his or her spouse.
• Even a single act of adultery is sufficient enough to attract the ground of divorce.
after The Marriage Law [Amendment] Act 1976 the expression “ living in
adultery” has been dispensed with
• Recently in ‘Joseph Shine Vs. Union of India (2018)’ adultery is held to
be not a crime. But it is still a ground for divorce

2. Cruelty [13(1)(i-a)]

• It provides that the petition for divorce may be presented by either of the parties
if after the solemnization of the marriage the other party has created the
petitioner with cruelty.
• The term cruelty was defined in Russell vs. Russell for the first time. The
court held that cruelty is conduct of such characters as to have caused danger
to life, limb or, bodily on mental, or give rise to a reasonable apprehension of
such conduct.
• Narayan Ganesh Dastane v. Sucheta Narayan Dastane (1975)
✓ Court laid down test for determining whether the case qualifies for cruelty or
not. The test laid down in determining whether a given conduct amounts to
legal cruelty is as follows:
a. The alleged acts constituting cruelty should be proved according to the law of
evidence.
b. There should be an apprehension in the Petitioner’s mind of real injury or harm
from such conduct;
c. The apprehension should be reasonable having regard to the condition of the
parties.

32
d. The Petitioner should not have taken advantage of his position.
e. The Petitioner should not have condoned the acts of cruelty.

• Shobha Rani versus Madhukar Reddy 1988 Supreme Court held that
demand for dowry also constitutes cruelty.
• Suman Kapur vs Sudhir Kapur 2009 - Mens Rea is not an essential
element of cruelty. Relief cannot be denied on the ground that there was no
intention to cause reality
• Other important cases related to cruelty
✓ V Bhagat vs D Bhagat 1994
✓ Naveen Kohli Vs Neelu Kohli 2006
✓ Pravin Mehta vs Inderjit Mehta 2002
✓ K Srinivasan Rao versus D.A. Deepa 2013

3. Desertion [13(1)(i-b)]

• It provides that the petition for divorce may be presented by either party if other
party has deserted the petitioner for a continuous period of not less than two
years immediately preceding the presentation of petition
• The term desertion has not been defined in the Act but it means withdrawing
from marital obligation. It is intentional for sitting and abandonment of one
spouse by another without any reasonable cause and without the consent of
other
• Essential elements of desertion
a. There is to be a factum of separation
b. There must be and intention to bring cohabitation to the end( animus
deserendi)
c. Such conduct must be without any reasonable cause
d. It must be without consent of other party

• In ‘Bipinchandra Jasinghbai Shah Vs. Prabhavati (1957)’ it was said

that ‘desertion’ could be concluded by inference only whether desertion on has
happened or not depends upon the facts and circumstances of the case
• The following could be used to prove desertion
1. One party has abandoned the other party
33
2. By abandoning married life has ended and that is the intention behind
abandoning
3. No reasonable ground for abandoning
4. No consent of the person deserted
5. The deserted person has not given any cause to the desertor so that he/she may
behave in this way:
6. Desertion has been for more than 2 years before the application for divorce is
made.

• Savitri Pandey versus Prem Chandra Pandey 2002- the court held that
party seeking divorce on the ground of desertion is required to show that he/
she is not taking advantage of his/ her or her own.
• Desertion may be actual or constructive. Constructive desertion is not
withdrawn from a particular please but withdrawal from the state of things.
constructive desertion has 3 requirements are actual desertion

4. Conversion 13(1)(ii)

• This provides that a petition for divorce may be presented by either party if the
other party has ceased to be a Hindu by conversion to another religion.
• Conversion does not itself result in divorce. the ground of divorce on basis of
conversion will not be available to converting spouse as it would amount to
taking advantage of his own wrong

5. Unsound mind or mental disorder[ 13(1)(iii)]

• This section provides that petition for divorce may be presented by either party
if has been incurably of unsound mind, or have suffering continuously
or intermittently from mental disorder of such a kind and to such an extent that
the petitioner cannot reasonably be expected to live with the respondent.
• The expression mental disorder is mental illness, arrest or incomplete
development of mind, psychopathic disorder or any other disorder or disability
of mind and includes schizophrenia.

34
 • Supreme Court in Ram Narayan Gupta versus Shrimati Rameshwari
Gupta 1988 held that degree of mental disorder must be such that the spouse
seeking relief cannot reasonably be expected to live with the other.

6. Virulent and incurable form of Leprosy[ section 13(1)(iv) omitted]

• This ground has been omitted by The Personal Law Amendment Act 2019.

7. Venereal Disease[ 13(1)(v)]

• Venereal disease means a disease which is communicated via sexual conduct.
• This section provides that petition for divorce may be presented by either party
if other party has been suffering from venereal disease in communicable form.

8. Renunciation of the world by entering into religious order [

13(1)(vi)]

• Provides that petition for divorce presented by either party if the other party
has renounced the world by entering any religious order.
• Renunciation of the world amounts to Civil death and therefore it is included
as a ground of divorce

9. Presumed Dead
• It provides that petition for divorce presented by either party if the other party
has not been heard of as alive for a period of 7 years or more by those persons
who would actually have heard of it, had the party been alive. [Section 108 of
the Evidence Act]

Section 13 (1-A) [BREAKDOWN THEORY]

• No resumption of cohabitation for one year or more after Judicial Separation

Decree
• No Restitution of Conjugal rights for one year or more after passing decree

• The Supreme Court Naveen Kohli v. Neelu Kohli 2006 has recommended
an amendment to the Hindu Marriage Act, whereby either spouse can cite
irretrievable breakdown of marriage as a reason to seek the divorce. Expressing

35
 the concern that divorce could not be granted in a number of cases where
marriages were virtually dead due to the absence of the provision of
irretrievable breakdown, the court strongly advocated incorporating this
concept in the law in view of the change of circumstances.
• The Court observed that public interest demands that the married status
should, as far as possible, as long as possible and whenever possible, be
maintained. However, where a marriage has been wrecked beyond any hope of
being repaired, the public interest requires the recognition of the fact. The
judgment notes that there is no acceptable way in which a spouse can be
compelled to resume life with the consort and that situations causing misery
should not be allowed to continue indefinitely as the law has a responsibility to
adequately respond to the needs of the society. The profound reasoning is that
in situations when there is absolutely no chance to live again jointly or when it
is beyond repair, in such a case it would be futile to keep the marital tie alive.
Here the ground of irretrievable breakdown is really needed. But it should not
be oblivious that the ground, when introduced, needs to provide safeguards to
ensure that no party is exploited.

Grounds Available only to Wife- Section 13(2)

• Husband Married again (Bigamy)

• Husband proven guilty of Rape, Bestiality or Sodomy.
• Maintenance decree passed under 125 Cr. P.C OR Sec. 18 HAMA and no
cohabitation for 1 year or more
• Marriage solemnized when wife was U-15 and she repudiated the marriage
before she was 18.

Section 13B- Divorce by mutual consent [MUTUAL CONSENT THEORY]

• Section 13B provides for divorce by mutual consent was added by The
Marriage Law Amendment Act 1976.
• Parties to the marriage ceremony is whether before or after the amendment act
can avail themselves of this provision
Essential of divorce by mutual consent:
• Both the parties must be living separately for a period of one year or more

36
 • Both the parties have not been able to live together
• Both the parties have mutually agreed that marriage should be dissolved
• Both the parties will present a joint petition for dissolution of marriage by
mutual consent
• After presentation of the petition the parties need to wait for a minimum
period of six months
• After expiry of the said period[ not be less than 6 months and more than
18 months] the parties will again make a motion before the court.
• If the court is satisfied that the marriage was solemnized and the averments in
the petition are true then it will pass the decree of divorce by mutual consent
• The consent in the divorce by mutual consent should not be obtained by force,
fraud or undue influence [section 23 1 (bb)]
• The supreme court in Amardeep Singh Versus Harleen Kaur 2019 has
held that the period of six months mentioned in section 13b (2) was not
mandatory but directory. It will be open to the court to exercise its discretion in
the facts and circumstances of each case where there was no possibility of the
parties resuming cohabitation after exhausting all efforts of mediation and
conciliation

Section 14 when parties can file for divorce-

• Under Section 14 of Hindu Marriage Act, parties can not file for divorce unless
at the time of petition one year has elapsed since the date of marriage.
(Exceptional cases can be heard on the ground that the case is one of
exceptional hardship to the petitioner or of exceptional depravity on the part of
the respondent)

Section 15 When can divorced parties remarry-

• Under section 15 the parties can remarry if:

1. There lies no right to appeal against the decree of divorce.
2. If the time period, of filling an appeal has expired.
3. An appeal was presented but has been dismissed.

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Section 29 Savings.—[COUSTOMARY DIVORCE]

(1) A marriage solemnized between Hindus before the commencement of this Act,
which is otherwise valid, shall not be deemed to be invalid or ever to have been invalid
by reason only of the fact that the parties thereto belonged to the same gotra or pravara
or belonged to different religions, castes or sub-divisions of the same caste.

(2) Nothing contained in this Act shall be deemed to affect any right recognized by
custom or conferred by any special enactment to obtain the dissolution of a Hindu
marriage, whether solemnized before or after the commencement of this Act.

(3) Nothing contained in this Act shall affect any proceeding under any law for the
time being in force for declaring any marriage to be null and void or for annulling or
dissolving any marriage or for judicial separation pending at the commencement of
this Act, and any such proceeding may be continued and determined as if this Act had
not been passed.

(4) Nothing contained in this Act shall be deemed to affect the provisions contained in
the Special Marriage Act, 1954, (43 of 1954) with respect to marriages between Hindus
solemnized under that Act, whether before or after the commencement of this Act.

ADOPTION UNDER HINDU LAW

• Adoption in the modern sense can be defined as transplantation of a person [boy

or a girl] from the family in which he or she is born to another family where he is
given by natural parents.
• Adoption is practice when an individual belonging to one kinship group acquires
new kinship ties with another group i.e. from one family to another family.
• Another type of adoption is from orphanage to a family. Adoption could be for
humanitarian reason (giving new opportunities to a neglected child or could be for
natural desire of a child for reason of affection, caretaking in old age or for an heir
after death.

38
Hindu Adoptions and Maintenance Act, 1956

• Prior to the Hindu adoption and maintenance act 1956 there was no clarity in law
governing adoption. There were many customary laws on the issue. Only
boys could be given in adoption and not girls.
• The Hindu adoption and maintenance act brings about a radical change in law of
adoption as it bring out the secular aspect of the law
• The Act is prospective in nature and does not govern pre-Act adoptions.

Important Provisions of Adoption under HAMA, 1956[CHAPTER II]

Section 5:- Adoptions to be regulated by this Chapter

(1) No adoption shall be made after the commencement of this Act by or to a
Hindu except in accordance with the provisions contained in this Chapter, and
any adoption made in contravention of the said provisions shall be void.
(2) An adoption which is void shall neither create any rights in the adoptive family
in favour of any person which he or she could not have acquired except by
reason of the adoption, nor destroy the rights of any person in the family of his
or her birth.

Section 6:- Requisites of a valid adoption.

• No adoption shall be valid unless.
(1) The person adopting has the capacity, and also the right, to take in
adoption;
(2) The person giving in adoption has the capacity to do so;
(3) The person adopted is capable of being taken in adoption;
(4) The adoption is made in compliance with the other conditions mentioned
in this Chapter.

Section 7:- Capacity of Male Hindu to take in Adoption

• Any male Hindu who is

(1) of sound mind and
(2) Is not a minor has the capacity to take a son or a daughter in adoption.

39
 • Provided that, if he has a wife living, he shall not adopt except with the
consent of his wife unless
(1) The wife has completely and finally renounced the world or
(2) Has ceased to be a Hindu or
(3) Has been declared by a court of competent jurisdiction to be of unsound
mind.
• If a person has more than one wife living at the time of adoption, the consent of
all the wives is necessary unless the consent of any one of them is unnecessary
for any of the reasons specified in the preceding proviso. (Prior to Hindu
marriage act, 1955 people had multiple wives so this explanation was there in
this section, now in 2020 it’s almost impossible to find a Hindu with multiple
wives and soon this explanation not be of any practical use)

Section 8:- Capacity of a female Hindu to take in adoption.

• Any female Hindu who is

(1) Of sound mind and
(2) Is not a minor has the capacity to take a son or daughter in adoption
• If she has a living husband shall not adopt a son or daughter except with the
consent of her husband unless
(1) The husband has completely and finally renounced the world or
(2) Has ceased to be a Hindu or
(3) Has been declared by a court of competent jurisdiction to be of unsound
mind.
• Prior to the Personal Laws (Amendment) Act 2010, a female adult Hindu of
sound mind could adopt a child under the following situations, viz., she is:
i. Unmarried;
ii. Divorced;
iii. Widowed; or
iv. Her husband suffers from certain disabilities viz., he has:
a. Ceased to be a Hindu;
b. Has renounced the world; or
c. Has been declared to be of unsound mind by a court
• After The Personal Laws (Amendment) Act 2010, however, a female right
to adopt has been brought at par with the male’s right

40
Section 9:- Persons capable of giving in adoption.

• Father or mother could give for adoption (with consent of the other)
• Father or the mother, if alive, shall have equal right to give a son or daughter in
adoption [Personal Laws (Amendment) Act 2010]
• consent not required when other is
(1) Of unsound mind,
(2) Has renounced the world or
(3) Has ceased to be a Hindu
• Where both the father and mother are dead or have completely and finally
renounced the world or have abandoned the child or have been declared by a
court of competent jurisdiction to be of unsound mind or where the parentage
of the child is not known, the guardian of the child may give the child in
adoption with the previous permission of the court to any person including the
guardian himself.
• Before granting such permission to a guardian, the court has to satisty itself
that:
i. The adoption is for the welfare of the child;
ii. The child’s wishes have been ascertained;
iii. There is no financial consideration in the transaction.

Section 10:- Persons who may be adopted

• Essential conditions to be fulfilled

(1) He or she is a Hindu;
(2) He or she has not already been adopted;
(3) He or she has not been married, unless there is a custom or usage
applicable to the parties which permits person who are married being taken
in adoption;
(4) He or she has not completed the age of fifteen years, unless there is a
custom or usage applicable completed the age of fifteen years being taken
in adoption.

41
Section 11:- Other conditions for a valid adoption

(1) If any adoption is of a son, the adoptive father or mother by whom the
adoptions is made must not have a Hindu son, son’s son or son’s son’s son
(whether by legitimate blood relationship or by adoption) living at the time
of adoption;
(2) If the adoption is of a daughter the adoptive father or mother by whom the
adoption is made must not have a Hindu daughter or son’s daughter
(whether by legitimate blood relationship or by adoption) living at the time
of adoption;
(3) If the adoption is by a male and the person to be adopted is a female, the
adoptive father is at least twenty-one years older than the person to be
adopted;
(4) If the adoption is by a female and the person to be adopted is a male, the
adoptive mother is at least twenty-one years older than the person to be
adopted
(5) The same child may not be adopted simultaneously by two or more person;
(6) The child to be adopted must be actually given and taken in adoption by the
parents or guardian concerned or under their authority with intent to
transfer the child from the family of its birth or in the case of an abandoned
child or a child whose parentage is not known, from the place or family
where it has been brought up to the family of its adoption. Provided that
the performance of datta homam, shall not be essential to the validity of an
adoption.

Section 12:- Effect of Adoption

• An adopted child shall be deemed to be the child of his or her adoptive father
or mother for all purposes with effect from the date of the adoption and from
such date all the ties of the child in the family of his or her birth shall be deemed
to be severed and replaced by those created by the adoption in the adoptive
family.
• Provided that-
a. The child cannot marry any person whom he or she could not have married
if he or she had continued in the family of his or her birth;

42
 b. Any property which vested in the adopted child before the adoption shall
continue to vest in such person subject to the obligations, if any attaching
to the ownership property, including the obligation to maintain relatives in
the family of his or her birth;
c. The adopted child shall not divest any person of any estate which vested in
him or her before the adoption.
• Supreme Court in Basavarajappa v. Gurubasamma, (2005) 12 SCC 290,
held that on adoption, adoptee gets transplanted in adopting family with the
same rights as that of natural born son. Adopted child becomes coparcener in
Joint Hindu Family property after serving all his ties with natural family,

Section 13:- Right of adoptive parents to dispose of their properties

• Subject to any agreement to the contrary, an adoption does not deprive the
adoptive father or mother of the power to dispose of his or her property by
transfer inter vivos (by gift) or by will.

Section 14:- Determination of Adoptive Mother in certain cases

• The wife of a Hindu male, who adopts is deemed to be the adoptive mother,
where an adoption is made with the consent of more than one wife, the senior
most in marriage is deemed to be adoptive mother and others as stepmother.
• In the case of adoption by a widower or bachelor, any woman whom he
subsequently marries is the stepmother of the child Similarly, in case of
adoption by a widow or an unmarried woman, any man whom she marries is
deemed to be the step-father of the child
• Sawan Ram v. Kalawati, AIR 1967 SC 1961
✓ Whether in case of an adoption by a widow would the adopted child be deemed
to be the child of the deceased husband as well so as to be his heir?
✓ The case involved succession to the properties of the widow’s husband; the
widow too died within two months after adoption
✓ Referring to s. 12 of the Act the court pointed out that from the date of the
adoption all ties of the child in the family of birth are severed and new ties
created in the adoptive family. It is well recognized that a married female
belonged to the family of her husband and accordingly, the adopted child must
also belong to the same family

43
Section 15:- Valid adoption not to be cancelled

• No adoption which had been validly made can be cancelled by the adoptive
father or mother or any other person, nor can the adopted child renounce his
or her status as such and return to the family of his or her birth

Section 16:- Presumption as to registered documents relating to adoption.

• Whenever any document registered under any law for the time being in force is
produced before any court purporting to record an adoption made and is signed
by the person giving and the person taking the child in adoption, the court shall
presume that the adoption has been made in compliance with the provisions of
this Act unless and until it is disproved.

Section 17:- Prohibition of certain payments.

(1) No person shall receive or agree to receive any payment or other reward in
consideration of the adoption of any person, and no person shall make or give
or agree to make or give to any other person any payment or reward the receipt
of which is prohibited by this section.
(2) If any person contravenes the provisions of sub-section (i), he shall be
punishable with imprisonment which may extend to six months, or with fine,
or with both.
(3) No prosecution under this section shall be instituted without the previous
sanction of the State Government or an officer authorized by the State
Government in this behalf.

Maintenance under Hindu Law

• Two Acts under Hindu Personal laws which provide for Maintenance:
1. Hindu Marriage Act, 1955
2. Hindu Adoption and Maintenance Act, 1956
3. Hindu Marriage Act, 1955

44
Maintenance of wife or Husband
• Types of Maintenance-
✓ Temporary Maintenance- It is also referred to as
maintenance pendente lite which is awarded by the courts during the
continuation of proceedings of the divorce. The purpose is to meet the
necessary and immediate expenses of the spouse who is a party to the
proceedings. On satisfaction, the court may grant it. Section 24 of Hindu
Marriage Act, 1955 deals with this kind of maintenance. Further can be
claimed under Section 125(1) of CrPC.
✓ Permanent Maintenance- As the term suggests, it refers to the granting
of a sum on a periodical basis or on a continued basis once the proceedings
have been disposed of. Section 25 of Hindu Marriage Act, 1955. Either
of a spouse is entitled to receive it.

• Section 24- Maintenance pendente lite (maintenance pending litigation)

and expenses of proceeding.

• If husband or wife does not have income to support the necessary expenses of
the proceeding in court, court can order the respondent to pay to the petitioner
the expenses of the proceeding, the amount would be reasonable depending on
the income would be reasonable depending on the income of the petitioner and
respondent.
• The payment must be within 60 days of service of notice.
• The maintenance pendente lite can be also given in a proceeding which is there
to declare the marriage null and avoid. A valid marriage is not essential
requirement for maintenance under section 24. (‘any proceedings in the court
in mentioned in section)

Section 25- Permanent Alimony and Maintenance

• Ordered by the court at the time of passing of the decree or any time subsequent
that the respondent shall pay to the applicant for her/his maintenance and
support. A gross sum or a sum
• Monthly/periodically not exceeding the life of the applicant.

45
 • The sum would be decided keeping in mind the income and property of
respondent and petitioner
• The order could be modified/rescinded in case of change of circumstance.
• If the court is satisfied that the party in whose favour an order has been made
under this section has re-married or, if such party is the wife, that she has not
remained chaste, or, if such party is the husband, that he has had sexual
intercourse with any woman outside wedlock, 57 [it may at the instance of the
other party vary, modify or rescind any such order in such manner as the court
may deem just].

Hindu Adoption and Maintenance Act, 1956

(Maintenance wife, Mother and father Children, Daughter in law and dependents)
Section 3(b) - “Maintenance” definition.
Includes-
(i) In all cases, provision for food, clothing, residence, education and medical
attendance and treatment;
(ii) In the case of an unmarried daughter also the reasonable expenses of and
incident to her marriage;

Section 18- Maintenance of wife

• Wife is entitled to maintenance from her husband. In some cases, wife is

entitled to maintenance even if she doesn’t live with her husband if her separate
living is justified because of any of the circumstance occur
1. Desertion
2. Cruelty
3. Any other living wife of husband
4. Concubine is name house, or husband habitually
5. Resides with a concubine elsewhere
6. Conversion
7. Any other cause

46
 • Wife would be ineligible for maintenance in some cases life if she is unchaste or
converts her religion from Hinduism.

• Neelam Malhotra v .Rajinder Malhotra (1994)

Maintenance pendent lite though not provided for in section 18 can be granted
by the court because a suit could take years to settle and until then not granting
pendente lite maintenance would be against the spirit of Section 18

Section 19- Maintenance of widowed daughter in law

• In case of death of husband her maintenance would be taken care by her
Father –in- law
• Provided and to the extent that she is unable to maintain herself out of her
own earnings or other property or, where she has no property of her own, is
unable to obtain maintenance-
(a) From the estate of her husband or her father or mother, or
(b) From her son or daughter, if any, or his or her estate.
(2) Any obligation shall not be enforceable if the father-in law has not the
means to do so from any coparcener property in his possession out of which
the daughter-in-law has not obtained any share, and any such obligation
shall cease on the re-marriage of the daughter-in-law.‟
• Raj Kishore Mishra v. Smt. Meena Mishra, Court held that the obligation
of father-in-law shall not be enforceable if he has no means to maintain his
daughter-in-law from any coparcenary property in his possession out of which
the daughter-in-law has not obtained any share. The object of this Section is to
make it clear that the widowed daughter-in-law can claim maintenance from
her father-in-law only where she is unable to maintain herself out of her own
property or from the estate of her husband, father, mother, son or daughter. It
is also provided that the father-in-law shall be under no obligation to maintain
his daughter-in-law except in cases where there is some ancestral property in
his possession from which the daughter-in-law has not obtained any share.

Section 20- Maintenance of children and aged parents

• A Hindu is bound to maintain her/her legitimate /illegitimate children and
aged or infirm parents.

47
 • Children of the person can only claim maintenance as long as they are
minor.
• The obligation of a person to maintain his or her aged or infirm parent or
daughter who is unmarried extent is so far as the parent or the unmarried
daughter, as the case may be, is unable to maintain himself or herself out
of his or her own earning or other property,
• ‘Parent’ also includes a childless stepmother.

Section 21- Dependents Defined-

F M

P W

IS ID WD UD S SW

SD SS SS
W
SSD SSS

(i) his or her father;

(ii) his or her mother
(iii) his widow, so long as she does not remarry;
(iv) his or her son or the son of his predeceased son or the son of a predeceased
son of his predeceased son, so long as he is a minor; provided and to the
extent that he is unable to obtain maintenance, in the case of a grandson

48
 from his father's or mother's estate, and in the case of a great-grandson,
from the estate of his father or mother or father's father or father's mother;
(v) his or her unmarried daughter or the unmarried daughter of his
predeceased son or the unmarried daughter of a predeceased son of his
predeceased son, so long as she remains unmarried; provided and to the
extent that she is unable to obtain maintenance, in the case of a
granddaughter from her father's or mother's estate and in the case of a
great-grand daughter from the estate of her father or mother or father's
father or father's mother
(vi) his widowed daughter; provided and to the extent that she is unable to
obtain maintenance-
(a) From the estate of her husband; or
(b) From her son or daughter, if any, or his or her estate; or
(c) From her father-in-law or his father or the estate of either of them;
(vii) any widow of his son or of a son of his predeceased son, so long as she
does not remarry; provided and to the extent that she is unable to obtain
maintenance from her husband's estate, or from her son or daughter, if
any, or his or her estate; or in the case of a grandson's widow, also from
her father-in-law’s estate;
(viii) his or her minor illegitimate son, so long as he remains a minor;
(ix) His or her illegitimate daughter, so long as she remains unmarried.

Section 22- Maintenance of dependents.

• The heirs who take the estate of a deceased Hindu are bound to maintain the
dependents of the deceased out of the estate inherited by them from the
deceased if that particular dependent has not obtained, by testamentary or
intestate succession, any share in the estate of a Hindu dying after the
commencement of this Act
• The liability of each of the persons who take the estate shall be in proportion to
the share or part of the estate taken by him or her
• No person who is himself or herself a dependent shall be liable to contribute to
the maintenance of other, if he or she has obtained a share or part, the value of
which is, would, if the liability to contribute were enforced become less than
maintenance under this Act.

49
A

C
B D

A E

Y F
X

Dependents- A, B, C, D, E, F, G, H

A, B, C, D, E, F, X, Y are liable to maintain G, H

GUARDIANSHIP UNDER HINDU LAW

• Two main legislations regarding Guardianship and Custody

1. The Hindu Minority and Guardianship Act, 1956
2. The Guardianship and Wards Act, 1890
• The Hindu Minority and Guardianship Act, 1956 is a Hindu Personal law and
The Guardianship and Wards Act, 1890 is a secular law which applies to all
irrespective of their religion or caste But both these laws are still complimentary
to each other and court applies the provisions of both these laws in a
harmonious way.

Hindu Minority and Guardianship Act, 1956

Definitions

• Minor: According to Section 4(a), it is defined as a minor means who has

not completed the age of 18 years.
• Guardian: A guardian is defined under Section 4 (b) of the Hindu Minority
and Guardianship Act, 1956. “Guardian” means a person having the care of

50
 the person of a “minor” or of his property or of both his person and property,
and includes-
i. A natural guardian,
ii. A guardian appointed by the will of the minor’s father or mother,
(Testamentary Guardian)
iii. A guardian appointed or declared by a court, and
iv. A person empowered to act as such by or under any enactment relating to
any court of words;

Section 6: Natural Guardian of Hindu minor

• If a legitimate minor child then the natural guardianship is with father and after
him the mother
• But if the child is less than 5 year old than the custody of the child is generally
with the mother
• If the minor child is illegitimate then the guardianship is with mother and after
her the father
• In case of a minor married girl- her husband (if husband is also minor then
mother/father or girl)
• Githa Hariharan vs RBI 1999 held that the word ‘after’ in section 6(a)
cannot be interpreted to be ‘after the Life of Father’. The word ‘after’ has the
meaning ‘in the absence of’. If the father is absent or is wholly indifferent to the
affairs of a minor then mother will become natural guardian of the minor.
• Disqualification from natural guardianship
(a) If he has ceased to be a Hindu, or
(b) If he has completely and finally renounced the world by becoming a hermit
(vanaprasha/sanyasi)

Section 7: Natural guardianship of adopted son

• In case of adopted minor child also the adoptive father is the natural guardian
and after him the mother

51
Section 8: Powers of Natural Guardian
• To do all acts which are necessary or reasonable and proper for the benefit of
the minor or for the benefit of the minor’s estate but cannot bind the minor
under a contract.
• The natural guardian shall not, without the previous permission of the court,—
• Guardian cannot transfer/ mortgage / charge / sale / gift / exchange any
immovable property in name of the minor. The court will grant such permission
only if there is a necessity or there is an evident advantage to the minor.
• 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.
• Any disposal of immovable property by a natural guardian, in contravention is
voidable at the instance of the minor or any person claiming under him.
• Ram Krishan Gupta v. Nootan Agarwal (2007)
The mother as guardian of property of minor sons applied for sale of vacant
plants belonging to minor sons In fact she wanted to sell these plants and with
the sale proceeds buy built flats in an established residential colony where most
of her relatives also had flats. While the lower court denied permission on
appeal the court held that the sale of vacant land to buy flats in the name of the
son in a residential colony where most of their relatives also had flats. Would
be in their interest and hence permission was granted.

Testamentary guardian and their powers (section 9)

• A testamentary guardian has the right to act as the minor’s guardian after the
death of the minor’s father or mother, as the case may be, and to exercise all the
rights of a natural guardian under this Act
• According to the Hindu Minority and Guardianship Act, 1956 testamentary
power of choosing a guardian has been provided on both, father and mother. If
the father chooses a testamentary guardian but the mother rejects him, then the
chosen guardian of the father will be inefficient and the mother will be the
natural guardian thereafter. If the mother chooses a testamentary guardian, her
chosen guardian will become the testamentary guardian and father’s

52
 appointment will be void. If the mother does not want to choose any guardian
then father’s appointee will become the guardian
• Court Appointed Guardian: If there are no natural guardians or
testamentary guardian then court will appoint the guardian.

M dies before F

FATHER
MOTHE
R

T1

F dies before M and M has no appointed TG

FATHER
MOTHE
R

After M also dies

T1

F dies before M and M has appointed TG

FATHER
MOTHE
R

T1 T2

53
Other Provisions of Hindu Guardianship and Minority Act, 1956

Section 10- A minor can be a guardian of another minor but cannot be

guardian for another minor’s property.
• Example- if mother is 17 years old and the child is 1 years old, they both are
minor but still one minor (mother) will be guardian of another minor (her child)
but she will not be guardian of the minors property

Section 11: De facto guardian cannot deal with minors property after the
commencement of this Act, no person shall be entitled to dispose of or deal with the
property of a Hindu minor merely on the ground of his or her being the de facto
guardian of the minor
A de facto guardian is a person who takes continuous interest in the welfare of the
minor’s person or in the management and administration of his property without any
authority of law.

Section 12: Guardian not to be appointed for minor’s undivided interest in

joint property. Where a minor has an undivided interest in joint family property and
the property is under the management of an adult member of the family, no guardian
shall be appointed for the minor in respect of such undivided interest.
Provided that nothing in this section shall be deemed to affect the jurisdiction of a
High Court to appoint a guardian in respect of such interest.

Section 13: Welfare of minor to be paramount consideration.

1. In the appointment of declaration of any person as guardian of a Hindu minor
by a court, the welfare of the minor shall be the paramount consideration.
2. No person shall be entitled to the guardianship by virtue of the provisions of
this Act or of any law relating to guardianship in marriage among Hindu’s if the
courts is of opinion that his or her guardianship will not be for the welfare of
the minor.
• Supreme Court in Mohini v. Veerendra Kumar, (1977) 3 SCC 513, has
held that the controlling consideration in deciding the custody of the child is
the welfare of the minor and not the rights of the parents.

54
• Supreme Court in Sumedha Nagpal v. State of Delhi, held that father's
right to custody of children is neither an absolute nor indefeasible one. Welfare
of the child is of paramount importance.

• Kirtik kumar Joshi v. Pradip Kumar Joshi (1992)

Custody of two minor children was sought by father as also by maternal uncle.
Mother of the children died an unnatural death and the father was facing charge
under section 498 A of the IPC Children were staying with the material uncle
and they also expressed their court granted custody in favour of maternal uncle
• Ram Nath v. Ravi Raj Dudega (2006)
A custody dispute between the father and the maternal grandparents .The
mother of the minor had died under suspicious circumstance and the father was
tried under s 304 of the Indian Penal Code 1860 and convicted by the trial court
but acquitted by the applied court When the child’s father was taken into
custody the child was only four years old and ever since then he was being
looked after very well by the maternal grandparents The child who was by now
sixteen also preferred to live with maternal Grandparents. The Court held that
interest of the child lies with grandparents and not the father.
• Gaurav Nagpal Vs Sumedha Nagpal (2009) Hindu Minority and Guardianship
Act, 1956 and Custody of the minor child. In any proceeding under the said Act, the
Court could make, from time to time, such interim orders as it might deem just and
proper with respect to custody, maintenance and education of minor children,
consistently with their wishes, wherever possible. The principles in relation to the
custody of a minor child are well settled. In determining the question as to who should
be given custody of a minor child, the paramount consideration is the `welfare of the
child’ and not rights of the parents under a statute for the time being in force.
• Mausami Moitra Ganguli Vs Jayant Ganguli (2008) In the above said case,
Welfare of a child Hon’ble Supreme Court of India after discussing the case of Rosy
Jacob Vs Jacob A. Chakramakkal, 1973 (1) SCC 840 has held that paramount
consideration is the welfare of the child.
• Jitender Arora v. Sukriti Arora 2017 A bench of Justices A.K. Sikri and R.K.
Agrawal gave this ruling while entrusting custody of a 15-year-old girl to the father,
ignoring the claims of the mother who chose to live in the United Kingdom. Court held
that the welfare of minor child is the paramount consideration while granting custody
of the child either to father or mother, separated after divorce.

55
 Joint Hindu family

• A joint Hindu family consists of common male ancestors, his wife, his and all
his lineal male descendants together with their wives, widows and unmarried
daughters and also daughters of male descendants.
• Joint Family is till 7th generation
• A joint Hindu family has no separate legal entity. It is neither a juristic person
nor a corporation.[ Chotelal V. Jhandelal 1972]
• A joint Hindu family can neither be created by act of members nor by an
agreement between the parties. A stranger cannot be a member of a joint Hindu
family. The only exception is marriage and adoption.
• Law will presume that every Hindu undivided family is a joint one unless
contrary is proved. [Adiveppa & Ors. Vs. Bhimappa & Anr 2017]
• There must be at least two members to constitute a joint family and they must
be the Hindu.
• For bringing a joint Hindu family in existence of common male ancestor is
necessary but for its continuance common male ancestor is not necessary.
• An illegitimate son of a lineal male descendant is a member of the joint family
but is not a coparcener .If a partition takes place between the father and the
sons, illegitimate son can be allotted a share.
• (GurNarain Das v. GurTahal Das, 1952)
The father can give an equal share to the illegitimate son. However after the
death of the father, if a partition takes palce, the illegitimate son will get half
the share of a legitimate son.

Coparcenary
• The original purpose of coparcenary was spiritual in nature. Only those
people were considered a part of coparcenary who can offer antim sanskar to
their father (i.e. Males) and only those coparceners have a right in ancestral
property. Till 4th generation.
• In Hindu law there are two types of property
1. Self earned property
2. Ancestral property

56
• Where a person possesses an interest in ancestral property he is not the sole
owner of it and his son, grandson, great-grandson acquire right by bus in this
coparcenary property[ only in mitakshara school, no such right in dayabhaga]
• Under the classical law no female could be a member of coparcenary including
the unmarried daughter, thought these females are a part of joint family
• Position before 2005 amendment: Coparcenary consisted of a continuous
chain of four generations of male members.[ including the last holder of
the property]. It is a narrower body within a joint family
• The mitakshara concept of coparcener is based on the notion of son's birthright
in the joint family property .Coparcener acquires interest in the joint family
property by birth.
• Mitakshara coparcenary comes to an end either by partition or by death of the
last surviving coparcener.
• Existence of a joint family property is essential in a coparcenary
• Initially coparcenary carried with itself the doctrine of survivorship. It means
that on the death of a coparcener his interest in the joint family property will
devolve on surviving coparcener by the rule of survivorship and not by the rule
of succession.
• This Doctrine was diluted by Hindu Succession Act 1956 and finally abolished
by 2005 amendment.
• Position after 2005 amendment: section 6[ 1] of the Hindu Succession
Act 1956 was amended by succession Amendment Act 2005 it brought about
following changes:-
1. The daughter [married or unmarried] of a coparcener shall by birth become a
coparcener in her own right in the same manner as son.
2. She has the same right Coparcenary property as she would have had if she had
been a son.
3. She shall be subject to the same liabilities in respect of the said coparcenary
property as that of a son.
• The Succession Amendment Act 2005 also abolished the doctrine
of survivorship. Now the interest of the disease for partners will devolve by
testamentary or intestate succession and not by survivorship.

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 • Ashnoor Singh versus Harpal Kaur and others 2009 Supreme Court
held that rule under mitakshara law that whenever a male Ancestor acquire any
property from any of his paternal ancestors upon 3 degree above him, then his
male legal Heirs up to three degrees below him would get an equal rights as
coparceners in that property will apply in case of succession which opened
before Hindu Succession Act 1956.

Karta
• The affair of a joint Hindu family has to be managed by some male member.
The senior most male member who manages the affairs of the joint Hindu
family is called the karta.
• He is regarded as the head of the family and possesses the supreme position in
the affairs of the.
• Generally the senior most coparcener of a joint family is the karta. The
presumption is very strong. In case of any conflict the senior most members will
be the Karta of the family.
• Kiran Devi v. The Bihar State Sunni Wakf Board & Others, 2021, 3-
judge bench of the Supreme Court consisting of Justices Ashok Bhushan,
S.Abdul Nazeer and Hemant Gupta held that any business being run by a
“Karta” of a Hindu Undivided Family (HUF) on tenanted property it would not
give rise to a presumption of that being a joint business of HUF, unless there is
a solid evidence in its support.
• As regards the question whether a female can be a karta? Supreme Court in CIT
vs. Seth Govindram Sugar Mills 1966 held that female member cannot be
a karta because she cannot be a coparcener. However after the 2005
amendment, position has changed and now a female can be a coparcener
therefore now in the absence of a male member female can be a karta.

Hindu Succession (Amendment) Act 2005: Section 6

• The Hindu Succession (Amendment) Act 2005 is very crucial as it addressed

various gender inequalities in the previous act and gave equal rights to
daughters in Hindu Mitakshara Coparcenary Property.

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Changes after the 2005 amendment

• The act amended the provision which excluded daughters from coparcenary
property.
• Daughter of a coparcener shall birth become a coparcener in the same manner
as the son.
• Coparcener property shall be allotted to the daughter as is allotted to sons if a
Hindu dies.
• A daughter is entitled to demand a partition of the HUF.
• A daughter is also entitled to dispose off her share in the coparcenary property
at her own will.
• If a female coparcener dies before partition, then children of such coparcener
would eligible for allotment assuming a partition had taken place immediately
before her demise.

Confusion over applicability of Section 6

• In the case of Prakash and others v. Phulavati (2016), [Justice Anil

Dave, A.K. Goyal], the apex court opined that “The rights of coparceners
under amendment act 2005 are applicable to living daughters of living
coparceners as on 9/9/2005 irrespective of the birth date of daughters.” It
simply means that If a coparcener (father) had passed away prior to Sept 9,
2005, the living daughter of the coparcener would have no right to coparcenary
property in such case.
• The Supreme Court in the case of Danamma v. Amar (2018)[ A.K. Sikri,
Ashok Bhushan] held that if the father passed away prior to date
09.09.2005 (the date on which amendment came) and a prior suit is pending
for partition by a male coparcener, the female coparceners will be entitled to a
share (Although same was not entitled in Phulavati’s case).
• These two cases created an era of confusion on the interpretation of Section 6
of the Hindu Succession (Amendment) Act 2005.

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The Amendment Act aimed at making two major amendments in the
Hindu Succession Act, 1956:

1. Amended the provision which excluded the right of daughters from

coparcenary property.
2. Omitted Section 3 of the act which disentitled a female heir to ask for partition
in respect of a dwelling house which is wholly occupied by a joint family, until
the male heirs choose to divide their respective shares.

• In the recent case of Vineeta Sharma v. Rakesh Sharma 2020 [

JUSTICE ARUN MISHRA, S. ABDUL NAZEER, M.R. SHAH J.J.]
the bench the Supreme Court ruled that daughters have an equal right in the
parental property the same as the son, even if the father died before the Hindu
succession (amendment) act 2005.
• It also held that the rights under the amendment are applicable to living
daughters of living coparceners as on the date 09.09.2005, irrespective of when
such daughters are born.

Intestate Succession – Hindu Law

• Succession means succeeding or following in general day to day language, but here
it means succeeding or passing of rights of property from one to another.
• There are two types of property in Hindu Family
1. Joint Family Property
2. Separate property
• Joint Family Property which is also called Coparcenary property is devolved
according to rules of Coparcenary or through partition.
• Separate Property devolves via two ways:
1. Testamentary Succession ( i.e. through will but that could be the case only
when the person who died made a will before dying)
2. Intestate Succession (when the person dying didn’t leave any will)

60
 Hindu Succession Act, 1956

• It provides for the rules and procedures for Intestate Succession Intestate

Succession of Hindu male: (Sec 8-13-Hindu Succession Act.)

Section 8:– General rules of succession in the case of males.

• The property of a male Hindu dying intestate shall devolve according to the
provisions of this Chapter-
a. Firstly, upon the heirs, being the relatives specified in class I of the Schedule;
b. Secondly, if there is no heir of class I, then upon the heirs, being the relatives
specified in the class II of the Schedule;
c. Thirdly, if there is no heir of any of the two classes. Then upon the agnates of
the deceased; and
d. Lastly, if there is no agnate, then upon the cognates of the deceased.

CLASS I CLASS II AGNATES COGNATES

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Section 9: Order of succession among heirs in the Schedule.

• Among the heirs specified in the Schedule, those in class I shall take
simultaneously and to the exclusion of all other heirs; those in the first entry in
class II it shall be preferred to those in the second entry; those in the second
entry shall be preferred to those in the third entry; and so on in succession.

CLASS I HEIRS

• Mother;
Here the term mother also includes an adoptive mother Moreover, if there is an
adoptive mother; the natural mother has no right to succeed to the property of
the intestate.
A mother is also entitled to inherit the property of her illegitimate son by virtue
of Section 3(1)(j)
Jaya lakshmi Ammal and Ors vs. T.V. Ganesalyer (1971)
The unchastity of the mother is no bar as to her inheriting from her son. Even
if she is divorced or remarried she is entitled to inherit from her son.
• Son; daughter;

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 Adopted children also included, children born out of void/voidable marriage
also illegitimate children [acc. To Sec. 16 of Hindu Marriage Act. 1955]
• Widow;
If there is more than one widow then they will inherit one share jointly. (Widow
of the dead is entitled to inherit from ex-husband’s property even if she
remarries after his death)

Section 10: Distribution of property among heirs in class I of the Schedule.

The property of an intestate shall be divided among the heirs in class I of the Schedule
in accordance with the following rules:

Rule 1- The intestate’s widow, or if there are more widows than one, all the widows
together, shall take one share.

1/3
M 1/3
S
M
P W W
W1 W2
1 2
S
1/3
Rule 2 – The surviving sons and daughters and the mother of the intestate shall each
take one share.

Rule 3 – The heirs in the branch of each pre-deceased son or each pre-deceased
daughter of the intestate shall take between them one share.

1/4
M

W 1/4
P
1

S S D H
1/4
1/4

D S
S D

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Rule 4 – The distribution of the share referred to in Rule 3-

(i) Among the ‘heirs’ in the branch of the pre-deceased son shall be so made
that his widow (or widows together) and the surviving sons and
daughters get equal portions; and the branch of his predeceased sons
gets the same portion;
(ii) Among the heirs in the branch of the pre-deceased daughter shall be so
made that the surviving sons and daughters get equal portions.

Section 11.Distribution of property among heirs in class II of the Schedule.

The property of an intestate shall be divided between the heirs specified in any one
entry in class II of the Schedule so that they share equally.

Class II Heirs

i. Father. (includes adoptive father, father is not entitled to property from

illegitimate son unlike mother but he is entitled to inherit property from
children born out of void and voidable marriages)
ii. (1) son’s daughter’s son
(2) Son’s daughter’s daughter

(3) Brother

(4) Sister.

(Brothers and sisters inherit simultaneously. Here the term ‘brother;

includes both a full and a half brother. However, a full brother is always
preferred to a half brother (according to Section 18))

Uterine brother is not entitled to the intestate’s property. However when

the intestate and his brother are illegitimate children of their mother.
They are related to each other as brothers under this entry.

iii. (1) Daughter’s son’s son

(2) Daughter’s son’s daughter
(3) Daughter’s daughter’s son
(4) Daughter’s daughter’s daughter.

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 iv. (1) brother’s sons

(2) Sister’s son

(3) Brother’s daughter

(4) Sister’s daughter.

v. Father’s Father; father’s mother.

vi. Father’s widow; brother’s widow.

vii. Father’s brother; father’s sister.

viii. Mother’s father; mother’s mother.

ix. Mother’s brother; mother’s sister.

Arunachalathammal v. RamachandranPillai (1962)

It was contended that the different heirs mentioned in one entry (in this case Entry I
of Class II) are subdivisions of that particular entry and they do not inherit
simultaneously but here again there is a question of preference i.e. the first subdivision
inherits and then in its absence the later. The question arose because there were in his
case. One brother and five sisters of the intestate and no other heir and the brother
contended that in a brother being in subcategory (3) of entry I was to be preferred over
sister who was in subcategory (4) of entry I and thus he was entitled to the full
property. However the same was negated and It was held that all heirs in an entry
inherit simultaneously and there is no preference to an heir in a higher subcategory
within an entry to an heir in a lower subcategory in the same entry

If there is no class I or Class II heirs then the property will go to Agnates

of the intestate (Section 8)

Section 3 (1) (a) “agnate” – one person is said to be an “agnate” of another if the
two are related by blood or adoption wholly through males;

✓ Agnates of the intestate do not include widows of lineal male descendants because
the definition of agnates does not include relatives by marriage but only relatives
by blood or adoption.

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✓ There is no limit to the degree of relationship by which an agnate is recognized.
Hence, an agnate however remotely related to the intestate may succeed as an heir.
✓ This relationship does not distinguish between male and female heirs.
✓ There is also no distinction between those related by full and half blood. However,
uterine relationship is not recognized.

If there are no class I or Class II heirs and no agnates then the property will go to
Cognates of the intestate (Section8)

Section 3 (1) (c) “cognate”- one person is said to be a cognate of another if the two
are related by blood or adoption but not wholly through males;

✓ It does not matter if the intervention in the line of succession is by one or more
females. So long as there is at least one females intervening, it is a cognate
relationship
✓ Cognate relationship is also not based on marriage and only on blood or adoption.
Hence widow or widowers of those related by cognate relationship do not fall under
this category and hence they are not entitled to succeed on this ground.

Following are the Categories of agnates and cognates

(a) Agnates and Cognates who are descendants, Ex. Agnates- son’s son, son’s
son’s daughter
Cognate- daughter’s son, son’s daughter’s daughter

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 (b) Agnates or Cognates who are ascendants, Ex. Agnates- Father’s father’s
father
Cognates- father’s mother’s father
(c) Agnates or cognates who are collateral i.e. related to the intestate by
degree of both ascent and descent. Ex. Agnate- father’s brother’s son
Cognate- Mother’s brother’s son.

Section 12 says that descendants shall be preferred over ascendants who in turn shall
be preferred over collaterals.

Section 12:- Order of succession among agnates and cognates.

The order of succession among agnates or cognates, as the case may be; shall be
determined in accordance with the rules of preference laid down hereunder:

Rule 1 – of two heirs, the one who has fewer or no degrees of ascent is preferred.

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Rule 2 – Where the number of degrees of ascent is the same or none, that heir is
preferred who has fewer or no degrees of descent.

Rule 3 – Where neither heir is entitled to be preferred to the other under Rule 1 or
Rule 2 they take simultaneously.

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Section 13: Computation of degrees.

(1) For the purposes of determining the order of succession among agnates or
cognates, relationship shall be reckoned from the intestate to the heir in
terms of degrees of ascent or degrees of descent or both, as the case may be.
(2) Degrees of ascent and degrees of descent shall be computed inclusive of the
intestate.
(3) Every generation constitutes a degree either ascending or descending.

The order of succession among agnates and cognate is not determined merely by the
total number of degrees of ascent and descent. It is subject to and regulated by Section
12 of the Act.

Intestate Succession of Hindu Female

(Sec. 14-16, Hindu Succession Act)

Women were not given autonomy as a person in the past in Hindu culture, so women
had limited property rights, section 14 changed that

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

(1) The property of a female Hindu dying intestate shall devolve according to the
rules set out in section 16.
a. Firstly, upon the sons and daughters (including the children of any pre-
deceased son or daughter) and the husband;
b. Secondly, upon the heirs of the husband;
c. Thirdly, upon the mother and father;
d. Fourthly upon the heirs of the father; and
e. Lastly, upon the heirs of the mother.
(2) Notwithstanding anything contained in sub-section
a. Any property inherited by a female Hindu from her father or mother shall
devolve, in the absence of any son or daughter of the deceased (including the
children of any predeceased son or daughter) not upon the other heirs referred
to in sub-section
(i) In the order specified there in, but upon the heirs of the father; and

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 b. Any property inherited by a female Hindu from her husband or from her father
in law shall devolve, in the absence of any son or daughter of the deceased
(including the children of any pre-deceased son or daughter) not upon the
other heirs referred to in sub-section (1) in the order specified therein, but
upon the heirs of the husband.
• It is important to note that the two exceptions herein referred are confined to
only the property inherited from the father, mother, husband and father-in-
law of the female and does not affect the property acquired by her by gift or
other by other device.

Section 16.Order of succession and manner of distribution among heirs of

a female Hindu.

• The order of succession among the heirs referred to in section 15 shall be, and
the distribution of the intestate’s property among those heirs shall take place,
according to the following rules, namely:

Rule 1- Among the heirs specified in sub-section (1) of section 15, those in one
entry shall be preferred to those in nay succeeding entry and those including in
the same entry shall take simultaneously.

Rule 2- If any son or daughter of the intestate had predeceased the intestate
leaving his or her own children alive at the time of the intestate’s death, the
children of such son or daughter shall take between them the share which such
son or daughter would have taken if living at the intestate’s death.

Rule3- The devolution of the property of the intestate on the heirs referred to
in clauses (b), (d) and (e) of sub-section (1) and in sub-section (2) of section 15
shall be in the same order and according to the same rules as would have
applied if the property had been the father’s or the mother’s or the husband’s
as the case may be, and such person had died intestate in respect thereof
immediately after the intestate’s s death.

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 G
ENERAL PROVISIONS RELATING TO SUCCESSION
S
ection 18: Full blood preferred to half blood.
• Heirs related to an intestate by full blood shall be preferred to heirs related by
half blood, if the nature of the relationship is the same in every other respect.

Section 19: Mode of succession of two or more heirs.

• If two or more heirs succeed together to the property of an intestate, they shall
take the property-
(a) Save as otherwise expressly provided in this Act, per capita and not per
stripes; and
(b) As tenants-in-common and not as joint tenants.

Section 20: Right of child in womb.

• A child who was in the womb at the time of death of an intestate and who is
subsequently born alive has the same right to inherit to the intestate as if he or
she had been born before the death of the intestate, and the inheritance shall
be deemed to vest in such a case with effect from the date of the death of the
intestate.

Section 21: Presumption in cases of simultaneous deaths.

• Where two persons have died in circumstances rendering it uncertain whether

either of them, and if so which, survived the other, then for all purposes
affecting succession to property, it shall be presumed, until the contrary is
proved, that the younger survived the elder.

Section 25: Murderer disqualified.

• A person who commits murder or abets the commission of murder shall be

disqualified from inheriting the property of the person murdered, or any other
property in furtherance of the succession to which he or she committed or
abetted the commission of the murder.

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Section 26: Convert’s descendants disqualified.

• Where, before or after the commencement of this Act, a Hindu has ceased or
ceases to be a Hindu by conversion to another religion, children born to him or
her after such conversion and their descendants shall be disqualified from
inheriting the property of any of their Hindu relatives, unless such children or
descendant are Hindu at the time when the succession opens.

Section 27: Succession when heir disqualified.

• If any person is disqualified from inheriting any property under this Act, it shall
devolve as if such person had died before the intestate.

Section 28.Disease, defect etc. not to disqualify.

• No person shall be disqualified from succeeding to any property on the ground

of any disease, defect or deformity, or save as provided in this Act, on any other
ground whatsoever.

Section 29: Failure of heirs. ESCHEAT

• If an intestate has left no heir qualified to succeed to his or her property in

accordance with the provisions of this Act, such property shall devolve on the
government; and the government shall take the property subject to all the
obligations and liabilities to which an heir would have been subjected.

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73
74
DREAM.
BELIEVE.
DO.
REPEAT.

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