Jogesh Chandra Chaudhuri Law College

Students’ Union
30, Prince Anwar Shah Road, Kolkata, 70003
Email: jcclcsu.kolkata@gmail.com Phone: 9831948661 / 9831464712

• By the Students • Of the Students • For the Students

1ST SEMESTER FAMILY LAW I NOTES

INITIATED BY
NEIL BASU
(GENERAL SECRETARY)

ARRANGED BY
UTSA PODDER
(SECRETARY OF ACADEMIC AFFAIRS)

CIRCULATED BY
DEBASISH MONDAL (CR)- SEC A SACHINDRA MOHAN MONDAL
(CR) – SEC B
KHUSHI MUNDRA (CR) – SEC A SRIJITA MUKHERJEE (CR)- SEC B
DIPANKAR BHAKTO (CR) - SEC A MD DANISH FAROOQUI (CR)- SEC
B
SOURESH MONDAL (UR) - SEC A SHUVAM KANJILAL (UR) – SEC A

#STUDENTS’ WELFARE, RELATION & AID FUND SECRETARIAT

#LEGAL AID & AWARNESS SECRETARIAT
#ACADEMIC AFFAIRS SECRETARIAT
 भगवते 'याय देशाय च

FAMILY LAW I

OLD HINDU LAW

Q. Explain the concept and nature of Hindu law.

Hindu Law, it has rightly been observed, has the most ancient pedigree of any known system of
jurisprudence. However, it is not “law” as understood in modern times. Today, the word “law” signifies an
Act passed by the Legislature of a country.

Ancient Hindu Law, however, is not the result of any such legislation governing the Hindus. Hindu law is
supposed to be of divine origin, being derived from the Vedas, which are the revelations of the Almighty
Himself. Law, as understood by the Hindus, is a branch of Dharma, i.e., the duties and the rules of conduct
(moral, religious and political) enjoined by God on the Hindu community. Its ancient framework is the law
of the Smritis, which declare the rules of Dharma.

Thus, it covers all the systems of law, civil, religious and moral, which are treated separately in modern
times. Hindu Law is thus “what is followed by those learned in the Vedas, and what is approved by the
conscience of the virtuous who are exempt from hatred and inordinate affection”. (Manusmriti)

Thus, Hindu Law, as understood in ancient times, was not the command of the political sovereign of a
community. Rather, it was a command of the Supreme Being, applicable both to the king and his subjects,
the ruler and the ruled. The observations of the Privy Council in Mookka Kone v. Amma Kutti, (51 Mad.
1) are interesting.

In this case, the court observed: “What is ordinarily understood as Hindu Law is not the customary law of
the country like the common law of England. Neither is it a statute law, in the sense that some king or
legislature framed the law, and enforced its acceptance by the people. The Hindu Law, as commonly
understood, is a set of rules contained in several Sanskrit books, which the Sanskritists consider as books
of today, however, the picture is different. Once upon a time, Hindu Law was a mixture of religion and
legal philosophy. Today, legislation has come on the scene, and has considerably curtailed the extent of
the application of the uncodified Hindu Law.

Thus, for instance, if a Hindu commits murder or rape, he will not be tried today according to the ancient
Hindu jurisprudence; rather, his case will be governed by the Indian Penal Code and the Criminal
Procedure Code, which apply to all other Indians also.

In the earlier texts, Hindu Law has been defined as “the Law of the Smritis as expounded in the Sanskrit
Commentaries and Digests which, as modified and supplemented by custom, is administered by the
Court” (Mayne’s Treaties on Hindu Law). Today, such a definition of Hindu Law cannot hold good. A very
large portion of Hindu Law has now been codified, and is mainly to be found in the following four Acts:

(1) The Hindu Marriage Act, 1955

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(2) The Hindu Minority and Guardianship Act, 1956

(3) The Hindu Succession Act, 1956

(4) The Hindu Adoptions and Maintenance Act, 1956.

However, the law relating to Hindu Joint Families, their partition and re-union, as well as the law relating
to wills, gifts and religious usages and institutions, (in so far as it is not abrogated or modified by any other
Act) continues to be derived from the ancient sources of Hindu Law’s authority on the law governing the
Hindus”.

Q. Discuss the ancient sources of Hindu law?

From thousands of years people living in the Indian subcontinent have been leading their lives by following
the guidelines and concepts given in the Vedas. These guidelines have evolved into rules followed by the
people and enforced by the rulers and have thus become de facto law. In these modern times, the same
laws have been retrofitted to suit present conditions and have been codified in the form of several acts of
which the important ones are - Hindu Marriage Act 1955, Hindu Adoption and Maintenance Act 1956,
Hindu Minority and Guardianship Act 1956, and Hindu Succession Act 1956.

Sources of Hindu Law: Sources of Hindu Law can be divided into two parts - Ancient and Modern.

1. Ancient Sources

Before the codification of Hindu Law, the ancient literature was the only source of the law. These sources
can be divided into four categories:

A. Shruti: Shruti means "what is heard". It is believed that the rishis and munis had reached the height of
spirituality where they were revealed the knowledge of Vedas. Thus, shrutis include the four vedas - Rig,
Yajur, Sam, and Athrava along with their brahmanas. The brahmanas are like the appendices to the Vedas.
Vedas primarily contain theories about sacrifices, rituals, and customs. Some people believe that Vedas
contain no specific laws, while some believe that the laws have to be inferred from the complete text of
the Vedas. Vedas do refer to certain rights and duties, forms of marriage, requirement of a son, exclusion
of women from inheritance, and partition but these are not very clear-cut laws.

During the Vedic period, the society was divided into varns and life was divided into ashrams. The concept
of karma came into existence during this time. A person will get rewarded as per his karma. He can attain
salvation through "knowledge". During this period the varna system became quite strong. Since vedas had
a divine origin, the society was governed as per the theories given in vedas and they are considered to be
the fundamental source of Hindu law. Shrutis basically describe the life of the Vedic people.

The Vedic period is assumed to be between 4000 to 1000 BC. During this time, several pre-smriti sutras
and gathas were composed. However, not much is known about them today. It is believed that various
rishis and munis incorporated local customs into Dharma and thus multiple "shakhas" came into existence.

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(ii) Smritis: The word Smriti is derived from the root “smri” meaning ‘to remember’. Traditionally, Smritis
contain those portions of the Shrutis which the sages forgot in their original form and the idea whereby
they wrote in their own language with the help of their memory. Thus, the basis of the Smritis is Shrutis
but they are human works.

There are two kinds of Smritis viz. Dharmasutras and Dharmashastras. Their subject matter is almost the
same. The difference is that the Dharmasutras are written in prose, in short maxims (Sutras) and the
Dharmashastras are composed in poetry (Shlokas). However, occasionally, we find Shlokas in
Dharmasutras and Sutras in the Dharmashastras. In a narrow sense, the word Smriti is used to denote the
poetical Dharmashastras.

The number of Smriti writers is almost impossible to determine but some of the noted Smriti writers
enumerated by Yajnavalkya (sage from Mithila and a major figure in the Upanishads) are Manu, Atri,
Vishnu, Harita, Yajnavalkya, Yama, Katyayana, Brihaspati, Parashar, Vyas, Shankh, Daksha, Gautama,
Shatatapa, Vasishtha, etc.

The rules laid down in Smritis can be divided into three categories viz. Achar (relating to morality),
Vyavahar (signifying procedural and substantive rules which the King or the State applied for settling
disputes in the adjudication of justice) and Prayaschit (signifying the penal provision for commission of a
wrong).

C. Commentaries and Digest: After 200 AD, most of the work was done only on the existing material
given in Smritis. The work done to explain a particular smriti is called a commentary. Commentaries were
composed in the period immediately after 200 AD. Digests were mainly written after that and
incorporated and explained material from all the smritis. As noted earlier, some of the commentaries
were Manubhashya, Manutika, and Mitakshara. While the most important digest is Jimutvahan's
Dayabhaga that is applicable in the Bengal and Orissa area.

Mitakshara literally means 'New Word' and is paramount source of law in all of India. It is also considered
important in Bengal and Orissa where it relents only where it differs from Dayabhaga. It is a very
exhaustive treaties of law and incorporates and irons out contradicts existing in smritis.

The basic objective of these texts was to gather the scattered material available in preceding texts and
present a unified view for the benefit of the society. Thus, digests were very logical and to the point in
their approach. Various digests have been composed from 700 to 1700 AD.

D. Customs: Most of the Hindu law is based on customs and practices followed by the people all
across the country. Even smritis have given importance to customs. They have held customs as
transcendent law and have advised the Kings to give decisions based on customs after due religious
consideration. Customs are of four types:

Local Customs - These are the customs that are followed in a given geographical area. In the case of
Subbane vs Nawab, Privy Council observed that a custom gets it force due to the fact that due to its
observation for a long time in a locality, it has obtained the force of law.

Family Customs - These are the customs that are followed by a family from a long time. These are
applicable to families where ever they live. They can be more easily abandoned that other customs. In the

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case of Soorendranath vs Heeramonie and Bikal vs Manjura, Privy Council observed that customs
followed by a family have long been recognized as Hindu law.

Caste and Community Customs - These are the customs that are followed by a particular cast or
community. It is binding on the members of that community or caste. By far, this is one of the most
important source of laws. For example, most of the law in Punjab belongs to this type. Custom to marry
brother's widow among the Jats is also of this type.

Guild Customs - These are the customs that are followed by traders.

Essentials of a valid custom

1. Antiquity: A custom must be in existence from time immemorial. English law fixed the year 1189
to test the antiquity of a custom. A custom must be in existence prior to 1189, only then it can prove the
consideration of antiquary. Under Hindu law also immemorial customs are transcendental law. However
India law does not fix any particular year to test the antiquity of custom.

2. Continuance: A custom must be practiced without interruption; continuity is an essential feature

of the custom. Continuity does not mean that it should be in operation all the time. It means that there
should be a continuous availability of the terms of the customs to deal with particular rule of conduct with
which it deals. Presence 6f custom if fact and its enforceability both are essential to prove antiquity. If a
custom becomes legally unenforceable even for a short time it would not the recognized as a valid'
custom.

3. Peaceable enjoyment: It is essential that custom must have been enjoyed peacefully by the
concerned people.

4. Matter of right: Custom must have been enjoyed as a matter of right. This right should be
enforceable. Thus custom must result in creating obligatory force at the one hand and related claim on
the other hand. If a practice is observed as a courtesy and not as a matter of right then it can be termed
a "custom" in legal sense.

5. Certainty: Custom must be certain. If the nature of the custom is not certain then it loses its
validity. Custom originate from general consent, it is hard to determine existence of consent, on
something which is not certain.

6. Consistency: A custom must not be in conflict with other prevailing customs. The customs must
be in consistency with other custom. Difference or inconsistency in custom will amount to different rule
of conduct for a given situation; it will negotiate the general consent.

7. Conformity with statute law: Custom should be conformity with statute law. A legislative
enactment can abrogate a custom. In case of inconsistency between custom and statutory provision,
former must give way to the latter. Thus, custom yield legislative enactment.

Q. What are the modern sources of Hindu law?

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(i) Justice, equity and good conscience- Occasionally it might happen that a dispute comes before a
Court which cannot be settled by the application of any existing rule in any of the sources available. Such
a situation may be rare but it is possible because not every kind of fact situation which arises can have a
corresponding law governing it.

The Courts cannot refuse to the settle the dispute in the absence of law and they are under an obligation
to decide such a case also. For determining such cases, the Courts rely upon the basic values, norms and
standards of fair play and propriety.

In terminology, this is known as principles of justice, equity and good conscience. They may also be termed
as Natural law. This principle in our country has enjoyed the status of a source of law since the 18th century
when the British administration made it clear that in the absence of a rule, the above principle shall be
applied.

(ii) Legislations- Legislations are Acts of Parliament which have been playing a profound role in the
formation of Hindu law. After India achieved independence, some important aspects of Hindu Law have
been codified. Few examples of important Statutes are The Hindu Marriage Act, 1955, The Hindu
Adoptions and Maintenance Act, 1956, The Hindu Succession Act, 1956, The Hindu Minority and
Guardianship Act, 1956, etc.

After codification, any point dealt with by the codified law is final. The enactment overrides all prior law,
whether based on custom or otherwise unless an express saving is provided for in the enactment itself. In
matters not specifically covered by the codified law, the old textual law contains to have application.

(iii) Precedents- After the establishment of British rule, the hierarchy of Courts was established. The
doctrine of precedent based on the principle of treating like cases alike was established. Today, the
decisions of Privy Council are binding on all the lower Courts in India except where they have been
modified or altered by the Supreme Court whose decisions are binding on all the Courts except for itself.

Q. Who are Hindus?

According to Hindu laws codified by parliament, a Hindu is a person who-

· Is a Hindu by religion in any of its form or development

· Is a Buddhist, Jain or Sikh by religion

· Any person who domiciled in India, who is not a Muslim, Christian, Parsi or Jew by religion

· Hindus domiciled in the territories to which the Act extends

· Followers of Hindu law

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Followers of Hindu Law-

i) Legitimate child of Hindu parents ii)

Illegitimate child of Hindu parents

iii) Children of one Hindu parent

iv) Converted- The law was that the conversion was not accepted. But later it was accepted but the
converted person was given the lowest caste. All Hindu laws will be applicable upon him except the
succession.
Requirement of conversion- (i) Unequivocal conduct, (ii) Bona fide intention, (iii) No ceremony is required
and (iv) His motive is not important (Raman Nadar v. Snehapoo).

Q. ‘Hindus are born as well as made’ Justify the statement with reason.

According to Privy Council Hindus are those who are born “Hindus are those who are born as Hindus and
those who converts to Hinduism”

The cases on this is: (Abraham V. Abraham)

A person can adopt Hindu by conversion by any of these modes.
(i) By declaration as Hindu. (Mohandas v. Devasen Board)
(ii)By performing ceremony of conversion prescribed by converting community. (Kusum V. Satya) (iii) By
having intention to become Hindu. (Peerumal V. Poonuswami)

Q. Category of the person to whom Hindu law is applicable.

The word Hindu is extremely popular and famous term. Generally every person is known to it. But the
term of Hindu has not been defined till now. A person may be called as Hindu, but only few knew why
they are Hindu?

Sh. Radha Krishnan in his book ‘Hindu View of Life’ at one place said that there was a time
when a person was identified as a Hindu on the basis of region i.e. a person who resided in India was called
as Hindu, it also represented the nationality.

A time also came in the middle when a person was called Hindu who believed in Hindu
religion or followed it. But this identity of Hindu also did not remained for too long, because it was not
required for Hindu o believe in Hindu religion. It is said that though several codified Hindu Laws were
enacted in 1955 and 1956 but the term Hindu was not defined. Today it can be said broadly that a person
who is not Muslim, Christian, Parsi or Jew shall be Hindu.

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The Supreme Court in the case “Dr. Ramesh Yashwant Prabhu v/s Prabhakar Kashinath
Kunta” -1996 and Manohar Joshi v/s Nitia Bhausher Patil-1996 explain the term Hinduism related to
Hindu as the life style and mentality of this continent.

Now the term Hindu can be widely defined the person to whom Hindu Law applies shall be Hindu.

PERSON TO WHOM HIDNU LAW APPLIES:-

The following person can be kept in categories mentioned against each :-

1. Those persons who are Hindu, Jain, Buddhist or Sikh by birth:-

i) A person is called Hindu by birth who is the child of Hindu Parents i.e. whose parents are Hindu but such
person is also considered Hindu whose either of the parent is Hindu and has been brought up under Hindu
traditions.

In case of: Maya Devi v/s Uttram -1861, this view was proved. Another case of Sh Devavasan
v/s Jaya Kumari -1991, Kerala High Court held that male of Nadar caste of Travancore marry any non-
Hindu female and a child born out of such marriage shall be Hindu

Here pertinent to mention that according to ancient Dharamshashtras, a child born between
Hindu parents only can be called Hindu, there was no such thing of Hindu conversion of religion. Therefore
it was said that, “A Hindu is born not made”

Application of Hindu Law over Schedule tribes : Several times a question arose that a codified Hindu
Law does not apply to those persons which belongs to schedule tribe under article 366 clause (25) of the
constitution. Section 2(2) of Hindu Marriage Act 1955 and the case of Dashrath v/s Guru -1972 Orrisa
and Kadam v/s Jeetan -1973 of Patna given the answer of this question. According to them a codified
Hindu Law shall apply to such persons only when the Central Government notifies in the official Gazette
by a notification.

CHILD FROM HINDU FATHER & CHRISTAIN MOTHER

A question also arosed that whether such person shall be considered to be Hindu whose father is Hindu
and mother is Christain? A case Commissioner of Income tax v/s Sridharan -1976 : a positive answer was
given and said that if either of the parent is Hindu and child born out of them is brought up under Hindu
traditions then that child shall be considered as Hindu. Also in our society the religion of father
applies over the son

In a case of Sapna v/s State of Kerala : 1993: It was held that if a child is brought up as a member of
Christian family then in that situation the child shall be christian instead of being Hindu.

Those persons who are Hindu, Jain, Buddhist or Sikh by religion:-The Hindu Law also applies to
those persons who are not Hindu by birth but have accepted Hindu religion by conversion.

Case: Abrahim v/s Abrahim, 1863, is an important case in this respect. It was held in this case that the
Hindu Law applies not only to those who are Hindu by birth but also applies to those persons who have

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become Hindu by conversion. Another case Morarji vs Administrator General-1929 Madras: It was said
that persons becoming Hindu by conversion are also Hindu and the Hindu Law applies over them too.
Modern Hindu Law includes both Hindu by birth and Hindu by religion under the term Hindu.

Those persons who are not Mussalman, Chistain, Parsi Or Jew.

In wider sense Hindu Law applies to all those who are not Mussalman, Christain, Parsi or Jew. Case :
Rajkumar v/s Warwara-1989: Calcutta: The Calcutta High Court held that this category includes all those
person who donot believe in any religion. In other words, it can be said that all persons different from
Mussalman, Christain,Parsi or Jew are Hindu and the Hindu Law applies over them, who are i) atheist or
ii) believes in all religion, or iii) believes in religion which is maximum of all.

Another case: Yagyapurushdasji v/s Mooldas -1966: The Supreme Court held that the followers
of Narayan Swami section as Hindu because though they may be governed by their views or rules but
finally are related to the Hindu religion.

APPLICATION OF ENACTED LAWS

The enacted laws applies over the following:-

i) Who are the followers of Veer Shav, Lingayat or Braham samaj. Prathna Samaj or Arya Samaj and are
Hindu by religion.

ii) Who are Jain, Buddhist or Sikh by religion.

iii) Who are resident of territory to which enacted law applies and are not mussalman, Christain, Parsi
or Jew and has not been proved that in the absence of enactment, they would not have been governed
by Hindu Law or a custom or practice of its part.

THE FOLLOWING PERSONS ARE HINDU, BUDDHIST OR SIKH BY RELIGION

(a) Any child, legitimate or illegitimate, whose both parents are Hindu, Buddhist, Jain or Sikh by religion.

(b) Any child legitimate of illegitimate whose either of parent is Hindu, Buddhist, Jain or Sikh by religion
and has been brought up a member of that tribe community or group to which that parents was or is
member.

(c) Any person who has converted or reconverted to Hindu, Buddhist, Jain or Sikh religion : Cases :
Perumal v/s Punnuswami-AIR-1971 & Durga Parsad v/s Sudarshan Swami AIR-1940 Madras. This
was proved.

Q. Write a short note on Mitakshara Coparcenary vs. Dayabhaga Coparcenary.

1. How long has the Coparcenary arise:

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DAYABHAGA - no right by birth as on Coparcenary.After the death of Father, his sons constitute a
Coparcenary.

MITAKSHARA- Right by birth.

2. Nature of interest:

DAYABHAGA- there is a defined interest. it does not pass by survivorship.

MITAKSHARA- Coparcener share is not defined.it fluctuate by birth and death of coparcener.

3. Expansion of Coparcenary:

DAYABHAGA- On the death of one of his heirs becomes coparceners.

MITAKSHARA- only males can be coparceners.

4. Alienee's right to ask for partition:

DAYABHAGA- any equity is held for an Alienee for a suit of partition. Can ask for a joint possession with
coparcener.

MITAKSHARA- there is no definite share for an Alienee, but he may file a suit for the partition. hence suit
is the only appropriate remedy.

5. Persons entitled to partition:

DAYABHAGA- The law does not confer on SON a right of birth hence he has no right for partition against
the Father.

MITAKSHARA- SONS can institute a suit of partition even against the Father.

Q. Write a note on Dharmashastras. How does it differ from Dharmasutras?

Dharmshastras: Dharma Shastras is the collective name for the various law books of the Hindus, which
regulate their political, religious and social life. According to one authority there are 47 ancient sages who
have given laws to the Hindus.

All of them, however, have not been recognised as such by all sects. Yagnavalkya, himself a law-giver
mentions twenty lawgivers including him.

They are: (1) Manu (2) Yagnavalkya (3) Atri (4) Vishu (5) Harita (6) Usanas (7) Angiras (8) Apartambha (9)
Yama (10) Brihaspati (11) Parasara (12) Samvarta (13) Katyayana (14) Daksha (15) Vyasa (16) Likhita (17)
Sankha (18) Gautama (19) Shatatapa (20) Vashishta.

Of all the law books, the code of Manu is the most ancient, comprehensive and authoritative. Manu is a
mythical personage, believed to be the progenitor of mankind and the originator of law.

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The code of Manu is of great antiquity, only less ancient than the three first Vedas. Later writers made
additions in the name of Manu and some passages in the code breathe the spirit of medieval writers.

The social theory on which the code is based is founded on caste. The whole design of the code is to
perpetuate the supremacy of the Brahmins to whom even kinship is subordinate.

The discipline imposed on Brahmins themselves by Manu is very rigid and the life of a Brahmin is to be a
duty towards him and to others. Next in importance to Manu comes Yagnavlkya.

Parasara is however considered the most reliable authority for the Kaliyuga. Says the code of Parasara:
The laws of various ages are different, Manu's law-book belongs to the Kritayuga, Gautama's to the Treta,
that of Sankha and Likhita to the Dwapara and Parasara's code to the Kaliyuga.

The Dharmasutras: The Dharmasūtras are Sanskrit texts dealing with law and rituals. They include the four
surviving written works of the ancient Indian tradition on the subject of dharma, or the rules of behavior
recognized by a community. Unlike the later Dharmashastra, the dharmasutras are composed in prose.
The oldest Dharmasutra is generally believed to have been that of Apastamba, followed by the
dharmasutras of Gautama, Baudhayana, and Vasishtha. It is difficult to determine exact dates for these
texts, but the dates between 500-300 B.C.E. have been suggested for the oldest Dharmasutras.

THE HINDU MARRIAGE ACT 1955

Q. Explain the nature, concept and object of a Hindu marriage. Discuss the importance of ceremonies of
Hindu marriage.

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Marriage is one of the oldest institutions of Hindus. It occupies a very important place in their social life.

It is regarded as one of most important ten Sanskaras (sacraments) for them. In marriage the father
entrusts his daughter into the hands of a noble and physically sound groom who thereby becomes her
husband. This mode of marriage is well-settled since Vedic period and has assumed religious significance.
According to Raghunandan, a Hindu marriage implies the acceptance of the bride as wife by the groom
through a ceremonial process which is technically known as kanyadan.

It is the only Sanskara (sacrament) which has not been prohibited for any one irrespective of caste and sex
and has been provided as compulsory for all males and females. Through the institution of marriage men
and women are united into a wedlock, the purpose of which is generally to give birth to a male child.

Every twice born Hindu is under a religious obligation to discharge three debts namely, Pitri Rin, Dev Rin
and Rishi Rin i.e., debt to father, debt to gods and debt to seers and sages and in the discharge of Pitri Rin,
he must of necessity have his own son, Dharmaj Putra, begotten upon his legally wedded wife, who is
supposed to perform funeral rites and to give sacred oblations to the ancestors on their death for their
salvation.

Hindu law has thus assigned a very important status to the male child, who plays a key role for the salvation
of his parents and his deliverance from sufferings of the hell. A Hindu son is thus a saviour from Hell
(Punttam Narkaat Trayntey iti Putrah) meaning thereby that only his son salvates men from the tortures
of Hell. The sacrament of marriage, therefore, becomes necessary to beget a son.

Marriage is essential also because all the religious ceremonies and rites are to be performed by a Hindu in
the companionship of his wife otherwise they will not bear any fruits. It is noteworthy that marriage under
Hindu law is not regarded primarily as means of satisfying the corporal lust nor does it have the
connotation of contractual obligations. On the contrary it is simply a religious sacrament and an obligatory
duty.

According to Bombay and Madras High Courts the importance of the institution of marriage becomes
distinct by the fact that religion regards it as one of the ten sacraments essential for purifying the body
from its hereditary taints. Marriage is a religious institution intended to fulfil religious duties and to
achieve the higher ends of life, namely, Dharma, Artha, Kama and Moksha.

It is binding upon every Hindu to marry unless he has taken the vow to lead the life of a perpetual celebacy
and abstinence. Women have been created to become mothers later and similarly men to become fathers.

The Vedas enjoin that a man should carry out the religious obligations together with his wife. Only that
man is perfect who has a wife and children. Only that man could fulfil his obligations who is blessed with
wife. Only the persons who have wives could lead a family life, those who have wives can alone remain
happy and gay and they alone could lead a perfect life.

Wives have been considered to be the better halves and religious partners of their husbands which means
that half part of a man is his wife and that without being married; the personality of a man is incomplets.
Perfection comes only after marriage. In Ramayan, wife has been considered to be the soul of her husband
and in Mahabharat she is stated to be the half part of her husband, and his best friend. She is regarded as
an inspiration to religion, wealth and ambitions.

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She is source of salvation, and considered to be Dharmapatni, i.e., lifelong companion to carry out the
religious injunctions of Vedas and Dharmashastras and to perform religious rites and ceremonies as
enjoined in the sacred books. The performance of the religious ceremonies along with the wife is
necessary otherwise they will not bear any fruits.

By marriage an inseparable relationship is created between the husband and wife. The relationship cannot
be broken by any means whatsoever even when the wife starts living a very wretched life. According to
Manu, the daughter is given in marriage only once and she remains the wife of that person to whom she
is given in marriage, for her whole life.

The two seers known as eminent jurists of later period, namely Narada and Parasar have stated five
conditions in which a wife could abandon her husband and remarry. These conditions are as under: (1)
where the husband is lost or (2) dead, or (3) has renounced the world and has become a sanyasi, or (4)
has become impotent, or (5) has been ousted from his caste. But these conditions of remarriage were
provided only for the marriages of unapproved forms.

The Dharmashastra-writers generally do not agree with the view that a wife could abandon her husband
under any circumstances. The indissoluble tie, created between the spouses, could not be broken in any
case May it be an approved form or unapproved form of marriage. This signifies an unique character of
Hindu marriage.

According to Manu, the remarriage of a woman could not be even imagined. After the death of her
husband, she has to lead her whole life simply on vegetation and in abstinence emaciating herself to
minimal. She is supposed not to take the name of any person other than her deceased husband. Thus
leading a life of celebacy and chastity and maintaining abstinence throughout, she earns a right to have a
seat in the Heaven.

A Hindu marriage has been said to be a sacrament also because the marital relations between the spouses
are created not on account of any contract between the two but by virtue of a gift of the girl by her father
to the bridegroom. The gift is holy and accompanied with the religious ceremony of Saptapadi or any other
customary religious rites. In absence of such religious ceremonies and rites marriage is said to have not
taken place at all in the eyes of law.

It is considered to be a sacramental union between the husband and the wife to last long till their life.
Hindu marriages are thus rightly acclaimed as sacrament rather than contract as it lacks every essential of
a valid contract, e.g. proposal, acceptance and consideration. In the marriage the parents or the guardian
of the girl gives her away by way of gift to a noble and virtuous man after respectfully inviting him and
accomplishing the religious rites and ceremonies.

Thereafter the bridegroom accepts her as his wife and vows to keep her with utmost love and respect till
the last breath of her life. Under these conditions there is hardly any place for a contract between bride
and bridegroom at the time of marriage.

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Ceremonies of a Hindu Marriage

Section 7 of the Hindu Marriage Act 1955 recognizes the ceremonies and customs of marriage. A Hindu
marriage may be solemnized in accordance with the customary rites and ceremonies of either party to
the marriage .The parties to the marriage fulfill the conditions prescribed as follows:

(1) A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of
either party thereto.

(2) Where such rites and ceremonies include the saptpadi (that is, the taking of seven steps by the
bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and binding
when the seventh step is taken.

Ceremonies vary according to custom. The presentation of a pair of cloth by the bridegroom to the bride
(pudava koda) is an important customary rite among the Nair caste in Kerala. Tying of a sacred thread
around the neck of the bride (Mangalya Sutra or Tali ) is another rite. Exchange of rings or garlands also is
common. A marriage will be valid only if the ceremony through which it is solemnized is sanctioned by the
religion of either party as customary ceremony

Q. What are the essential conditions of a valid Hindu marriage?

Under the Hindu Marriage Act, 1955 certain conditions are necessary for a valid Hindu Marriage. Those
conditions have been laid down in Sec 5 and 7of the Act. Section reads as follows.

By virtue of section 5 of the Hindu Marriage Act 1955, a marriage will be valid only if both the parties to
the marriage are Hindus. If one of the parties to the marriage is a Christian or Muslim, the marriage will
not be a valid Hindu marriage

“A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:-

1. Neither party has a spouse living at the time of the marriage;

2. At the time of marriage, neither party:

a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or

b) Though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to
such an extent as to be unfit for marriage and the procreation of children; or

c) Has been subject to recurrent attacks of insanity or epilepsy

3. The bridegroom has completed the age of 21 years and the bride the age of 18 years at the time
of marriage;

4. The parties are not within the degrees of prohibited relationship, unless the custom or usage
governing each of them permits of a marriage between the two

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5. The parties are not sapindas (one is a lineal ascendant of the other) of each other, unless the
custom or usage governing each of them permits of a marriage between the two.

This section lays down five conditions for a valid marriage. They are:

1. Monogamy (Sec 5 Clause (1)): This provision Prohibits bigamy .The marriage should be
monogamous. Under the Hindu Law a person can validly marry if he or she is either unmarried or divorced
or a widow or a widower. If at the time of the performance of the marriage rites and ceremonies either
party has a spouse living or the earlier marriage had not already been set aside, the later marriage is void.
A bigamous marriage is null and void and is made punishable.

2. Mental Capacity (Sec 5 Clause (2)): The parties to the marriage should not suffer from
unsoundness of mind, mental disorder or insanity. In all the cases given in sec 5 clause (2) the party is
regarded as not having the mental capacity to solemnize the marriage. So if a party who solemnize the
marriage is suffer from unsoundness of mind, mental disorder or insanity, the marriage is voidable at the
opinion of the other party.

It is to be noted that Sec 5(2) (c) of the Hindu Marriage Act 1955 has been amended by the Marriage Laws
(Amendment) Act 1999 and the word ‘epilepsy’ is omitted. The result is that at present even if a party to
the marriage is subject to recurrent attacks of epilepsy, the marriage is valid and the other party cannot
seek for nullity of marriage.

3. Age to the parties (Sec 5 Clause (3)): At the time of marriage the bridegroom has completed the
age of 21 years and the bride the age of 18 years .If a marriage is solemnized in contravention of this
condition is neither void nor voidable.

Punishment :- By Section 18 of the Act ,anyone who procures a marriage in violation of the condition is
liable to be punished with simple imprisonment which may extent up to 15 days or with fine which may
extend upto Rs. 1000/- or with both.

4. Degrees of Prohibited relationship (Sec 5 Clause (4)): The parties to the marriage should not come
within the 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

lineal ascendant or descendant of the other; or

iii) if one was the wife of the brother or of the father’s or mother’s brother or of the grandfathers 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.

A marriage between two persons who come within the degrees of prohibited relationship shall be void.
However, if there is a valid custom or usage governing both the parties allows they can marry even though

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they come within the degrees of prohibited relationship. All over India, there are such custom which
validate marriage between persons who come within the degrees of prohibited relationship.

For instance, marriage between the children of brother and sister is common among the
marumakathayam of Kerala. In some parts of Tamil Nadu, Marriage between a person and his eldest
sister’s daughter is common. Here the parties though come within the degrees of prohibited relationship;
they can validly marry by virtue of custom or usage. It is essential that the custom or usage should be
certain, reasonable and not opposed to public policy.

Punishment :-According to Sec.18(b) A marriage solemnized between the parties within the degrees of
prohibited relationship is null and void and the parties of such marriage are liable to be punished with
simple imprisonment for a period of one month of fine or Rs. 10000/- or with both.

5. Sapinda Relationship (Sec 5 Clause (5)): The parties to the marriage should not be related to each other
as Sapindas. A marriage between sapindas is void.

Under Section 3(f) (i) “Sapinda relationship” with reference to any person extends as far as the third
generation (inclusive) in the line of ascent through the mother, and the fifth (inclusive) in the line of ascent
through the father, the line being traced upwards in each case from the person concerned, who is to be
counted as the first generation.

(ii) Two persons are said to be “sapindas” of each other if one is a lineal ascendant of the other within the
limits of "sapinda" relationship, or if they have a common lineal ascendant that is within the limits of
"sapinda" relationship with reference to each of them.

No marriage is valid if it is made between parties who are related to each other as ‘sapindas’ unless such
marriage is sanctioned by usage or custom governing both parties. The custom which permits of a
marriage between people who are sapindas of each other must fulfill the requirements of a valid custom.
The custom must be certain, reasonable and should not be opposed to public policy.

Q. What is the difference between void and voidable marriage?

Void Voidable

Defined by section 11 Defined by section 12

Grounds - Grounds:

1. Performed in 1. Unable to consummate - Impotence (not same as incapacity to

contravention of 5(i), conceive or impregnate)
5(iv), or 5(v) Samar vs Snigdha- Full and complete penetration (vera copula) is an
essential ingredient of ordinary intercourse though degree of

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satisfaction is immaterial.
Kanthy vs Harry - Unduly large male organ amounts to physical
2. Ceremonies in section 7 abnormality and thus impotence.
not performed. Laxmi vs Babulal - Absence of vagina, even though an artificial
vagina was created, was held impotence.
Jagdeesh vs Seela - Husband lived with wife for 3 days and nights
immediately after marriage but could not consummate. Held that it
3. In contravention of was because of incapacity, nervousness, or hysteria. Thus, was
section 15 - Divorce not impotent.
Shewanti vs. Bharua,1971 - Wife was sterile and suffering from
granted yet or time to
nonmenses, though she was capable of normal sexual intercourse.
appeal has not elapsed.
Held not impotent because capacity to bear children is not
impotence. Impotence only refers to sexual intercourse.

2. In contravention of 5(ii) - Mentally unsound. AlkavsAbhilash,

BalakrishnavsLalitha

3. Consent obtained by force or fraud.

Force - Rice vs Rice - threatened with pistol.
Fraud - Rama vs Mohinder 1996 - Did not tell that she had a child
with cesarean.
Fraud - Purbi vs Basudev 1969 - Husband's pre-marriage boasting
about high prospects in life is not fraud.
Fraud - SomDutt vs Raj Kumar 1986 - Wife concealed her age. She
was 7 yrs elder.

4. Girl was pregnant by some other person

Mahendra vs Sushila, 1965 -Girl's admission to pre-marriage
pregnancy when husband had no access to her.

Marriage does not exist at all. Marriage is fully valid until it is declared void by the court.

No consequences of marriage -
right in property, conjugal rights, Full consequences while marriage lasts.
maintenance.

Court decree is necessary. Marriage can be avoided only on the petition of

one spouse.
No decree of court is necessary.
Decree can be obtained by either If one person does not petition for annulment, marriage will remain valid. If
person. one person dies, the marriage will remain valid for ever.

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If someone calls the wife a

concubine, it will not amount to Decree is given retroactively.
defamation.

Q. Provisions regarding restitution of conjugal rights in Hindu marriage.

Section 9 of the Hindu Marriage Act, 1955 provides for the restitution of the conjugal rights. The
fundamental rule of matrimonial law is that the spouses must live together. Each spouse is entitled to
comfort (consortium) of the other.

When one of the spouses leaves the other without any reasonable excuse, the latter can approach the
court by filing a petition praying for a decree of restitution of conjugal rights. The court after hearing the
petition of the aggrieved spouse, on being satisfied that there is no legal ground why the application shall
be refused and on being satisfied of the truth of the statements made in the petition may grant a decree
for restitution of conjugal rights. The person who has deserted the spouse can defend the petition if there
is sufficient cause on his or her side.

Three essential conditions for Section 9 of HMA

Firstly, one party must have withdrawn from the society of the other; secondly, the withdrawal must be
without any reasonable reason, and thirdly, the aggrieved party applies for the restitution of conjugal
rights. Once these conditions are fulfilled, the district court may decree of restitution of conjugal rights to
bring about cohabitation between the estranged parties.

If the aggrieved party is unable to convince the district court and it founds that the petitioner is guilty then
the decree of restitution of conjugal rights is not granted. An added advantage from this is that if the
parties are not following the decree for cohabitation after the passing of the decree, continuously for one
year, it becomes a ground for divorce under Section 13.

Reasonable grounds on which petition for Restitution of Conjugal Rights can be rejected

First, if the respondent has a ground on which he or she can claim any matrimonial relief;

Second, if the petitioner is guilty of any matrimonial misconduct;

Third, if the petitioner is guilty of such act, omission or conduct which makes it impossible for the
respondent to live with him; for instance, husband’s neglect of his wife or the constant demand for dowry,
etc. are some reasonable ground for wife not to join the company of her husband.

Burden of proof under Section 9 of the HMA

Burden of proof operates at two levels. Firstly, burden of proof is on the aggrieved/petitioner who needs
to prove that the respondent has withdrawn from his society. Once that burden is discharged by the
petitioner, it falls on the respondent to prove that there exists a reasonable excuse for the withdrawal.

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Q. What are the additional grounds of divorce available to wife only?

In addition to the grounds of divorce mention in section 13, a wife may also present a petition for the
dissolution of her marriage on the following grounds. (Section 13 (1A))

• Where the marriage was solemnized before the commencement of this Act, and the husband had
married again before such commencement or that any other wife of the husband whom he had
married before such commencement was alive at the time of the marriage. (In such a case it’s
necessary that the other wife is alive at the time of presentation of the petition).
• That the husband has after the marriage been guilty of rape, sodomy or bestiality.
• Wife was awarded maintenance under section 15 of Hindu Adoption & Maintenance Act 1956 or
under section 125 of CrPC and no cohabitation has occurred for 1 year after the award.
• That her marriage whether consummated or not was solemnized before she attained the age of
15 years and she has repudiated the marriage after attaining that age but before attaining the age
of 18 years.

Q. What are the Grounds of divorce under Hindu Marriage Act, 1955?

1. Grounds for Divorce under the Hindu Marriage Act, 1955. (Section 13)

Adultery – The act of indulging in any kind of sexual relationship including intercourse outside
marriage is termed as adultery. Adultery is counted as a criminal offence and substantial proofs are
required to establish it. An amendment to the law in 1976 states that one single act of adultery is
enough for the petitioner to get a divorce.

Cruelty – A spouse can file a divorce case when he/she is subjected to any kind of mental and physical
injury that causes danger to life, limb and health. The intangible acts of cruelty through mental torture
are not judged upon one single act but series of incidents. Certain instances like the food being denied,
continuous ill treatment and abuses to acquire dowry, perverse sexual act etc are included under
cruelty.

Desertion – If one of the spouses voluntarily abandons his/her partner for at least a period of two
years, the abandoned spouse can file a divorce case on the ground of desertion.

Conversion – Incase either of the two converts himself/herself into another religion, the other spouse
may file a divorce case based on this ground.

Mental Disorder – Mental disorder can become a ground for filing a divorce if the spouse of the
petitioner suffers from incurable mental disorder and insanity and therefore cannot be expected from
the couple to stay together.

Leprosy – In case of a ‘virulent and incurable’ form of leprosy, a petition can be filed by the other
spouse based on this ground.

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Venereal Disease – If one of the spouses is suffering from a serious disease that is easily
communicable, a divorce can be filed by the other spouse. The sexually transmitted diseases like AIDS
are accounted to be venereal diseases.

Renunciation – A spouse is entitled to file for a divorce if the other renounces all worldly affairs by
embracing a religious order.

Not Heard Alive – If a person is not seen or heard alive by those who are expected to be ‘naturally
heard’ of the person for a continuous period of seven years, the person is presumed to be dead. The
other spouse should need to file a divorce if he/she is interested in remarriage.

No Resumption of Co-habitation – It becomes a ground for divorce if the couple fails to resume their
co-habitation after the court has passed a decree of separation.

Q. Write a note on legitimacy of children of void and voidable marriage.

Section 16 of the Hindu Marriage Act 1955 provides that "( 1) Notwithstanding that a marriage is null
and void under Section II any child of such marriage who would have been legitimate if the marriage
had been valid shall be legitimate, whether such child is born before or after the commencement of
Marriage Law (Amendment) Act 1976 & whether or not decree of nullity is granted in respect of that
marriage under this Act and whether or not marriage is held to be void otherwise than on petition
under this Act.

(2) Where a decree of nullity is granted in respect of voidable marriage under Section 12, any child
begotten or conceived before the decree is made who would have been legitimate child if the parties
to the marriage if at the date of decree it had been dissolved instead of being annulled, shall be
deemed to be their legitimate. Child notwithstanding the decree of nullity.

(3) Nothing contained in Sub Section (1) & (2) shall be construed as conferring upon any child of a
marriage which is null and void or which is annulled by a decree of nullity under Section 12 any right
in or to the property of any person other than parents, in any case where but for passing of this Act.
such child would have been incapable of possessing or requiring any such rights by reason of his not
legitimate child of his parents.

So the object of Section 16 of the Hindu Marriage Act is to confer the status of legitimacy of children
born in void and voidable marriages. Section 16 by legal fiction lays down that even if a child born of
void or voidable marriage is conferred with the status of legitimacy but it is debarred from inheriting
to property of any person other than it's parents.

In Rameshwari Devi v. State of Bihar AIR 2000 SC 735 Supreme Court has observed that marriage of
parties may, because of in contravention of clause (i) of Section 5 of Hindu Marriage Act was void
marriage but under Section 16 of the said Act children of void marriage are legitimate for the purpose
of succession to property of father.

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Q. Divorce by Mutual Consent.

The ground of divorce by mutual consent was inserted in the Hindu Marriage Act 1955 by an
amendment in 1976, by adding Section 13B. Section 13B of the Hindu Marriage Act, 1955 runs:

Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may
be presented to the district court by both the parties to a marriage together, whether such marriage
was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976,
on the ground that they have been living separately for a period of one year or more, that they have
not been able to live together and that they have mutually agreed that the marriage should be
dissolved.

On the motion of both the parties made not earlier than six months after the date of the
presentation of the petition referred to in sub section (1) and not later than eighteen months after
the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied,
after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been
solemnized and that the averments in the petition are true, pass a decree of divorce declaring the
marriage to be dissolved with effect from the date of the decree.

Section 28 of the Special Marriage Act, 1954 which also deals with divorce on grounds of mutual
consent is pari materia to the above section.

The requirements which have to be met to seek divorce under Hindu Marriage Act are as follows:

• The parties have been living separately for a period of at least one year
• They have not been able to live together, and
• They have mutually agreed that marriage should be resolved

Q. Write short note on adultery.

Adultery has many different synonyms such as unfaithfulness, infidelity, disloyalty, unchastity etc. and all
these synonyms with respect to women points toward the same legal definition of this word under law as
having the voluntary sexual intercourse between a married person that is a female spouse and a person
who is not her spouse and that too without the consent of husband. However, the same word has been
defined with different meanings in different countries and hence the legal definition of adultery varies
from country to country and statute to statute such as in many countries adultery has been defined only
as having voluntary sexual intercourse with a man other than the husband but in many other countries in
addition to this definition the sentence “without the husband’s consent” is also used. In India, the offence
of adultery as defined under section 497 of IPC prescribes punishment for men only and not for women
even when they act as abettors. Hence, 42nd report of law commission of India, 2013 made under
Malimath committee recommended to amend section 497 of IPC to make women also punishable for
adultery.

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What constitutes adultery

The following are the elements under section 497 of IPC which constitutes adultery: -

• Firstly having sexual intercourse with a person.

• Secondly, the person committing such an offence must know or must have reason to believe that
the female lady is the wife of another person.
• Thirdly, the person commits sexual intercourse without the consent of the husband of such a lady.
• Fourthly, such a sexual intercourse must not amount to the offence of rape that is the lady with
whom the sexual intercourse is being committed must be above the age of 16 with whose wilful
consent the act was done.

If these conditions are satisfied then only the person will be guilty of committing the offence of adultery.

Divorce through Adultery

Grounds for divorce on the basis of adultery is mentioned under section 13(1)(a) of Hindu Marriage Act,
1955 which states that any marriage before or after the commencement of this act shall be dissolved by
a decree of divorce on the ground that the other party had voluntary sexual intercourse with any person
other than his or her spouse after the marriage. The following are the cases on the basis of which adultery
as a ground of divorce can be analysed: -

Earnest John White vs. Mrs. Kathleen Olive White and Others (AIR 1958 SC 441): -In this case the husband
filed a decree of divorce on the grounds of adultery. Trial court granted the divorce decree but high court
reversed the judgment of high court. The case went on appeal to the Supreme Court. The question before
the Supreme Court in this case was whether just an inclination to have sexual intercourse and thereby
leading to adultery would arise in this case or not by living in one room as the respondent and the appellant
wife stayed in one room for a night. The court held that her conduct as shown by the evidence clearly
justifies that she has committed adultery and therefore Supreme Court reversed the order of high court
and thereby granting the decree of divorce to the husband.

Hirachand Srinivas Managaonkar Vs Sunanda (AIR 2001 SC 1285): - In this case the respondent that is the
wife filed a petition for divorce seeking judicial separation against her husband. Accordingly the high court
of Karnataka granted a decree for judicial separation and ordered husband to give maintenance charges
to his wife and daughter. But the husband after two years filed a petition for divorce under section 13(1-
A)(a)of the Hindu marriage act, 1955 on the ground that there has been no resumption of cohabitation
between the parties for more than one year after passing the decree of judicial separation. Hence the
question before the Supreme Court was that whether this can be taken as a ground of divorce even after
the husband and the wife as in this case are living under the same roof even after the passing of the decree
of judicial separation. The court held that husband who continued to live in adultery even after the passing
of decree of judicial separation with his wife will not succeed for a petition of divorce under section 13(1-
A)(a).

Punishment for Adultery: Punishment for adultery is mentioned itself under section 497 of IPC and
accordingly the person shall be punished with imprisonment for a term of five years, or withfine, or with
both. In this section wife is not punished even if she acts as an abettor in this crime and hence this is the
big question before the legislators that whether wife should also be punished for adultery. However this

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question has been dealt in the Malimath committee report and legislations have been done but still not
implemented.

Q. Explain 'Cruelty' and 'Conversion to another religion' as grounds of divorce under the Hindu Marriage
Act 1955.

CRUELTY
Definition of Cruelty:- Cruelty has not been universally defined till now. It depends upon the circumstances
of the case and the country and time. Russel v/s Russel, 1897 Cruelty has been described as such
characterial behaviour or conduct which may put life and body under physical or mental form of danger
or may arise apprehension of such danger.

If the definition is understood in matrimonial context, it shall show that any party to marriage may behave
with other party in such manner that it shall be difficult for other party to live with him, this shall be
cruelty.

Vinod Biswal v/s Tikli Urf Padmini Biswal, 2002 it has been held that husband along with his parents use
to regularly beat the wife. Father-in-law physically misconducted with her. Husband never went to bring
back wife nor made any attempt towards it. Court held this behaviour of husband to be cruelty because
such circumstances arose that it became difficult for wife to live with the husband.

Similar case is Yadhister Singh v/s Smt. Sarita, 2002 – wife used to live at ancestral home of husband.
Husband was working somewhere else. Husband never wanted to keep wife along with him. He used to
come at his ancestral home once a week. He did not used to say his wife that he did not liked her, but he
did say that she should live only with the other members of family at the ancestral property. Court held it
to cruelty.

There are several cases of cruelty. Actually the definition of cruelty depends upon the circumstances of
the case. Types of Cruelty:-

a. Physical Cruelty.

b. Mental Cruelty.

Kusum v/s Kamata, 1965, it was said that the definition of cruelty is so wide that it includes both physical
and mental type of cruelty.

Praveen Mehta v/s Indrajeet Mehta, 2002, the Supreme Court said that Mental Cruelty is a state of mind
and feelings. In this case, wife refused intercourse form the first day after marriage. She also refused to
undergo medical examination. She used to misbehave always with her husband. She also left her
matrimonial home. Court held it to be cruelty by wife towards husband.

Rakesh Sharma v/s Surbhi Sharma, 2002 - Wife left the matrimonial home without the permission of the
husband. She used to charge husband with adultery and making constant demand of dowry. Court held it
to be a conduct of mental cruelty towards husband.

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Shobha Srinivas v/s Srinivas Veranna, 2002, Court did not considered such a single act of wife as cruelty
in which the illiterate wife emotional anger threw the Mangal Sutra.

In all, it means that cruelty is determined by the facts and circumstances of every matter.

CONVERSION

Conversion of the spouse to other religion was only for the purpose of circumventing the provision of
Section 494 of Indian Penal Code, 1860. Conversion to Islam by a Hindu spouse does not per se lead to
dissolution of the marriage. It only gives a right to the other spouse to file a petition under S.13(1)(ii) of
the Hindu Marriage Act for divorce. Under the pristine Hindu Law as well, conversion did not operate per
se as a dissolution of marriage. A Hindu spouse who ceased to be a Hindu by conversion to another religion
does not acquire any right under the Hindu Marriage Act. On the other hand, he or she exposes himself
or herself to a claim for divorce by the other spouse on the ground of such conversion. The spouse who
remains a Hindu gets a right under S.13(1)(ii) of the Hindu Marriage Act to seek dissolution of the marriage
with the spouse who since the marriage ceased to be a Hindu by conversion to another religion. The right
of non converting spouse is indefeasible. The statute does not provide for any qualification on such right
of the non converting spouse. Nor does the Hindu Marriage Act state that the conversion shall be a
conversion without the consent of the other spouse in order to entitle such spouse to apply for divorce. A
conversion does not cease to be a conversion within the meaning of S.13(1)(ii) if it is with the consent of
the other spouse. We cannot read into the statute something which is not intended in the context; nor
can we qualify a disqualification in the matter of conversion as one with the consent of the other spouse
so as to take it out of the purview of S.13(1)(ii).

Situation before enforcement of Hindu Marriage Act

In Re: Ram Kumari, 1891 Calcutta 246, where a Hindu wife became convert to the Muslim faith and
then married a Mohammedan, it was held that her earlier marriage with a Hindu husband was not
dissolved by her conversion. She was charged and convicted of bigamy under S.494 of Indian Penal Code,
1860.

In Gul Mohammed V. Emperor AIR 1947 Nagpur 121, a Hindu wife was fraudulently taken away of
the accused a Mohammedan who married her according to Muslim law after converting her to Islam. It
was held that the conversion of the Hindu wife to Mohammedan faith did not ipso facto, dissolve the
marriage and she could not during the life time of her former husband enter into a valid contract of
marriage. Accordingly, the accused was convicted for adultery under Section 497 of Indian Penal Code,
1860.

Situation After enforcement of Hindu Marriage Act

A marriage solemnised, whether before or after the commencement of the Act, can only be dissolved
by a decree of divorce on any of the grounds enumerated in S.13 of the Act. One of the grounds under
S.13(1)(ii) is that “the other party has ceased to be a Hindu by conversion to another religion”.

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Q. Discuss briefly the maintenance provisions under the Hindu Marriage Act.

As per the Hindu Adoption and Maintenance Act, 1956, a Hindu male is legally obligated to maintain his
spouse. Maintenance includes provision for food, residence, clothing, education and medical attendance
and treatment. The Criminal Procedure Code also provides for a provision for maintenance, regardless of
religion. As per the Code, only a legally wedded wife is entitled to receive maintenance. In this capacity,
“wife” also includes a divorced wife and she can claim maintenance from the person she was married to. A
woman, who stands as a second wife to a man, is not granted such a right since the second marriage is
declared void by the law.

The issue of right to maintenance to the second wife has been faced by various High Courts as well as the
Supreme Court, and the courts have given different views depending upon the facts and circumstances of
each case, thus giving diverse interpretation to the expression “wife” under Section 125 of the Code of
Criminal Procedure. Discussed below are a few cases where courts faced the aforementioned issue.

The issue was first discussed in Narayanaswami v. Padmanabhan where the Madras High Court did not
take a liberal approach and held that, under Section 25 of the Hindu Marriage Act 1955, only a wife, who
is legally wedded or whose marriage is not void or null, can claim maintenance from her husband. Meaning
thereby, that a woman, whose marriage is in contravention with Section 5(i) of the Hindu Marriage Act
1955, is not entitled to claim maintenance under Section 25 of the act.

Whereas, in the case of Laxmi Bai v. Ayodhya Prasad the Madhya Pradesh High Court presented the view
that the expressions ‘wife’ and ‘husband’ should not be construed as only legally wedded wife and
husband, rather they should be taken to mean ‘a person claiming to be a wife or a husband’. Thus, it held
that the matrimonial courts have the power to regulate the relationship between the parties, and these
powers should also be exercised by the courts in cases of invalid or bigamous marriages.

A similar view was put forth by other high courts in other cases like Govindrao Ranoji v. Ayodhya Prasad,
Rajeshbhai v. Shantabai and Mallika v. P. Kundanlal. However, in the case of Bhausaheh v. Leelahai the
Bombay High Court ruled that Section 25, though it implies the welfare of a married woman should not
have any unnecessary inclination such that a woman, whose marriage is void, can be entitled to claim
maintenance. The court also opined that it will lead to a bizarre situation if a uniform meaning of the
expression ‘wife’ is not ascertained for the purpose of providing maintenance under Section 125 of
Criminal Procedure Code, 1973.

There are some cases where an innocent woman is conned into marrying a previously married man and
the wife has to suffer, since she being an illegitimate wife, cannot claim maintenance. The Supreme Court
in Bakulbai v. Gangaram and Yamunabai v. Anantrao decided in keeping with settled law and held that,
a woman, who stands as a second wife to a man who already has a living spouse at the time of the second
marriage is not sanctioned the right to maintenance. Even if the wife is unaware of the subsistence of the
previous marriage, she has no claim. For the purpose of maintenance under Section 125 of CrPC, it has to
be shown that the couple has been living as husband and wife. Then the court presumes them to be a
legally wedded couple. This can be disproved by producing sufficient evidence that the marriage is not
valid but void. Thus, in such situations no relief can be granted under Section 125.

In some cases the couple continues to live as husband and wife for many years. In such cases, courts have
adopted a liberal, and not a conservative approach towards interpreting the word ‘wife’ and have directed

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the husband to grant maintenance to his wife in such situations. In Narinder Pal Kaur Chawla v. Manjeet
Singh Chawla, the husband did not disclose the fact of his previous marriage to his wife and subsequently
married the appellant and they remained as husband and wife for a substantive period of time. The Delhi
High Court opined that a second wife, whose marriage is illegitimate, has a right to be maintained under
Section 18 of the Hindu Adoptions and Maintenance Act 1956 because this is such a case where, if
maintenance is not provided to the wife, it would act as an encouragement to the respondent in
defrauding the second wife.

If a man and woman have been living together for a considerable period of time, even if they are illicitly
married, then such woman is entitled to claim maintenance. Strict proof of marriage need not be a
precondition for maintenance. Any proof like joint bank account, any police complaint, voters ID given
wherein the husband referred to the second wife as his wife, may be used to prove her status as a wife.
With regard to the matter of defrauding her by not mentioning his previous marriage, the appellant can
sue the husband for committing bigamy under the law provided in the Indian Penal Code.

Rule 21 of the Central Civil Services (Conduct) Rules, bars a government employee from entering into a
second marriage when his or her first spouse is still alive. In a decided case, the second wife filed a petition.
Both the husband and the first wife had been dead. The second wife filed an application for a family
pension, but the plea was rejected by the government. She approached the high court where her
application was dismissed on the grounds that a second wife is not entitled to a claim over family pension
of a government employee.

In Ramesh Chandra v. V R. Daga the Supreme Court has discussed the morality of matrimonial
relationships. The honorable court has observed that, though a bigamous marriage is considered illegal
and cannot attract the provisions of granting maintenance to the wife, it cannot be said to be immoral so
as to deny the right of maintenance to the wife. Also, in the case of Vidyadhari v. Sukharana Baz where
a wife was duped into an invalid marriage, the court has granted partial relief to her.

Q. Discuss the differences between 'Judicial Separation' and 'Divorce' under the Hindu Marriage Act,
1955.

A Decree Absolute of Divorce brings a marriage to an end and Judicial Separation does not. However, it is
more than a husband and wife living apart. A Decree of Judicial Separation can be sought on one of the
five facts that are available for divorce but it is not necessary to prove that the marriage has irretrievably
broken down.

In Divorce there are two Decrees: Decree Nisi and Decree Absolute. In Judicial Separation there is one
Decree pronouncing Judicial Separation. The parties remain married and are therefore not able to
remarry. The Court is able to make the range of financial orders that are available on Divorce, save for
Pension Sharing or Pension Attachment Orders.

The Decree of Judicial Separation has the same effect as a Decree Absolute of Divorce upon a Will. The
spouse can no longer take any benefit under the Will unless there is a new Will specifically stating they
are to do so.

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Petitions for Judicial Separation are very rare but there may be reasons for a party seeking this rather than
a Divorce, such as one or both of them having religious beliefs or the parties not having been married for
the requisite one year required for a Divorce.

Q. Discuss the provisions relating to custody of minor children relating to proceeding under the Hindu
Marriage Act, 1955.

Section 26 of Hindu Marriage Act, 1955 deals with Custody of Children

In the matrimonial proceedings the question of custody, education and maintenance of children also crop
up. The courts are asked upon to decide in respect of custody of children during the pendency of trial. The
question of custody of children is an important matter which affects the children and parents emotionally,
economically and socially. The matrimonial courts have been empowered under the matrimonial
enactments to decide such questions and pass orders relating to custody, education and maintenance of
the children from time to time. Such orders can be modified, revoked or changed. The courts exercised
jurisdiction over children only if it has jurisdiction in the main petition. If the matrimonial proceedings are
dismissed by the court, proceedings relating to children terminate automatically. A provision or order may
be made by the court for the custody, maintenance and education; of minor children before passing of a
decree or in the decree itself or even if a decree has been passed. Passing of a decree in the main
proceeding does not put an end to the courts jurisdiction as it retains the power to pass orders in respect
of custody, maintenance and education of the children even after passing such decree. The guiding
principle for passing such orders is but approval things "just and proper" the interpretation which has
been given to these words "welfare of the minor". Though the principle of welfare of the minor is the
paramount consideration but the court can also take consideration, the wishes of the children also. To
ascertain the benefit of the the court has to consider all other factors such as age, sex or wishes of the
child. Thus, the power conferred upon the matrimonial courts is of considerable importance which has to
be exercised cautiously.

In any proceeding under this Act, the court may, from time-to-time, pass such interim orders and make
such provisions in the decree as it may deem just and proper with respect to the custody, maintenance
and education of minor children, consistently with their wishes, wherever possible and may, after the
decree, upon application by petition for the purposes make from time-to-time, all such orders and
provisions with respect to the custody, maintenance and education of such children as might have been
made by such decree or interim orders in case the proceeding for obtaining such decree were still pending
and the court may also from time-to-time revoke, suspend or vary any such orders and provisions
previously made:

Provided that the application with respect to the maintenance and education of the minor children,
pending the proceeding for obtaining such decree, shall as far as possible, be disposed of within sixty days
from the date of service of notice on the respondent.

Q. Write short note on Family Court.

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Despite the amendments brought in the Civil Procedure Code in 1976, providing a special procedure to be
adopted in suits or proceedings relating to family matters, there was not much change in the way these
cases were litigated and decided.

The need was, therefore, felt for altogether separate courts to deal with these matters so that the disputes
could be settled speedily with emphasis on conciliation and as many families could be saved from the
harmful effects of prolonged litigation as possible.

In the interest of socially desirable results it was thought that the tendency to strictly adhere to rigid rules
of procedure and evidence needed to be relaxed.

Therefore, the Family Courts Act was passed in 1984, which provided for the establishment of Family
Courts by the State Governments.

The matter relating to matrimonial relief, including nullity of marriage, judicial separation, divorce,
restitution of conjugal rights, declaration as to the validity of marriage or as to the matrimonial status of
any person, the property of the spouses or declaration as to the legitimacy of sons, guardianship or
custody of any minor, and maintenance became the subject matters to be decided by the Family Courts.

Under the Act the State Government is required to establish a family court in any town or city where the
population exceeds one million. The Family Courts, as stated earlier, are there to ensure speedy
settlement of disputes, preferably through conciliation.

The proceedings in a Family Court can be held in camera if the Court thinks it proper. Before a Family Court
no party is necessarily to be represented by a legal practitioner.

The provision is there to simplify the proceeding and keep unnecessary legality out of process as far as
possible. The appeal from the Family Court lies in the High Court both on facts and law.

THE SPECIAL MARRIAGE ACT, 1954

Q. Conditions relating to solemnization of marriage under The Special Marriage Act 1954.

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CONDITIONS NECESSARY FOR A MARRIAGE (Section 4)

• That neither party has a spouse living at the time of marriage.

• That neither party is incapable of giving a valid consent to the marriage due to unsoundness of
mind.
• That neither party has been suffering from mental disorder of such a kind or to such an extent as
to be unfit for marriage and the procreation of children.
• That neither party has been subject to recurrent attacks of epilepsy or insanity.
• That the bridegroom has completed the age of 21 years and the bride the age of 18 years at the
time of marriage.
• That the parties are not within the degrees of prohibited
relationship
However where a custom governing at least one of the parties permits a marriage between them,
such marriage may be solemnized non with standing that they are within the degrees of
prohibited relationship
• When the marriage is solemnized in the State of Jammu and Kashmir, both the parties are citizens
of India domiciled in the territories to which this Act extends.

Q. Essential requisites for the registration of a marriage celebrated in other forms under The Special
Marriage Act, 1954. What are the procedures of such requisites?

Essential Conditions (Section 15)

(a) A ceremony of marriage has been performed between the parties and they have been living
together as husband and wife ever since;

(b) Neither party has at the time of registration more than one spouse living;

(c) Neither party is an idiot or a lunatic at the time of registration;

(d) The parties have completed the age of twenty-one years at the time of registration;

(e) The parties are not within the degrees of prohibited relationship;

Provided that in the case of a marriage celebrated before the commencement of this Act, this
condition shall be subject to any law, custom or usage having the force of law governing each of them
which permits of a marriage between the two; and

(f) The parties have been residing within the district of the Marriage Officer for a period of not
less than thirty days immediately preceding the date on which the application is made to him
for registration of the marriage.

Procedure for registration.(Section 16) -Upon receipt of an application signed by both the parties to
the marriage for the registration of their marriage under this Chapter, the Marriage Officer shall give
public notice thereof in such manner as may be prescribed and after allowing a period of thirty days

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for objections and after hearing any objection received within that period, shall, if satisfied that all
the conditions mentioned in Section 15 are fulfilled, enter a certificate of the marriage in the Marriage
Certificate Book in the form specified in the Fifth Schedule, and such certificate shall be signed by the
parties to the marriage and by three witnesses

Q. State the conditions and provisions as to notice of intended marriage as given in The Special
Marriage Act, 1954 Section 6.

Both the parties to the marriage should give notice in writing in the prescribed form to the marriage
officer of the district in which at least one of the parties to the marriage has been residing for a period
of not less than thirty days immediately preceding the date on which such notice is given.

A fee of Rs 3 has to be paid for publication of notice. Notice will be published in the office of the
Marriage Officer of the district within whose jurisdiction each of the parties to the marriage is
permanently residing.

The notice may be presented before the marriage officers by both parties in person or by registered
post. In the later case a fee of RS 3 for notice charge should be sent by Money Order. The Performa
for the notice is given separately.

Q. Marriage Notice book and publication of such notice under the special Marriage Act, 1954.

Marriage Notice Book and publication(Section 7)

(1) The Marriage Officer shall keep all notices given under Section 5 with the records of his
office and shall also forth with enter a true copy of every such notice in a book prescribed
for that purpose, to be called the Marriage Notice Book, and such book shall be open for
inspection at all reasonable times, without fee, by any person desirous of inspecting the
same.

(2) The Marriage Officer shall cause every such notice to be published by affixing a copy
thereof to some conspicuous place in his office.

(3) Where either of the parties to an intended marriage is not permanently residing within
the local limits of the district of the Marriage Officer to whom the notice has been given
under Section 5, the Marriage Officer shall also cause a copy of such notice to be
transmitted to the Marriage Officer of the district within whose limits such party is
permanently residing, and the Marriage Officer shall thereupon cause a copy thereof to
be affixed to some conspicuous place in his office.

Q. Write note on marriage certificate and marriage officer.

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Certificate of marriage.(Section 13)

(1) When the marriage has been solemnized, the Marriage Officer shall enter a certificate thereof in
the form specified in the Fourth Schedule in a book to be kept by him for that purpose and to be called
the Marriage Certificate Book and such certificate shall be signed by the parties to the marriage and
the three witnesses.

(2) On a certificate being entered in the Marriage Certificate Book by the Marriage Officer, the
certificate shall be deemed to be conclusive evidence of the fact that a marriage under this Act has
been solemnized and that all formalities respecting the signature of witnesses have been complied
with.

Marriage officer (Section 3)

Marriage officer is a person appointed by the govt. to authorize marriages under special marriage act,
1954

Powers of Marriage Officers in respect of injuries of reason objection of marriage. (Section 9)

(1) For the purpose of any inquiry under Section 8, the Marriage Officer shall have all the powers
vested in a civil court under the Code of Civil Procedure, 1908, (5 of 1908) when trying a suit in respect of
the following matters, namely:

(a) Summoning and enforcing the attendance of witnesses and examining them on oath;

(b) Discovery and inspection;

(c) Compelling the production of documents;

(d) Reception of evidence on affidavits; and

(e) Issuing commissions for the examination of witnesses;

And any proceeding before the Marriage Officer shall be deemed to be a judicial proceeding within the
meaning of Section 193 of the Indian Penal Code (45 of 1860).

Explanation. -For the purpose of enforcing the attendance of any person to give evidence, the local limits
of the jurisdiction of the Marriage Officer shall be the local limits of his district.

(2) If it appears to the Marriage Officer that the objection made to an intended marriage is not
reasonable and has not been made in good faith he may impose on the person objecting costs by way of
compensation not exceeding one thousand rupees and award the whole or any part thereof to the parties
to the intended marriage, and any order for costs so made may be executed in the same manner as a
decree passed by the district court within the local limits whose jurisdiction to the Marriage Officer has
his office.

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Q. What are the grounds of divorce under special Marriage Act, 1954?

Section 27. Divorce- (1) subject to the provision of this Act and to the rules made there under, a petition
for divorce may be presented to the District Court either by the husband, or the wife on the ground that
the respondent-

(a) has, after the solemnization of the marriage. Had voluntary sexual intercourse with any person other
than his or her spouse, or

(b) Has deserted the petitioner for a continuous period of not less than two years immediately preceding
the presentation of the petition or

(c) is undergoing a sentence of imprisonment for seven years or more for an offence as defined in the
Indian Penal Code 1860 (45 of 1860),

(d) Has since the solemnization of the marriage treated the petitioner with cruelty , or

(e) Has been incurably of unsound mind, or has been suffering continuously or intermittently from mental
disorder to such a kind, and to such all extend that the petitioner cannot reasonably be expected to
live with the respondent.

Explanation:-In this clause:-

(i) The expression “mental disorder” means mental illness, arrested or incomplete development of
mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia,

(ii) the expression” psychopathic disorder” means a persistent disorder or disability of mind (shelter
or not including sub-normally of intelligence) which results in abnormally aggressive or seriously
irresponsible conduct on the part of the respondent, and whether or not it requires or is susceptible to
medical treatment, or

(f) Has been suffering from venereal disease in a communicable form or

(g) Has been suffering from leprosy, the disease not having been contracted from the petitioner or

(h) has not been heard of as being alive for a period of seven years or more by those persons who would
naturally have heard of the respondent if the respondent had been alive,

Explanation:- In this sub-section, the expression “desertion” means desertion of the petitioner by the
other party to the marriage without reasonable cause and without the consent or against the wish of such
party, and includes the willful neglect of the petitioner by the other party to the marriage and its
grammatical variations and cognate expressions shall be construed accordingly.

(1A) A wife may also present a petition for divorce to the District Court on the ground:-

(i) that her husband has, since the solemnization of the marriage, been guilty of rape, sodomy or
bestiality,

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(ii) that in a suit under Section 18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), or in a
proceedings under Section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) or under the
corresponding Section 488 of the Code of Criminal Procedure, 1898(5 of 1898), a decree or order, as the
case may be, has been passed against the husband awarding maintenance to the wife notwithstanding
that she was living apart and that since the passing of such decree or order, cohabitation between the
parties has not been resumed for one year or upwards

(2) subject to the provisions of this Act and to the Rules made there under, either party to a marriage,
whether solemnized before or after the commencement of the Special Marriage (Amendment) Act, 1970
(29 of 1970), may present a petition for divorce to the District Court on the ground:-

(i) that there has been no resumption of cohabitation as between the parties to the marriage for a
period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which
they were parties , or

(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a
period of one year or upwards after the passing of a decree for restitution of conjugal rights in a
proceeding to which they were parties.

Q. What is alternative relief in divorce proceedings of The Special Marriage Act?

Section 27 A. Alternate relief in divorce proceedings.

In any proceeding 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 ground mentioned in clause (h) of sub-section (1) of section 27,
the court may, if it considers it just so to do having regard to the circumstances of he case, pass instead a
decree for judicial separation,]

Q. When a marriage becomes void under the Special Marriage Act?

According to Section 24 a Void marriage is:

(1) Any marriage solemnized under this Act shall be null and void [and may, on a petition presented by
either party thereto against the other party, be so declared] by a decree of nullity if-

(i) any of the conditions specified in clauses (a), (b), (c) and (d) of section 4 has not been fulfilled; or

(ii) the respondent was impotent at the time of the marriage and at the time of the institution of he suit.

(2) Nothing contained in this section shall apply to any marriage deemed to be solemnized under this Act
within the meaning of section 18, but the registration of any such marriage under Chapter III may be
declared to be of no effect if he registration was in contravention of any of the conditions specified in
clauses (a) to (e) of section 15 :

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Provided that no such declaration shall be made in any case where an appeal has been preferred under
section 17 and he decision of the district court has become final.

Q. Mention the contents of 'Declaration' to be made by the bridegroom while solemnising the Marriage
under Special Marriage Act 1954.

Section 11 of the Special Marriage Act talks about declaration by parties and witnesses:

Before the marriage is solemnized the parties and three witnesses shall, in the presence of the Marriage
Officer, sign a declaration in the form specified in the Third Schedule to this Act, and the declaration shall
be countersigned by the Marriage Officer.

THE THIRD SCHEDULE

DECLARATION TO BE MADE BY THE BRIDEGROOM

I.A, B hereby declare as follows: -

1. I am at the present time unmarried (or a widower or a divorcee, as the case may be )

2. I have completed ---------------years of age.

3. I am not related to C.D.(the bride) within the degrees of prohibited relationship.

4. I am aware that, if any statement in this declaration is false, and if in making such statement I either

know or believe it to be false or do not believe it to be true, I am liable to imprisonment and also to

fine.

(Sd) A.B. (the bridegroom)

THE HINDU ADOPTION AND MAINTENANCE ACT, 1956

Q. Define the term Adoption.

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Adoption is the act of taking something on as your own. Adoption is a process whereby a person assumes
the parenting of another, usually a child, from that person's biological or legal parent or parents, and, in
so doing, permanently transfers all rights and responsibilities, along with filiation, from the biological
parent or parents. Unlike guardianship or other systems designed for the care of the young, adoption is
intended to effect a permanent change in status and as such requires societal recognition, either through
legal or religious sanction.

Once an adoption has been granted, it cannot be reversed.

An adopted child loses all legal ties with their birth parents and becomes a full member of the adoptive
family, usually taking the family's name.

Q. Explain the nature and object of adoptions under Hindu Adoption and Maintenance Act 1956. The
shastric Hindu Law looked at adoption more as a sacrament than secular acts. Some judges think that the
object of adoption is two folds:-

i. To secure one’s performance of one’s funeral rites and, ii.

To preserve the continuance of one’s lineage.

Hindus believed that one who died without having a son would go to hell called poota, and it was only a
son who called save the father from going to potta. This was one of the reasons to be get a son.

In the Hindu shastras, it was said that the adoption son should be a reflection of the natural son. This
guaranteed protection and care for the adopted son. He was not merely adoptive parents, but all relation
on the parental and maternal side in the adoptive family also came into existence. This means he cannot
merely the daughter was natural born or adopted. It is interest to know that while Muslims and Parsi
personal laws do not recognize the concept of adoption, Hindu law, from the most ancient times, had
elaborate provision on adoption. Even the ancient Greek and Roman legal system recognized adoption.

Currently, the adoption under Hindu law is governed by the Hindu adoption and Maintenance Act, 1956.
This Act applies only to Hindus not to Muslims. It came into effect from 21st December, 1956. The
uncodified Hindu law recognized twelve kinds of sons, of which five kinds were adopted sons. Under the
codified law, a daughter could not be adopted. The Hindu Adoption and Maintenance Act, 1956,
recognized adoption to both a son and a daughter. This Act has also brought about certain change in the
earlier un-codified Hindu law of adoption and maintenance. This Act extends to the whole of India, except
the state of Jammu and Kashmir.

Q. Explain essential requisites of a valid adoption under the Hindu Adoption And Maintenance Act, 1956.
Section 6 of the Hindu Adoption And Maintenance Act 1956 lays down the following 4 requirements

• The person who is adopting must have the capacity and the right to adopt.
• The person who is giving the child in adoption must have the capacity to give.
• The person who is being adopt must be eligible to be adopted.
• The adoption must satisfy all the rules given in this act.

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Section 7 describes which Hindu Male is capable of adoption:

• Any Hindu male who has attained the age of majority and who is of sound mind can adopt.
• If he is married, he must take consent from his wife. If he has multiple wives, consent from all the
wives is required. In the case of Bhooloram vs Ramlal AIR 1989, MP HC has held that if the consent
of the wife living with the husband is obtained but the consent of the wife living away has not
been obtained then the adoption is void.
• A wife's consent is not required is the wife has completely renounced the world and has become
a Sanyasin, has changed her religion and has ceased to be a Hindu, or has been proven by a
competent judge to be mentally unsound.

Section 8 describes which Hindu Female is capable of adoption:

• She must be a major and must not be mentally unsound.

• She is unmarried, is a widow or a divorcee. In the case of Vijaya lakshamma vs B T Shankar, AIR
2001, SC has held that consent from a co-widow is not required because a widow can adopt on
her own right.
• A married woman is allowed to adopt only if the husband has renounced the world completely,
or is of unsound mind, or has ceased to be a Hindu.

This is a big change from pre-act situation. Earlier, a woman had no right to adopt.

Section 9 describes who has the capacity to give a child in adoption

• Only the natural father has the right to give a legitimate child in adoption. However, the father
must get consent from the natural mother unless the mother has been declared by a competent
court to be of unsound mind, has renounced the world, or has ceased to be a Hindu.
• If the father is mentally unsound, or has renounced the world, or has ceased to be a Hindu, or is
dead, the mother can give the child in adoption.
• Only the mother of an illegitimate child has the right to give the child in adoption. However, she
cannot adopt the child herself because a giver cannot be taker at the same time.
• If both the natural mother and father are dead, or have renounced the world, or have abandoned
the child, or are of unsound mind, a guardian, testamentary or court appointed can give a child in
adoption, including to the guardian himself, upon prior permission of the court.
• While granting permission, the court must see the welfare of the child and the wishes of the child
depending on the child's age.

In the case of Dhanraj vs Suraj, 1981 SC held that guardian includes - de jure and de facto. Thus, a manager
or secretary of an orphanage, or the person in whose case the child is, of the person who has brought up
the child can give the child in adoption.

Section 10 describes who is capable of being adopted

• The child must be a Hindu.

• The child must not have already been adopted.

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• The child must be unmarried. However, if a custom to the contrary exists, such an adoption may
take place.
• The child must be less than 15 yrs of age. However, if a custom to the contrary exists, such an
adoption may take place.

There is no restriction on who can be adopted regarding Sapinda relationships. Even a daughter's son, or
sister's son can be adopted.

Section 11 describes some other conditions for a valid adoption

• If a male child is being adopted, the person who is adopting must not already have a son, son's
son, or son's son, whether natural or adopted.
• If a female child is being adopted, the person who is adopting must not already have a daughter
or son's daughter.
• If a male is adopting a female child, then their age difference must be greater than 21 yrs.
• If a female is adopting a male child, then their age difference must be greater than 21 yrs.
• Two persons cannot adopt the same child.

The actual giving and taking of the child must happen. Only mere intention of giving and taking is not
enough. The child must be transferred from the home of the natural parents, or in case of orphans, from
the place he grew up, to the adoptive parent's home. The ritual or ceremony of Dattakhomam is not
necessary.

In the case of Sandhya Supriya Kulkarni vs Union of India, AIR 1998, these conditions were challenged on
the ground that they violate fundamental rights; however, SC held that personal laws do not fall under
the ambit of part III of the constitution.

Q. What are the effects of adoption under the Hindu Adoption And Maintenance Act, 1956?

Section 12 says that an adopted child is deemed to be a natural child of his adopted parents for all
purposes. All relations with the natural parents and family are severed and new relationships with the
adopted parents are established. Only exception is that the adopted child cannot marry anybody from his
natural family in contravention of Sapinda and prohibited relationships.

It further says that the adopted child is not divested of his property that has vested in him before adoption
and that an adopted child cannot divest anybody of his vested property after adoption.

An important change from the old law here is that the concept of "relating back", which means that when
a widow adopts a child the adoption is considered to be done from the date the husband died, has been
abolished. However, in the case of Sawan Ram vs Kalawati AIR 1967, SC has held that the deceased father
is sill considered the adoptive father.

Section 13 says that subject to any anti-adoption agreement, the adoptive parents do not lose their right
of alienation of their property after adoption.

Section 14 describes the position of mothers in certain situations:

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• When a male adopts with the consent of the wife, the wife becomes the adoptive mother.
• If a single adoptive father later marries, the wife of the adoptive father becomes the step mother.
• If a single adoptive mother later marries, the husband of the adoptive mother becomes the step
father.
• If an adoptive father has multiple wives, the senior most by marriage, not by age, wife becomes
the adoptive mother and other wives become the step mothers.

Section 15 says that a valid adoption cannot be canceled either by the adoptive father or mother. Neither
can the adopted child renounce the adoptive parents and go back to the family of his birth.

Section 16 says that whenever any document made under any law in force at the time, purporting to
record an adoption, and has been signed by the giver and taker of the child, is produced before the court,
the court shall presume that the adoption has been made in accordance with the provisions of this act
unless and until it is disproved.

In the case of Pentakota Satyanarayana vs Pentakota Seetharatham AIR 2005 SC, the plaintiff brought a
suit for partition and possession. However, he failed to provide any proof of the adoption. His adoptive
father was estranged from adoptive mother and the adoptive mother had asked for maintenance for
herself but not for the adoptive son. There was no document or agreement. The plaintiff could not provide
any essential details such as date of adoption or fixing of Muhurtam etc. Thus, SC held that there was no
adoption and the alleged adopted son had no right in the property.

Section 17 forbids receipt of any payment as a consideration for the adoption. If any such payment is
taken, he shall be punishable by 6 months imprisonment and/or a fine or both.

Q. Which is the necessary ceremony for Adoption? Is registration necessary for a valid Adoption? The
most important and essential ceremonies in adoption among the three regenerate classes, that is, the
Brahmans, the Kshatriyas and the Vaishyas, are the following:

(1) The actual physical giving and receiving of the boy,

(2) Dutta Ho-mam.

Physical act of giving and receiving: The physical act of giving and receiving of the boy is essential to the
validity of an adoption. The ceremony is essential even in case of Sudras. It is of the essence of adoption
and the law does not accept any substitute for it. Mere expression of consent or the execution of a deed
of adoption though registered but not accompanied by an actual delivery of the boy, does not operate as a
valid adoption.

(Sasinath v. Krishnasunderi, (1881) 7 I.A. 850]. In this case there was no physical giving and taking but
there was a registered deed or giving and acceptance. The P.C. held that this’ was not sufficient. There
must be physical delivery and acceptance of the boy.

For a valid adoption, the physical act of giving and taking is an essential requisite, a ceremony imperative
in all adoptions, whatever the case. And this requisite is satisfied in its essence only by the actual delivery

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and acceptance of the boy, even though there exists an expression of consent or an executed deed of
adoption.

In some cases, to complete the adoption a “datta ho- mam” has been considered necessary, but in the
case of the twice born classes no such ceremony is needed if the adopted boy belongs to the same gotra
as the adoptive father. (Madusudan Das v.v.Narayani Bai, A.I.R. 1983 SC 114).

The ceremony of giving and taking is indispensable in modern Hindu Law. (Kartar Singh v. Sarjan Singh,
A.I.R. 1974 SC 2161).

It is now well settled that for a valid adoption amongst Jains, no authority, express or implied is necessary
for a widow of a sonless man making an adoption to him and that the only essential ceremony for the
validity of the adoption is the giving and taking of the adopted son. (Govind Ram v. Ramgopal, A.I.R 1984
M.P. 136).

To constitute giving and taking an adoption all that is necessary is that there should be some overt act to
signify the delivery of the boy from one family to another.

Datta Homam: Datta Homam ceremony is not essential in the case of Sudras. It is not necessary under the
customary law of the Punjab. It is not necessary amongst the Jains. It is not necessary even amongst the
twice born class if the adopted and the adoptee are of the same qotra. There is a conflict of opinion
whether in other cases Datta Homam is necessary. The Calcutta High Court says that it is necessary in the
three superior castes.

The Bombay High Court says that it is essential in the Brah- mans only. The Madras High Court says that it
may be performed even after the death of the natural father or the adapter, i.e., it is not necessary that
Datta Homam should be performed at the time of adoption; it may be performed even afterwards.

The controversy now has been set at rest by Section 1 of the Hindu Adoptions and Maintenance Act
which says that the performance of Datta Homam shall not be essential to the validity of an adoption.

The ceremony of Datta homam may be performed by the parties who give and receive the boy in adoption,
or the performance thereof may be delegated by them to others.

Every valid adoption implies the free consent to the adoption of the person giving and the person receiving
in adoption and also it seems, of the person adopted, if he is a major at the date of adoption. Where the
consent to an adoption is obtained by misrepresentation, coercion, fraud, undue influence or mistake, the
consent is not free and the adoption is voidable at the option of the party whose consent was so obtained.
But, it may be ratified by such party, provided the ratification does not prejudice the right of other persons.

An adoption is not invalid merely because the person giving in adoption receives a consideration for the
adoption from the person taking in adoption, though the promise to pay cannot be enforced in law.

Though registration is not a necessary condition for a valid adoption. However according to section 16.
which talks about Presumption as to registered documents relating to adoption.-

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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.

Q. Define maintenance under The Hindu Adoption And Maintenance Act, 1956.

According to section 3 (B) Maintenance includes providing for food, clothing, residence, education,
medical attendance and treatment in all cases.

In the case of unmarried daughter also reasonable expenses of an incident to her marriage which means
paying for rites and rituals of her marriage.

Q. Discuss the personal obligations of a Hindu to maintain certain relation under The Hindu Adoption
And Maintenance Act, 1956. Who are dependents under The Hindu Adoption And Maintenance Act,
1956.
Dependents based on personal obligation: Personal obligation means that a Hindu is personally liable,
irrespective of the property that he has inherited or his earnings, to provide for certain relations who are
dependent on him. These relations have been specified in the following sections of HAMA 1956.

Section 18(1) declares that whether married before or after this act, a Hindu wife shall be entitled to claim
maintenance by her husband during her lifetime. Sec 18(2) says that a wife is entitled to live separately
without forfeiting her right to claim maintenance in certain situations. 18(3) that a wife shall not be
entitled to separate residence and maintenance of she is unchaste or ceases to be a Hindu. In the case of
Jayanti vs Alamelu, 1904 Madras HC held that the obligation to maintain one's wife is one's personal
obligation and it exists independent of any property, personal or ancestral.

Section 20(1) declares that a Hindu is bound to maintain his children, legitimate or illegitimate, and aged
or infirm parents. 20(2) says that a child, legitimate or illegitimate, can claim maintenance from father or
mother, until the child is a minor. 20(3) says that the right to claim maintenance of aged or infirm parents
and unmarried daughter extends in so far as they are not able to maintain themselves through their other
sources of income.

In this case, a childless step-mother is also considered a parent.

Dependents based on obligation tied to property

A person has obligation to support certain relations of another person whose property has devolved on
him. In this case, this obligation is not personal but only up to the extent that it can be maintained from
the devolved property.

Section 21 specifies these relations of the deceased who must be supported by the person who receives
the deceased property.

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1. Father
2. Mother
3. Widow, so long as she does not remarry
4. son, predeceased son's son, or predeceased son's predeceased son's son until the age of majority.
Provided that he is not able to obtain maintenance from his father or mother's estate in the case
of grandson, and from his father or mother, or father's father or father's mother, in the case of
great grandson.
5. Daughter or predeceased son's daughter, or predeceased son's predeceased son's daughter until
she gets married. Provided that he is not able to obtain maintenance from his father or mother's
estate in the case of granddaughter, and from his father or mother, or father's father or father's
mother, in the case of great granddaughter.
6. Widowed daughter, if she is not getting enough maintenance from her husband's, children's, or
father in law's estate.
7. Widow of predeceased son, or widow of predeceased son's son, so long as she does not remarry
and if the widow is not getting enough maintenance from her husband's, children's or her father
or mother's estate in the case of son's widow.
8. Illegitimate son, until the age of majority 9. Illegitimate daughter, until she is married.

Section 22 (1) says that heirs of a Hindu are bound to maintain the dependents of the deceased out of the
estate inherited by them from the deceased. Thus, this obligation is to be fulfilled only from the inherited
property and so it is not a personal obligation. 22(2) says that where a dependent has not received any
share, by testamentary or intestate succession, he shall be entitled to maintenance from those who take
the estate. 22(3) says that the liability of each heir is in proportion to the estate obtained by him. 22(4)
says that a person who himself is a dependent cannot be forced to pay any amount of maintenance if the
amount causes his share to reduce below what is required to maintain himself.

Maintenance
Maintenance means the right of dependents to obtain food, clothing, shelter, medical care, education,
and reasonable marriage expenses for marriage of a girl, from the provider of the family or the inheritor
of an estate. The basic concept of maintenance originated from the existence of joint families where every
member of the family including legal relations as well as concubines, illegitimate children, and even slaves
were taken care of by the family. However, maintenance does not mean unreasonable expectations or
demands.

In the case of Ekradeshwari vs Homeshwar in 1929, Privy Council had enunciated certain principles in
governing the amount of maintenance. It said that maintenance depends on a complete analysis of the
situation, the amount of free estate, the past life of the married parties and the family, the requirements
of the claimants, and a consideration regarding future changes.

How much maintenance: Section 23(1) says that courts will have complete discretion upon whether and
how much to maintenance should be given. While deciding this, the courts shall consider the guidelines
given in sections 23(2) and 23(3).

Section 23(2) says that that while deciding the maintenance for wife, children, and aged or infirm parents,
the courts will consider:

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1. the position and status of the parties.

2. the reasonable wants of the claimants.
3. If a claimant has a separate residence, is it really needed.
4. the value of the estate and the income derived from it or claimant's own earning or any other
source of income.
5. the number of claimants.

Section 23(3) says that while determining the maintenance for all other dependents the courts shall
consider the following points:

1. the net value of the estate after paying all his debts.
2. the provisions, if any, made in the will in favor of the claimants.
3. the degree of the relationship between the two.
4. the reasonable wants of the dependent.
5. the past relations between the deceased and the claimants.
6. claimant's own earnings or other sources of income.
7. the number of dependents claiming under this act.

Discretion of Court: In the case of Mutyala vs Mutyala 1962 AP HC held that amount of maintenance
cannot be a matter of mathematical certainty.

Position and Status of parties: In the case of Kiran Bala vs Bankim 1967 Calcutta HC observed the living
standard of the wife, and her reasonable wants in determining the maintenance amount.

In the case of Kiran Bala vs Bankim 1967 Calcutta HC observed that the husband had a second wife and
so the fact that the claimant is living separately will not go against her in determining the amount.

In the case of Krishna vs Daimati 1966 Orrisa HC held that when a minor child lives with the mother, the
necessities of the child constitute reasonable demands of the mother.

Separate earning of the claimant: Whether the claimant has separate earning on income is a question of
fact and not a question of presumption. It cannot be, for example, presumed that a college educated girl
can maintain herself. In the case of Kulbhushan vs. Raj Kumari wife was getting an allowance of 250/- PM
from her father. This was not considered to be her income but only a bounty that she may or may not get.
However, income from inherited property is counted as the claimant’s earning.

Arrears of Maintenance: In the case of Raghunath vs Dwarkabai 1941 Bom HC held that right of
maintenance is a recurring right and non-payment of maintenance prima facie constitutes proof of
wrongful withholding.

Q. Provisions regarding maintenance of wife under the Hindu Adoption and Maintenance Act, 1956.

Under the section 18(1) of the HAMA, 1956 wife is entitled to maintenance by her husband for lifetime
i.e. she will be given maintenance until she dies or her husband dies. Under section 18 of this Act a Hindu

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wife is entitled to live separately from her husband without canceling her right to claim maintenance. The
grounds under which she can live separately are:-

(1) Husband is guilty of desertion

(2) The Husband has treated her with cruelty

(3) The husband is suffering from a virulent form of leprosy

(4)The husband has any other wife living.

(5) The husband keeps a concubine elsewhere

(6) The Husband has ceased to be a Hindu by conversion to another religion and

(7) if there is any other cause justifying living separately

But there are two bars which will prevent a wife from claiming maintenance from her husband i.e. (i) if
she is unchaste or (ii) if she ceases to be a Hindu by conversion to another religion.

The wife is entitled to live separately without forfeiting her right to maintenance, if her husband is guilty
of desertion, if he subjects the women to cruelty, if he is suffering from a leprosy, if he has any other wife
living, keeps a concubine in the house where his wife resides, if he has ceased to be a Hindu, or if there is
any other cause justifying her to live separately under Section 18(2) of the HAMA. According to me the
exception given in this section according to which a wife cannot claim maintenance if she is converted
from some other religion into a Hindu is not right. Now as the wife is related to a Hindu family and if she
has married according to the Hindu religion and she is governed by Hindu law than she should not be
separated from the rights which other women get as a Hindu lady.

Q. Provisions regarding maintenance of widowed daughter in law under the Hindu Adoption and
Maintenance Act, 1956.

Section 19 of the Act does not lay down a personal obligation upon the father-in-law to maintain his son’s
widow. It lays down only a moral obligation upon the father-in-law to maintain his daughter-inlaw, but
after the death of the father-in-law, whosoever inherits his self-acquired property, is legally bound to
maintain the daughter-in-law of such deceased person.

According to Section 19, any Hindu whether her marriage took place either before the commencement
of the present Act or thereafter, on the death of her husband, would be entitled to maintenance from her
father-in-law to the extent and so long.

(a) She is unable to maintain herself out of her own earnings or other property; or

(b) She is unable to obtain maintenance from the estate of her husband;

(c) She is unable to obtain maintenance from the estate of her father; or

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(d) She is unable to obtain maintenance from the estate of her mother; or

(e) She is unable to obtain maintenance from the estate of her son; or

(f) She is unable to obtain maintenance from the estate of her daughters; or

(g) She is unable to obtain maintenance from the estate of her son or daughter;

(h) If the father-in-law has no coparcenary property in his possession out of which she has not obtained a
share, and

(i) She has remained unmarried. Where the father-in-law has coparcenary as well as self acquired
property to his credit and the amount of earning from self acquired property is sufficient enough to
enable him and his wife to maintain themselves, the widowed daughter-in-law acquires a right to get
herself maintained out of the earnings of the coparcenary property. In such a case there would be not
any obligation upon the earnings of coparcenary property with respect to the maintenance of father-
inlaw and wife.

In Smt. Balbir Kaur v. Harinder Kaur, the Punjab and Haryana High Court held that Section 19 of the Hindu
Adoptions and Maintenance Act, 1956 deals with the right of maintenance of a widowed daughter-in-law.

Section 19(2) lays down those conditions in which the liability to maintain the daughter-in-law comes to
an end. These conditions are as follows:—

(1) Where the father-in-law does not have any means for maintenance out of coparcenary property which
was owned by her deceased husband;

(2) Where the widowed daughter-in-law received any share in the coparcenary property;

(3) Where she has remarried;

(4) Where she has converted into other religion.

The widowed daughter-in-law could claim maintenance in the property notwithstanding the fact that she
does not live in her father-in-law’s home.

In Kanailal v. Pushparani Pramanik, the Calcutta High Court held that sub-section (2) of Section 19 applies
only to parties governed by Mitakshara law. There is no question of a widow inheriting the share of her
husband in any coparcenary property under the Dayabhaga school of Hindu law. The provision of sub-
section (2) of Section 19 cannot, therefore, apply when the parties belong to the Dayabhaga school of
Hindu law.

Q. Provisions regarding maintenance of illegitimate children under the Hindu Adoption and
Maintenance Act, 1956.

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Section 20. Maintenance of children and aged parents.- (1) Subject to the provisions of this section a
Hindu is bound, during his or her lifetime, to maintain his or her legitimate or illegitimate children and his
or her aged or inform parents.

(2) A legitimate or illegitimate child may claim maintenance from his or her father or mother so long
as the child is a minor.

(3) The obligation of a person to maintain his or her aged or infirm parent or a daughter who is
unmarried extends in 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 earnings or other property.

Explanation.- In this section “parent” includes a childless step-mother

Now, under the Hindu Adoptions and Maintenance Act, 1956, a Hindu is bound, during his or her lifetime,
to maintain his or her illegitimate children. The obligation to maintain illegitimate children is now upon
both, the father as well as the mother. Not only the illegitimate son, but also an illegitimate daughter, is
entitled to be maintained by her father and mother.

The right to be maintained, however, extends only up to the period of minority. An illegitimate child is not
entitled to be maintained by his or her parents after attaining majority. Such a child will also not be entitled
to be maintained if he or she has ceased to be a Hindu by conversion to another religion.

Moreover, under the Hindu Adoptions and Maintenance Act, an illegitimate son of a deceased Hindu, so
long as he is a minor, and an illegitimate daughter of a deceased Hindu, so long as she remains unmarried,
are entitled to be maintained by the heirs of the deceased out of the estate inherited by them or by the
persons who take the estate of the deceased. Such a son or daughter, however, will not be entitled to
maintenance under the said Act if he or she has ceased to be a Hindu by conversion to another religion.

An illegitimate child who has ceased to be a Hindu can, however, apply for maintenance from his or her
father under the Code of Criminal Procedure.

Q. How does the court determine the amount of award of maintenance?

Section 23 of the HAMA, 1956 clarifies or defines the people who get maintenance and how much of
maintenance i.e. the amount they can get keeping in mind the various things. The court in the case of
awarding maintenance has the authority to give the maintenance after analyzing various factors. The
factors which are considered by the court according to section 23(2) and section 23(3) are:

“(2) In determining the amount of maintenance, if any, to be awarded to a wife, children or age and infirm
parents under this act, regard shall be made to-

(a) The position and status of the parties.

(b) The reasonable wants of the claimant

(c) If the claimant is living separately, whether the claimant is justified in doing so,

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(d) The value of the claimant’s property and any income derived from such property, or from the
claimants.

(e) The number of persons entitled to maintenance under this act.

(3)In determining the amount of maintenance, if any, to be awarded to a dependent under this Act,
regard shall be made to -

(a) The net value of the estate of the deceased after providing for the payment of his debts.

(b) The provisions, if any, made under a will of the deceased in respect of the dependent.

(C) The degree of relationship between the two.

(d) The reasonable wants of the dependents.

(e) The past relations between the dependent and the deceased.

(f) The value of the property of the dependent and any income derived from such property, or from his
or her earnings or from any other source.

(g) The number of dependents entitled to maintenance under this Act.”

THE HINDU SUCCESSION ACT, 1956

Q. Define Testamentary Succession.

Testamentary succession refers to succession resulting from a legally executed testament. Testamentary
succession is also known as the right of inheritance. A testamentary succession is fixed and determined at
the moment of a decedent’s death.

Section 30 of the Hindu Succession Act, 1956 deals with Testamentary succession

Any Hindu may dispose of by will or other testamentary disposition any property, which is capable of being
so disposed of by him, in accordance with the provisions of the Indian Succession Act, 1925, or any other
law for the time being in force and applicable to Hindus.

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Explanation: The interest of a male Hindu in a Mitakshara coparcenary property or the interest of a
member of a tarwad, tavazhi, illom, kutumba or kavaru in the property of the tarwad, tavazhi, illom,
kutumba or kavaru shall notwithstanding anything contained in this Act or in any other law for the time
being in force, be deemed to be property capable of being disposed of by him or by her within the meaning
of this section.

Q. Define intestate, heir, agnate, cognate, descendant, half blood, escheat, Stridhan.

Intestate: The Hindu Succession Act, 1956 defines intestate in 3(g) as a person is deemed to die intestate
in respect of property of which he or she has not made a testamentary disposition capable of taking effect.

The term intestate is used to describe a person who dies without a will. The law of intestate succession is
concerned with matters such as , who are the persons entitled to take the property i.e., who are the heirs;
what are the rules of preference among the various relations; in what manner the property is to be
distributed in case the person has more than one heir; what are the qualifications of heirs and the allied
and subsidiary matters.

The law of intestate succession is more properly the law of inheritance the law of inheritance consists of
rules which determine the mode of devolution of the property of the deceased on heirs solely on the basis
of their relationship to the deceased.

Heir: According to Section 3 (f)“heir” means any person, male or female, who is entitled to succeed to the
property of an intestate under this Act;

An heir cannot be determined until the moment of death of the person leaving the property, since a
supposed beneficiary (heir apparent) might die first. A presumptive heir is someone who would receive
benefits unless a child was later born to the current owner of the property the presumptive heir hopes to
get someday. A legally adopted child gains the chance to be an heir upon adoption as if he/she were the
natural child of the adoptive parent or parents, and is called an adoptive heir. A collateral heir is a relative
who is not a direct descendant, but a brother, sister, uncle, aunt, cousin, nephew, niece, or a parent. It is
note worthy that a spouse is not an heir unless specifically mentioned in the will. He/ She may, however,
receive an inheritance through marital property or community property laws. A child not mentioned in a
will can claim to be a permitted heir; i.e., inadvertently or accidentally omitted from the will, and can claim
he/she would (should) have received as an heir.

Agnate: According to Section 3 (a)two people are called Agnates of each other if they are related (by blood
or by adoption) wholly through males. Agnates could be males or females.

For example, a person is an agnate of his father’s brother’s son. It has been held that being related by
blood does not mean being related by birth. Hence ‘agnate’ also includes relations by marriage. Therefore
a father’s brother’s widow is an agnate of the deceased and entitled to his property. Similarly a father’s
brother’s daughter would be an agnate

Cognate: According to Section 3 (b) when two persons are related to each other by blood or adoption but
not wholly through males, they are said to be cognates of each other.

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For example, A’s father’s sister’s son would be a cognate of A. Similarly, A’s brother’s daughter’s son would
be A’s cognate. It has been held that whenever a relationship of a person with another female (or more
than one female) intervenes anywhere in the line, one is a cognate to another. Thus the daughter’s son
and daughter and son’s daughter’s son and daughter are cognates.

Descendants: Descendants are those who are the issue of an individual, such as children, grandchildren,
and their children, to the remotest degree. Descendants are those in a descending line of birth from an
individual, rather than an ascending line, such as to the parents of the individual. Determining who a
person's descendants are is commonly necessary to determine who is entitled to share in the estate of a
person who dies without a will. State statutes of descent and distribution, which vary by state, provide for
the surviving spouse and/or descendants to share in the estate of the deceased. Parents of the deceased
often do not share in the estate unless there are no surviving descendants or spouse.

A lineal descendant is a direct descendant of a person. A person in direct line of blood relationship
following downwards from an individual concerned, starting from his children, grandchildren and great
grandchildren, are called lineal descendants of an individual.

Full Blood, Half Blood & Uterine blood Section 3(e)

SUPPOSE, A(male) and B(female) are married, and they have C as their daughter and D as son.

A remarries with E and further have their children F as daughter and G as son.

FULL BLOOD: The persons who are related to each other by common parents(both FATHER and MOTHER)
are FULL BLOOD brother-sister. AS FROM EXAMPLE we can see:

C and D are full blood bro-sis and F and G are full blood bro-sis.

HALF BLOOD: when two persons have a common father between them but have 2 different mothers then
they both are related to each other by HALF BLOOD. From example we see:

C and F are HALF BLOOD SISTERS or HALF SISTERS as they both have a common father A but two different

mothers B and E. in the same way D and G are both HALF BLOOD BROTHERS or HALF BROTHERS. now let's
add a point to the above story as:

B(female) remarries to Z(male) and have children as K(daughter) and V(son).

UTERINE BLOOD: When two persons have a common mother but have two different fathers, they both
are related to each other by UTERINE BLOOD. As from example we can see:

C and K are UTERINE SISTERS as they both have a common mother but two different father as A and Z.

in the same way D and V are UTERINE BROTHERS.

Escheat : The Hindu Succession Act,1956 Section 29 defines the "Doctrine of Escheatment".

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According to this in Hindu Joint Family,if there are no heirs i.e.absence of class I,classII,Agnates and
Cognates to the deceased person,the Government will take the property.This is known as "Doctrine of
Escheatment".

According to Mitakshara and Dayabaga,the State can take the property of a Kshatriya. But in the cse of a
Brahmin,the state cannot take the property. Manu's text also says that, Brahmin property cannot be
taken. According to the Narada Smruti, the property of Brahmin goes to another Brahmin, when the in
the absence of any heir.

Inheritance is Never in Abeyance,who is the nearest in the relationship at the time of death,they can take
the property.

Eg:-'A' is the nearest heir of 'B'.But the birth of 'C' nearer than 'A' at the 'B' death excludes 'A' from
inheritance.

The Privy Council says that,in the absence of the heirs,the property goes to Escheatment to the
State,whether the deceased was a Brahmin or Non-Brahmin.

so,if there is no heirs,the property goes to the Government.This is known as "Doctrine of Escheatment"

Stridhan: One of the most widespread social evil that has plagued our modern society is the ‘dowry
system’. This evil has already taken the lives of many girls while many continue to suffer because of it like
slow poison throughout their lives. Even though we have to great extent succeeded in creating awareness,
the country in which we live has wide ethnic, linguistic, cultural diversities. As such in our society people
may not pay heed to the calls of any particular organization when it comes to the eradication of social
evils. It is, therefore, important that the task to remove these evils is carried forward at the individual level
in a big way.

However there is one more aspect which we need to understand and that involves the right to avail
‘Streedhan’. We should be careful that even if dowry is denied, the bride does not lose her right to
‘Streedhan’ and in places where she has received the ‘Streedhan, her husband does not absorb it as his
own money. There is a basic difference between ‘Streedhan’ and ‘dowry’ It is pertinent to mention here
that under the pretext of a dowry-less marriage, patriarchal parents often deprive their girl children of
equal rights to property. The parents should give the daughter’s share of property in her name voluntarily
to ensure financial security for an independent life, once she leaves her parental home for good. In many
well-off families, dowry has become a tool to deprive daughters of their rightful share with a car, some
gold and some furniture while the lion’s share including land, houses, and bank balances etc. are kept
exclusively for the benefit of son.

CONSTITUENTS OF STREEDHAN

The word ‘’Streedhan’ has been derived from the words ‘Stri’ meaning a woman and the word ‘dhana’
means property. Therefore on combining these two words we get ‘property of woman’ her ‘Streedhan’.
This is a concept, which came down all the centuries from the Hindu Smritis but has today, engulfed all
forms of marriages in all visible castes and regions.

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According to the age old Smritis and all old schools of Hindu law such as Dayabhaga, Mitakshara etc. the
following was Streedhan in the hands of a woman whether she is a maiden, married woman or widow.

1. Gifts made to a woman before the nuptial fire.

2. Gifts made to a woman at the bridal procession
3. Gifts made in token of love by father-in-law, mother-in-law
4. Gifts made by father, mother and brother

This cannot be said to be a complete list so gifts made after marriage by a woman’s husband’s relations
or parent’s relations and gifts from sons and relations got added to the list as so did many more as can be
seen here. The question as to if a particular kind of property acquired by a woman was Streedhan or not
also depended upon the source from which the property was acquired, the marital status of woman at
the time of acquisition whether she acquired it during her maidenhood, subsistence of marriage or
widowhood. Gifts and bequests from a woman’s relations during maidenhood, subsistence of marriage
or widowhood is all to be construed as her Streedhan. Gifts and bequests from strangers during
maidenhood, subsistence of marriage or widowhood is also Streedhan. In effecting Partition if as an
absolute gift or interest in a share is given to a woman whether during her maidenhood, marriage or
widowhood the same amounts to her Streedhan. Property inherited by a woman becomes her Streedhan
or property acquired by a woman by mechanical arts or by her own exertions during maidenhood,
subsistence of marriage and during widowhood is Streedhan. Property obtained by a woman by
compromise or family arrangement where there is no presumption of her taking only a life interest,
becomes her Streedhan. Property obtained by a woman by adverse possession during maidenhood,
subsistence of marriage and during widowhood is Streedhan. Property purchased with Streedhan is a
woman’s Streedhan. Gifts made to husband during and after marriage are not Streedhan. In case of a
dispute over who were the gifts made to, more often than not woman is given a priority over the husband.

For a married woman Streedhan falls under two heads:

1. The saudayika (gifts of love and affection) – gifts received by a woman from relations on both
sides (parents and in-laws).
2. The non-saudayika– all other types of Streedhan such as gifts from stranger, property acquired by
self-exertion or the mechanical arts.

LEGAL STATUS OF STREEDHAN

1. Application u/s. 405 of IPC

“Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly
misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property
in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any
legal contract, express or implied, which he has made touching the discharge of such trust, or willfully
suffers any other person so to do, commits ‘criminal breach of trust.

The offence under section 405 can be said to have committed only when all of its essential ingredients are
found to have been satisfied. As in the case of criminal misappropriation, even a temporary
misappropriation could be sufficient to warrant conviction under this section. Even if the accused intended
to restore the property in future, at the time misappropriation, it is a criminal breach of trust.

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In Rashmi Kumar vs. Mahesh Kumar Bhada the Supreme Court held that when the wife entrusts her
Streedhan property with the dominion over that property to her husband or any other member of the
family and the husband or such other member of the family dishonestly misappropriates or converts to
his own use that property, or willfully suffers and other person to do so, he commits criminal breach of
trust.

2. Application under allied laws

A woman’s right to her Streedhan is protected under law. S. 14 of the Hindu Succession Act, 1956 R/w S.
27 of the Hindu Marriage Act, 1955 make a female Hindu an absolute owner of such property. In the case
of Pratibha Rani vs. Suraj Kumar the Hon’ble Supreme Court of India explained the concept of ‘Streedhan’
and its legal position under the Indian Laws. The Hon’ble Supreme Court of India held that:

“A Hindu married woman is the absolute owner of her Streedhan property and can deal with it in any
manner she likes and, even if it is placed in the custody of her husband or her in-laws they would be deemed
to be trustees and bound to return the same if and when demanded by her”.

It is, therefore, manifest that the position of Streedhan of a Hindu married woman’s property during
covertures is absolutely clear and unambiguous; she is the absolute owner of such property and can deal
with it in any manner she likes-she may spend the whole of it or give it away at her own pleasure by gift
or will without any reference to her husband. Ordinarily, the husband has no right or interest in it with the
sole exception that in times of extreme distress, as in famine, illness or the like, the husband can utilize it
but he is morally bound to restore it or its value when he is able to do so. This right is purely personal to
the husband and the property so received by him in marriage cannot be proceeded against even in
execution of a decree for debt, such being the nature and character of Streedhan of a woman. If her
husband or any other member of his family who are in possession of such property, dishonestly
misappropriate or refuse to return the same, they may be liable to punishment for the offence of criminal
breach of trust under S. 405 & 406 IPC.

1. Sec. 12 of the Domestic Violence Act, 2005 provides for women right to her Streedhan in cases
where she is a victim of domestic violence. The provisions of this law can be easily invoked for
recovery of Streedhan. Under the residence orders: Prov. (8) the magistrate may direct the
respondent to return to the possession of the aggrieved person her Streedhan or any other
property or valuable security to which she is entitled.

Again u/s 18(ii) of the Domestic Violence Act the law says that a woman is entitled to receive the
possession of the Streedhan, jewellery, clothes and other necessary items. The term ‘economic abuse’ has
also been provided under the Act. It includes deprivation of all or any economic or financial resources to
which the woman is entitled under al the existing customary laws whether payable at the concern of the
court or in any other manner. These resources are however not limited to the household necessities of
the aggrieved person.

RIGHTS OF A WOMAN OVER HER STREEDHAN

The bride has got an absolute, exclusive dominion over all her Streedhan, received during the marriage.
This includes both movable and immovable property, while she has the power to sell, alienate or give it
away as she pleases both during her lifetime and thereafter. Her husband and in-law’s family members

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have no rights over a woman’s Streedhan. We need to understand that the marriage expenses and dowry
are not Streedhan as held in Ashok Laxman Kale vs Ujwala Ashok Kale.

It is usually practical and preferable that any girl especially educated girls of today maintain a list of their
Streedhan has also become capable of looking after their own Streedhan in terms of its security such as
opening a bank locker in their single names for the purposes of storing jewellery and instruments of
money, property etc. or keeping it under their lock and key.

Some of the precautionary steps in keeping the check on the Streedhan could involve:

1. The woman should make a list of all the gifts and properties received before, during and after
marriage from her family, husband’s family, friends and other acquaintances.
2. The woman should keep evidence for all the gifts received such as wedding pictures. Also, ensure
that the gifts and their bills are in her name and preserve these bills.
3. The woman should have witnesses – statements of witnesses will be important evidence – for
gifts of movables (including jewellery) at the time of marriage.
4. The woman should maintain a separate account in her name for her salary.
5. The woman should get involved in the family financial decision-making and keep a record of bank
accounts and the investments made out of her Streedhan.
6. The woman should ensure that the title to the property given to her and those bought from her
Streedhan are clear and that the investments made from these assets are in her name.
7. The woman should open a bank locker in her name for storing jewellery and instruments of
money, property and so on.
8. It is advisable for the woman’s parents to gift her income-generating property, rather than
expensive consumer items. It becomes often difficult to give full detail accounts for the consumer
items.

Q. What are the important changes introduced by Hindu Succession Act, 2005?

• Coparcenary right has been given to daughters under Mitakshara school in the same manner as
given to the son in a Hindu Joint Family.
• Rights given to the daughters in the property is in no way different to that given to a son.
• She can become Karta of the family and she can carry the liabilities and responsibilities.
• Hindu Mitakshara Coparcener also includes daughter as a coparcener. The Act does not have
retrospective effect. So, such partitions or alienations that have taken place before 20th
December 2004 will not be affected by the Amendment.
• Property that a Hindu female would hold under this section, she would be entitled to dispose it
or alienate it according to her will.
• Interest of property of a deceased Hindu shall devolve by intestate succession not by survivorship.
• Daughters would be allotted shame shares to that of a son. Heirs of predeceased daughter have
been included in class I heir.
• Pious obligation regarding ancestor’s debt was abolished completely.

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• Interest of Mitakshara coparcenary is to be treated as partition would have been taken place just
before his death that is notional partition.

Q. Discuss the general rule of succession in case of female Hindu dying intestate. The act by section 14
confers absolute ownership on all females in respect of all properties in their possession, whether
acquired before or after the commencement of the Act.

The rules governing intestate succession of a Hindu female are specified in section 15 and 16 of the Act.

Under s.15 (1), the property of an intestate Hindu female devolves on the following heirs in the order
specified below:

(a) Firstly, upon her sons and daughters (including the children of any pre-deceased children) and
husband;

(b) Secondly, upon the heirs of her husband;

(c) Thirdly, upon her parents

(d) Fourthly, upon the heirs of her father

(e) Fifthly, upon the heirs of her mother

The order of succession is in the order specified above. Thus, the heirs in the first entry take the
property simultaneously and in exclusion to all others and so on and so forth. Thus, the children and
husband of a female Hindu take the property in preference to all other heirs specified. The order of
devolution as regards her husband’s heirs would be as if it was her husband’s property and he had died
intestate. The same principle would apply as regards devolution on her father’s heirs.

S.15(2) carves out an exception to the order of succession specified above. In case of a Hindu female dying
intestate and without any issue or any children or any predeceased children, any property inherited by
her from her parents shall devolve upon the heirs of her father. Such property shall not devolve upon the
other heirs specified u/s. 15(1). Thus, property inherited from her parents would not devolve upon her
husband or his heirs. Recently, the Supreme Court, in an unreported decision, has reiterated the
proposition that according to s.15(2) the result would be that if a property is inherited by a woman from
her father or her mother neither her husband nor his heirs would get such property but it would revert
back to the heirs of her father.

Similarly, in case a Hindu female dies intestate and without any issue or any children or any
predeceased children, then any property inherited by her from her husband or her father-in-law shall
devolve upon the heirs of her husband. Such property shall not devolve upon the other heir’s specified s.
15(1). Thus, property inherited from her husband would not devolve upon her father or his heirs.

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It is important to note that both the above provisions of s.15 (2) would only apply if the female dies without
leaving behind any children or children of any predeceased children. If she has left behind any children,
then they would take the property in preference to all other heirs. Further, the provisions only apply to
“inherited” property and not property acquired by way of a will or under a gift.

Example: A widow without any children dies without a will she has 3 properties in her name. 1 acquired
from her father through gift, second acquired from her own sources of money and third acquired from
her husband through will. The property 1 Will go to her father’s legal heir the property 2 will go to her
legal heir and the property 3 will go to her husband’s legal heir.

Q. Discuss the general rule of succession in case of male Hindu dying intestate.

General Rules of Succession to the property of a Hindu male –

The Hindu Succession Act, 1856, still retains the dictionary of the old Hindu law where succession to the
property of a Hindu male and a Hindu female was dealt with separately. Sections 8 to 13 deal with
succession to the property of a Hindu male. The heirs of a Hindu male are broadly of four types – Class I,
Class II, agnates and cognates. The persons included in these categories are mentioned in the Schedule to
the Act.

Section 8 lays down the order of priority among these classes of heirs by laying down that the property
will first go to the Class I heirs and in their default to Class II heirs, failing which to agnates and thereafter
to cognates.

Section 9 lays down that Class I heirs are simultaneous heirs, i.e., no one excludes the other, all take
simultaneously in accordance with the rules of distribution of property among them, while Class II heirs,
who are listed in nine categories in the Schedule, the heirs in the previous category are preferred to later
categories.

Section 10 lays down rules of distribution of property among Class I heirs. Section 11 lays down rules of
distribution of property among a category of Class II heirs. Section 12 lays down that agnates, however
remote, will always be preferred over a cognate, however proximate. Section 13 provides the modes of
computation of degrees among the agnates and cognates for the purpose of determining their order of
succession.

This is a divergence from classical Hindu law, where all the coparceners succeeded to the property of the
deceased and all other relations, however proximate and all the legal heirs of the deceased were
excluded.

Q. Presumption in case of simultaneous death.

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Section 21 provides that, “Where two persons have died in circumstances rendering it uncertain whether
either of them, and if so which, survived the other, then, for all purposes affecting succession to property,
it shall be presumed, until the contrary is proved, that the younger survived the elder.”

It may happen that two persons die in an accident or calamity under such circumstances that it is
impossible to ascertain which of them died first. In such a situation, it may be presumed that both of them
died simultaneously or that one of them succeeded the other. There may be controversy regarding
inheritance in such situations as to who will succeed to who’s property. Before the enactment of this
Section, there was no answer to such questions. The burden of proof was on the party who asserted the
affirmative. If the evidence before the Court was balanced, the balance of probabilities was considered
to be in the favour of the younger.

According to this Section, the presumption of survivorship applies, by which the younger is presumed to
have survived the older. In this Section, ‘younger’ means younger in status not in age and only when the
status is the same, younger in age. Thus if an uncle aged thirty years and a nephew aged thirty five years,
die in a plane crash or a ship wreck, it will be presumed that the nephew died later, even though he is
older in terms of actual age. On the other hand, if two brothers die simultaneously in any accident or
calamity, the brother younger in age is presumed to have died later.

This is a peculiar feature of this Act, as it was altogether not provided for at all in the classical law or the
previous legislations regarding Hindu succession

Q. Right of child in womb.

Section 20 provides that, “a child who was in the womb at the time of the death of an intestate and who
is subsequently born alive shall have the same right to inherit to the intestate as if he or she had been
born before the death of the intestate, and the inheritance shall be deemed to vest in such a case with
effect from the date of the death of the intestate.”

A child in the mother’s womb is presumed to be born before the death of the intestate, although
subsequently born. To quote Mulla, “It is by fiction or indulgence of the law that the rights of a child born
in justo matrimonio are regarded by reference to the moment of conception and not of birth and the
unborn child in the womb, if born alive is treated as actually born for the purpose of conferring on him
benefits of inheritance. The child in embryo is treated as in essential for various purposes when it is for
his benefit to be so treated. The view is not peculiar to the ancient Hindu Law but one which was adopted
by all mature systems of jurisprudence. This section recognizes that rule of beneficent indulgence and the
child in uterus although subsequently born is to be deemed to be born before the death of the intestate
and inheritance is to be deemed to vest in the child with effect from the date of the death of the intestate.”
But for the purposes of the application of the provisions of section 20, it is essential that child must be in
womb at the time of the death of the propositus and the child must be born alive.

Q. Disqualification from inheritance.

Section 24 repealed: Certain widows remarrying may not inherit as a widow –

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In classical Hindu law, certain female heirs if they had remarried after the death of their spouses, before
the succession opened were disqualified from inheriting the property of the deceased intestate, for being
unfaithful to their obligations widows. Under the Hindu Widow Remarriage Act, 1956, if a Hindu widow
remarried, she could not inherit the property of her deceased husband. Under this Section of the Act, only
three female heirs were disqualified on such grounds, namely:

• Son’s widow

• Son’s son’s widow

• Brother’s widow

Now, this Section has been omitted, rendering such disqualification null and void, which is a great
diversion from Hindu traditional law.

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.

It is a general policy of practically all the systems of law that no one should be allowed to reap the benefits
of his crime. Such provision however, was not specifically provided for in traditional Hindu law. It was a
disqualification in the Dayabhaga school, but not provided for in the Mitakshara school. Furthermore,
even in the Dayabhaga school, only the murderer himself was disqualified, not the abettor of the murder.
This Section however, disqualifies both a murderer and an abettor to murder. The Joint Select Committee
on the Hindu Succession Bill observed:

“A murderer even if not disqualified under the traditional Hindu law from succeeding to the estate of the
person whom he has murdered is so disqualified upon the principles of justice, equity and good
conscience.”

In the case of Kenchava v. Girimallappa, the Privy Council held that “the murderer is not to be regarded
as the stock for a fresh line of descent but should be regarded as non- existent.”

Under section 25 the murderer as well as the abettor of murder is disqualified. But if he is acquitted on
the basis of benefit of doubt, the disqualification does not attach to him.

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 descendants are Hindus at the time when the succession
opens.”

Under the old Hindu law, conversion of any Hindu person into another religion was a disqualification which
was later removed by the Caste Disabilities Removal Act of 1850 and upheld by this Act. However, although
conversion does not disqualify a person form succeeding to the property of an intestate under this Act,
his descendants are disqualified from inheriting such property unless such children or descendants are
Hindus at the time when the succession opens.

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Thus, the children of a convert and their descendants are disqualified. But if at the time of death of the
intestate, any of them are Hindu, they are no longer disqualified.

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