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HINDU LAW

UNIT-I

State briefly the concept of ‘Dharma”.jan 2011, jun 2012 Marks:5

CONCEPT OF DHARMA Dharma signifies the obligation or a collection of duties or asset of

rules to be performed by all humanbeings for their good. It comprises not only legal rules or duties
of moral, religious, social but also all levels of actions, situations, gods and creatures in its many
folds of duty. The holistic conceptualization of dharma suggests that any human activity, including
in action, potentially have wide reaching consequences. Therefore, following a path of appropriate
behavior is extremely important; and this path has been laid down by the sutras and the smritis.

Dharma is a very elaborate concept of mankind as whole. Which we have described elsewhere.The
principal object is to preserve the world order, by maintaining its overall structure, basic values
and innate harmony. The duties common to all mankind are enumerated in varna dharma and
Ashrama dharma . Hinduism, one of the main functions of the Divinities is to protect the creation
by maintaining the Dharma in all the worldly activities.

In the ancient texts, law has been described as an aspect of Dharma. Designation of texts that
expound law as Dharmasastra or Dharmasutra shows the proximate relation of Dharma and
classicalHindu law.In Naradasmriti and Katyayanasmriti, court of law has been termed
as dharmasana or dharmadhikarana, which reinforces this argument. The purpose of dharma was
to keep everybody within his or her assigned roles. Having a strong foundation in the principles of
dharma, the basic tenets of Hindu law emerged in ancient India under the aegis of generations of
kings. The great body of Hindu law as known today did not evolve in a singular or particular age
or socio-cultural milieu. The Rig-Veda was composed around 1500 BC while the later smritis of
Narada, Brihaspati and Katyayana that mark the zenith and are known as the grand trio of Indian
jurisprudence, were composed between 4th to 6th centuries AD. The Hindu jurisprudence
continued to grow after this through commentaries (tikas) and digests (nibandhas) that
Commentaries of Vijnyanesvara andJimutavahana would be valid examples, which in modern
Hindu law formed the basis of the Hindu succession law.

Dharma and law are not precisely the same. Dharma refers to a wider range of human activities than
law in the usual sense and includes ritual purification, personal hygiene regimens, and modes of
dress, in addition to court procedures, contract law, inheritance, and other more familiarly "legal"
issues. In this respect, Hindu law reveals closer affinities to other religious legal systems, such as
Jewish law. Dharma concerns both religious and legal duties. Attempts to separate these two
concerns within the Hindu tradition have been widely criticized. According to Rocher, the British
implemented a distinction between the religious and legal rules found in Dharmaśāstra and thereby
separated dharma into the English categories of law and religion for the purposes of colonial
administration. However, a few scholars have argued that distinctions of law and religion, or
something similar, are made in the Hindu legal texts themselves.

Therefore, in the concept of dharma, law, morality and religion largely overlap to induce
‘appropriate behavior’ of human beings, subject to their real situation. This element of dharma was
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manifest in the practice of Asrama and Varnasrama at that point of time. One who follows the
dictates of the dharma fulfils his social as well as religious duties. The authors of the religious
scriptures therefore viewed the end goal the realization of dharma, but only when every member of
the society fulfils his stipulated duty. It naturally follows that “their structure of law has dharma as
its axis.”

Dr. Rama Jois’ define dharma is a code of righteous conduct that was established to enable an
individual with the means of controlling his own desires and senses; and to fell content in life. He
further adds that the rules of dharma as developed over a long period of time has the follows a
main objective of ensuring peace and happiness to the individuals as well as society. He agrees to
the point that dharma should be understood as a body of rules that covered together every sphere of
human activity.

For example, manusmriti 10.63 states that not indulging in violence with anyone, truthfulness,
non-stealing and not acquiring any wealth through immoral methods, control of senses and
cleanliness of mind and body meaning conformity in thought, word and deed are the five rules of
dharma to be followed by all.

Sarvajna Narayana indicated in his work Hitopodesha that observance of dharma differentiates
human beings from the animals. In his opinion,

Consumption of food, sleeping, fear and sexual enjoyment are the common attributes of both man
and animals. But the special attribute of man is in his capacity to obey the rules of dharma. Bereft
of dharma, man is no better than animals.

Dharma has been held as supreme as all the scriptural texts as the guiding principles for every
possible activity of man, and its unique flexibility makes it unique. It provides only some basic
tenets which have to be followed and the scriptures including the smritis try to put context to it by
providing rules that are applicable in that situation. Otherwise, if dharma is understood as the soul
of the scriptures and not the sacred texts themselves, which is according to many scholars the right
way to interpret the relevance of the concept of dharma, it strips it of a great function of
supplementing substantive law as and when needed. This is proven by most wide definitions that
are found in the scriptures themselves. Jois gives an example taken
from Mahanarayana Upanishad, which emphatically enunciates dharma as supreme. It says that
Dharma destroys sinful thoughts, and that is why it is considered supreme.

According to scholars, the strength of dharma lies in the fact that it is preventive rather than
punitive. This is the only reason dharma is still relevant to a modern day context. Dharma is not to
be reduced to rule books or codes and statutes; it is a body of social law, which is to be imbibed in
culture.

1. Write a note on Varna Dharma.jun2010

Varna:- Varna is a fundamental concept underlying the Hindu society. In fact, it is not a social
arrangement or segregation; it is rather a statement of how any society is arranged. It does not say
society should be classified into classes, it says what classes or kinds of people exist in any society.
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Varna dharma is the dharma of social planning. The principle of planning as conceived within
Hinduism makes movement from vacation to vocation, profession to profession, impossible. It is
the obligations and rules necessary for a well-organised society. As a Dharma it deals with duties,
not rights, with social utility and self realization rather than class identity and individual privileges.
Varna Dharma may not have been designed to distinguish the high and the low, the good and the
bad, the fact that is it has acquired value distinctions.

The Brahmin is the one who has moved further along in development towards the perfection of
man than has the other classes. He is better, although since Hinduism has no theory of the
individual, he may slip from the status he has attained.

According to Shukra Niti,Varna Dharma classified as four categories is based on guna or

swabhava(satva guna,rajas and tamas) and karma (caste and according to one’s occupation). And
also held that the four categories ofmen descended from the mouth,arms,thigh and feet of
Bramhrespectively. These are ;

i) Brahmin- one who engaged themselves in study of Vedas, Jap,Tap and sacrifices.
ii) Kshatriya-One who wages war and protecting the people.
iii) Vaishyas-one who engaged in trade and commerce.
iv) Shudras-one who perform service to upper three classes.

Brahma:- One belonging to this varna is called a Brahmana. His function is to learn, share and
preserve the eternal knowledge of the race (in our case, the Veda). It is often mistaken that
Brahmana is the one with spiritual realization - his function is scholarship more than realization.
Realization is a result of following one's Varna dharma (simply put, doing properly what one does,
and a Brahmana may also attain realization). And in Sanatana Dharma, every person is bound to get
spiritual realization and liberation, if he properly does what he does. This is irrespective of his
Varna.

There are specializations in this varna, such as those taking to priesthood, those taking to just
learning and teaching the Veda, those taking to learning and teaching specific Darsanas or
Vedangas, etc.

Knowledge is classified into many kinds, to serve many purposes. Of this the study of Veda, is done
only by a dwija (Brahamana/ Kshatriya/ Vaisya). This is for the purpose to be served by the Veda
for the society, and also because of the training required to pursue the study. Most of the times there
is no compulsion on who should do the study, but there is a compulsion on what is the prerequisite
to such study. Veda being swara specific and also based on mantra sastra, pursuing it needs special
training from childhood and also needs an extremely disciplined lifestyle throughout. This is the
reason that most people do not show interest to take this up. But the knowledge is not denied to any
class, though this particular mode of learning is - the Vedic wisdom is available through texts like
the Puranas and other smritis. Through these, the vedic word is not known - its essence/meaning is
known.

The smritis and sastras can be studied by person of any varna, based on the purpose and on the
occupation. They could also be studied irrespective of occupation, provided one has the interest and
has the academic qualification.
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Because of the function that he does, a Brahmana is said to be of satwik nature.

Kshatra:- Kshatriya is the one who belongs to Kshatra varna. This is the martial class and forms
the military defense and administration of the society. A kshatriya's functions are to rule and protect
the society. They also learn all forms of knowledge.

Because of the knowledge gained a khatriya is of satwik nature, and because of the martial aspect he
is of rajasic nature. Thus he is satwik-rajasic.

Vaisya:- Vaisya is the productive class of the society, and his primary functions are trading and
business. Making the society prosperous is their primary function. A Vaisya generates wealth, and
distributes it for the social well-being.

Since artha is the predominant purushartha for a Vaisya, he is usually of rajasic-tamasic nature.

Sudra:- Sudra is the service/artisan class and covers most of the occupations, like engineering,
agriculture, mining, metal work etc.

Based on these temperaments and functions, the smritis outline dharma for each of these varnas,
their duty towards their profession and their role in the society.

1. Write a note on Ashrma Dharma jan 2010,Marks ;5.

Ashrama dharma is fundamental to the Hindu society. It divides man's life into four stages and
specifies what one should do in each of the stages. Historically, it was only few Brahmanas who
were found to make it through all the four ashramas. Kshatriyas of yore, used to make it to
vanaprastha. Vanaprastha was even more a rare case in Vaisyas.

In the words of kautilya, harmlessness,truthfulness, purity, absence from cruelty and forgiveness
are the duties common for all.

According to Hindu law, there are four ashramas.The average life of humanbeing is 100 years and
it is divided into four stages.They are :

Brahmacharya-In this age one is expected to gain learning under the guidance control of guru.

Grihasta- one has to get marriage and pleasure of life.

Vanaprasta-It is the detachment from wordly life or couples and to realize the truth.

Sanyasa-it is the complete renunciation.

Brahmacarya:- In this stage, one does academic learning. He should go to a guru and learn what
is prescribed for him. After some basic education he would move to some specialization based on
his interest and performance. This is a stage of learning and celibacy (Rules in Manusmriti 2.173-
249). Upanayana or initiation should happen at 5-16 years of age (Manu 2.36-40). Upon
completion of study, one should take up grhastha ashrama (Manu 3.1-4).
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Grhastha:- Grhastha ashrama is the center stage; it is the phase where a person contributes most to
the society. For this reason, the Kalpa Sutras devote an entire book Grihya Sutras, for the
householder. He sustains the society, financially and otherwise (Manu 6.89-90). Unless in
exceptional cases, one is not permitted to bypass this ashrama.

One is supposed to base his pursuits on Dharma, and fulfill his desires. This is a stage of fulfillment.
Both purusharthas, Artha and Kama, are to be served here, based on Dharma, the first purushartha.
This ensures the fourth, which is Moksha.

Grhastha should perform five sacrifices every day (panca maha yajnas), to please gods, rishis,
departed fathers, fellow men, and other living creatures. One is said to be indebted to all these. One's
debts towards his departed fathers are cleared at the end of this ashrama. One is also prescribed eight
activities a day, which can be classified into worshipping and pursuing profession/occupation
(Manusmriti chapters 3-5).

Having lived half his life, one should take up vanaprastha ashrama (Manu 5.169).

Vanaprastha:- At this stage one gives his property to his heirs or donates it, goes into seclusion,
and does penance. One becomes inward looking. He still contributes with his experience, through
advising and teaching. Having fulfilled his desires in the previous ashrama, one is expected to win
over senses and sensuous pleasures. Thus his work is also more dispassionate and detached, as he
does not seek any specific result from the work. It will be for the benefit of society alone. Though
one is supposed to celibate, he is not required to renounce or live alone. One can take his wife or live
with any other person. One is also permitted to earn his livelihood though not to save/accumulate.
But unless there is a specific need, he does not enter the city - usually people needing a vanaprasthi's
advice go to him instead of him visiting people.

One still has debts towards rishis and gods at this stage, and does teaching as well as performs
sacrifices to propitiate the devatas. His primary debt towards pitris is cleared as he obtains progeny
and raises them in grhastha ashrama, though he continues giving oblations to pitris during
vanaprastha (Manu 6.1-32).

Sanyasa:- In this stage one renounces the world and detaches from his social and family relations.
One should not earn in this stage, or have any material possession of his own. Whatever few
attachments he has with his relations or social ambitions are also given up. Man does all work purely
for moksha at this stage. Technically, a sanyasi has no debts, and lives only as long as his
karmaphala remains.

In general, Brahmacarya and Grhastha ashramas are seen as Pravritti dharma. Vanaprastha and
Sanyasa are nivritti dharma for man (Manu 6.33 - 86).

A person who has taken sanyasa is considered to be outside of the four varnas.

1. Who is Hindu? Who are the persons governed by Hindu law? Jan.2011,Marks :15
2. Write a note on ‘Hindu. jun2013 jun2010,Marks5

In Shastri Yagna Purushdasji v. Muldas Bhundardas Vaishya - It is extremely

difficult, though not impossible; to define the H indu religion in the way the other
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religions are defined. It embraces numerous views and ways of life. The term ‘Hindu’ is not to be
found anywhere in the Dharmashastras. It is a foreign word. I t i s d e r i v e d f r o m t h e w o r d
‘Sindhu’. Sindhu is the name of a r iver in Indian sub -continent. The word
‘ S i n d h u ’ w a s m i s - s p e l l e d a s ‘ H i n d u ’ b y t h e P e r s i a n s . T h e s u b - continent came to
be known as Hindustan and its people as Hindus. Thus etymologically, the word ‘Hindu’ does not
signify a religion; it refers to a territory or nation. Hindu law is a personal law. So, Hindu law
should define ‘who is a Hindu’, and upon whom the Hindu law applies.

Word Hindu – a Greek word; who called inhabitants of the ‘Indus valley’ as ‘indoi’

Then it was extended to all persons who lived beyond valley.

Before the advent of Muslims the term Hindu had no creedal (religious belief) connotation
(meaning) – it had then territorial significance and it also denoted nationality.

There is no precise definition of the term ‘Hindu’ available either in any statute or in any judicial
pronouncement. However, since Hindu Law applies to all those persons who are Hindus, it is
necessary to know who are Hindus and to whom the Hindu Law applies.

S. 2(1) of the Hindu Marriage Act,1955& the Hindu Succession Act,1956; the Hindu adoption and
Maintenance Act,1956 and S.3(1) the Hindu Minority and Guardianship Act,1956 defines the term
‘Hindu’ according to this definition the persons to whom Hindu Law applies may be put in the
following three categories:

HINDU (includes Hindu. Jain, Sikh & Buddhist)

1. Hindus by Religion
2. Hindus by Birth
3. Hindus by Conversion
4. Hindus by Declaration
5. Followers of HJSB
6. Persons who are not Muslim, Christian, Parsi or Jew. Or who are domiciled in India & not
governed by any other law

A Hindu is one who practice Hindus by Religion- any person who is Hindu, Jain, Sikh or
Buddhist by religion. – may be of two categories –

i. Those who are originally Hindus, Jains, Sikh or Buddhist by religion; and

ii. Those who are converts or reconverts to Hindu, Jain, Sikh or Buddhist religion. Abraham v.
Abraham (1863).

on either: Hindus by Birth - any child, legitimate or illegitimate, both of whose parents are
Hindu, Jain, Sikh or Buddhist and Nambudri Brahmanasby religion.

Or one of whose parents is a HJSB and who is brought up as a member of the tribe, community,
group or family to which such parents belongs or belonged or by conversion to Hindu faith.Hindu
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law is a personal law and it applies to Hindu in whichever country he may be.)illegitimate children
where father is christen, mother is Hinduand children are broughtup as Hindus.iv) jains, buddists in
india, Sikhs v)a Hindu by birth but renounced the religion and again returned after performing the
religious rites.vi)Sons of a Hindu dancing girl of Nayak caste, converted to Mohammadnism. The
sons are taken into the family of Hindu grand parents and brought them as Hindus.vii) Brahmos,
Arya samajists and santhals of chota Nagpur.viii)Hindus who made declaration that theywere not
Hindus for the purpose of special marriageAct 1872.

Perumal v Ponnuswami

Facts: Jesudas – famous Bollywood playback singer used to perform devotional songs in a Hindu
temple and worshipped there like Hindu - a catholic Christian by birth - also filed declaration, ‘ I
declare that I am a follower of Hindu faith.’

Held: Jesudas was Hindu and cannot be prevented from entering the temple.

Hence, a non Hindu will become a Hindu – by following these prepositions – if he –

a. undergoes a formal ceremony of conversion or reconversion prescribed by the caste

or community to which he converts or reconverts
b. expresses a bonafide intention
c. accompanied by conduct unequivocally expressing that intention
d. Acceptance of him as a member of the community
e. Bonafide declaration by the person that he is a Hindu.

ix)A person born Hindu but has deviated from the standard of orthodoxy in matters of diet and
ceremonialobservance and not renounced the Hindu religionHindus by Religion

x) Any person who is not a Muslim, Christian, Parsi or Jew and who is domiciled in India and
not governed by any other law.

In Commissioner of Wealth Tax v. R. Sridharan{ (1976) 4SCC 489} son of a Hindu father and
Christian mother – held: Hindu ‘coz father had unequivocally declared that he and his son are HUF
(Hindu Undivided Family)

S. 2(2) of the Act contains an exception that the provisions of the Act shall not apply to the STs
within the meaning of clause 25 of Art. 366 of the Constitution unless the CG, by notification in the
Official Gazette, otherwise directs.

Followers of Jainism, Sikhism and Buddhism

In Rani Bhagwan Koer v. J.C. Bose (1904) (PC) held: even before codification JSB were governed
by Hindu Law as modified by custom prevailing amongst them.

Jainism:- in Boddaladi v Boddaladi(1927); Sheosingh v. Dakho (1978) and Chhotey Lal v

Chhoonoo Lal (1879)
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a. Has origin & history before smritis

b. Rejects authority of Vedas
c. Discards all ceremonies and rituals
d. Does not believe in the existence of God
e. Holds – by tapasya by discarding worldly manifestation atma can become parmatma
f. Thus one can attain salvation(moksha)
g. Both codified and uncodified law applies to jains.

Sikhism:-in Rani Bhagwan Koer v J. C. Bose (1926) 7 Lah 275 and Sugan Chand v Prakash
Chand AIR 1967 SC 506

a. Sikhs are dissenters from Hinduism

b. According to the first Guru Guru Nanak Dev ji God is one
c. Discards all forms of Hindu worship and class distinction
d. Tenets of Sikhism are essentially theistic, viz-
e. God is one the Omnipresent the Omnipotent and Omniscient
f. Everyone should worship one God instead of worshipping numberless Gods and
Godddesses
g. One should earn his living with his own labour and skill
h. In absence of any specific custom Sikhs are governed by HL

Buddhism:- In Punjab Rao v D. P. Mesharam, (AIR 1965 SC 1179),

Vanni v Vannichi (1924) and Ram Pergash v Mst. Dahan (1924) the Court has observed
the following

Extreme religion which preaches practically a total negation of life

a. Governed by HL as modified by custom.

b. In sum, if nucleus of Hinduness is established, a person is a Hindu, unless it is shown that he
had converted to a non Hindu religion.
c. In other words, any person who is a HJSB by religion is a Hindu if;

2. He practices, professes or follows any of these religions; and

3. Remains a Hindu even if he does not practice, profess or follows the tenets of anyone of these
religions.

Write a note on ‘Conversion’. jun 2013

Converts and Reconverts to Hinduism (apostasy)

a. A convert is a person who renounces his faith and adopts another

b. Usual way is by undergoing the ceremonies of a conversion prescribed by religion to which the
conversion is sought.
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c. u/HL, a person does’nt lose his faith by mere renunciation nor does he belong to another faith
by merely professing or practicing it
d. thus if a non Hindu becomes admirer of Hinduism, so much so that he starts practicing or
professing it –not become a Hindu
e. Dharmashastra not prescribe any ceremony ‘coz there was no provision for conversion it says ‘
a Hindu is born not made’
f. among Hindus only Aryasamajists prescribe the ceremony of shuddhi but after this the person
Is called Aryasamajist Hindu not converted to Hinduism

In J. Das v State of Kerala (1981):- Held: if a Hindu of higher caste becomes shareholder of the
Kerala Scheduled Castes And Scheduled Tribes Welfare Board it does not mean that he has been
accepted as a member of SC and thus become a SC

In Varmani v Varmani (1943):- A person who ceases to be a Hindu by converting to a non-

Hindu religion will, again become Hindu if he reconverts to any of 4 religion i.e. HJSB.

Not necessary he reconverts to the same religion from which he converted to the non Hindu religion

So, a Jain converts- Islam then converts to Sikhism – Hindu technically- not a case of reconversion
but double conversion.

Guntur Medical College v Mohan Rao (AIR 1976 SC 1904)

Facts: a SC converted to Christianity then reconverted to Hinduism. He and his children are SC only
if members of that caste admit him to their fold.

In Kusum v Satya (1903):- Rituals of expiation and repentance are required. In the case of D. P.
Rao v Sudarsana Swami (1940):- Rituals of expiation and repentance are required not required

S. Anbalagan v/s B. Devarajan AIR 1984 SC 411for reconversion to Hindu no particular

ceremony or any expiatory rite is necessary, unless practice of caste makes it mandatory.

Hindu law not applicable:illegitimate children of Hindu father but christianmother and children
are broughtup as Christian. Ii) illegitimate children of Hindu father but a mohammedan
mother.Hindu law is neither applicableby birth nor by conversion to religion.iii)A Hindu converts
to christianity and dies as a christionintestate which is governed by Indian succession Act
,1925.V) A Hindu converts to muslim faith, only to legalise the second marriage undermuslim law
without divorcing the Hindu faith.

SOURCES OF HINDU LAW

1. Briefly enumeratethe sources of Hindu law with special reference to ‘custom.

Dec.2012Marks:15
2. Briefly explain the sources of Hindu law. ‘Aclear proof of custom outweigh the written
text of law’. Explain.jun2012,Marks:15
3. State and explain in brief the sources of Hindulaw.june 2010, 2013,Marks ;15
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4. Explain the ancient sources of Hindu law and add a note on ‘Narada Smriti’.jan
2010,Marks:15

Sources of Hindu law can be classified under the following two heads:

I. Ancient Sources

Under this would come the following:

i) Shruti

(ii) Smriti

(iii) Custom.

(iv) Digests and Commentaries and

II. Modern Sources

i) Justice, equity and good conscience

(ii)Judicial decisions( Precedent), and

(iii) Legislation.

Ancient Sources

(i) Shruti: it literally means that which has been heard. The word is derived from the root “shru”
which means ‘to heaof Hindu law and is believed to be the language of the divine revelation through
the sages.The synonym of shruti is veda. It is derived from the root “vid” meaning ‘to know’. The
term Veda is based on the tradition that they are the repository of all knowledge. There are four
Vedas namely, Rig Veda (containing hymns in Sanskrit to be recited by the chief priest), Yajurva
Veda (containing formulas to be recited by the officiating priest), Sama Veda (containing verses to
be chanted by seers) and Atharva Veda (containing a collection of spells and incantations, stories,
predictions, apotropaic charms and some speculative hymns).

Each Veda has three parts viz. Sanhita (which consists mainly of the hymns), Brahmin (tells us our
duties and means of performing them) and Upanishad (containing the essence of these duties). The
shrutis include the Vedas along with their components.

(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).
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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).

(iii). Custom: Custom is regarded as the third source of Hindu law. From the earliest period custom
(‘achara’) is regarded as the highest ‘dharma’. As defined by the Judicial Committee custom
signifies a rule which in a particular family or in a particular class or district has from long usage
obtained the force of law.Custom is a principle source and its position is next to the Shrutis and
Smritis but usage of custom prevails over the Smritis. It is superior to written law.

Indian Courts recognize three types viz: (a) Local custom – these are customs recognised by Courts
to have been prevalent in a particular region or locality. (b) Class custom – these are customs which
are acted upon by a particular class. Eg. There is a custom among a class of Vaishyas to the effect
that desertion or abandonment of the wife by the husband abrogates the marriage and the wife is free
to marry again during the life-time of the husband. (c) Family custom – these are customs which are
binding upon the members of a family. Eg. There is a custom in families of ancient India that the
eldest male member of the family shall inherit the estates.

Essentials of valid custom-

i) Ancient – (i) The custom must be ancient. The particular usage must have been practised for a
long time and accepted by common consent as a governing rule of a particular society. A custom
must be minimum 100 years old.

ii) Certainty - Universality in observance is absolutely necessary. The custom must be certain and
should be free from any sort of ambiguity. It must also be free from technicalities. Collector of
Madura v. Moottoo Ramalinga- “Clear proof of usage will outweigh the written text of the law.”

iii) Reasonableness – It should be in accordance with rules of justice, equity and good conscience.
The custom must be reasonable and not against any existing law.

iv) Continuity – It must be continuous without interruption.

v) Public policy – It must not be immoral It must not be against public policy.

vi) Uniformity – It must be uniformly performed from a long time.

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(iii) Digests and Commentaries-After Shrutis came the era of commentators and digests.
Commentaries (Tika or Bhashya) and Digests (Nibandhs) covered a period of more than thousand
years from 7th century to 1800 A.D. In the first part of the period most of the commentaries were
written on the Smritis but in the later period the works were in the nature of digests containing a
synthesis of the various Smritis and explaining and reconciling the various contradictions.

The evolution of the different schools of Hindu law has been possible on account of the different
commentaries that were written by various authorities. The original source of Hindu law was the
same for all Hindus. But schools of Hindu law arose as the people chose to adhere to one or the
other school for different reasons. The Dayabhaga and Mitakshara are the two major schools of
Hindu law. The Dayabhaga school of law is based on the commentaries of Jimutvahana (author of
Dayabhaga which is the digest of all Codes) and the Mitakshara is based on the commentaries
written by Vijnaneswar on the Code of Yajnavalkya.

These commentaries gave rise to different schools known as the Mitakshara and
Dayabhaga.Collection of commentaries is called Digests.

Collector of Madura v. Moottoo Ramalinga- “Clear proof of usage will outweigh the written text of
the law.”

These commentaries gave rise to different schools known as the Mitakshara and Dayabhaga.

Collection of commentaries is called Digests.

Features of commentary and digest-

i) They have tried to make the subject simple and easy to understand.

ii) We find quotations of several works (texts)

iii) Topics of Dharma have been widely classified by the digest

iv) They have included custom and usages prevailing during their time

v) Commentary and digests kept law abreast of life.

A lot of commentaries have been made on Manusmriti. These are called Manu Tika. Commentaries
were started to be written down from 4-5 century and digests were from 12 century.

Authority of commentary and digest:Atmaram v. Bajirao – If Commentary and digest conflict with
Smriti or Purana, Commentary and digest shall prevail.

II. Modern Sources

v) Judicial decisions ( 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
 13

altered by the Supreme Court whose decisions are binding on all the Courts except for itself.The
decisions of privy council, supremecourt and Highcour tin the form of precedent are played as an
important source of modern Hindu law.e.g.laws relating to adoption, pious duty of son to pay
father’s debts, absolute power regard to ancestral property in dayabhaga,restricted definition of
stridan and curtailment of women’s right.

(i) Justice, equity and good conscience-These are theprinciples or rules emerged in the
administration ofbjustice whenever there is inadequate laws. 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 fairplay
and propriety.

In terminology, this is known as principles of justice, equity and good conscience. They may also be
termed as Natural law.The supreme court recognized equity,justice, and good conscience as a source
of Hindu law in Gurunath v,Kamala bai,it was held that in the absence of any rule,of Hindulaw ,the
courts have authority to decide cases on the principles of equity,justice and good conscience,The
privy council inferred the principles from the law of gift and applied themto the law of wills and
pointed in Tagorev. Tagore.It was held that it is the duty of a court dealing with a case new
instance to be governed by the established principles and the analogies.

. (ii) Legislations- Write a not on “legislation”as a source of Hindu law.jan 2010,Marks:5

Legislations are theActs 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
codifiedor reformedor modifiedor supplemented to Hindulaw. 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.

A Critique on the Sources

It is significant to note that the term ‘Hindu’ is not defined anywhere in terms of religion or in any
statute or judicial decisions. For the purpose of determining to whom Hindu Law applies, it is
necessary to know who is a Hindu and none of the sources expressly state so. At most from statutes,
we can get a negative definition of a Hindu which states that Hindu law shall apply to those who are
not Muslim, Christian, Parsi, Jew, etc. and who are not governed by any other law.

Hindu Law is considered to be divine law as it is strongly believed that the sages had attained some
spiritual dominion and they could communicate directly with God form whom we get the divine
 14

law. But this is only an assumption and no concrete proof for the same is shown that the sages could
communicate with God (whose very existence is challenged by atheists). Due to this, many
communities are also suffering from the misapprehension or delusion that their forefathers and
messiahs had revelations from God.

Justice A.M.Bhattacharjee strongly states that according to him he cannot think that “even a staunch
believer in any divine existence, transcendent or immanent, can believe in the 'divine origin’ of
Hindu law, unless he has a motive behind such profession of belief or has not read the Smritis or is
ready to believe anything and everything with slavish infidelity.”

According to Justice Markandey Katju, Hindu law does not originate from the Vedas (also called
Shruti). He vehemently asserts that there are many who propound that Hindu law originated from
the Shrutis but this is a fiction and in fact Hindu law originated from the Smriti books which
contained writings from Sanskrit scholars in ancient time who had specialized in law.

The Shrutis hardly consist of any law and the writings ordained in the Smriti do not make any clear-
cut distinction between rules of law and rules of morality or religion. In most of the manuscripts, the
ethical, moral and legal principles are woven into one. It is perhaps for this reason that according to
Hindu tradition, law did not mean only in the Austinian sense of jurisprudence and is objectionable
to it; and the word used in place of ‘law’ was the Sanskrit word ‘dharma’ which connotes religion as
well as duty.

Although Dharmasutras dealt with law, they did not provide an anthology of law dealing with all the
branches of law. The Manusmriti supplied a much needed legal exposition which could be a
compendium of law. But according to Kane, “It is almost impossible to say who composed the
Manusmriti.” The very existence of Manu is regarded to be a myth by many and he is termed as a
mythological character.

Many critics assert that the word Smriti itself means that what is remembered and therefore the
validity or proof of the existing Smritis could be challenged. It cannot be said for certainty that what
the sages remembered was actually what was propounded.

Hindu law has generally been critiqued on the grounds that the Smritis and other customs were
generally extremely orthodox and against the favours of women. Hindu society thus has always been
a patriarchal society and women have always received subdued importance over men. Some also
disapprove of the notions of caste-based system created by ancient Hindu law from which emerged
the ill-perceived practices of untouchability, etc.

The Smritis are admitted to possess independent authority but while their authority is beyond
dispute, their meanings are open to various interpretations and has been and is the subject of much
dispute. Till date, no one can say for sure the exact amount of Smritis which exist under Hindu law.
It is due to the abovementioned problems that the digest and commentaries were established and
various schools of Hindu law started to give birth.

The modern sources of Hindu law such as Justice, equity and good conscience have been critiqued
on the grounds that it paves the way for personal opinions and beliefs of judges to be made into law.
 15

We have seen catena of cases where the decisions of the Court have been criticised for want of
proper reasoning. This also signifies the incompleteness of the laws which exist.

The Supreme Court in most matters has ascertained the rules of Hindu law successfully but there are
couple of cases where they have interpreted the rules in their own light. One of the gravest cases of
the Supreme Court which deserves much criticism is the case of Krishna Singh v. Mathura Ahir.
The Allahabad High Court had rightly held that the discriminatory ban imposed on the Sudras by the
Smritis stands abrogated as it contravenes the Fundamental Rights guaranteed by the Constitution.

However, the Supreme Court contradicted the above view and held that “Part III of the Constitution
does not touch upon the personal laws of the parties. In applying the personal laws of the parties one
cannot introduce his own concepts of modern times but should enforce the law as derived from
recognised and authoritative sources of Hindu law except where such law is altered by any usage or
custom or is modified or abrogated by statute.”

It can be submitted with ease that the above view is contrary to all Constitutional theories and is
expressly in contradiction with Article 13. It is shocking to note that this judgment is yet to be over-
ruled in express terms.

Since the aegis of time, Hindu law has been reformed and modified to some extent through
legislations but these reforms have been half-hearted and fragmentary. The problem with
fragmentary reforms is that though reforms were made to change some aspects, their implications on
other aspects were over-looked. For example, the Hindu Women’s Right to Property Act, 1937, was
passed with a view to granting property rights to women but its repercussions on the law of joint
family was over-looked. The result was that fragmentary reforms through legislations solved some
problems but resulted in others.

Many people make the mistake of considering various text books written by erudite scholars as
sources of Hindu law. This is because the Courts have decided many cases relying on these text
books and quoted them for reference. For example, Mulla’s Hindu Law has been quoted by many
judges. In Bishundeo v. Seogani Rai, Justice Bose giving the majority judgment stated that “The rule
laid down in Mulla’s book is expressly stated to be in cases where the position is not effected by a
decree of a competent Court.” The same has been the case with many other text books. It should be
made clear that text books are not sources of Hindu law and the authors have no authority to lay
down the law.

It has been seen that Hindu law has been critiqued for its orthodoxy, patriarchal character and does
not bear a very modern outlook of society. There are many areas where the Hindu law needs to
upgrade itself, for example, the irretrievable breakdown theory as a valid ground for divorce is still
not recognised under the Hindu Marriage Act, 1955, and even the of Supreme Court have expressed
their concern on this.

.There are many Smritis which are yet to be found according to Historians and many conflicts of
opinions and interpretations have arisen for the existing ones, thus creating a window of ambiguity
under Hindu law. There are also several areas where Hindu law is silent.
 16

Most of the ancient sources of Hindu law is written in Sanskrit and it is well known that in the
present times there is a dearth of Sanskrit scholars. There is hardly any importance left of the ancient
sources since the time the modern sources have emerged and been followed.It can be said that
proper codification of Hindu law without room for ambiguity is the need of the hour. It can be said
that where the present sources of Hindu law are uninviting the Legislature could look into sources
and customs of other religions and incorporate them into Hindu law if it caters to the need of the
society and meets the test of time.

Write a note on “Manu Smriti”.jan2011,Marks:5

Manu was the most important of ancient rishis or sages.His Manava Dharma-shastra (Laws of
Manu) is the most famous of the texts. It is also called the Manusmrti from smrti, what is
remembered. It is in the form of the dharma revealed by Brahma to Manu, the first man, and passed
on through Bhrigu, one of the ten great sages. A divine origin is claimed for all the Dharma-shastras
to facilitate their general acceptance.

The Manusmrti describes the creation of the world by Brahma, Manu's own birth, the sources of
dharma, and the main ceremonies of the four stages of life. This was to evolve into the successive
stages of life. To reach the fourth stage of renunciation it was necessary to pass through the other
three stages. Other chapters deal with the duties of a king, the mixed castes, the rules of occupation
in relation to caste, occupations in times of distress, expiations of sins, and the rules governing
specific forms of rebirth. Though a theoretical textbook, the Manusmrti deals with the practicalities
of life and is largely a textbook of human conduct.

IMPORTANCE OF DHARMA SHASTRA ON LEGISLATION:

The Dharama Shastras were meant for people who were driven by the illusory world, who would
engage in desire oriented actions and needed to be regulated for the purpose of maintaining or
preserving the moral, social and political order. They were composed to emphasize the importance
of leading a virtuous and divine oriented life on earth and remain on the side of God for a better
tomorrow and harmonious today.

Dharma-shastra is the "science of dharma" and is a set of texts which teach the eternal immutable
dharma found in the Vedas. The Dharma-shastras expanded and remodelled in verse form the
Dharmasutras. Both these groups of texts are commonly translated as "The Law Books" but this is
misleading. Dharma means a great deal more than "Law" (see Sva-dharma) and in classical Hindu
thought there was no distinction between religion and law. In socio-religious terms dharma upholds
private and public life and establishes social, moral, and religious order. As the basis for the legal
system dharma is a system of natural laws with specific rules derived from an ideal, moral, and
eternal order of the universe. The most succinct statements on dharma are found in the Dharma-
shastras and Dharmasutras, which can be divided into three categories: rules for good conduct, rules
for legal procedure, and rules for penance.

The Dharma-shastras prescribed rules for all of society, so that each person might live according to
dharma. These texts are attributed to ancient rishis, seers or sages. Manu was the most important of
 17

these and his Manava Dharma-shastra (Laws of Manu) is the most famous of the texts. It is also
called the Manusmrti from smrti, what is remembered. It is in the form of the dharma revealed by
Brahma to Manu, the first man, and passed on through Bhrigu, one of the ten great sages. A divine
origin is claimed for all the Dharma-shastras to facilitate their general acceptance.

The Manusmrti describes the creation of the world by Brahma, Manu's own birth, the sources of
dharma, and the main ceremonies of the four stages of life. This was to evolve into the successive
stages of life. To reach the fourth stage of renunciation it was necessary to pass through the other
three stages. Other chapters deal with the duties of a king, the mixed castes, the rules of occupation
in relation to caste, occupations in times of distress, expiations of sins, and the rules governing
specific forms of rebirth. Though a theoretical textbook, the Manusmrti deals with the practicalities
of life and is largely a textbook of human conduct.

After Manu came Dharma-shastras attributed to Yajnavalkya, Vishnu, Narada, Brhaspati,

Katyayana, and others. The later Dharma-shastras are nearly pure legal textbooks. The Manusmrti is
considered superior to the other Dharma-shastras.

The Dharma-shastras claim to be divine in origin and to have been passed on by ancient rishis who
cannot be identified as historical figures. Manu is found as early as the Rg Veda (c, 1200 BCE),
where he is described as Father Manu, progenitor of the human race. In the Satapatha Brahmana of
around 900 BCE, Manu is clearly the father of mankind when he follows the advice of a fish and
builds a ship in which he alone among men survives the great flood. Afterwards he worships and
performs penance and a woman, Ida or Ila, is produced and he starts mankind with her. Manu was
also the first king and the first to kindle the sacrificial fire. As the originator of social and moral
order, he is the rishi who reveals the most authoritative of the Dharma-shastras. Manu's text, the
Manusmrti or Manava Dharma-shastra is the earliest of the Dharma-shastras. Its date is uncertain,
being somewhere between 200BCE and 100 CE. It probably reached its present form around the
second century CE. In the section of the text on rajadharma, the king's dharma, there are passages on
Hindu law. It was these passages which were first noted by Western scholars and so the text became
known as the Laws of Manu.

The Manusmrti gives a place to the ruling groups of invading peoples such as the Sakas, Pahlavas,
and the Greeks, who were called the Yavanas. In this the Manusmrti was accommodating the new
social realities to the theoretical pattern. Yavanas, Sakas, Pahlavas and other foreign invaders are
described by Manu as lapsed ksatriyas, of the warrior class. These warriors had lost their status for
not following dharma, but by performing appropriate expiatory sacrifices and acknowledging the
brahmans as religious leaders they could come into the fold of the orthodox community. By the
fourth century CE the writing of mature Dharma-shastras was fully flourishing. At this period the
rules of caste were being systematically enforced by brahmanical dynasties for the first time after
centuries of foreign rule.

There were other aspects of Manu's text which brought theory in line with actual practice and social
reality. In his theory of mixed castes he has an elaborate system of marriages between the four
classes (varnas), producing the many castes (jati). Already occupational groups or guilds had set up
closed patterns of endogamy characteristic of a jati, so Manu was fitting his theory to the facts.
 18

It is argued whether the Dharma-shastras painted an ideal picture that did not correspond to real life.
However, it is more likely that the Dharma-shastras, though stylised and systematised, were
compendia of existing customs and practices that provided the overall theoretical framework for
everyone to practise their traditionally recognised ways of life.

Early in the sixteenth century there were several surges of religio-cultural creativity among Bengali
Hindus. One of these was Raghunandan Siromani in the field of Dharma-shastra. He may have been
a contemporary of Caitanya in Mayapur.

PRINCIPAL SCHOOLS OF HINDU LAW

MITHAKSHARA AND DAYABAGHA

1. Discuss the different schools of hindu law.jun2013,Marks:15

2. Write an explanatory note on two main schools of Hindu law and state the distinctions
between them.jan 2011, jun 2012,Marks :15
3. Explain the salient features of Mitakashara school. Jun 2010,jan2010,Marks :15

There are two Schools of Hindu Law- (a) Mitakshara (b) Dayabhaga.

1). MITAKSHARA SCHOOL: -The Mitakshara School exists throughout India except in the State
of Bengal and Assam. The Yagna Valkya Smriti was commented on by Vigneshwara under the title
Mitakshara. The followers of Mitakshara are grouped together under the Mitakshara School.
Mitakshara school is based on the code of yagnavalkya commented by vigneshwara, a great thinker
and a law maker from Gulbarga, Karnataka. The Inheritance is based on the principle or propinquity
i.e. the nearest in blood relationship will get the property. The school is followed throughout India
except Bengal state. Sapinda relationship is of blood. The right to Hindu joint family property is by
birth. So, a son immediately after birth gets a right to the property. The system of devolution of
property is by survivorship. The share of co-parcener in the joint family property is not definite or
ascertainable, as their shares are fluctuating with births and deaths of the co- parceners. The co-
parcener has no absolute right to transfer his share in the joint family property, as his share is not
definite or ascertainable. A women could never become a co-parcener. But, the amendment to Hindu
Sucession Act of 2005, empowered the women to become a co-parcener like a male in ancestral
property. A major change enacted due to western influence. The widow of a deceased co-parcener
cannot enforce partition of her husband¶s share against his brothers. There are four Sub-Schools
under Mitakshara school.

I.Dravidian School of thought : (Madras school) It exists in South India. In the case of adoption by
a widow it has a peculiar custom that the consent of the sapindas was necessary for a valid adoption.
(Sapindas) blood relation) Collector of Madura vs. Mootoo Ramalinga Sethupathy (Ramnad case):
The zaminder of Ramnad died without sons and in such a condition, the zamindari would have
escheated to the Government, the widow Rani Parvatha vardhani made an adoption of a son, with
the consent of the sapindas of her husband. But on the death of the widow, the Collector of Madhura
notified that the Zamindari would escheat to the State. The adopted son brought a suit for
 19

declaration of the validity of the adoption. It was a question whether a widow can make a valid
adoption without her husband’s consent but his sapindas consent. The Privy Council, after tracing
the evolution of the various Schools of Hindu law, held that Hindu law should be administered from
clear proof of usage which will outweigh the written text of law. Based on the Smriti Chandrika and
Prasara Madhviya, the Privy Council concluded that in the Dravida School, in the absense of
authority from the husband, a widow may adopt a son with the assent of his kindred.

II. MAHARASHTRA SCHOOL: (BOMBAY SCHOOL OF THOUGHT) It exists in Bombay

(Mumbai) , From the above four bases, there are two more bases. They are Vyavakara, Mayukha
and Nimaya Sindhu. The Bombay school has got an entire work of religious and Civil laws.

III. BANARAS SCHOOL OF THOUGHT: - It exists in Orissa and Bihar. This is a modified
Mitakshara School.
IV. MITHILA SCHOOL OF THOUGHT: -It exists in Uttar Pradesh near the Jamuna river areas.
Apart from the above schools, there are four more schools which are now existent today. They are
Vyavakara, Mayukha Nimaya and Sindhu Schools.

2).DAYABHAGA SCHOOL OF THOUGHT

It exists in Bengal and Assam only. The Yagna Valkya smriti is commented on by Jimootavagana
under the title Dayabhaga. It has no sub-school. it differs from Mistakshara School in many respects.
Dayabhaga School is based on the code of yagnavalkya commented by Jimutuvahana, Inheritance is
based on the principle of spiritual benefit. It arises by pinda offering i.e. rice ball offering to deceased
ancestors. This school is followed in Bengal state only. Sapinda relation is by pinda offerings. The
right to Hindu joint family property is not by birth but only on the death of the father.

The system of devolution of property is by inheritance. The legal heirs (sons) have definite shares after
the death of the father. Each brother has ownership over a definite fraction of the joint family property
and so can transfer his share. The widow has a right to succeed to husbands share and enforce partition
if there are no male descendants. On the death of the husband the widow becomes a co-parcener with
other brothers of the husband. She can enforce partition of her share.

Differences between the two Schools in Coparcenary-

Mitakshara Dayabhaga

i) Right of a son by birth in the ancestral i) A son is entitled to his ancestral property only on
property equal to the interest of his father. the death of his father. The father is the absolute
owner of his property in his lifetime.

ii) A son becomes coparcener right after his ii) A son becomes coparcener by death of his father.
birth. His right is applicable to the property This right is not available within the property of his
of his grandfather and grand-grandfather. father, grandfather or grand-grandfather.

iii) Everyone is entitled to the property as a iii) Everyone’s share is defined. There is tenancy-
unit. Their shares are not defined. They have
 20

only the commodity of ownership. There is in-common.

joint-tenancy.

iv) One cannot transfer his share to the third iv) One can transfer his share.
party.

v) The joint-property can be partitioned. In v) As the shares are defined, one can easily partition
that case, it will be partitioned as it was in with his share.
case of the father.

Differences between the two Schools in Succession-

Mitakshara- Property of a deceased Hindu is partitioned into two ways as the property is of two
types- (a) Ancestor’s property, (b) Separate property.

Ancestor’s property is partitioned in accordance to the Rules of Survivorship. But a Separate

property is partitioned to the descendants.Dayabhaga- Property is of two types- (a) Joint, (b)
Separate. The descendants inherits the property whatever type it is.

Mitakshara- In default of close heir, brother and immediate survivors inherit, the wife does not
inherit.

Dayabhaga- If coparcener dies, his widow will get the property in default of a close heir but she
cannot alienate. Mitakshara- The order of heirs is decided by mereness of blood.Dayabhaga- The
order of heirs is decided by the competence to offer Pinda and Sraddho to the deceased.

Effect of migration : A person follows the school of his area. But if he migrates to another place, he
will follow the School of that locality. This has been decided in various cases.Gope v. Manjura
Govalin- The burden of proving migration lies on him who pleads it. The original place of a family
can be inferred from the chief characteristics of that family.Keshavarao v. Swadeshrao, 1938-
Migration means leaving to another place forever. But if a place is divided into two administrative
area, that will not be regarded as migration.Moolchand v. Mrs. Amrita Bai- A person migrates will
all of his personal laws. Personal law unlike local law moves with whom he covers.Notraz v. Subba
Raya- A person can be given an option to give up the law of the old place and adopt the new one.
 21

UNIT-II

MARRIAGE AND KINSHIP: EVOLUTION OF THE INSTITUTION OF MARRIAGE AND

FAMILY

EVOLUTION OF THE INSTITUTION OF MARRIAGE AND FAMILY

Marriage is defined from the traditions of the main supporters of Proposition 8. A detailed
description of marriage from the points of view of the Mormon, Catholic and Evangelical churches
can be found in these websites. In the understanding of marriage from these three Christian
denominations, marriage is an instititute ordained by God and is found in the Bible in Genesis 2:22-
24, Matthew 19:4-6, and Ephesians 5:22-33. In this belief, marriage is more than just a human
institution, but is the center of Christian and human community and is a reflection of God’s
relationship with human beings. The Christian view of marriage is more than just a partnership; it
emphasizes the ability of a heterosexual couples to procreate. The Catholic Bishops of California
and the National Association of Evangelicals offers more detailed arguments in these sites.

Stephanie Coontz, the Director of Research and Public Education at the Council on Contemporary
Families, wrote the book Marriage, A History: From Obedience to Marriage or How Love
Conquered Marriage. Marilyn Yalom, a senior scholar at the Institute for Women and Gender at
Stanford University, wrote the book A History of the Wife. Both books agree that for many
centuries, the primary role of marriage was not for the fulfillment of a loving relationship, but to
secure a dowry and cement political alliances with prominent families, to increase one’s family
labor force through the producing of children, and even to secure peace treaties. Marriage since the
times of Rome and Greece was primarily an economic and political institution and for any
commoner who was not a slave, marriage was essential for the individual’s survival within that
society. In ancient societies, women needed men for the plowing; men needed women to preserve
food, spin wool, grind grain and provide children to work in the fields. When choosing a mate, the
individual was looking for a strong worker than a mate that one had love for.

The diverse data coming from ethnography, history, law and social statistics, establish that the
human family is an institution and not a biological fact founded on the natural relationship of
consanguinity.

Early scholars of family history applied Darwin's biological theory of evolution in their theory of
evolution of family systems. American anthropologist Lewis H. Morgan published Ancient Society
in 1877 based on his theory of the three stages of human progress from Savagery through Barbarism
to Civilization. Morgan's book was the "inspiration for Friedrich Engels' book" The Origin of the
Family, Private Property and the State published in 1884.

Engels expanded Morgan's hypothesis that economical factors caused the transformation of
primitive community into a class-divided society. Engels' theory of resource control, and later that of
Karl Marx, was used to explain the cause and effect of change in family structure and function. The
popularity of this theory was largely unmatched until the 1980s, when other sociological theories,
most notably structural functionalism, gained acceptance.
 22

The family is by far the most important primary group in society. Historically it has been
transformed from a more or less self-contained unity into a definite and limited organization of
minimum size, consisting primarily of the original contracting parties. On the other hand, it
continues to serve as a total community for the lives born within it, gradually relinquishing this
character as they grow towards adulthood. The family, more profoundly than any other organization,
exist only as a process. We can understand it only through a study of its change, the changes it has
undergone in human history and the changes within it in the life history of each individual example.

The term nuclear family is used to mean the group consisting of husband, wife and their children.
The normative expectation is that an individual will experience the nuclear family from two
perspective, first as a child in his family of origin ( family of orientation) then as an adult in his
family of marriage (family of procreation). Now there are various theories for the origin of families
but the most influential is the Patriarchal theory or the male dominance role in the formation of
family. It is been argued by many activist that the reason for the women oppression is mainly the
patriarchal society. Women activist such as Heidi Hartmann lay down that ‘family is a source of
women oppression today’ Summers says “the institution (of the family) confers power on men”

In human context, a family (from Latin: familia) is a group of people affiliated by consanguinity,
affinity, or co-residence. In most societies it is the principal institution for the socialization of
children. Extended from the human "family unit" by biological-cultural affinity, marriage, economy,
culture, tradition, honour, and friendship are concepts of family that are physical and metaphorical,
or that grow increasingly inclusive extending to community, village, city, region, nationhood, global
village and humanism. A family group consisting of a father, mother and their children is called a
nuclear family. This term can be contrasted with an extended family.

There are also concepts of family that break with tradition within particular societies, or those that
are transplanted via migration to flourish or else cease within their new societies. As a unit of
socialization and a basic institution key to the structure of society[clarification needed], the family is the
object of analysis for sociologists of the family. Genealogy is a field which aims to trace family
lineages through history. In science, the term "family" has come to be used as a means to classify
groups of objects as being closely and exclusively related. In the study of animals it has been found
that many species form groups that have similarities to human "family"—often called "packs."
Sexual relations among family members are regulated by rules concerning incest such as the incest
taboo.

One of the primary functions of the family is to produce and reproduce persons, biologically and
socially. Thus, one's experience of one's family shifts over time. From the perspective of children,
the family is a "family of orientation": the family serves to locate children socially and plays a major
role in their enculturation and socialization. From the point of view of the parent(s), the family is a
"family of procreation," the goal of which is to produce and enculturate and socialize children.
However, producing children is not the only function of the family; in societies with a sexual
division of labor, marriage, and the resulting relationship between two people, it is necessary for the
formation of an economically productive household.

A "conjugal" family includes only the husband, the wife, and unmarried children who are not of age.
The most common form of this family is regularly referred to in sociology as a nuclear family. A
 23

"consanguineal" family consists of a parent and his or her children, and other people. Although the
concept of consanguinity originally referred to relations by "blood," cultural anthropologists] have
argued that one must understand the idea of "blood" metaphorically and that many societies
understand family through other concepts rather than through genetic distance. A "matrilocal"
family consists of a mother and her children. Generally, these children are her biological offspring,
although adoption of children is a practice in nearly every society. This kind of family is common
where women have the resources to rear their children by themselves, or where men are more
mobile than women.

Kinship:-Kinship or the rules of kinship are significant in understanding kinship system. They serve
two main purposes:

They create groups or special groupings or kin. For example- family extended family, clan etc.

Kinship rules govern the role of relationships among the kins.

Kinship usage provides guidelines for interaction among persons in these social groupings. It defines
proper and acceptable role relationships. Thus it acts as a regulator of social life. Some of these
relationships are: avoidance, teknonymy, avunculate, amitate, couvades and joking relationship.

Avoidance: -It means that two kins normally of opposite sex should avoid each other. In almost all
societies avoidance rules prescribe that men and women must maintain certain amount of modesty in
speech, dress and gesture in a mixed company. Thus a father-in-law should avoid daughter-in-law.
The purdah system in Hindu family in the north illustrates the usage of avoidance.

Teknonymy:- According to the usage of this usage a kin is not referred directly but is referred to
through another kin. In a traditional Hindu family wife does not directly utter the name of her
husband but refers to her husband as the father of so and so.

Avunculate:-It refers to the special relationship that persists in some societies between a man and
his mother's brother. This usage is found in a matriarchal system in which prominence is given to the
maternal uncle in the life of his nephews and nieces.

Amitate:-The usage of amitate gives special role to the father's sister. Here father's sister is given
more respect than the mother. Among Todas the child gets the name not through its parents but
through the father's sister. Naming the child is her privilege.

Couvade:-The usage of couvades prevalent among the Khasi and the Todas tribes makes the
husband to lead the life of an invalid along with his wife whenever she gives birth to a child. He
refrains from the active work, takes diet and observes some taboos which are observed by his wife.
According to Malinowski the usage of couvade contributes to a strong marital bond between the
husband and wife.
Joking relationship:-A joking relationship involves a particular combination of friendliness and
antagonism between individuals and groups in certain social situations. In these situations one
individual or group is allowed to mock or ridicule the other without offence being taken. The usage
of the joking relationship permits to tease and make fun of the other.
 24

Hindu marriage is a Sacrament ’—comment. jan 2010 Marks:5

Marriage: Sacrament or Contract:-

Marriage being one of the essential Samskaras is sacramental in nature. The sacramental nature of
marriage has three characteristics:
1. It is a permanent union i.e. once tied cannot be untied.

2. It is an eternal union i.e. valid not only in this life but in lives to come.

3. It is a holy union i.e. performance of religious ceremonies is essential.

According to Hidu text a man cannot be said to have a material existence unless he took a
wife.Hindu marriage is more connected with the performance of religious duties and begetting a
son. The bride on the seventh step of saptapadi she looses her original gotra and acquires the gotra
of the bridegroom and kinship creates. The purpose of marriage were to perform religious rites and
sacrifices and procreate children .The children would extend spiritual benefits to their deceased
ancestors by offering funeral ceremonies and perpectuate the name and lineage of their
forefathers.By giving birth to a male child through a legally weded wife ,every Hindu is discharged
the debt to his father which is technically known as Pitririn.

But marriage under the Hindu Marriage Act 1955, is no longer remains a sacrament i.e. an eternal
union for spiritual purposes.Under the Act provision for divorce under section 13 &13-B is provided
and also widow marriages are recognized.

Since Hindu marriage was considered to be sacrament, the consent of the parties did not occupy any
important place. Thus the person married may be a minor or even of unsound mind, if the marriage
is duly solemnised there is valid marriage. Under the Contract Act, the contract of a minor or of a
person of unsound mind is void. Further, Section 12 of Hindu Marriage Act does lay down that a
marriage is voidable if consent is obtained by fraud or force, but it is not laid down that if one’s
consent was not obtained the marriage is voidable. This shows that despite the fact that a party is
able to prove the absence of consenting mind, the marriage will continue to remain valid.

The modern concept of marriage is contractual in nature. It receives the ideals of liberty and equality
(free volition of individuals). Today, it is an established notion of the west that marriage, to be
effective, must be an agreement voluntarily entered into by both parties.

In the light of modern concept of marriage could we say that Hindu marriage continues to be
sacrament. By recognising the divorce and widow remarriage the first two characteristics of
sacramental marriage have been waived. Howeverthe recognition from a long time as material and
spiritual benefit Hindu marriage is a sacrament.

To sum up the Hindu marriage has neither remained a sacrament nor become a contract, but it has a
semblance of both.

(1) If any party to marriage has a spouse living at the time of the marriage [Section 5(i)].
 25

(2) If the parties are within the degree of prohibited relationship unless the custom or usage
governing each of them permits such a marriage [Section 5(iv)].
(3) If the parties are sapindas of each other, unless the custom or usage governing each of them
permits such a marriage [Section 5(v)].
Section 11 of this Act is prospective in nature. It is only applicable to marriages solemnized after the
commencement of the Hindu Marriage Act, 1955.

Effect of Void marriages:-

A void marriage is no marriage. It is void since its inception. No legal rights and duties flow from it.
Therefore, the relationship of husband and wife does not come into existence from a void marriage.
No declaration of the court is necessary to this effect. The issues from a void marriage are
illegitimate unless legitimatised by law in some way. If one withdraws from the society of the other,
the other party has no right to the restitution of conjugal rights. If one of them marries again, he or
she is not guilty of bigamy and the validity of later marriage is not affected because of the first so
called marriage. M.M.Malhotra v. union of India, the Apex court held that the marriage is void
from the very inception and to be ignored as the marriage is not existing in law.

Meenakshi sundaram v.Nammalwar, the Madras High court held that the position of the wife
Was not better than concubine and the marriage was void.

Impotency: Moinav. Amardeep, the Delhi High court held that if the marriage wasnot
consummated due to the impotence of respondent spouse,the petitioner is entitiled to a decree of
nullity of marriage. Bawi v.Nath,it was held that when an individual is generally potent but is
impotent to his own spouse. He is regarded as impotent for the purpose of the Act.

Voidable marriages:-voidable marriage is valid for all purposes unless

annulled or avoided by the District court at the option of one or both the parties is known as a
voidable marriage. Section 12 of Hindu Marriage Act contains relevant provisions of Voidable
Marriage.

This section lays down four grounds on which a Hindu marriage becomes voidable. These are:

(1) Inability of the respondent to consummate the marriage on account of his or her impotency.

(2) Respondents incapacity to consent or suffering from a mental disorder.

(3) Consent of the petitioner being obtained by fraud or force.

(4) Concealment of Pre-marriage pregnancy by the respondent.

 26

Difference between void and voidable marriage

Void Marriage Voidable Marriage

A marriage which is void ab initio is a total A voidable marriage remains valid and
nullity. A marriage is non-existent in such a binding till avoided. It is and continues to be
case and does not affect or alter the status of valid marriage for all the purposes till a
the parties. Moreover, it does not create any decree annulling it is passed under Section
rights and obligations of the parties, which 12.
normally result from a valid marriage.
Parties to a void marriage are criminally No penalty is laid down for a voidable
liable. marriage.

A void marriage is void ab initio and it can While for a voidable marriage, to put an end
be held to be so without a formal declaration to it, annulment is necessary.
by a court under Section 11.
Section 11 applies to a void marriages only Section 12 applies to marriages contracted
contracted after the commencement of the before or after the commencement of the
Act. Act.
In case of Section 11 the Act itself declares a The remedy available under Section 12 is an
marriage to be null and void without any optional remedy, i.e., the party concerned
action on the part of any spouse. Of course, has to take the aid of a court for an
nobody can stop a spouse from getting a annulment decree.
declaration of nullity for the purpose of
precaution and for the record. Children born
out of void and voidable marriages are
legitimate (Section 16).
It is not necessary that a decree declaring a But a voidable marriage will remain a valid
void marriage as void is passed. The parties marriage till a decree annulling it is passed.
to a void marriage may perform another
marriage without getting a decree declaring
their marriage as void and neither will be
guilty of bigamy.

Forms of marriage:-

The ancient Hindu law recognised three forms of Shastric marriages as regular and valid. These
were Brahma (bride given gift by father), Gandharva (mutual agreement of bride and bridegroom)
and Asura (bride virtually sold by the father). The first and the third are arranged marriage whereas
the second one is love marriage.

Forms of marriages in modern Hindu law: The Hindu marriage Act, 1955, does not specially
provide for any forms of marriage. The Act calls marriage solemnized under the Act as Hindu
marriage which may be performed in accordance with shastric rites and ceremonies or in accordance
with the customary ceremonies prevalent in the community to which bride or bridegroom belongs.
 27

However, it does not mean that a marriage cannot take any of the aforesaid forms now. Marriage can
still be entered into in anyone of the three forms.

Looking at from another aspect in Hindu society there are mainly two forms of marriages: arranged
marriages and love marriages. Most Hindu marriages are still arranged marriages. An arranged
marriage may be either in the form of Brahma marriage or in the form of Asura marriage. Among
the Sudras, the Asura form of marriage is very common. Among the high-class Hindus, the Brahma
form of marriage is common. The Gandharva form of marriage is fast becoming popular among the
younger generation.

Ceremonies

Marriage among Hindus being a religious and sacred tie, performance of certain ceremonies is still
necessary for a valid marriage. There were three important stages wherein certain ceremonies were
to be performed. They were:

1. Betrothal or Sagai: it is a formal promise to give the girl in marriage.

2. Kanyadan: It is actual giving away of the girl in marriage by her father.

3. Saptapadi: it consisted in performing a ceremony of taking seven steps before the sacred fire by
the bride and the groom. The performance of Saptapadi marked the completion of a marriage. It
made the marriage irrevocable.

As per Section 7, a marriage is a ceremonial affair. Saptapadi is an essential part of the ceremonies
of marriage, its non performance will invalidate the marriage. The performance of vedic rights is not
enough to solemnise the marriage.
Customary ceremonies may not include any one of the Shastric ceremonies including Saptapadi. It
may be totally non-religious ceremony or it may be very simple ceremony. For instance, among
santhals smearing of vermilion by bridegroom on the forehead of the bride is the only essential
ceremony.

Necessary ceremonies, shastric or customary, whichever are prevalent on the side of the bride or
bridegroom, must be performed otherwise marriage will not be valid. No one can innovate new
ceremonies and a marriage performed with the innovated ceremonies and rites is invalid. Hindu
Marriage Act allows inter-caste marriages. But marriage between a Hindu and a non Hindu is not
permissible under Hindu Marriage Act and such a marriage if performed in India, will be invalid.
But foreign country such marriage is valid. Such marriage is also valid in India, if performed under
the Special Marriage Act, 1954.

Explain the essential conditions of a valid marriage.Dec.2012,jun2010,jan2011,Marks:15

Conditions for the validity of marriage (Section 3 and 5)-

A marriage may be solemnised between any two Hindus, if the following conditions are fulfilled,
namely :–
 28

(i) Neither party has a spouse living at the time of the marriage;

(ii) At the time of the marriage, neither party:

(a) Is incapable of giving a valid consent to in consequences 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.

(iii) The bridegroom has completed the age of twenty one (21) years and the bride the age of
eighteen years at the time of marriage.

(iv) 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;

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

Ingredients of Section 5

Parties must be Hindus under Section 2(3) of Hindu Marriage Act. According to this section both
the parties to the marriage under the Act must be Hindus. If one of them is a Hindu and the other a
non Hindu or both are non Hindus, the marriage will not be a subject matter of this Act but will
relate to some other law i.e. Special Marriage Act etc.
Clause (i) monogamy:-This condition implies monogamy and prohibits bigamy or polygamy. The
expression “neither party has a spouse living” depicts that the spouse must not be alive at the time of
marriage. If the spouse is alive at the time of marriage that could bar the remarriage of a person.
However one must note that the first marriage of a person should be a legally valid marriage. In
spite of one’s valid marriage if the person remarries in violation of Section 5(i), the second marriage
will be null and void and he will be subjected to penal consequences. The Scheduled Tribes are
exempted from the application of the Act. But there must be a proved custom to this effect.

Bigamy – Section 5(i):- Section 5(i) prohibits bigamy or polygamy. Section 11 makes a bigamous
marriage void and Section 17 makes it a penal offence for both Hindu males and females under
Section 494 and 495 of IPC. The offence of bigamy is committed only if the required ceremonies of
marriage are performed. The second marriage cannot be taken to be proved by the mere admission
of the parties; essential ceremonies and rites must be proved to have taken place. In the case of a
bigamous marriage, the “second wife” has no status of wife.

Clause (ii) – Condition regarding mental health or capacity:- Sub clause (a) requires that at the
time of marriage neither party is incapable of giving a valid consent to marriage due to
unsoundness of mind.
 29

Sub clause (b) – Mental disorder: According to sub-clause (b) at the time of marriage neither party
to marriage should be suffering from a mental disorder of such nature and to such a degree as to be
unfit for two purposes (i) marriage and (ii) procreation of child. In Tarlochan Singh v. Jit Kaur,
the court held the marriage void on the ground that wife was suffering from schizophrenia within
short period after marriage and the disease was not disclosed to the husband before marriage.

Sub clause (c) – Recurrent attacks of insanity: If a person has been subject to recurrent attacks of
insanity he is also not qualified for marriage under Hindu Marriage Act. He cannot marry even
during a lucid period.

Post marriage mental illness: If a party to a marriage is not suffering from any mental defect
described under section 5(ii) but fails ill mentally after the marriage, there is no violation of this
condition.

Clause (iii) –Age of parties to marriage:- According to this clause, at the time of marriage the
bride must have completed the age of 18 years and the bridegroom of 21 years. Thus a child
marriage is prohibited under Hindu Marriage Act. However, violation of this condition does not
make the marriage void or voidable. It means that it is valid though it may attract penalties. But it
can become a valid ground for repudiation of the marriage. The Hindu Marriage Act and the Child
Marriage Restraint Act provide for punishment for such marriage.
According to Section 18 of Hindu Marriage Act, anyone who procures a marriage for himself or
herself in contravention of Section 5(iii) may be punished with upto 15 days imprisonment or with a
fine upto Rs. 1000 or with both. Under the Child Marriage Restraint Act, 1929, a male above the age
of 25 years marrying a girl below 15 years is punishable with upto 3 months imprisonment and is
also liable to fine. The Child Marriage Restraint (Amendment) Act 1978 has also raised the age of
marriage of girl to eighteen.

Clause (iv) – Avoidance of degrees of prohibited relationship:-

The parties to marriage must not fall within the degree of prohibited relationship. This relationship is
defined under Section 3(g) of the Act.

According to Section 3(g) “degree of prohibited relationship” means when two persons are
related to each other in any of the following manners:

(i) By lineal ascent: If one is a lineal ascendant of the other. This relationship covers the Sapinda
relationship which extends upto fifth degree in the line of father and third degree in the line of the
mother. The distinction of this category is that it extends even beyond the Sapinda ascendants.

(ii) By affinity: If one is the husband or wife of the lineal ascendants or descendants of the other.
For example, father-in-law and daughter-in-law, mother-in-law and son-in-law, step mother and step
son or step father and step daughter are thus within the degrees of prohibited relationship.

(iii) Wives of certain brother relations if one was the wife of:
 30

(1) The brother, or

(2) The father’s brother, or

(3) The mother’s brother, or

(4) The father’s father’s brother, or

(5) The mother’s father’s brother, or

(6) The father’s mother’s brother, or

(7) The mother’s mother’s brother.

(iv) Certain close relations if both are:

(1) Brother and sister, or

(2) Niece and uncle (paternal or maternal), or

(3) Nephew and aunt (paternal or maternal), or

(4) Children of a brother and a sister, or

(5) Children of two brothers, or

(6) Children of two sisters.

According to Section 11 of Hindu Marriage Act, a marriage in contravention of this condition is

void. It is also punishable under section 18(b) of the Act.

(i) ‘A’ marries his adopted sister. This is not a valid marriage, as it falls within the degrees of
Prohibited relationship. (ii) ‘A’ marries with the wife of Pre-deceased brother. It is not a valid
marriage as it falls within the degree of Prohibited relationship. (iii) ‘A’ marries his stepmother’s
sister. It is not a valid marriage, ‘A’ is related to his step-mother by half blood relationship.
Clause (v) – Avoidance of sapinda relationship:-
According to the Dharmashastra the Sapinda relationship is very important in the matter of
marriage. According to Mitakshara Law of Marriage ‘Pinda’ means body and therefore those who
are related by body or blood or consanguinity are sapindas among themselves. The Hindu Marriage
Act has adopted Mitakshara definition but has limited the extent of Sapinda relationship to 5 degrees
in line of ascent through the father and 3 degrees in the line of ascent through the mother.

According to Section 3(f)(ii) two persons are said to be “sapindas” of each other if one is a lineal
ascendant of the other within the limits of sapindas relationship, or if they have a common lineal
ascendant to each of them.

Whereas Section 3(f)(i) states that “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.
 31

Rules for determining sapinda relations:-

1. The relationship extends as far as the third generation in the line of ascent through the mother in
case of both the parties.

2. The relationship extends as far as the fifth generation in the line of ascent through the father in
case of both the parties.

3. Sapinda relationship may submit in case of both the parties through the father or in case of both
through the mother; or it may subsist in case of one of them through the father and on case of the
other through the mother.
4. The line is traced upwards in case of both the parties counting each of them as the first generation;
the generations in the line of ascent whether three or five are to be counted inclusive of the persons
concerned and the common ancestor or ancestress.
Sapinda relationship includes relationship by half or uterine blood as well as by full blood and by
adoption. It also includes both, legitimate and illegitimate blood relationship.
Solemnisation of marriage (Section 7):-

In connection with marriage the word ‘Solemnise’ means to celebrate marriage with proper
ceremonies and in due form. Unless the marriage is celebrated or performed with proper ceremonies
and in the due form, it cannot be said to be solemnised.

Section 7 provides that (i) A Hindu marriage may be solemnised in accordance with the customary
rites and ceremonies of either party thereto. (ii) where such rites and ceremonies include the
saptapadi, the marriage becomes complete and binding when the seventh step is taken. Section 7
provides two kinds of ceremonies (i) Customary Ceremonies and (ii) Shastric Ceremonies.

As the rites and ceremonies to be observed are customary, they should possess all the qualities
which are necessary for the validity of a custom defined under section 3(a) of the Act.
According to Section 3(a) the expression ‘custom’ and ‘usage’ signify any rule which having been
continuously and uniformly observed for a long time, has obtained the force of law among Hindus in
any local area, tribe, community, group or family: provided that the rule is certain and not
unreasonable or opposed to the public policy; and in the case of a rule applicable only to a family it
has not been discontinued by the family.
It is not necessary that the customary rites or ceremonies must be very very old. What section 3(a) of
Hindu Marriage Act requires is that for maturing into a custom a rule should have been observed for
a long time, continuously and uniformly.

When essential ceremonies consulting a Hindu marriage are not proved, the mere issuance of
certificate under Special Marriage Act cannot validate the marriage if the marriage has not been
solemnised as per the requirements of this Act.

The Act does not, however prescribe the ceremonies requisite for solemnisation of the marriage but
leaves it to the parties to choose a form of ceremonial marriage which is in accordance with any
custom or usage applicable to either party; and where the form adopted includes the Saptapadi–that
 32

is the taking of seven steps by the bridegroom and the bride jointly before the sacred fire–marriage
becomes complete when the seventh step is taken.
The essential rites which may, however, be said to be the requirement common in all ceremonial
marriages are: (i) invocation before the sacred fire; and (ii) saptapadi.

Ceremonies
Marriage among Hindus being a religious and sacred tie, performance of certain ceremonies is still
necessary for a valid marriage. There were three important stages wherein certain ceremonies were
to be performed. They were:

1. Betrothal or Sagai: it is a formal promise to give the girl in marriage.

2. Kanyadan: It is actual giving away of the girl in marriage by her father.
3. Saptapadi: it consisted in performing a ceremony of taking seven steps before the sacred fire by
the bride and the groom. The performance of Saptapadi marked the completion of a marriage. It
made the marriage irrevocable.

As per Section 7, a marriage is a ceremonial affair. Saptapadi is an essential part of the ceremonies
of marriage, its non performance will invalidate the marriage. The performance of vedic rights is not
enough to solemnise the marriage.

Customary ceremonies may not include any one of the Shastric ceremonies including Saptapadi. It
may be totally non-religious ceremony or it may be very simple ceremony. For instance, among
santhals smearing of vermilion by bridegroom on the forehead of the bride is the only essential
ceremony.

Necessary ceremonies, shastric or customary, whichever are prevalent on the side of the bride or
bridegroom, must be performed otherwise marriage will not be valid. No one can innovate new
ceremonies and a marriage performed with the innovated ceremonies and rites is invalid. Hindu
Marriage Act allows inter-caste marriages. But marriage between a Hindu and a non Hindu is not
permissible under Hindu Marriage Act and such a marriage if performed in India, will be invalid.
But foreign country such marriage is valid. Such marriage is also valid in India, if performed under
the Special Marriage Act, 1954.

Salient features of the Hindu Marriage Act, 1955

Hindu Marriage Act, 1955 has reformed Hindu law of Marriage. It is a landmark in the history of
social legislation. It has not simply codified the Hindu law of marriage but has introduced certain
important changes in many respects. The Hindu marriage contemplated by the Act hardly remains
sacramental. The Act has brought in some changes of far reaching consequences which have
undermined the sacramental nature of marriage and rendered it contractual in nature to a great
extent.

The Hindu law of marriage, as the British rulers of India found, interpreted and applied, was, in
a nutshell, as follows:
 33

(1) Marriage was a holy sanskar, it could be solemnised in one of the eight forms recognised by law;

(2) The solemnisation would be according to the Shastric or customary rites;

(3) One could marry at any age, as there was no lowest age of marriage;

(4) Inter-religious and inter-caste marriages were prohibited, but the latter could be sanctioned by
custom;

(5) Marrying within one’s gotra or pravara was not allowed, except among the Shudras;

(6) Husband and wife would live together, the latter would be submit to the wishes of the former,
and the former would maintain the latter;

(7) Marriage was indissoluble; divorce was not permitted unless recognised by custom;

(8) Death did not dissolve a marriage and therefore a widow could not remarry unless permitted by
custom so to do.

The courts in India recognised, interpreted and applied all these principles in their minute’s details.
Changes brought about by the Hindu Marriage Act, 1955

The new Act has made radical and substantial changes in the institution of marriage.

The following changes are important:-

(1) A Hindu marriage is now not so much concerned with religion. It is more a result of mutual
consent than sacramental [Sections 5(ii), (iii), 11 to 13 and 7].

(2) Marriages amongst Hindu, Jains, Sikhs and Buddhists are now valid Hindu marriages in the eyes
of the law (Section 2).

(3) As per Section 3 the divergence between the Mitakshara and Dayabhaga schools in connection
with the expression “prohibited degrees of relationship” for the purpose of marriage is now
removed. The strict rule prohibiting marriages within the limits of Sapinda relationship, as defined
in the Smritis, have been considerably relaxed. Some new degrees of relationship have also been
added. Thus one cannot now marry a person who was the wife of the brother of the other.

(4) Monogamy amongst the Hindus is introduced for the first time by the Act. Bigamy is now
punished under the Indian Penal Code. The conditions and requirements of a valid marriage are now
very much simplified as is evident from the provisions of Sections 5 and 17 of the Act.
(5) Caste considerations for inter-caste and inter-communal marriages have now been made
irrelevant, eliminating all restrictions thereupon.

(6) There were different kinds of marriages in vogue before the Act. Now they are of no
consequence and the only form of marriage will be that accepted by the parties as prevailing in his
or her community (Section 7).
 34

(7) The Act now makes no distinction between the marriage of a maiden and the marriage of a
widow.

(8) The ancient Hindu law did not prescribe any age for marriage but it is now a condition of
marriage that the bridegroom must have completed 21 years and the bride must have completed the
age of 18 years (Section 5).

(9) The Act now lays down conditions of a valid marriage and does not recognise any particular
form of a Hindu marriage (Section 5).

(10) For a valid Hindu marriage no particular ceremony is prescribed by the Act. Sections 5 and 7
lay down that such a marriage can be solemnised in accordance with the customary rights and
ceremonies of any one of the parties to the marriage.

(11) Provision for registration of Hindu marriages has been provided for the first time (Section 8).

(12) Eliminating restrictions based on gotra, pravara and Sapinda relationship the Act makes
provisions for judicial separation, for divorce and for annulment of marriages (Section 10 to 14).

(13) Provisions for restitution of conjugal rights of the parties (Section 9).

(14) After a valid divorce either party may remarry (Section 15).

(15) Provisions for legitimacy of children born out of alliances which may be subsequently declared
annulled or void or voidable (Section 16).

(16) Provisions for maintenance pendente lite and for expenses of legal proceedings (Section 24).

(17) Permanent alimony and maintenance (Section 25).

The custody, maintenance and education of minor children during the pendency of legal proceedings
as also after passing of decree (Section 26).

Applicability of legislation (Section 2):- The Act applies to three types of persons: (i) who are
Hindus by religion in any of its forms or developments. (ii) who are Buddhists, Jainas or Sikhs by
religion and (iii) who domiciled in the territory to which this Act extends and not a Muslim,
Christian, Parsi or Jew by religion.

This Act, however, will not apply to those; (i) why have renounced the Hindu religion and have
became converts to some other religion and (ii) persons, who descended from Hindu ancestors and
on account of marriage or on account of some new occupation converted into new community
having their own religion and usages (iii) children, whose either parents though a Hindu, are not
brought up as Hindus.
 35

Explain ‘cruelty’ and ‘desertions’ as grounds for divorce.Discuss with reference to decided
cases.jan. 2010, jun. 2010, Dec. 2012, Jun.2013,Marks :15

State the grounds available to a Hindu wife for dissolution of marriage. Jun. 2012 Marks:15

Divorcee: It is a dissolution of marriage under section 13 of the Hindu Marriage Act. Petition can be
presented eigher by husband or wife and dissolved by a decree of divorce on the grouds mentioned
in above section.In Eshwar Singh v.smt.Hukum kaur,Allahabad Highcourt held that the mere
severance of allconnections with Wife because of his ill –health,allowing her to remarry any person
she likes cannot amount to divorce under section 13.It can be obtained by one of the parties on
presentation of petition from a competent court provided under the grounds for divorce. The
grounds are as follows;

Adultery (S 13(1) (i).

1. Cruelty (S 13(1) (i-a).

2. Desertion for a period of 2 years without reasonable cause (S 13(1)(1-b).
3. Conversion to another religion from Hindu religion (S 13(1) (ii).
4. Unsound mind and mental disorder (S 13(1) (iii).
5. Incurable from of leprosy (S 13(1) (iv).
6. Venereal disease (S 13(1) (v).
7. Renouncing the world by entering into any religious order (S 13(1) (vi).
8. Presumed death Not heard of being living for 7 years (S 13(1) (vii).
9. Non- resumption of cohabitation(for one year after the decree of judicial separation (S 13(1)
(i-A) Adultery (S 13(1) (i).
10. Failure to comply with decree for restitution of conjugal rihhts(for a period of one year or
more after passing of decree.r;).

Additional)grounds:i)Bigamy ii)Rape,sodomy or bestiality,the husband being guilty of above a

suit under section 18 of Hindu Adoption and Maintence Act 1956,or under section 125 of criminal
procedure code 1973,a decree or order has been passed against the husband awarding maintenance
to wife and since then parties has not been resumed for one yearor upwards.iii)Her marriage was
solemanised before she attained the age of 15 years and repudiated the marriage after attaining
the age of eighteen years.

Divorce by mutual consent:under section 13-B decree of divorce may be obtained by both parties
to a marriage together on the ground that 1) They have been living separately for a period of one
year or miiore that ii) they have not been able to live together and they have agreed iii) that
marriage should be dissolved.
On the motion of both parties made not earlier than six months after the date of presentation of
petition and not laterthan 18 months after that date the court shall, if satisfied after hearing the
parties ,making enquires, that a marriage has been solemnized and the statements contained there in
are true, pass a decree of divorce declaring the marriage to be dissolved.
Grounds to both husband and wife:
(i) Adultery: It is based on circumstantial evidence.
 36

(ii) Cruelty: It may be subtle or brutal,physical or moral,by words,gestures or by mere

silence,violence or non- violence as understood in matrimonial law.Legal concept of cruelty changes
from time to time not in theory,but in application, as the social and economic conditions change.It
includes physical and mental crueltyand it must be determined from the whole facts and matrimonial
relations between the spouses.It has to be determined as cumulative effect of the
circumstances.Regard must be had to their culture,temparaments, status in life, the state of health of
the parties, the interaction between them in their daily life and numerous other factors which cannot
be brought in and confined to an exclusive orvinclude definition,the circumstances in which the
cuuelty may be apprehended or actual.To punish a spouse for the past is not the function of the
court.But duty to protect him or her for the future.

Marriage without a sex is curse .Sex is the foundation of marriage and without sexal activity it
would be impossible for any marriage to continue for long.Forcing the wife to live a sexless life
would inevitably damage her physical and mental health and tantamount to cruelty.In King v. King,
the court held that continuous ill-treatment, cessation of marital intercourse, neglect and indifference
on the part of the husband are all factors which may undermine the health of a wife.Where a
husband insults his wife and behaves with neglect and studied unkindness as to impair her
health,he is guilty of cruelty.Hence the question of cruelty must be determined from the whole facts
and matrimonial relations between spouses.

iii)Desertion: It means the fact of separation of husband and wife permanently to an end or
withdrawing from the matrimonial obligation.It includes willful negligence of one spouse by
another and wife is to prove the willful negligence of the husband. If it continues for two years
preceding the presentation of petition for judicial separation or divorce such petition may be
granted.In Neelam Singh v.vijaya Narain Singh, the husband was a bank –manager but he was not
keeping his wife with him and also not providing her comforts of life according to his social and
financial status. The wife was compelled to live in village. The Allahabad Highcourt held that the
act of husband amounts to desertion within the meaning of section 18(2) of the Act.As such ,she is
entitled to maintenance of rupees of 1000/-.Thus desertion depends on the circumstances and mode
of life of each cases.But the active withdrawal of cohabitation and breaking of marital relations is
the indication of desertion..

iv) unsound mind or mental disorder: It is the mental illness,arrested or incomplete development
of mind ,psychopathic disorders or any other disorder, disability of mind and includes schizophrenia.

(v) Suffering from virulent and incurable form of leprosy,

(vi) Suffering from venereal disease of incurable form,

(vii) Either of the party has renounced the world,

(viii) Either of the party is legally dead that is he/ she has not been heard or seen for last seven
years.
 37

special grounds for divorce of wife: i) Bigamy ii)Rape,Sodomy,or beastiality(unnatural

offences)iii)Non- resumption of cohabitation after decree or order of maintenance iv)option of
puberty.

Write ashort note on Conjugal rights jun, 2013 Marks :5

(i) Section 9: Restitution of Conjugal rights-It is the right of any spouse to restitute When either
the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the
aggrieved party may apply, by petition to the district court, and the court, on being satisfied of the
truth of the statements made in such petition, may decree restitution of conjugal rights accordingly.

In modern India, the remedy is available to Hindus under Section 9 of the Hindu Marriage Act,
1955, to Muslims under general law, to Christians under Section 32 and 33 of the Indian Divorce
Act, 1869, to Parsis under Section 36 of the Parsi Marriage and Divorce Act, 1936 and to persons
married according to the provisions of the Special Marriage Act, Section 22 of the Special Marriage
Act, 1954.

The provisions for restitution of conjugal rights are identical in Section 22 the Special Marriage
Act, 1954 and Section 9 of the Hindu Marriage Act, 1955. It is as follows:

Thus the essential requirement are:- withdrawal by one party from the society of the other,
without any reasonable cause or excuse and there should be no legal ground as to why the decree
should not be granted. However the critiques of this remedy has considered it to be most inhuman
and obnoxious. It is considered to be worst tyranny and worst slavery. The critiques states that
husband or wife cannot be enforced to live with each other when the body and soul is not willing for
it and therefore it should be abolished.

In Sushila Bai v. Prem Narayan, the husband deserted his wife and thereafter was totally
unresponsive towards her. This behaviour was held sufficient to show that he had withdrawn from
the society of his wife, and therefore the wife’s petition for restitution of conjugal rights was
allowed. The defence to this principle lies in the concept of a ‘reasonable excuse’. If the respondent
has withdrawn from the society of his spouse for a valid reason, it is a complete defence to a
restitution petition.

The court will normally order restitution of conjugal rights if:

i. The petitioner proves that the respondent spouse has without reasonable excuse withdrawn from
his/her society

ii. The statements made by the aggrieved spouse in the application are true, and

iii. There is no legal ground why the petitioner’s prayer should not be granted

The court has held in various cases that the following situations will amount to a reasonable excuse
to act as a defence in this area:

i. A ground for relief in any matrimonial cause.

 38

ii. A matrimonial misconduct not amounting to a ground of a matrimonial cause, if sufficiently

weighty and grave

iii. Such an act, omission or conduct which makes it impossible for the petitioner to live with the
respondent.

It is significant to note that unlike a decree of specific performance of contract, for restitution of
conjugal rights, the sanction is provided by the court where the disobedience to such a decree is
wilful that is deliberate, in spite of opportunities.

During the time of introducing the provision for restitution of conjugal rights in the Special
Marriage Act, 1954 and the Hindu Marriage Act, 1955, there were heated debates in the Parliament
for and against it. In Shakila Banu v. Gulam Mustafa, the Bombay, High Court observed: “(The
concept of restitution of conjugal rights) is a relic of ancient times when slavery or quasi-slavery
was regarded as natural. This is particularly so after the Constitution of India came into force, which
guarantees personal liberties and equality of status and opportunity to men and women alike and
further confers powers on the State to make special provisions for their protection and safeguard.”

It is the comfort and consortium of the other filing a petition before the Districtcourt. T.Sareetha v.
venkata subbaiah, the Anrda predesh High court held that section 9 is violating the right to privacy
and human dignity guaranteed under section 21 of the constitution and denies woman’s choice and
decisions. Hence section 9 is arbitrary and violation of Article 14 of constitution. The Delhi
Highcourt held in Harvinder Kaur v.Harminder Singh, section 9 was not violative of Article 14
&21 of Indian constitution .The object of restitution is the cohabitation and consortium between the
spouse. In Saroj Rani v. Sudharshan Kumar, the supreme court held that section 9 is not violative
of Article 14& 21 of constitution if the purpose is properly understood.In India conjugal rights of
husband or wife is not merely the Creature of the statute but the right inherentin the very institution
of marriage itself.

Describe the grounds available for Judicial Separation.Cite cases. JAN .2011,

Section 10: Judicial Separation: It is a decree passed by the court in relation to temporary
suspention of marital rights based on the grounds mentioned insection 13(1&2) of the Hindu
Marriage Act. Either party to a marriage may present a petition praying for a decree of judicial
separation on any of the ground specified in sub section (1) of section 13, and in case of a wife also
on any of the grounds specified in sub- section (2) of the act. Where a decree of judicial separation
has been passed, it shall no longer be obligatory for the petitioner to cohabit with the respondent, but
the court may, on the application by petition of either party and on being satisfied on the truth of the
statements made in such petition, rescind the decree if it consider it just and reasonable to do so.
During this period either party may be entitled to get maintenance from the other but they are not
permitted to get marry during this period.

Grounds:

(i) Adultery ,
(ii) Cruelty,
 39

(iii) Petition is filed,

(iv) Either of the party has ceased to be a Hindu,
(v) Either of the party is of unsound mind, or is suffering from continuous and intermittent mental
disorder of such

a kind and to such an extent that petitioner cannot reasonably be expected to live with the
respondent,

(vi) Suffering from virulent and incurable form of leprosy,

(vii) Suffering from venereal disease of incurable form,

(viii) Either of the party has renounced the world,

(ix) Either of the party is legally dead that is he/ she has not been heard or seen for last seven years.

Explain the circumstances under which a Hindu wife shall be entitled to live separately from
her huband without forfeiting her claim to malntenance. June 2010, Jan 2011,Marks :15

Write a note on: Maintenance of wife

Obligation of a husband to maintain his wife arises out of the status of the marriage. Right to
maintenance forms a part of the personal law. Under the Code of Criminal Procedure, 1973 (2 of
1974), right of maintenance extends not only to the wife and dependent children, but also to indigent
parents and divorced wives. Claim of the wife, etc., however, depends on the husband having
sufficient means. Claim of maintenance for all dependent persons inclusion of the right of
maintenance under the Code of Criminal Procedure has the great advantage of making the remedy
both speedy and cheap. However, divorced wives who have received money payable under the
customary personal law are not entitled to maintenance claims under the Code of Criminal
Procedure.

Under Hindu Law, the wife has an absolute right to claim maintenance from her husband. But she
loses her right if she deviates from the path of chastity. Her right to maintenance is codified in the
Hindu Adoptions and Maintenance Act, 1956 (78 of 1956). In assessing the amount of
maintenance, the court takes into account various factors like position and liabilities of the husband.
It also judges whether the wife is justified in living apart from husband. justifiable reasons are spelt
out in the Act. Maintenance pendente lite (pending the suit) and even expenses of a matrimonial suit
will be borne by either, husband or wife, if the either spouse has no independent income for his or
her support. The same principle will govern payment of permanent maintenance.

Maintenance under Hindu law:- Maintenance is a right to get necessities which are reasonable
from another. it has been held in various cases that maintenance includes not only food, clothes and
residence, but also the things necessary for the comfort and status in which the person entitled is
reasonably expected to live. Right to maintenance is not a transferable right.

Maintenance without divorce:- The Hindu Adoptions and Maintenance Act, 1956.Maintenance, in
other words, is right to livelihood when one is incapable of sustaining oneself. Hindu law,
 40

Maintenance as main relief: for wife:- The relief of maintenance is considered an ancillary relief
and is available only upon filing for the main relief like divorce, restitution of conjugal rights or
judicial separation etc. Further, under matrimonial laws if the husband is ready to cohabit with the
wife, generally, the claim of wife is defeated. However, the right of a married woman to reside
separately and claim maintenance, even if she is not seeking divorce or any other major matrimonial
relief has been recognised in Hindu law alone. A Hindu wife is entitled to reside separately from her
husband without forfeiting her right of maintenance under the Hindu Adoptions and Maintenance
Act, 1956. The Act envisages certain situations in which it may become impossible for a wife to
continue to reside and cohabit with the husband but she may not want to break the matrimonial tie
for various reasons ranging from growing children to social stigma. Thus, in order to realise her
claim, the Hindu wife must prove that one of the situations (in legal parlance 'grounds') as stated in
the Act, exists.

Grounds for award of maintenance:- Only upon proving that at least one of the grounds
mentioned under the Act, exists in the favor of the wife, maintenance is granted. These grounds are
as follows:

a. The husband has deserted her or has willfully neglected her;

b. The husband has treated her with cruelty;

c. The husband is suffering from virulent form of leprosy/venereal diseases or any other infectious
disease;

d. The husband has any other wife living;

e. The husband keeps the concubine in the same house as the wife resides or he habitually resides
with the concubine elsewhere;

f. The husband has ceased to a Hindu by conversion to any other religion;

g. Any other cause justifying her separate living.

Write a note on”:Dependants”.,January ,2010 Marks:5

Other dependents who can claim maintenance:- Apart from the relationship of husband and wife
other relations in which there is economic dependency are also considered to be entitled to
maintenance by the Hindu Adoptions and Maintenance Act, 1956. Accordingly a widowed
daughter-in-law is entitled maintenance from her father-in-law to the extent of the share of her
diseased husband in the said property. The minor children of a Hindu, whether legitimate or
illegitimate, are entitled to claim maintenance from their parents. Similarly, the aged and infirm
parents of a Hindu are entitled to claim maintenance from their children. The term parent here also
includes an issueless stepmother

MAINTENANCE UNDER HINDU LAW

Maintenance is a right to get necessities which are reasonable from another. it has been held in
various cases that maintenance includes not only food, clothes and residence, but also the things
 41

necessary for the comfort and status in which the person entitled is reasonably expected to live.
Right to maintenance is not a transferable right.

Maintenance without divorce

The Hindu Adoptions and Maintenance Act, 1956.Maintenance, in other words, is right to livelihood
when one is incapable of sustaining oneself. Hindu law, one of the most ancient systems of law,
recognises right of any dependent person including wife, children, aged parents and widowed
daughter or daughter in law to maintenance. The Hindu Adoptions and Maintenance Act, 1956,
provides for this right.

Maintenance as main relief: for wife

The relief of maintenance is considered an ancillary relief and is available only upon filing for the
main relief like divorce, restitution of conjugal rights or judicial separation etc. Further, under
matrimonial laws if the husband is ready to cohabit with the wife, generally, the claim of wife is
defeated. However, the right of a married woman to reside separately and claim maintenance, even
if she is not seeking divorce or any other major matrimonial relief has been recognised in Hindu law
alone. A Hindu wife is entitled to reside separately from her husband without forfeiting her right of
maintenance under the Hindu Adoptions and Maintenance Act, 1956. The Act envisages certain
situations in which it may become impossible for a wife to continue to reside and cohabit with the
husband but she may not want to break the matrimonial tie for various reasons ranging from
growing children to social stigma. Thus, in order to realise her claim, the Hindu wife must prove that
one of the situations (in legal parlance 'grounds') as stated in the Act, exists.

Grounds for award of maintenance

Only upon proving that at least one of the grounds mentioned under the Act, exists in the favor of
the wife, maintenance is granted. These grounds are as follows:

a. The husband has deserted her or has willfully neglected her;

b. The husband has treated her with cruelty;

c. The husband is suffering from virulent form of leprosy/venereal diseases or any other infectious
disease;

d. The husband has any other wife living;

e. The husband keeps the concubine in the same house as the wife resides or he habitually resides
with the concubine elsewhere;

f. The husband has ceased to a Hindu by conversion to any other religion;

g. Any other cause justifying her separate living;

 42

Case Laws:-The words "wife or widow" in the context of marriage, succession or maintenance
enactments are of restrictive legal character and imply relationship which is not recognised by land-
Rajesh Bai v. Santha Bai (1982 HLR 445.)

A man marrying a second time, during the lifetime of his wife, second wife though, having no
knowledge of the first marriage, is not entitled to claim maintenance under s, 125 of the Code of
Criminal Procedure, as she was not legally wedded wife and for that the marriage was void.-
Jamuna Bai v.Anant Rao (1988 Cr LJ 793.)

There is no forum provided under the Act so as to claim maintenance. Maintenance can only be
claimed through regular suit.-Krishan Lal v. Sudershan Kumari (1979 HLR 576.)

Bar to relief

Even if one of these grounds exists in favour of the wife, she will not be entitled to relief if she has
indulged in adulterous relationship or has converted herself into any other religion thereby ceasing
to be a Hindu. It is also important to note here that in order to be entitled for the relief, the marriage
must be a valid marriage. In other words, if the marriage is illegal then the matrimonial relationship
between the husband and wife is non-existent and therefore no right of maintenance accrues to wife.
However, thanks to judicial activism, in particular cases the presumption of marriage is given more
weightage and the bars to maintenance are removed.

Other dependents who can claim maintenance (Sections .19 to 22 of the Act)

Apart from the relationship of husband and wife other relations in which there is economic
dependency are also considered to be entitled to maintenance by the Hindu Adoptions and
Maintenance Act, 1956. Accordingly a widowed daughter-in-law is entitled maintenance from her
father-in-law to the extent of the share of her diseased husband in the said property. The minor
children of a Hindu, whether legitimate or illegitimate, are entitled to claim maintenance from their
parents. Similarly, the aged and infirm parents of a Hindu are entitled to claim maintenance from
their children. The term parent here also includes an issueless stepmother.

Case Laws:-Liability of the father-in-law comes to an end where the widow is remarried or she has
obtained a share in the coparcenery properties while partition. But her right to share in the separate
property of her husband or in his interest in coparcenery property cannot be divested.-Animuthu v.
Gandhimmal (1977 HLR 628).

There is no liability casted upon step-son as to maintain his step mother under this section, though
the step-son is liable to maintain her as a dependent- Pannalal v. Fulmani (AIR 1987 Cal 768)
Unmarried daughter, aged or infirm parents can enforce their rights only in these cases where they
are unable to maintain themselves from their own earnings or from the property owned by them
where almost all the property is given in gift by the mother to her only daughter and the rest of
property is sold by her to her brother, she gets entitled to be maintained by her daughter.-
Munnidevi.v. Chhoti (AIR 1983 All 444).
 43

A person having concubine and he himself dying after the Act coming into force, would confer a
right to maintenance upon the concubine.-Laxminarasamma v. Sundaraamma (AIR 1981 AP
88).

(Where no property is inherited by the brothers from their father, they cannot be compelled to
contribute for the marriage of their sister.-Challaiyan v. Salia Krishan AIR 1982 Mad 148).

Where there is no maintenance from the estate of the husband or from her son or daughter such
Hindu widow, is to be taken as dependant of the father-in-law under this section as s,19 would not
be having its application to such a case .-Bitala Kunwari v. Girand Singh (AIR 1983 All 425).

Sec.23 Amount of maintenance

(1) It shall be in the discretion of the court to determine whether any, and if so what,
maintenance shall be awarded under the provisions of this Act, and in doing so the court shall have
due regard to the considerations set out in sub- section (2), or sub- section(3), as the case may be, so
far as they are applicable.

Case Law:-Quantum of maintenance depends upon a gathering together or all the facts of the
situation, the amount of free estate, the past life of the married parties and the families a survey of
the conditions and necessities and rights of the members, on a reasonable view of the change of
circumstances possibly required in the future, regard being of course to the scale and mode of living
to the age, habits, wants and class of life of the parties.-Rashmi Mehra v.Sunil Mehra (AIR 1991
Del.44)

Sec.25 Amount of Maintenance may be altered on change of circumstances:-

The amount of maintenance, whether fixed by a decree of court or by agreement, either before or
after the commencement of this Act, may be altered subsequently if there is a material change in the
circumstances justifying such alteration.

Case Law:-When the power is conferred to alter the prior decree or agreement it definitely includes
a power to annul the same if the circumstances requires so.- Dattu Bhat v. Tarabai (AIR 1985
Bom.106)

Write a note on “Maintenance pendent lite”.

Alimony pendente lite :- The object of enacting the provision for maintenance and expenses
during the pendency of the proceeding in Section 24 is that a wife or husband who has no
independent income sufficient for her or his support or enough to meet necessary expenses of the
proceedings, may not be handicapped. So the doctrine of pendente lite and permanent alimony is
based on economic tutelage of a spouse. It aims at administering justice and maintaining equilibrium
between the parties.

This section applies to both husband and wife equally. Law has placed both the spouses on the same
footing for this purpose.
 44

The power of the court of ordering alimony pendente lite in a pending proceeding for matrimonial
relief has been provided by Sec.24 of Hindu Marriage Act, 1955. The liability is on the person who
initates the proceedings to maintain the opposite party during the pendency of the proceedings if the
opposite party is unable to maintain herself and to meet the expenses of the proceedings.

The discretion in the matter of granting maintenance pendente lite and cost of litigation is to be
exercised on sound legal principles. If the applicant has no independent means, he or she is entitled
to interim maintenance and expenses unless good cause is shown for depriving him or her of it. The
matters that may properly be considered in this connection are:-

(i) Whether applicant is being supported by an adulterer, and

(ii) Whether the respondent has not sufficient means.

in Mukan Kanwar v. Ajeet Chand, (AIR 1958 Raj 322); Babulal v. Premlata, (AIR 1974 Raj)
Thus, where the wife was prepared to go and live with the husband but the husband did not wish to
keep her with him on the ground of her inability of consummate the marriage the wife is entitled to
maintenance. The fact that the petitioning spouse is maintained by his or her parents is no ground to
deprive the petitioner of his or her maintenance and expenses of litigation. In Dashrath Yadav v.
Saroj, (AIR 1989 MP 242). Has held that for considering the application for grant of interim
maintenance, only independent income of the petitioning spouse or the conduct of her is material.

in the case of Krishnapriya Mahapatra v. Birakishore Mahapatra, (AIR 1987 Ori 68) the Court
held that the expression ‘sufficient’ in the collocation of the word ‘sufficient’ means for his or her
support. ‘Sufficient’ is not ‘some’. The word ‘sufficient’ connotes that the income of the applicant
must be such which would be sufficient for a normal person for his or her sustenance as well as to
meet the necessary expenses of the proceeding. In Gayatri Devi v. Laxmi Kant {(1986) 2 DMC
214 (MP)}. Held that so the fact that the wife sits in her father’s shop and earns a paltry sum by
knitting and by tuition is not relevant in deciding the question of alimony pendente lite, in
Munnibai v. Jagdish Rathore, (1998 AIHC 3600.) neither the fact that the father of the wife is
suporting her nor her refusal to live with the husband could be any ground for denial of maintenance
under Sec. 24. In Prem Kumari v. Om Prakash, (AIR 2000 Punj and Har 311) The question
whether the wife is guilty of desertion cannot be decided at the time of passing order of maintenance
pendente lite. in Hema v. S. Lakshmana Bhat, (AIR 1986 Ker 130); Gita Chatterjee v. Prabhat
Kumar Chatterjee, (AIR 1988 Cal 83). It is noticeable that Sec. 24 only refers to income and not
other property. So in case of alimony pendente lite other property of the spouses should not enter
judicial consideration. Therefore immovable property yielding no income cannot be considered.
Only the income out of it received by the applicant can enter judicial consideration.

in the case of Sukhpal Singh v. Shinger Kaur, (AIR 1997 P & H 186) to have almony pendente
lite it is not necessary that petitioners should have no income of her or his own. If the income of the
petitioners is found by court to be insufficient to support her/him the court may order the other party
to pay to the petitioner an allowance monthly and litigation expenses. Even if the petitioner fails to
aver that she has no source of income the petition is not liable to be dismissed.in Ashok Kumar v.
Satwant Kumar, {(1983) 1 DMC 27}. The word sufficient is a relative term and has to be
considered on facts of each case. Thus in a case the wife who was earning Rs. 900 per month was
 45

allowed alimony pendente lite to the extent of Rs. 500 per month. Her husband was earning Rs.
8000 per month. Applicant spouse when is possessed of sufficient means, the applicant is neither
entitled to maintenance pendente lite nor litigation expenses. The comma after the word proceeding
is to be ignored.

In C.B. Joshi v. Ganga Devi, (AIR 1980 All 130). The words “wife having no independent income
insufficient for her support” suggest that income of the wife must be independent and must be
sufficient for her support. So, even if the wife’s parents are affluent, the wife has no independent
income of her sufficient to support her is entitled to maintenance pendente lite under Section 24 of
the Act. . Bibi Balbir Kaur v. Raghuvir Singh, (AIR 1974 Punj 225). The plea of having no job
when the husband is qualified and he refuses several offers of job on the pretext that it would not
suit him is not available as a defence against a petition for alimony pendente lite by wife.

A husband who voluntarily incapacitates himself cannot be absolved of his liabiity to maintain the
wife. In Sousseau Mitra v. Chandana Mitra (AIR 2004 Cal 61), Case, the husband graduate in
science and a B.Ed. coming from respectable family and able bodied capable of earning, contended
that he was earlier working as a typist-cum-clerk but had resigned and so was out of employment.
The Court held that he couldn’t avoid his liability to maintain his wife and child by voluntarily
incapaciting himself. The Court can legitimately take into consideration his ability to earn a
reasonable amount.

Alimony pendente lite and litigation expenses may be granted in any proceedings under the Hindu
Marriage Act provided other conditions for such grant are satisfied. The grant of such relief is not in
any case dependent either on the merits of the case or on the ultimate success of the main petition. In
Shiva Kumar v. Pushpa Rekha(AIR 2004 NOC 253). case she filed a petition for nullity of
marriage on ground of mental and physical cruelty caused on account of failure to consummate the
marriage. She also claimed pendente lite and expenses of proceedings under Section 24 which was
decreed. The husband admitted non-consummation but pleaded that it was the wife who deliberately
avoided consummation. He pleaded that a decree of nullity could have been passed on his admission
(as to non-consummation) thereby disentitling the wife from claiming maintenance. The plea
however, was negatived and it was held that such admission by the husband cannot be said to be
unequivocal, besides grant of relief under Section 24 is not dependent on the ultimate success of the
petition.

Section 13- B: Divorce by mutual consent

(1) Subject to the provision 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 (68 of 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.

(2) On the motion of both the parties made not earlier than six months after the date of presentation
of petition referred to in sub- section (1) and not later than eighteen months after the said date, if the
 46

petition is not withdrawn in the mean time , the court shall, on being satisfied, after the hearing the
parties and after making such enquiry as it thinks fit, that a marriage has been solemnized and that
the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved
with effect from the date of decree.

Based on the mutual consent theory the essential requirement as has been laid down are; firstly
parties must be living separately for one year, secondly that they have not been able to live together
and thirdly and most importantly that they mutually agree to get separated.

Except for decree of divorce under fault ground, the decree for restitution of conjugal rights, judicial
separation and decree of divorce under consent theory, requires living separately for one year. This
period, as has been discussed earlier also, is a reasonable period in which parties can realize their
mistakes and make a second attempt to live together. But if they are not able to resume their
marriage, it is better to give the decree of divorce as marriage in such cases completely breaks.

Lacunas in the existing laws

Still there are certain technicalities which obstruct the court or the parties in giving or obtaining
decree of divorce. Like for example:

(1) Under consent theory the consent of both the parties is necessary for the decree of divorce.
However it may so happen that one of the party just to harass the other party out of anger, jealousy,
ill will etc may withheld the consent, which will be a major hindrance in obtaining divorce by
parties or in giving divorce by courts.

(2) Under fault theory the requisite condition is that one of the party must be at fault of any of the
matrimonial offences, while the other party must be completely innocent. If it is found that other
party is also at fault of any of the matrimonial misconduct, the divorce will not be granted.

(3) Again under fault theory there are certain technicalities, due to which the courts are not able to
give decree of divorce, which cause such a great hard ship to the innocent party, leading to a great
miscarriage of justice.

(4) Therefore there is a demand for irretrievable break down of marriage, as a separate ground for
divorce, which notwithstanding these technicalities will empower the court to dissolve the marriage
between the parties.

Law Commission Recommendations & Its Impact

Law Commission of India in chapter 6 ‘Requirement of Living Apart’ of 71st report has described
the situations from which it can be presumed de facto by the courts that marriage has irretrievably
broken down. The situations are as follows:

(1) Agreement of separation between two married couples.

(2) ‘Not cohabiting’ should be a sufficient proof for the irretrievable breakdown of marriage.
 47

(3) Separate living of spouses for more than five years should be a sufficient proof.

(4) Continuous separate living of spouses in prime period of youth, and desire of not coming
together in mind of one is sufficient proof.

(5) After a continuous separation arising out of rift and no petition for conjugal rights from either
side is filed during the period of one year, “separation” should be a conducive ground for
irretrievable breakdown of marriage. Or

(6) Continuous separation for more than one year, coupled with suspicion of misconduct from either
side, mental or physical cruelty arising out of admission. Discovering of either of the spouse
regarding adultery covering pre

marital illicit relation rendering their living together impossible.

(7) If a case for judicial separation or divorce or restitution for conjugal rights is pending for three
years, and no attempt to settle the dispute or to compromise are made by either party.

(8) In some cases it is even enough to take into account a simple submission of the spouse that he or
she cannot live together.

Accordingly the commission has made recommendation of introducing section 13C “Divorce on the
ground of irretrievable break down of marriage” which is as follows;

(1) A petition for dissolution of marriage may be presented to the court by either party to a marriage
on the ground that marriage has broken down irretrievably.

(2) The court hearing such a petition shall not hold the marriage to have broken down irretrievably
unless it is satisfied that the parties to marriage have lived apart for continuous period of last three
years immediately preceding the presentation of the petition.

(3) If the court is satisfied, on the evidence, as to the fact mentioned in sub- section (2), than unless
it is satisfied on all the evidences that the marriage has not broken down irretrievably, it shall,
subject to the provision of this act, grant a decree of divorce.

(4) In considering for the purpose of sub- section (2) whether the period for which the parties to a
marriage have lived apart has been continuous, no account shall be taken of any one period (not
exceeding three months in all) during which parties resumed living with each other, but no period
during which the parties lived with each other shall count as part of the period for which the parties
to the marriage lived apart.

(5) For the purpose of sub- sections (2) & (4), the husband and wife shall be treated as living apart
unless they are living with each other in the same household, and references in this section to the
parties to a marriage living with each other shall be construed as references to their living with each
other in the same household.
 48

All the other being the same, from the already available remedies that is: restitution for conjugal
rights, judicial separation & Divorce, apart from the facts that:

(i) The period of separation has been raised from one year to three years &

(ii) For counting the continuous period of separation for three years, the period during which they
lived together (only in case when within this three years they made an attempt to resume their
marriage), will not be taken into account. If this attempt failed and they again got separated, than the
period after three months, from the date when they again got separated, will be taken into
consideration.

Impact of the Recommendations

Following is going to be the major impacts if the proposed amendment in the Hindu Marriage Act,
1955 in its present form is enacted:

Firstly the concept of marriage will lose its sanctity. Dissolving a marriage will be a cake walk for
either party and divorce will be taken by the parties on minor and trivial issues. In short it will lead
to the breakdown of the entire matrimonial institution in the country and will encourage and give
license for the highly unethical practices like adultery.

Secondly since there is no requirement of any kind of formalities like: in case for restitution for
conjugal rights, only aggrieved can approach to court for the decree, for judicial separation and
divorce (on fault ground) only innocent party can approach the court and finally for divorce on
mutual ground, on the mutual consent of the parties, these existing remedies will lose credibility and
will be of no use as nobody will care for such cumbersome procedures when they can directly break
it.

Like the purpose of punishments in any criminal system is to create a fear in the minds of citizens
and to prevent them from committing crime, similarly the purpose of divorce theories is to
strengthen the institution of marriage by creating a fear in the minds of couples that once you are
tied in a knot it will not be easy to come out of it. As such couples try to maintain a relationship
between them to the extent possible, but if it becomes impossible to prevent the marriage by any
means, than the marriage is considered to be broken down irretrievably.

The ground of irretrievable break down of marriage is as important as other grounds of divorce, but
not in the manner as has been proposed. The purpose of this theory, like other theories is also to
maintain the institution of marriage and not to make it a game to be played anytime with anyone.

Further Recommendations

There is a need to bring the ground of irretrievable breakdown of marriage under the present law but
not as a separate special ground but only as remedy for the lacunas in the existing system of divorce.
Therefore following are the recommendations on how the ground is to be included under the present
law:
 49

(1) Under consent ground, it becomes very difficult by the parties to obtain the decree of divorce or
by the courts in giving the decree of divorce, if the consent is being withheld by any one of the
party. The classic example of such a situation is the recent case of Naveen Kohli v Neelu Kohli

Therefore under such situations the ground of irretrievable breakdown of marriage is necessary,
where court being satisfied on the basis of the facts of the case that the marriage has reached to a
point from where it is almost impossible to prevent the parties from getting separated, the decree of
divorce be granted irrespective of the fact that the consent has been withhold by the other party.

(2) Under fault theory the decree of divorce cannot be granted if the other party (party making the
allegation over other party) is also found to be guilty of any of the matrimonial offence.

Therefore under such circumstances also when the marriage between the parties have completely
broken down, which could be easily attributed from the deeds of both the parties, the divorce should
be granted on ground of irretrievable breakdown of marriage.

(3) Under the same fault theory sometimes the courts are unable to pass the decree of divorce due to
technicalities involved in the procedure like in case of Vinita Saxena v Pankaj Pandit

Therefore in such cases as well the court should be empowered to grant the decree of divorce under
irretrievable breakdown theory of divorce.

Therefore not as a separate ground of divorce, like proposed section 13C, but it need to be included
under the present law by making amendment in the respective sections (for grounds discussed
above).

In India, as per Hindu culture, tradition, customs and practices, marriage are considered to be made
in heaven. Therefore marriages in India are considered to be the highest form of social relationship.
It gives the person who is to live with us for whole life, to share our good and bad times, give us
support any time we need and helps in developing our family. We need to respect not only the
person but the institution of marriage as well.

But the manner in which the judiciary is dealing with the subject of irretrievable break down of
marriage, it is feared that it will completely break the system of marriages. Every theory has their
own negative and positive traits. There applicability differs from situation to situation. Therefore it
is very essential that the law makers of our country should deal with the subject in a very cautious
manner after considering in detail its future implications.

Under Hindu Law, the wife has an absolute right to claim maintenance from her husband. But she
loses her right if she deviates from the path of chastity. Her right to maintenance is codified in the
Hindu Adoptions and Maintenance Act, 1956 (78 of 1956). In assessing the amount of maintenance,
the court takes into account various factors like position and liabilities of the husband. It also judges
whether the wife is justified in living apart from husband. justifiable reasons are spelt out in the Act.
Maintenance pendente lite (pending the suit) and even expenses of a matrimonial suit will be borne
by either, husband or wife, if the either spouse has no independent income for his or her support.
The same principle will govern payment of permanent maintenance. Under the Muslim Law, the
 50

Muslim Women (Protection of Rights on Divorce) Act, 1986 protects rights of Muslim women who
have been divorced by or have obtained divorce from their husbands and provides for matters
connected therewith or incidental thereto.

CUSTOMARY PRACTICES AND LEGISLATIVE PROVISIONS RELATING TO DOWRY

The ancient marriage rites in the Vedic period are associated with Kanyadan. It is laid down in
Dharamshastara that the meritorious act of Kanyadan is not complete till the bridegroom was given
a dakshina. So when a bride is given over to the bridegroom, he has to be given something in cash or
kind which constitutes varadakshina. Thus Kanyadan became associated with varadakshina i.e. the
cash or gifts in kind by the parents or guardian of the bride to the bridegroom.

The varadakshina was offered out of affection and did not constitute any kind of compulsion or
consideration for the marriage. It was a voluntary practice without any coercive overtones. In the
course of time, the voluntary element in dowry has disappeared and the coercive element has crept
in. it has taken deep roots not only in the marriage ceremony but also post-marital relationship. What
was originally intended to be a taken dakshina for the bridegroom has now gone out of proportions
and has assumed the nomenclature 'dowry'. The social reformers of the nineteenth and early
twentieth centuries have striven hard for the abolition of various social evils including the evil of
dowry system. Long before India gained independence, the then provincial Government of Sind
passed an enactment known as "Sind Deti Leti Act, 1939" with a view to deal effectively with the
evils of dowry system but the enactment had neither any impact nor could create the desired effect.

During the last few decades the evils of dowry system has taken an acute form in almost all parts of
the country and in almost all the sections of society. In a bid to eradicate this evil from the society,
the State Governments of Bihar and Andhra Pradesh enacted "The Bihar Dowry Restraint Act,
1950" and "The Andhra Pradesh Dowry Prohibition Act, 1958" for the respective States, but both
these enactments failed to achieve the objectives for which they were enacted.

On 24th April, 1959 the dowry Prohibition Bill, 1959 was introduced in the Lok Sabha. After
some discussion, the Bill was referred to a Joint Committee of both the Houses of Parliament. The
Joint Committee presented its report with some amendments in the Bill. Both the Houses of
Parliament did not agree with the amendments as reported by the Joint Committee and ultimately the
Bill was considered at the Joint Sittings of both the Houses of Parliament held on 6th and 9th May,
1961.

ACT 28 OF 1961 The Dowry Prohibition Bill was passed in the Joint Sittings of both the Houses of
Parliament and it became an Act - The Dowry Prohibition Act, 1961 (28 of 1961) and it received the
assent of the President on 20th May, 1961.

To prohibit the demanding, giving and taking of Dowry, the Dowry Prohibition Act, 1961 is in
force since 1st July 1961.

To stop the offences of cruelty by husband or his relatives on wife, Section 498-A has been added in
the Indian Penal Code, and Section 198-A has been added in the Criminal Procedure Code since the
year 1983.
 51

In the case of suicide by a married woman, within 7 years from the date of her marriage, the Court
may presume that such suicide has been abetted, encouraged by her husband or his relatives.
Provision to this effect has been added in the Indian Evidence Act, by adding Section 113-A since
the year 1983.

The object in forming the Dowry Prohibition Act and adding provisions in the Indian Penal Code,
the Criminal Procedure Code and the Indian Evidence Act is to remove the evil of dowry system and
give protection to women.

Payment of a dowry, gift often financial, has a long history in many parts of the world. In India, the
payment of a dowry was prohibited in 1961 under Indian civil law and subsequently by Sections
304B and 498a of the Indian Penal Code were enacted to make it easier for the wife to seek redress
from potential harassment by the husband's family. Dowry laws have come under criticism as they
have been misused by women and their families.

In India, there are civil laws, criminal laws and special legislative acts against the tradition of
Dowry. Someone accused of taking dowry is therefore subject to a multiplicity of legal processes.

The Dowry Prohibition (DP) Act

As per section 2 of the Dowry Prohibition Act:-... "dowry" means any property or valuable
security given or agreed to be given either directly or indirectly

(a) By one party to a marriage to the other party to the marriage, or

(b) By the parent of either party to a marriage or by any other person, to either party to the marriage
or to any other person, at or before ... or any time after the marriage ... in connection with the
marriage of the said parties.

Stridhan:- Stridhan is, generally speaking, what a woman can claim as her own property within a
marital household. It may include her jewelry (gifted either by her family or by her in-laws), gifts
presented to her during the wedding or later, and the dowry articles given by her family.

Gifts given by the parents of the bride are considered "stridhan", i.e. property of the woman,
traditionally representing her share of her parent's wealth.
Section3. Penalty for giving or taking dowry.- [(Note: Section 3 re-numbered as sub-section (1)
thereof by Act No.63 of 1984, sec.3) (1)] If any person, after the commencement of this Act, gives
or takes or abets the giving or taking of dowry, he shall be punishable with imprisonment for a term
which shall not be less than [(Note: Subs. by Act 43 of 1986, Sec.3) five years, and with fine which
shall not be less than fifteen thousand rupees or the amount of the value of such dowry, whichever is
more:]

Provided that the Court may, for a adequate and special reasons to be recorded in the judgment,
impose a sentence of imprisonment of a term of less than [(Note: Subs. by Act 43 of 1986, Sec.3)
five years.]
 52

(2) [(Note: Ins. by Act 63 of 1984, sec.3) Nothing is sub section (1) shall apply to, or in relation to, -

(a) Presents which are given at the time of a marriage to the bride (without any demand having been
made in that behalf).

(b) Presents which are given at the time of a marriage to the bridegroom (without any demand
having been made in that behalf).

Provided that such presents are entered in a list maintained in accordance with the rules made under
this Act.

Provided further that where such presents are made by or on behalf of the bride or any person related
to the bride, such presents are of a customary nature and the value thereof is not excessive having
regard to the financial status of the person by whom, or on whose behalf, such presents are given.

Case Laws:-(i) Section 3 does not contravene articles 14, 19, 21 and 22 of the Constitution and
therefore this section is not ultra vires of the said articles; Indrawati v. Union of India, ( 1991
DMC 117 (All).)

(ii) The offence is founded in the relationship of the property demanded as abettor with the nature of
demand. It should not bear a mere connection with marriage; Madan Lal v. Amar Nath, {(1984) 2
Rec Cr. 581.}.

(iii) Abetment is a preparatory act and connotes active complicity on the part of the abettor at a point
of time prior to the actual commission of the offence; Muthummal v.Maruthal, {1981 Cr. LJ 833
(Mad).}.

Section 4 of the said Act states:- Penalty for demanding dowry.- If any person demands, directly
or indirectly, from the parents or other relatives or guardian of a bride or bridegroom, as the case
may be, any dowry, he shall be punishable with imprisonment for a term which shall not be less than
six months, but which may extend to two years and with fine which may extend to ten thousand
rupees. Provided that the Court may, for an adequate and special reasons to be mentioned in the
judgment, impose a sentence of imprisonment for a term of less than six months.

(i) Demand of dowry under section 4 is not a continuing offence but every demand of dowry
whenever repeated constitutes another offence and the date of commission of offence under section
4 would be when the demand was made initially and also when the said demand was repeated
afresh. The offence of demanding dowry stood committed even before the marriage was performed
and also when the demand was repeated again and again after the performance of marriage in
respect of the same items of dowry; Harbans Singh v. Smt. Gurcharan Kaur alias Sharan Kaur,
(1993 Rec. Cr. R 404 (del).)

(ii) The deceased had before being set on fire by her in-laws had written a letter to her father that she
was being ill-treated, harassed and threatened of dire consequences for non-satisfaction of demand
of dowry. Thereby proving that an offence of demanding dowry under section 4 had been
committed; Bhoora Singh v. State, (1993 Cri LJ. 2636 All).
 53

(iii) There had been not agreement between either parties to the marriage nor their relations to give
any property or valuable security to the other party at or before or after the marriage. Held that the
demand of TV, refrigerator, gas connection, cash of Rs.50,000/- and 15 tolas of gold will not
amount to demand of dowry but demand of valuable security and the said offence does not attract
section 4 of the Dowry Prohibition Act; Shankar Prasad Shaw v. State, (I (1992) DMC 30 Cal.).

(iv) Furnishing of a list of ornaments and other household articles at the time of settlement of
marriage amounts to demand of dowry and accused are liable to be convicted under section 4;
Raksha Devi v. Aruna Devi, (I (1991) DMC 46 (P&H).).

Sec.5. Agreement for giving or taking dowry to be void - Any agreement for the giving or taking
of dowry shall be void.

Sec.6. Dowry to be for the benefit of the wife or her heirs –

Case Laws:-(i) Since the woman had died issueless, the articles constituting dowry are to be returned
to her parents and not to her husband; Rajeev v. Ram Kishan Jaiswa, {1994 Cri. LJ NOC 255
(All).}

(ii) The wife had died within less than three months of her marriage, therefore not leaving behind
any issue and the contention of the husband that he was the heir of the dowry articles was negatived
and dowry articles were transferred to the parents of the wife; Prithichan v. Des Raj Bansal,
{(1990) DMC 368 P & H}; See also Manas Kumar Dutt v. Alok Dutta, { (1990) DMC 115 (Ori)}.

(iii) Dowry items are required to be transferred to the parents and not to husband of the deceased;
Pradeep Kumar v. State of Punjab, (1990 (1) CC Cases 594).

Sec.7 Cognizance of offences:- Case Laws:-(i) The point of time at which the legality of cognizance
is to be judged is the time when cognizance is actually taken; M.L. Sethi v. R.P. Kapur, (AIR 1967
SC 528)

(ii) The expression 'to take cognizance' has not been defined in this Act nor in the Criminal
Procedure Code. The word 'Cognizance' is however, used in the Code to indicate the point when the
Magistrate takes judicial notice of an offence. It is a word of indefinite import and is perhaps not
always used in exactly the same sense; Darshan Singh v. State of Maharashtra, (AIR 1971 SC
2372).

(iii) Taking cognizance is a judicial action taken with a view eventually to prosecution and
preliminary to the commencement of the inquiry or trail; Food Inspector v. Laxmi Narayan, (1969
Cut LT 863).

(iv) If a Magistrate has no jurisdiction to try an offence, he is not barred from taking cognizance of
the offence; Jaddu v. State, (AIR 1952 All 873).

8. Offence to be cognizable for certain purpose and to be non bailable and non-compoundable-

Sec.9 Power of State Government to make rules:- (1) The State Government may, by notification
in the Official Gazette, make rules for carrying out the purposes of this Act.
 54

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may
provide for all or any of the following matters, namely :-

(a) The additional functions to be performed by the Dowry Prohibition Officers under sub section
(2) of Section 8B.

(b) Limitations and conditions subject to which a Dowry Prohibition Officer may exercise his
functions under sub section (3) of section 8B.

(3) Every rule made by the State Government under this section shall be laid as soon as may be after
it is made before the State Legislature.

PROVISIONS UNDER OTHER LAWS:-

IPC Section 406

This section, for offences related to Criminal Breach of Trust, is usually applied in investigation of
Stridhan recovery from the husband and his family.

Offences under this section are bailable and cognizable.

Section 406.

Punishment for criminal breach of trust

Whoever commits criminal breach of trust shall be punished with imprisonment of either description
for a term which may extend to three years, or with fine, or with both.

IPC Section 304B

This Section of the Indian Penal Code was inserted by a 1986 amendment. The wording of the law
states:

Section 304B. Dowry death

(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than
under normal circumstances within seven years of her marriage and it is shown that soon before her
death she was subjected to cruelty or harassment by her husband or any relative of her husband for,
or in connection with, any demand for dowry, such death shall be called "dowry death" and such
husband or relative shall be deemed to have caused her death.

Explanation:-For the purpose of this sub-section, "dowry" shall have the same meaning as in section
2 of the Dowry Prohibition Act, 1961 ( 28 of 1961).

(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not
be less than seven years but which may extend to imprisonment for life.[8]
 55

IPC Section 498A:- Section 498A was inserted into the Indian Penal Code in 1983 via an
amendment.

It reads: - 498A. Husband or relative of husband of a woman subjecting her to cruelty.

Whoever, being the husband or the relative of the husband of a woman, subjects such woman to
cruelty shall be punished with imprisonment for a term which may extend to three years and shall
also be liable to fine.

Explanation-For the purpose of this section, "cruelty" means-

(a) Any willful conduct which is of such a nature as is likely to drive the woman to commit suicide
or to cause grave injury or danger to life, limb or health whether mental or physical) of the woman;
or

(b) Harassment of the woman where such harassment is with a view to coercing her or any person
related to her to meet any unlawful demand for any property or valuable security or is on account of
failure by her or any person related to her meet such demand.[9]

This section is non-bailable,non-compoundable (i.e. it cannot be privately resolved between the

parties concerned) and cognizable.

Prosecution for a non-compoundable offense can only be quashed by a High Court of India under its
powers under section 482 of Criminal Procedure Code of India. Usually, cases under 498A are
quashed by mutual agreement when the husband and wife reconcile with each other, or agree to
divorce by mutual consent.

After registration of an FIR for a cognizable, non-bailable offense, the police in India can arrest any
and all of the accused named in the complaint.

Status of Second wife under Anti-Dowry Law- I [2008] DMC 279- Bombay High Court-
Justice C.L. Pangarkar —Ranjana Gopalrao Thorat Vs. State of Maharashatra- Hindu
Marriage Act,1955—Section 17—Bigamy—Second wife cannot assume a character as wife--- It is
no marriage in eyes of law—[Pg.280 {Para6}]-- Indian Penal Code—Section 498A—cruelty—word
“relative”—meaning of- “Person who is related to husband either by blood or marriage—Thus she
does not fall within scope of Section 498A-- Indian Penal Code— Pg.280 {Para6}]

"Every Suicide After Marriage cannot be presumed to be Suicide due to Dowry Demand"-
2011[1] JCC Page No.668- In The High Court of Delhi- Hon’ble Mr. Justice Shiv Narayan Dhingra-
Dated: - 2 December 2010- Rani Vs. State of NCT of Delhi- Criminal Appeal No. 93 of 2004-
Indian Penal Code, 1860- Section 304B/ 498A Read With Section 34- Conviction- allegation of
demanding of Rs.50,000/- and scooter were vague in nature- Whether it was done by husband,
mother-in-law or father-in-law- Answers to all these questions are absent—Ingredients of Section
304B IPC were totally absent- Unnatural Death can be called a dowry death only if after making a
demand made by accused is not fulfilled by perpetuation of cruelty upon the victim- The list of
dowry show that both parties belonged to poor strata of society- No evidence, whatsoever was
 56

collected by police about the real facts- Every suicide after marriage cannot be presumed to be a
suicide due to dowry demand- The tendency of the court should not be that since a young bride has
died after marriage, now somebody must be held culprit and the noose must be made to fit some
neck.

Domestic Violence Act (2005/2006):- The above being criminal remedies, a civil remedy was
brought into the picture in 2005 (amended in 2006). This was called the "Protection of Women from
Domestic Violence Act".

For the purpose of this act, Domestic Violence includes the demand for dowry:

For the purposes of this Act, any act, omission or commission or conduct of the respondent shall
constitute domestic violence in case it -

(a) Harms or injures or endangers the health, safety, life, limb or well-being, whether mental or
physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual
abuse, verbal and emotional abuse and economic abuse; or

(b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other
person related to her to meet any unlawful demand for any dowry or other property or valuable
security; or

(c) has the effect of threatening the aggrieved person or any person related to her by any conduct
mentioned in clause (a) or clause (b); or(d) otherwise injures or causes harm, whether physical or
mental, to the aggrieved person.[10]

This Act empowered the lower courts to issue "protection orders" on the complaint of a woman
against her male relatives. The protection orders could include restraining orders on the husband and
others, monetary compensation, and residence orders.

Though it is a Civil remedy, violation of protection orders result in Criminal penalties (including
imprisonment).

Criticism of Anti-Dowry Laws

Criticism by Judiciary:- The Supreme Court of India and the various High Courts have noted the
gross misuse of IPC 498A in various judgments:

Supreme court declared 498a as "Legal Terrorism" while giving judgment in matter of Sushil Kumar
Sharma Vs. Union of India (UOI) and Ors - Jul 19 2005 (Citation: JT 2005 (6) SC 266).

Criticism outside India:- Several reports of the abuse of Section 498A have involved couples based
outside India especially in the US & Canada. The United States Department of State has published
the following travel warning:

A number of US men who have come to India to marry Indian nationals have been arrested and
charged with crimes related to dowry extraction. Many of the charges stem from the US citizen’s
 57

inability to provide an immigrant visa for his prospective spouse to travel immediately to the United
States.

The courts sometimes order the US citizen to pay large sums of money to his spouse in exchange for
the dismissal of charges. The courts normally confiscate the American’s passport, and he must
remain in India until the case has been settled.

It is stated in Travel Advisory by US, since the police may arrest anyone who is accused of
committing a crime (even if the allegation is frivolous in nature), the Indian criminal justice system
is often used to escalate personal disagreements into criminal charges. This practice has been
increasingly exploited by dissatisfied business partners, contractors, estranged spouses, or other
persons with whom the US citizen has a disagreement, occasionally resulting in the jailing of US
citizens pending resolution of their disputes. At the very least, such circumstances can delay the US
citizen's timely departure from India, and may result in an unintended long-term stay in the country.
Corruption in India, especially at local levels, is a concern, as evidenced by Transparency
International’s Corruption Perception Index of 3.5, ranking India in 72nd place of the world’s
countries.

In a well publicized case, Dr. Balamurali Ambati, who earned his MD at age 17, and his family were
detained in India for over three years in a suit related to alleged dowry demands by the family for his
brother's wife Archana, which delayed Dr. Ambati's entry to the ophthalmology program for two
years, leaving him to begin his residency in 1998. All charges against him were dismissed in
October 1996 and all his family members were acquitted in June 1999.

During the course of the trial the Ambatis produced a tape in which the father of Archana demanded
US $500,000 to drop all the charges although the details of this particular case are still debated in
India.

Criticism by Social Groups_

Criticism by Men's Rights movements:- According to the Men's Rights movement in India, the
laws suffer from the following shortcomings:

Gender Bias: The laws do not recognize cruelty and domestic violence against men. The police in
India almost never registers complaints of extortion or violence against men in a domestic
relationship, whereas registering a complaint under 498A (where a woman is the aggrieved party) is
widespread.

Vague definitions of Dowry and Stridhan.

Presumption of guilt. IPC 304B assumes that if the accidental death of a wife happens within 7 years
of marriage, it should be assumed to be murder, unless the husband can prove his innocence.
Similarly, the Dowry Prohibition Act (section 8-A) states that "Where any person is prosecuted for
taking or abetting the taking of any dowry under Sec. 3, or the demanding of dowry under Sec.4, the
burden of proving that he had not committed an offence under those sections shall be on him."
 58

Duplication of existing laws: Laws already exist to deal with offences against intimidation, violence,
extortion and murder. A "dowry death" can be considered a murder, and a demand for dowry can be
considered extortion under existing laws. The additional laws, instead of reforming the police,
mostly serve to shift the burden of proof onto the accused.

A corrupt police force which often does no investigation before arresting innocent people.

Human Rights violations: In most cases involving Non-Resident Indians, their passports are
impounded and they are restricted from traveling outside the country.

No penalties, in practice, for false complaints or for perjury.

Police Circulars

The Ministry of Home Affairs, as well as various State governments, have issued notifications and
circulars which limit the arbitrary arrests made by Police during investigation of dowry-related
offences.

Demands for amending the law

The Malimath committee in 2003 proposed making amendments to this section although such
amendments were opposed by Women's groups.

The Centre for Social Research India has released a research report opposing amendments to
section 498A. According to this report, in the studied cases there were no convictions based solely
on section 498A. The report however states that 6.5 percent of the studied cases were falsified. They
also state that many people believe the law has been abused by "educated and independent minded
women." A police official asserted that in his district one-third of dowry murder cases were found
totally false by the police..

However, on December 17, 2003, the then Minister of State for Home Affairs, I.D. Swami said:
“There is no information available with the Government to come to the conclusion that many
families in India are suffering due to exaggerated allegations of harassment and dowry cases made
by women against their husbands and other family members involving them in criminal
misappropriation and cruelty.”

On 20 July 2005, Justices Arijit Pasayat and H.K. Seema of the Indian Supreme Court declared
Section 498A to be constitutional."The object is to strike at the root of dowry menace. But by
misuse of the provision a new legal terrorism can be unleashed. The provision is intended to be used
as a shield and not an assassin's weapon. If [the] cry of "wolf" is made too often as a prank,
assistance and protection may not be available when the actual wolf appears," the Bench said..

In August 2010, the Supreme Court asked the Government of India to amend the Dowry Laws to
prevent their misuse.

In February 2011, the Law Commission of India is considering grounds to recommend amendments
to IPC 498A.
 59

UNIT-III

COPARCENARY & JOINT HINDU FAMILY

Joint Hindu Family

A Hindu joint family consists of the common ancestor and all his lineal male descendants upto any
generation together with the wife or wives (or widows) and unmarried daughters of the common
ancestor and of the lineal male descendants. The existence of the common ancestor is necessary for
bringing a joint family into existence, for its continuance common ancestor is not a necessity.

According to Sir Dinshah Mulla, “ A joint Hindu family consists of all persons lineally descended
from a common ancestor, and includes their wives and unmarried daughters. A daughter ceases to be
a member of her father's family on marriage, and becomes a member of her husband's family.
A joint and undivided family is the normal condition of Hindu society. An undivided Hindu family
is ordinarily joint not only in estate, but also in food and worship. The existence of joint estate is not
an essential requisite to constitute a joint family and a family, which does not own any property,
may nevertheless be joint. Where there is joint estate, and the members of the family become
separate in estate, the family ceases to be joint. Mere severance in food and worship does not
operate as a separation.

The property of a joint family does not cease to be joint family property belonging to any such
family merely because the family is represented by a single male member who possesses rights
which an absolute owner of a property may possess. It may even consist of two females members.
There must be at least two members to constitute Joint Hindu family. A single male or female
cannot make a Hindu joint family even if the assets are purely ancestral.

In Narenderanath v. Commissioner of Wealth Tax, the Supreme Court held that the expression
'Hindu undivided family' in the wealth Tax Act used in the sense in which a Hindu joint family is
understood in the personal law of Hindus and a joint family may consist of a single male member
and his wife and daughters and there is nothing in the scheme of the Wealth Tax Act to suggest that
a Hindu undivided family as assessable unit must consist of a least two male members.

In Commissioner of Income Tax v. Gomedalli Lakshminarayan there was a joint family

consisting of a father and his wife and a son and his wife, the son being the present assessee. On the
death of father the Question raised is whether the assessee is to be assessed as an individual or as a
member of the joint Hindu family, It was held that the son's right over the property is not absolute
because two females in the family has right of maintenance in the property, therefore the income of
the assessee should be taxed as the income of a Hindu undivided family.

In Anant v. Shankar it was held that on the death of a sole surviving coparcener, a Hindu Joint
Family is not finally terminated so long as it is possible in nature or law to add a male member to it.
Thus there can also be a joint family where there are widows only.
 60

Who is a coparcener? Explain his rights and liabilities in a Mitakshara joint family.jan.2011,
Jun .2012Marks:15

Coparcenary means the lineal descendants of male from a common ancestor limited to three
generations and thereby acquires property by birth. i.e. property inhited by aHindu male as
acommon ancestor and devolved from his father, father’s father and father’s father’s father to son,
son’s son, and son’s son’s son. According to 2005 Hindu succession (amendment act) female is
included as coparcenary.The essence of coparcenary under the Mitakshara is community of interest
and unity of possession.Each coparcener is entitled to joint possession and enjoyment of common
property.No coparcener can claim separate share in undivided property.

Coparcener is not by mere agreement but of the virtue of birth in such family.Ram Avadh v.
kedarnath, the Allahabad Highcourt held that the Mitakshara coparcenary is the creature of lawand
cannot ariseby act of parties except on adoption.The members of coparcenary have a right to
demand partition .As long as no partition ,each coparcener has control over the entire
property.Property cannot be tnansferred unless necessary consent given by all the members of
coparcenary.e.g.Right to maintenance, Right to enforce partition, Right to askfor account and Right
to alienate.

Though every coparcenary must have a common ancestor to start with, it is not to be supposed that
every extant coparcenary is limited to four degrees from the common ancestor. When a member of a
joint family is removed more than four degrees from the last holder, he cannot demand a partition,
and therefore he is not a coparcenar. On the death, however, of the last holder, he would become a
member of the coparcenary, if he was fifth in descent from him and would be entitled to a share on
partition, unless his father, grandfather and great-grandfather had all predeceased the last holder.
Whenever a break of more than three degrees occurs between any holder of property and the person
who claims to enter the coparcenary after his death the line ceases in that direction and the
survivorship is confined to those collaterals and descendants who are within the limit of four
degrees.

In Ceylon- Attorney-General of Ceylon v. A. R. Arunachalam Chettiar case a father and his son
constituted a joint family governed by Mitakshara School of Hindu Law. The father and the son
were domiciled in India and had trading and other interests in India. The undivided son died and
father became the sole surviving coparcener in a Hindu Undivided family to which a number of
female members belonged. In this the court said that the widows in the family including the widow
of the predeceased son had the power to introduce coparceners in the family by adoption and that
power was exercised after the death of son.

In Gowli Buddanna v. Commissioner of Income-Tax, Mysore a family consisting of father, his

wife, his two unmarried daughters and his adopted son. After the death of father question arises
whether the sole male surviving coparcener of the Hindu joint family, his widowed mother and
sisters constitute a Hindu undivided family within the meaning of the Income tax Act ? In this case it
was held by the court property of a joint family does not cease to belong to the family merely
because the family is represented by a single coparcener who possesses rights which an owner of
 61

property may possess. The property which yielded the income originally belonged to a Hindu
undivided family.

In Moro Vishvanath v. Ganesh Vithal plaintiffs and defendants are descendants of one Udhav.
The defendants are all fourth in descent from him. The plaintiffs, however are, some fifth, and others
sixth in descent from him. The question, however, whether, assuming them to be undivided, the
plaintiffs are entitled to sue at all for a partition according to Hindu Law, is one of considerable
importance and difficulty. It was urged that Plaintiffs cannot claim from the defendants any partition
of property descended from that common ancestor. It was held that upon a consideration of athe
authorities cited, it seems to me that it would be difficult to uphold the appellants' contention that a
partition could not, in any case be demanded by descendants of a common ancestor,more than four
degrees removed, of property originally descended from him. Suppose a coparcenary consisted
originally of A,B,C,D,E,F,G and H, with A as the common ancestor. Suppose A dies first, then B,
then C, then D, and then E, and that G has then a son I, and H has a son J and J has a son K. On E's
death the coparcenary will consist of F,G,H,I,J and K. Suppose that G,H and J die one after another,
and the only survivors of the joint family are F,I and K. Are I and K coparceners with F? Yes,
though I is fifth in descent from A, and K is sixth in
descent from A. The reason is that either of them can demand a partition of the family property from
Here the coparcenary consists of three Collaterals,namely, F,I and K.

The essence of a coparcenary under Mitakshara law is unity of ownership. The ownership of the
coparcenary property is in the whole body of coparceners. According to the true notion of an
undivided family governed by Mitakshara law, no individual member of that family, whilst it
remains undivided, can predicate, of the joint and undivided property, that he, that particular
member, has a definite share. His interest is a fluctuating interest, capable of being enlarged by
deaths in the family, and liable to be diminished by births in family. It is only on partition that he
becomes entitled to a definite share. The most appropriate term to describe the interest of a
coparcener in coparcenary property is 'undivided coparcenary interest'. If a Mitakshara coparcener
dies immediately on his death his interest devolves on the surviving coparceners.

The Supreme Court has summarised the position and observed that the coparcenary property is held
in collective ownership by all the coparceners in a quasi-corporate capacity. The incidents of
coparcenary are :

1 The lineal male descendants of a person upto the third generation, acquire on
birth ownership in the ancestral properties of such person;
2 such descendants can at any time work out their rights by asking for partition;
3 till partition each member has got ownership extending over the entire property
conjointly enjoyment of the properties is common;
4 as a result of such co-ownership the possession and enjoyment of the
properties is common;
5 no alienation of the property is possible unless it is for necessity, without the oconcurrence of the
coparceners and
 62

6 the interest of a deceased member passes on his death to the surviving

coparceners.
Every coparcener and every other member of the joint family has a right of maintenance out of the
joint family property. The right of maintenance subsists through the life of the member so long as
family remains joint. No female can be a coparcener under Mitakshara law. Even wife, though she is
entiteled to maintenance.

Difference between Joint Hindu Family and Coparcener

1 In order to constitute a Joint Hindu family the existence of any kind of property is not required
whereas in Coparcenary there exists a ancestral property.

2 Joint Hindu family consist of male and female members of a family whereas in Coparcenary no
female can be a coparcener.

3 Coparcenars are members of the Joint Hindu Family whereas all the members of Joint Hindu
family are not Coparcenars.

Dayabhaga School on Coparcenar and Joint Hindu Family:

According to the Dayabhaga law, the sons do not acquire any interest by birth in ancestral property.
Their rights arise for the first time on the father's death. On the death they take such of the property
as if left by him, whether separate or ancestral, as heirs and not by survivorship. Since the sons do
not take any interest in ancestral property in their father's lifetime, there can be no coparcenary in the
strict sense of the word between a father and sons according to the Dayabhaga law. The father can
dispose of ancestral property, whether movable or immovable by sale, gift, will or otherwise in the
same way as he can dispose of his separate property. Since sons do not acquire any interest by birth
in ancestral property, they cannot demand a partition of such property from the father. A
coparcenary under the Dayabhaga law could thus consist of males as well as females. Every
coparcenar takes a defined share in the property, and he is owner of that share. It does not fluctuate
with birth and deaths in family.

JOINT HINDU FAMILY PROPERTY

Mitakshara divides property into tow classes, namely, apratibandha daya or unobstructed heritage,
and sapritibanda daya or obstructed heritage. Property in which a person acquires an interest by birth
is called unobstructed heritage, because the accrual of the right to it is not obstructed by the
existence of the owner. The right to it arises from the mere fact of their birth in the family, and they
become coparceners with their paternal ancestor in such property immediately on their birth,
ancestral property is unobstructed heritage. All properties inherited by a Hindu male from a direct
male ancestor, not exceeding three degrees higher to him is called apratibandha daya.

Property, right to which accrues not by birth but on the death of the last owner without leaving male
issue, is called obstructed heritage. It is called obstructed, because the accrual of the right to it is
obstructed by the existence of the owner. Thus the property which devolves on parents, brothers,
nephews, uncles, etc., upon the death of the last owner, is obstructed heritage. These relations do not
take a vested interest in the property by birth. Their right to it arises for the first time on the death of
the owner.
 63

Coparceners can restrain the holder of sapratibandha daya from alienating it, while in case of
apratibandha daya its holder, so long as he is living, has absolute rights of alienation over it: he may
gift it inter inter vivos or by will, he may sell it or mortgage. Unobstructed heritage devolves by
survivorship, obstructed heritage, by succession.

The distinction between obstructed and unobstructed heritage is peculiar only to Mitakshara School.
According to Dayabhaga, all heritages are obstructed, for, according to the doctrines of that school,
no person, not even a son, takes an interest by birth in the property of another. Dayabhaga does not
recognise the principle of survivorship.

Joint Family Property

The Joint Hindu family is purely a creature of Hindu law, and those who own it are called
coparceners. Property jointly acquired by the members of a joint family with the aid of ancestral
property is joint family property. The Hindu joint family property is like a big reservoir in which
property flows in from various sources and from which all members of joint family drew out to
fulfill their multifarious needs. The joint family property may flow into it from various sources.
Property according to the Hindu law, may be divided into two classes, namely :-

1 Ancestral Property :- All property inherited by a Hindu male from his father, father's father, or
father's father's father, is ancestral as regards his male male issue, even enough it was inherited by
him after his death of a life-tenant. A father cannot change the character of joint family property into
absolute property of his son by merely marking a will and bequeathing it or part of it to the son as if
it was the self-acquired property of the father. In the hands of the son the property will be ancestral
property and the natural or adopted son of that son will take interest in it and be entitled to it by
survivorship as joint family property. Where a number of sons inherit their father's self-acquired
property, they hold it as joint family property if at the time of his death they are living as members
of a joint family.

In Atar Singh v. Thakar Singh it was stated that judgment that unless the lands came “by descent
from a lineal male ancestor in the male line, they are not deemed ancestral in Hindu Law.”

Property acquired by a father by adverse possession would not be ancestral property in his hands and
his sons would not take interest in it by birth. In a case the Privy Council held that a maternal uncle
is not an ancestor, and it has accordingly been held that property inherited from a maternal uncle is
not ancestral property.

In Chelikani Venkayyamma v. Venkatar Amanayyamma the property which had descended from
the maternal grand-father to his two grandsons. On the death of one of the grandson the widow of
the deceased claimed to recover a moiety of the estate from the surviving grandson(Brother). The
question was whether the property of the maternal grandfather descended, on the death of his
daughter, to her two sons jointly with benefit of survivorship. Their Lordships decided that the estate
was governed by the rule of survivorship, and the claim of the widow was, therefore negatived. This
decision of the court was criticsed. In Muhammad Husain Khan v. Babu Kishva Nandan
Sahai(64 IA 250) one G inherited certain property from his maternal grandfather J. Under a will
made by G the property which G inherited from his maternal grandfather was to go to his son B and
on the death the property was to vest in B's widow, Giri Bala. During the life time of B, in an
 64

execution of a money decree against him the said property was sold. B then brought a suit, claiming
possession of the property. The validity of the will executed by G is challenged on the ground that
the testator had no authority to dispose of the property, as it belonged to a Hindu coparcenary
consisting of himself and his son. In their Lordships' opinion the estate which was inherited by G,
from his maternal grandfather cannot be held to be ancestral property in which his son had an
interest jointly with him. G consequently had full power of disposal over that estate, and the devise
made by him in favour of his daughter-in-law could not be challenged by his son or any other
person. ON the death of her husband, the devise in her favour came into operation and she became
the absolute owner of the village property, as of the remaining estate ; and the sale of that village in
execution proceedings against her husband could not adversely affect her title.

Property inherited by a person from collaterals, such as a brother, uncle, etc, or property inherited by
him from a female is his separate property. The share which a coparcener obtains on partition of
ancestral property is ancestral property as regards his male issue. If the coparcener dies without
leaving male issue, it passes to his heirs by succession. Accumulations of income of ancestral
property, property purchased or acquired out of income proceeds of sale of ancestral property and
property purchases out of such proceeds are ancestral property.

In C.N. Arunachala Mudaliar v. C.A. Muruganatha Mudaliar case, Issue was whether property
obtained by a gift or will from paternal ancestor are to be regarded as ancestral or self-acquired
properties. In this case there were allegation that there were joint property of a family consisting of
himself, his father and his brothers and that he was entitled in low to one-third share in the same.
Plaintiff and his brother, are both sons are from first wife of their father, who predeceased her
husband. The father assert an exclusive title to the joint family property denying any right of his
sons. Father claimed that some of the property is his self acquired property and other properties were
self-acquired property of his father and he got them under a will executed by his father. In
connection to this case the court referred the case of Ram Balwant v. Rani Kishori. In this case the
Lordship held that chap.1,Sec.1 verse 47of Mitakshara contained only moral or religious precepts
while those in S.5, verses 9 and 10 embodied rules of positive law. It was held that the father of a
joint family governed by Mitakshara law has full and uncontrolled powers of disposition over his
self acquired immovable property and his male issue could not interfere with these rights in any
way. Further in Muddan Gopal v. Ram Buskh it was held that a Mitakashara father is not only
competent to sell his self-acquired immovable property to a stranger without the concurrence of his
sons. While referring another case Sital v. Madho and Bawa Misser v. Rajah Bishen where it was
held that a Mitakshara father can make a gift of his self acquired property to one of his sons to the
detriment of another and he can make even an unequal distribution amongst his heirs. Going through
above cases court concluded that a property gifted by a father to his son could not become ancestral
property in the hands of the donee simply by reason of the fact that the donee got it from his father
or ancestor. On reading the will as a whole the court held that it becomes clear that the testator
intended the legatees to take the properties in absolute right as their own self-acquisition without
being fettered in any way by the rights of their sons and grandsons.

Son takes at his birth in the ancestral property is wholly independent of his father. He does not claim
through the father, and, therefore, a transfer is allowed by law, cannot affect the interest of the son in
the property. However, the father has a special power of disposal of ancestral property for certain
purposes. The father has the power of making within reasonable limits gifts of ancestral movable
 65

property without the consent of his sons. A Hindu father of other managing member has power to
make a gift within reasonable limits of ancestral immovable property for pious purposes. A member
of a joint family cannot dispose of by will a portion of the property even for charitable purposes and
even if the portion of the property bears a small proportion to the entire estate.

What is separate property? Explain the incidents of separate property.Jun. 2013, jan
.2013,Marks :15

Separate Property or Self acquired property

Property acquired in any of the following ways is the separate property of the acquirer.Following
are the some examples of Separate Property :-

a) Property acquired by his own exertion and not by joint labour of members.e.g. when person has
acquired any property by way of adverse possession or derives income from the practice of
hereditary profession like purohit or priest and these constitute separate earnings.b)b)

b) Property inherited other thanancestral.

c) The remuneration earned for his services as a managing director of a company.

d) Property obtained as his share of partition.

e) Property obtained by sole survivorship.

f)) property obtained by gift or will.

g) Gains of science or gains of learning by means of education or training.

h) Income of separate property.

In Dipo v. Wassan Singh, plaintiff sued to recover possession of the properties which belonged to
her brother, who died. She claimed to be the nearest heir. The defendants the sons of paternal uncle
contest that they were preferential heirs according to custom, as the whole of the land was ancestral
in the hands of the deceased. The court said that properties in the hands of deceased are properties
which originally belonged to his ancestors. But deceased was the last male holder of the property
and he had no male issue. There was no surviving member of a joint family, be it a descendant or
otherwise, who could take the property by survivorship. Property inherited from paternal ancestors
is, of course, ancestral property' as regards the male issue of the propositus, but, it is his absolute
property and not ancestral property as regards other relations. It was held that the defendants were
collaterals of deceased and as regards them the property was not 'ancestral property' and hence the
plaintiff was the preferential heir.

P.S. Sairam v. P.S. Ramarao Pisey Facts: - P. Eswar Rao had 3 marriages. From his second
marriage he had 2 sons: - P. Sadashiv Rao (defendant no.1 he is the karta of the family) and P.E.
Panduranga Rao. Sadashiv Rao had 2 wives. Godavari Bai was his first wife. She had 2 sons one of
them is the plaintiff, P.S. Ramarao Pissey. Plaintiffs case is that defendant no.1 started a business
from the income and property of joint family in the name of M/s Pissey and sons. The contention of
 66

the defendants is that the property was his self-acquisition, which he acquired by raising loans from
the market.

Judgment: - It was held that it was defendant no.1’s separate property.

The karta’s powers and liabilities and the karta’s power of alienation of property under the
Dayabhaga school are same as that of the Mitakshara karta. The main difference between the two
schools is that in case of Dayabhaga the karta must render full accounts at all times, whenever
required to do so by the coparcener, while in case of Mitakshara the karta is required to render
accounts only at the time of partition or unless there are charges against him for
fraud/misappropriation.

POWERS, PRIVILEGES, OBLIGATIONS AND POSITION OF KARTA

Who is karta? Examine the rights and duties of karta. Jan .2010, Marks: 15

Karta is the eldest male member of the family. He is the Hindu patriarch. Only a coparcener can
become Karta. Such unique is his position that there is no office or any institution or any other
system of the world, which can be compared with it. His position is sui generisie of his own kind or
peculiar to himself. Peculiarity lies in the fact that in terms of his share/interest, the Karta is not
superior and has no superior interests in the coparcenery. If partition takes place he is entitled to take
his share. He is a person with limited powers, but, within the ambit of his sphere, he possesses such
vast powers as are possessed by none else. His position is recognized /conferred by law. No stranger
can ever be qualified to be a karta, but an adopted son who is the eldest in the family can be
qualified.

Article 236 of the Mulla Hindu Law defines "Karta" as follows: Manager- Property belonging to a
joint family is ordinarily managed by the father or other senior member for the time being of the
family: The Manager of a joint family is called Karta.

In a HUF, the responsibility of Karta is to manage the HUF property. He is the custodian of the
income and assets of the HUF. He is liable to make good to other family members with their shares
of all sums which he has misappropriated or which he spent for purposes other than those in which
the joint family was interested. His role is crucial. He is entrusted not only with the management of
land/assets of the family but also is entrusted to do the general welfare of the family.

His position is different from the manager of a company or a partnership. The reason behind it is
that though the coparcenery deals with lands, assets/property but in an entirely different fashion.
When a Karta is bestowed with such a position it is something, which takes place under the
operation of law.

Who Can Be A Karta?

Senior Most Male Member: - It is a presumption of Hindu law, that ordinarily the senior most male
member is the Karta of the joint family.
 67

In Jandhayala Sreeamma v. Krishnavenamma (AIR 1957 A.P.434) the case of Hindu Joint
Family a suit to set aside on alienation filed by the younger of the two brothers within three years of
his attaining majority would be barred by limitation if the elder brother, who was the manager and
an adult has failed to sue within three years of his attaining majority.

Junior Male Member

In the presence of a senior male member, a junior male member cannot be the Karta. But if all the
coparceners agree, a junior male member can be a Karta. Coparceners may withdraw their consent at
any time.

"So long as the members of a family remain undivided the senior member is entitled to manage the
family properties including even charitable property and is presumed to be the manager until the
contrary is shown. But the senior most member may give up his right of management and a junior
member may be appointed as manager."

Narendrakumar J Modi v. CIT (1976 S.C. 1953):- Facts: - Baplal Purushottamdas Modi was the
head of the HUF. Joint family possesses many immovable properties and carried business of various
types such as money lending, etc. He executed a general power of attorney in favor of his 3rd son,
Gulabchand on Oct 5, 1948. On Oct 22, 1954 Baplal relinquished his share. On Oct 24, 1954 the
existing members of the family executed a memo of partition. However, the order accepting
partition was not passed, the contention of the appellant was that Gulabchand couldn’t be a karta
because he is a junior member and other members of the family did not accept him as a karta.

Judgment: - It was held that Gulabchand was given the power to manage by Baplal because
Gulabchand’s elder brother was an aged man of 70 years. And also the father of appellant died in
1957. So, under such circumstances, Gulabchand appears to have acted as the Karta with the consent
of all the other members and hence the appeal was dismissed.

Female Members As Karta

The concept of a “manager” of a Joint Hindu Family has been in existence for more than two
thousand years or more. Courts in India have given diverse views: -

C.P. Berai v. Laxmi Narayan (AIR 1949 Nag 128) It was held that a widow could be a karta in
the absence of adult male members in the family. It was said that the true test is not who
transferred/incurred the liability, but whether the transaction was justified by necessity.

Sushila Devi Rampura v. Income tax Officer( AIR 1959 Cal) It was held that where the male
members are minors, their natural guardian is their mother. The mother can represent the HUF for
the purpose of assessment and recovery of income tax.

Radha Ammal v. Commissioner of Income Tax (AIR 1950 Mad 588) It was held that since a
widow is not admittedly a coparcener, she has no legal qualification to become a manger of a JHF.
 68

Commissioner of Income Tax v. Seth Govind Ram (AIR 1966 S.C. 2) After reviving the
authorities it was held that the mother or any other female could not be the Karta of the Joint Family.
According to the Hindu sages, only a coparcener can be a karta and since females cannot be
coparceners, they cannot be the Karta of a Joint Hindu Family.

Position Of Karta

The position of karta is sui generis. The relationship between him and other members are not that of
principal/agent/partners. He is not like a manger of a commercial firm. Needless to say he is the
head of the family and acts on behalf of other members, but he is not like a partner, as his powers
are almost unlimited. Undoubtedly, he is the master of the grand show of the joint family and
manages all its affairs and its business. His power of management is so wide and almost sovereign
that any manager of business firm pales into insignificance. The karta stands in a fiduciary
relationship with the other members but he is not a trustee.

Ordinarily a Karta is accountable to none. Unless charges of fraud, misrepresentation or conversion

are leveled against him. He is the master and none can question as to what he received and what he
spent. He is not bound for positive failures such as failure to invest, to prepare accounts, to save
money.

Karta may discriminate i.e. he is not bound to treat all members impartially. He is not bound to pay
income in a fixed proportion to other members. Even if he enters such an agreement /arrangement,
he can repudiate the same with impunity.

However large powers a karta might have, he cannot be a despot. He has blood ties with other
members of the family. After all he is a person of limited powers. He has liabilities towards
members. Any coparcener can at any time ask for partition. He obtains no reward for his services
and he discharges many onerous responsibilities towards the family and its members. His true legal
position can be understood only when we know the ambit of his powers and liabilities.

Karta’s Liabilities

Karta’s liabilities are numerous and multifarious:-

Maintenance: - In a joint Hindu family, the right of maintenance of all the coparceners out of the
joint family funds is an inherent right and an essential quality of the coparcenery. As Mayne puts it:
Those who would be entitled to share the bulk of property are entitled to have all their necessary
expenses paid out of its income. Every coparcener, from the head of the family to the junior most
members, is entitled to maintenance. A Karta is responsible to maintain all members of the family,
coparceners and others. If he improperly excludes any member from maintenance or does not
properly maintain them, he can be sued for maintenance as well as for arrears of maintenance.

Marriage: - He is also responsible for the marriage of all unmarried members. This responsibility is
particularly emphasized in respect of daughters. Marriage of a daughter is considered as a sacrosanct
duty under Hindu law. Marriage expenses are defrayed out of joint family funds.
 69

Chandra Kishore v. Nanak Chand (AIR 1975 Del 175):-In this case it was held that Karta is
responsible for managing the expenses of the marriage of the daughter from the joint family estate.
And in case marriage expenses are met from outside they are to be reimbursed from the joint family
funds.

Accounts at the time of Partition: - Partition means bringing the joint status to an end. On
partition, the family ceases to be a joint family. Under the Mitakshara law, partition means two
things: -

(a) Severance of status /interest, and

(b) Actual division of property in accordance with the shares so specified, known as partition by
metes and bounds.

The former is a matter of individual decision, the desire to sever himself and enjoy the unspecified
and undefined share separately from others while the latter is a resultant consequent of his
declaration of intention to sever but which is essentially a bilateral action.

Taking of accounts means an enquiry into the joint family assets. It means preparing an inventory of
all the items of the joint family property.

The Mitakshara Karta is not liable to accounts and no coparcener can even at the time of partition,
call upon the karta to account his past dealings with the joint family property unless charges of
fraud, misappropriation/conversion are made against him.

Powers of Karta:-

When we enumerate the powers of karta, the real importance of his legal position comes into clear
relief. His powers are vast and limitations are few. The ambit of his powers can be considered under
two heads: - (a) power of alienation of joint family property, (b) other powers. In the former
case, his powers are limited since a karta can alienate in exceptional cases. In the latter case his
powers are large, almost absolute.

Other powers of management: - As the head of the family, karta’s powers of management are
almost absolute. He may mange the property of the family, the family affairs, the business the way
he likes, he may mismanage also, nobody can question his mismanagement. He is not liable for
positive failures. He may discriminate between the members of the family. But he cannot deny
maintenance /use/occupation of property to any coparcener. The ever-hanging sword of partition is a
great check on his absolute powers. Probably, the more effective check is the affection and the
natural concern that he has for the members of the family and the complete faith and confidence that
members repose in him.

Power over income and expenditure: - It is the natural consequence of the joint family system that
the whole of the income of the joint family property, whosoever may collect them, a coparcener,
agent or a servant, must be handled over to the karta .It is for the karta to allot funds to the members
and look after their needs and requirements.
 70

The income given to the karta is an expenditure incurred in the interest of the family.

Jugal Kishore Baldeo Sahai v. CIT{ (1967) 63 ITR 238}:- In the present case, both the members
of the Hindu undivided family, who were the only persons competent to enter into an agreement on
its behalf, considered it appropriate that the karta should be paid salary at the rate of Rs. 500/- per
month for looking after its interest in the partnership in which it had a substantial interest because its
karta was a partner therein as its representative, and entered into an agreement to pay salary to him
for the services rendered to the family. The ratio of the above decision is, therefore, applicable to the
present case. Accordingly, the salary paid to him has to be held to be an expenditure incurred in the
interest of the family .The expenditure having been incurred under a valid agreement, bonafide, and
in the interest of and wholly and exclusively for the purpose of the business of the Hindu undivided
family, is allowable as a deductible expenditure under section 37(1) of the Indian Income Tax Act,
1922 in computing the income of the Hindu undivided family.

Power to represent in suits and other proceedings: The karta of a joint family represents the
family in all matters- legal, social, religious. He acts on behalf of the family and such acts are
binding on the family. The joint family has no corporate existence; it acts in all matters through its
karta. The karta can enter into any transaction on behalf of the family and that would be binding on
the joint family.

Dr. Gopal v. Trimbak (AIR 1953 Nag 195).:- In this case, it was held that a manager/karta can
contract debts for carrying on a family business/ thereby render the whole family property including
the shares of the other family members liable for the debt. Merely because one of the members of
the joint family also joins him, it does not alter his position as a karta.

Power of Compromise: - The karta has power to compromise all disputes relating to family
property or their management. He can also compromise family debts and other transactions.
However, if his act of compromise is not bonafide, it can be challenged in a partition. He can also
compromise a suit pending in the court and will be binding on all the members, though a minor
coparcener may take advantage of O.32, Rule 7 C.P.C., which lays down that in case one of the
parties to the suit is a minor the compromise must be approved by the court.

Power to refer a dispute to arbitration: - The karta has power to refer any dispute to arbitration
and the award of the arbitrators will be binding on the joint family if valid in other respects.

power to discharge debt: - The karta has an implied authority to contract debts and pledge the
credit of the family for ordinary purpose of family business. Such debts incurred in the ordinary
course of business. The karta of a non-business joint family also hasbinding on the entire family
the power to contract debts for family purposes. When a creditor seeks to make the entire joint
family liable for such debts, it is necessary for him to prove that the loan was taken for family
purposes, or in the ordinary course of business or that he made proper and bona fide enquiries as to
the existence of need. The expression family purpose has almost the same meaning as legal
necessity, benefit of estate, or performance of indispensable and pious duties.

Loan on Promissory note:- When the karta of a joint family takes a loan or executes a promissory
note for family purposes or for family business, the other members of the family may be sued on the
 71

note itself even if they are not parties to the note. Their liability is limited to the share in the joint
family property, though the karta is personally liable on the note.

Power to enter into contracts: - The karta has the power to enter into contracts and such contracts
are binding on the family. He has the power of giving receipts and compromise contract incidental
to business of family purposes. It is also now settled that a contract, otherwise specifically
enforceable, is also specifically enforceable against the family.

Who is Karta? under what circumstances he can alienate joint family property?jun.
2013,Marks:15

What are the circumstances under which a Joint Hindu Family property can be
alienated and by whom?who can challenge such alienations? Dec. 2012,Marks:15

Karta is the eldest male member of the family. He is the Hindu patriarch. Only a coparcener can
become Karta. Such unique is his position that there is no office or any institution or any other
system of the world, which can be compared with it. His position is sui generisie of his own kind or
peculiar to himself. Peculiarity lies in the fact that in terms of his share/interest, the Karta is not
superior and has no superior interests in the coparcenery. If partition takes place he is entitled to take
his share. He is a person with limited powers, but, within the ambit of his sphere, he possesses such
vast powers as are possessed by none else. His position is recognized /conferred by law. No stranger
can ever be qualified to be a karta, but an adopted son who is the eldest in the family can be
qualified

Power of alienation:- The karta has no power to dispose of the joint family property without the
consent of all members.The Dharma Shastra recognizes it. That in certain circumstances any
member has the power to alienate the joint family property. The Mitakshara is explicit on the matter.
According to Vijnaneshwara: ....even one person who is capable may conclude a gift, hypothecation
or sale of immovable property, if a calamity (apatkale) affecting the whole family requires it, or the
support of the family (kutumbarthe) render it necessary, or indispensable duties (dharmamarthe),
such as obsequies of the father or the like, made it unavoidable.

The formulation of Vijnaneshwara has undergone modification in two respects: -

1) The power cannot be exercised by any member except the karta.

2) The joint family property can only be alienated for three purposes: -

(a) Apatkale (Legal Necessity)

(b) Kutumbarthe (Benefit of Estate)

(c) Dharmamarthe (Religious obligations)

(a) Legal Necessity: - It cannot be defined precisely. The cases of legal necessity can be so
numerous and varied that it is impossible to reduce them into water–tight compartments. Loosely
speaking it includes all those things, which are deemed necessary for the members of the family.
 72

What need to be shown is that the property was alienated for the satisfaction of a need. However
,legal necessities are considered to certain extent are as follows;

i)Payment of government revenue and debts payable out of the family property.

ii) maintenance of copaceners and members of their families.

iii)marriage expences of coparceners

iv)performance of shraddha,funeral, and other religious ceremonies of the family members.

v)expences of necessary litigation relating to abduction of a female member or adoption of a son or

preserving the family property.

vi)costs relating to serious criminal charge against member.

vii)payment ofdebts incurred for family necessity or business.

viii)expences relating to means of livelihood.

ix)cost of building a residential house for family and expences towards repairs of family house.

x) a sale of joint family property by karta to mitigate different place for better living.

Dev Kishan v. Ram Kishan (AIR 2002 Raj 370):- Facts:- Ram Kishan , the plaintiff filed a suit
against appellants, defendants. Plaintiffs and defendants are members of a Joint Hindu Family.
Defendant no.2 is the karta, who is under the influence of defendant no.1 has sold and mortgaged the
property for illegal and immoral purposes as it was for the marriage of minor daughters Vimla and
Pushpa. The defendants contention was that he took the loan for legal necessity.Judgment: - The
debt was used for an unlawful purpose. Since it was in contravention of Child Marriage Restraint
Act, 1929, therefore it cannot be called as lawful alienation.

(b) Benefit of Estate:These are considered as follows:

i) advantageous property acquired in the interest of family.

Ii)sale of small shares in inferior land in three different villages to acquire a compact share in a
fertile land in one village.

Iii0sale of joint family property which is inconvenient and unproductive and investment on sound
property.

iv) residential house is purchased for mortgage.

v)sale of property which do not yield profit and purchase land yielding more profit.

vi)sale of dilapidated house belonging to family.

vii)a mortgage for making additions and improvement in house.

 73

(c) Indispensable Duties: - This term implies performance of those acts, which are religious, pious,
or charitable.

Vijnaneshwara gave one instance of Dharmamarthe, viz., obsequies of the father and added “or the
like”. It is clear that this expression includes all other indispensable duties such as sradha,
upananyana, and performance of other necessary sanskars. For the discharge of indispensable duties
the karta may even alienate the entire property.

A karta can even alienate a portion of the family property for charitable/pious purposes. However, in
this case, the powers of the karta are limited i.e. he can alienate a small portion of the joint family
property, whether movable/immovable.

Alienation Is Voidable

It may be taken as a well-settled law, that alienation made by karta without legal necessity / benefit
of estate/ discharge of indispensable duties is not void but merely voidable at the instance of any
coparcener.

In CIT v Gangadhar Sikaria Family Trust (1983) 142 ITR 677, the Gauhati High Court was
called upon to decide whether the Income-tax Officer can challenge the validity of an alienation by
the karta of a Hindu undivided family. The High Court held that under the Hindu Law, the karta of a
Hindu undivided family has an unfettered right to alienate the joint family property for legal
necessity and for the benefit of the estate or the family. It was further held that even if a transfer by
the karta were not for legal necessity or for the benefit of the estate, but if it is done with the consent
of the coparceners, it would be only voidable and not void ab-initio. It is clear that alienation by the
karta or manager of a joint family is voidable, but not void. Hence, a third party cannot repudiate it,
except in cases where there is a suggestion that it was in fraud on creditors.

DOCTRINE OF PIOUS OBLIGATION

Write short note on pious obligation jun.2013,Marks:5

Explain the doctrine of ‘piousobligation’.Discuss the liability of son to discharge

father’sdebts. Jun.2010.marka:15

Pious obligation includes both spiritual as well as material aspects and makes the heir(s)
responsible/liable for spiritual duties, like performing the last rites of the deceased, paying back
debts accrued by the deceased and also fulfilling other responsibilities left incomplete in respect of
the joint family. Once pious obligation is abrogated, the concept of joint family also suffers a blow.

"The doctrine of pious obligation under which sons are held liable to discharge their father's debts is
based solely on religious considerations; the doctrine inevitably postulates that the father's debts
must be vyavaharik. If the debts are not vyavaharik or are avyavaharik the doctrine of pious
obligation cannot be invoked." Avyavaharika debt includes ,debt taken for spirituous liquors ,
lust,gambling , unpaid fines and tolls, useless gifts and promises without consideration , commercial
debtsand suretyship debts.The principle relating to the liability of the sons for debts incurred by the
father may be briefly recapitulated.
 74

This liability of the sons, which had its origin in an obligation of piety and religion, has since
metamorphosed into one of legal liability but this 'does not, however, extend to debts tainted with
immorality.The liability is not, however, personal in the sense that the creditor of the father cannot
proceed either against the person or separate Property of the sons, but such liability is Restricted to
the interest of the sons in the family property.

It is settled that if the debt is contracted by the father after partition, the son cannot be made liable If,
however, the debt is a pre-partition debt, the share of the sons would be liable even after partition, if
the debts of the father are not immoral or illegal and the partition arrangement does not make any
provision for the discharge of such debts.

In case a creditor institutes a suit for the recovery of a debt against the father before partition and
obtains a decree, the sons would be liable to discharge the decree passed against the father even after
the partition. Even in respect of a pre-partition debt, if a suit is instituted against the father, after
partition, but he dies and his separated sons are impleaded as legal representatives, the remedy of the
decree-holder against the shares allotted to the sons on partition, would be in execution and not by
way of an independent suit.If, however, after partition, a suit is instituted against the father on a pre-
partition debt and a decree is obtained against him, such a decree cannot be executed against the
sons and a separate suit has to be brought against the sons in order to enable creditor to realize the
amounts out of their shares.

In Hindu law there are two mutually destructive principles, one the principle of independent
coparcenary rights in the sons which is an incident of birth, giving to the sons vested right in the
coparcenary property, and the other the pious duty of the sons to discharge their father's debts not
tainted with immorality or illegality, which lays open the whole estate to be seized for the payment
of such debts. According to the Hindu law givers his pious duty to pay off the ancestors' debts and to
relieve him of the death torments consequent on non-payment was irrespective of their inheriting
any property, but the courts rejected this liability arising irrespective of inheriting any property and
gave to this religious duty a legal character.

Son's pious obligation If a debt contracted by the father has not been repaid during his lifetime, by
himself, it must be restored, after his death, by his sons. Should they separate, they shall repay it
according to their respective shares. If they remain united, they shall pay it in common, or the
manager shall pay it for the rest, no matter whether he may be the senior of the family or a younger
member, who, during the absence of the oldest, or on account of his incapacity, has undertaken the
management of the family estate.

Mukherjea J., delivering the judgment of the Supreme Court in Sidheshwar v. Bhubaneshwar
Prasad , has once again discussed this question. According to the learned Judge, the doctrine of
pious obligation. "has its origin in the conception of Smriti writers who regard non-payment of debt
as a positive Sin, the evil consequences of which follow the undischarged debtor even in the after
world. It is for the purpose of rescuing the father from his torments in the next world that an
obligationis imposed upon the sons to pay their father's debts."

A series of decisions in the courts of modern India have changed the traditional interpretation of the
liabilities of the son, grandson, and great-grandson. The traditional distinction was that the son was
 75

liable to pay the principal and the interest, the grandson was liable to pay only the principal but no
interest, and the great-grandson was liable only to the extent that the paternal estate came into his
hands. The son, grandson, and the great-grandson are liable equally for ancestral debts, but not
personally liable, and that their liability is co-extensive and confined to the extent that they have
joint property in their possession.

It was not essential for the son to prove criminal liability against the father in respect of the debt in
question in order to claim exemption from payment of such debt. The learned Judge pointed out that
the son can claim immunity only when the father's conduct is utterly repugnant to good morals or is
grossly un-iust or is flagrantly dishonest.

PARTITION AND REUNION

Under Hindu Law once the status of Hindu Family is put to an end, there is notional division of
properties among the members and the joint ownership of property comes to an end. However, for
an effective partition, it is not necessary to divide the properties in metes and bounds. But under tax
laws for an effective partition division by metes and bounds is necessary.

Partition is adjustment of the divers rights regarding the whole by distributing them on particular
portion of the aggregate. Before partition the right of each co-owner extends over the whole
property. The effect of partition is to create in favor of each co-owner an exclusive right to a part in
lieu of the joint right which he previously possessed over the whole.

Having dealt with joint property and some of its aspects including its formation we come to the
aspect of dissolution of joint property into exclusively owned properties.

However, the Dayabhaga school applicable to Bengal, Assam and parts of Eastern India and the
Mitakshara school applicable to most of India differ in the concept of joint property. Under the
Mitakshara School the children are born with an interest in the property whereas in Dayabhaga
school the father is the absolute owner of the ancestral property. A partition in Mitakshara School is
one of the modes of acquisition of property whereas in Dayabhaga school it the outward
manifestation of a previous existing separate interests.

A partition may also be oral where it does not involve any exchange or transfer of property. A
family arrangement is an example of an oral partition. It is not required that such a partition should
be in writing or even registered. The test of whether a deed of family arrangement is compulsorily
registerable or not is that if the deed merely records the settlement it is not required to be registered
and if the partition is effected by the deed it is required to be registered.

A co-owner is entitled to demand a partition as a matter of right. When a co-owner demand a

partition and the demand is not acceded to the co-owner may file a suit for partition of the joint
property before an appropriate civil court. In such a suit the Court first passes a preliminary decree
declaring the respective shares of the co-owners. It then asks the co-owners to divide the joint
property by metes and bounds amicably. If they fail to do so the Court usually appoints and
Commission to make such a partition and place the report before the Court. Thereafter, the Court
gives a decision after hearing the parties. The Final order of the Court is engrossed on the stamp
 76

paper of appropriate value depending on the valuation of the property because under section 2(15)
the partition decree is an instrument of partition.

What is partition? Partition means bringing the joint status to an end. Under Mitakshara School,
partition means two things: (1) Severance of status or interest, and (2) Actual division of property in
accordance with the shares so specified, known as partition by metes and bounds.

Under Dayaghaga law, partition means only division of property by metes and bounds. Severance
of status is quite distinct from the de facto divisions into specific shares of the joint property. The
former is a matter of individual decision, the desire to sever himself and enjoy his hitherto undefined
and unspecified share separately from others, while the latter is a consequence of his declaration of
intention to sever but which is essentially a bilateral action. It may be arrived at by agreement, by
arbitration or by suit.

Definitions:

According to Mayukha he rightly explains that partition is only a particular condition of the mind
and mere intention to separate constitutes a partition.

In Anurango V/s Darshan (40 Bom LR 758 PC) held that Partition is a matter of individual
volition, and reduces the members to the position of tenant-in-common requiring only a definite,
unequivocal intention on the part of member to separate and enjoy his share in absolute severalty.

In Sarin V/s Ajit ZKumar (AIR 1966 SC 4350 the Court has held that having regard to the basic
character of the joint Hindu family property, each coparcener has an antecedent title to the said
property, though its extent is not determined until partition takes place.

The partition can be discussed under the following heads:

1. Subject matter of partition(property which is going to be divide)

2. Persons who have a right over property to partition and who are entitled to a share on
partition.
3. How partition is effected and mode of partition
4. Rules relating to the allotment of shares
5. Reopening of partition and
6. Reunion

A Hindu joint family consists of the common ancestor and all his lineal male descendants upto any
generation together with the wife/ wives (or widows) and unmarried daughters of the common
ancestor and of the lineal male descendants. A co-parcenery is a narrower body of persons within a
joint family. It exclusively consists of male members. A Hindu co-parcenery is a corporate entity,
though not incorporated. A coparcenery consists of four successive generations including the last
male holder of the property. The last male holder of the property is the senior most member of the
family. However, Section 6 of the Hindu Succession Act has been amended by the Hindu
Succession (Amendment) Act, 2005, and according to which, in a joint Hindu family governed by
the Mithakshara law, the daughter of a coparcener shall (a) by birth become a coparcener in her own
right in the same manner as the son; (b) have the same rights in the coparcenary property as she
would have had if she had been a son; (c) be subject to the same liabilities in respect of the said
 77

coparcenary property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be
deemed to include a reference to a daughter of a coparcener. Therefore, the line between the HUF
and coparcernery property has blurred. Now throughout India daughters shall have a share in the
coparcenery property and claim such share in partition.

The properties of a joint Hindu family is usually managed and administered by a member of the
family designated as the Karta. Traditionally Karta was the senior most functional male member of
the family. However, it is not necessary that every joint Hindu family should have a Karta or
manager, for instance a coparcenery of minors. The Karta cannot, however, alienate the joint
property except in the case of need for and / or for the benefit of the estate.

Notwithstanding that certain properties may be self acquired they may become the joint property of
the family if the same has been acquired out of the proceeds of the joint property or the acquirer of
the property waives of his right to own the property separately and throws it in the common pool.

However, the Dayabhaga school applicable to Bengal, Assam and parts of Eastern India and the
Mitakshara school applicable to most of India differ in the concept of joint property. Under the
Mitakshara School the children are born with an interest in the property whereas in Dayabhaga
school the father is the absolute owner of the ancestral property. A partition in Mitakshara School is
one of the modes of acquisition of property whereas in Dayabhaga school it the outward
manifestation of a previous existing separate interests.

Among the Muslims, Christians and Parsis the joint property is either the result of joint acquisition
by owners or the result of joint succession. The mode of enjoyment of joint property is often
contractual, express or implied.

Some aspects of joint property are as follows:- (a) The coowners are jointly and severally
responsible for any liability attached on the property (b) If one co-owner pays the entire debt to save
the joint property he is entitled to a charge on the other co-owner’s shares (c) costs of repairs have
to be shared between the co-owners but not the cost of any improvements (d) a co-owner’s
possession of joint property is on behalf of other co-owners and becomes a hostile possession when
he ousts them (e) lease by a co-owner is confined to his share (f) if the joint property is leased out by
the joint owners a partition among them does not affect the tenancy (g) any co-owner can send the
notice to terminate the tenancy, it is not necessary that all the co-owners send the notice (h) a co-
owner may transfer his share in the joint property and the transferee steps into the shoes of the
transferor having the same rights as the transferor

Having dealt with joint property and some of its aspects including its formation we come to the
aspect of dissolution of joint property into exclusively owned properties.

Partition is adjustment of the divers rights regarding the whole by distributing them on particular
portion of the aggregate. Before partition the right of each co-owner extends over the whole
property. The effect of partition is to create in favor of each co-owner an exclusive right to a part in
lieu of the joint right which he previously possessed over the whole.

As has been discussed hereinabove under the Mitakshara school of Hindu law partition is the
creation of self property whereas under the Dayabhaga school/Mahomedan/ partition is the allotment
 78

of separate portions of the property to each co-sharer corresponding to the shares already owned by
them. Under the Mitakshara school where there are several branches of a family each branch gets an
equal share. Thereafter, the members of the branch distribute it equally among each other.

A coparcener has merely to signify to the other coparceners his present intention to separate and
from the time such an intention is made known to the other coparceners his share is considered as a
separate property. However, Hindu law also recognizes partial partition whereby one or more
members of a joint family may separate but the rest of the members continue as a joint family. In
cases of written agreements effecting partition the separation takes places on the date of such
agreement. Partition may also be effected by applying to the court for a decree of
partition. Family arrangement is also one of the ways in which the shares in a joint property are
divided. It has two essential ingredients (1) the members of the family should have an interest in the
property (2) Division of shares is by way of an amicable settlement whereby none question the share
of the other.

When there is a mortgage of the interests of all the co-owners, such a mortgage is not affected by
the partition and the separate properties continue to be an indivisible mortgage security. However,
one co-owner creating a mortgage on the property cannot affect the interests of the other co-owners
by such mortgage. Similarly, easementary rights like right of passage, light etc are not affected by a
partition.

A partition may also be oral where it does not involve any exchange or transfer of property. A
family arrangement is an example of an oral partition. It is not required that such a partition should
be in writing or even registered. The test of whether a deed of family arrangement is compulsorily
registerable or not is that if the deed merely records the settlement it is not required to be registered
and if the partition is effected by the deed it is required to be registered.

Predominantly, the partitions are carried by way of a partition deed. Any instrument declaring and
effecting partition must be properly stamped and registered. The requirements of a partition deed
are (a) must contain an accurate description of the joint properties and the respective values (b) the
divided portions must be clearly demarcated (c) a person who receives a smaller share than due to
him must be paid owlety money (d) witnessed by two persons (e) properly stamped (f) registered.

A co-owner is entitled to demand a partition as a matter of right. When a co-owner demand a

partition and the demand is not acceded to the co-owner may file a suit for partition of the joint
property before an appropriate civil court. In such a suit the Court first passes a preliminary decree
declaring the respective shares of the co-owners. It then asks the co-owners to divide the joint
property by metes and bounds amicably. If they fail to do so the Court usually appoints and
Commission to make such a partition and place the report before the Court. Thereafter, the Court
gives a decision after hearing the parties. The Final order of the Court is engrossed on the stamp
paper of appropriate value depending on the valuation of the property because under section 2(15)
the partition decree is an instrument of partition.

RE-UNION

Even after a total partition, it is possible for the coparceners to reunite undoing the earlier partition
among themselves. The effect of such reunion is to bring back to life, the former status of the HUF.
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A reunion can only take place between persons who are parties to the original partition. If a joint
Hindu family separates, the family or any member of it may agree to reunite as a joint Hindu family.

The conditions precedent for a valid reunion under the Hindu Law are:

* There must have been a previous state of union. Reunion is possible only among persons who
were on earlier date members of the HUF.

* There must have been a partition in fact.

* The reunion must be effected by the parties or some of them who had made the partition.

* There must be a junction of estate and reunion of property because reunion is not merely an
agreement to live together as tenants in common.

Reunion is intended to bring about a fusion in the interest and in the estate among the divided
members of an erstwhile HUF once again. Therefore, reunion creates a right on all the reuniting
members in the joint family properties which is the subject matter of partition among them to the
extent they were not dissipated before the union.

There should, however, be a proper agreement between the parties so that the intention to revert to
the original status of the HUF is expressed clearly and unambiguously. The burden of proof of
reunion is on the party asserting the reunion and must be discharged along with proof by the persons
reuniting. It should also be remembered that if the partition comprising immovable properties was
by a registered deed then the reunion, which follows if it is to be valid in law, must also be effected
by a registered deed.

In a reunion, a few of the properties of the former HUF and also a few members of the former HUF
may remain out of the reunited HUF. Thus, one may observe that it is possible that a partial partition
which is not otherwise recognised by the tax law may to a limited extent be possible by the use of
the reunion of a HUF.

Business Line invites queries on personal taxation issues to this column. They will be answered in
the first Sunday's issue of Business Line every month. Queries may be addressed to Tax Talk,
Business Line, Kasturi Buildings, 859, Anna Salai, Chennai 600 002, or by e-mail to
rags@thehindu.co.in

RELIGIOUS AND CHARITABLE ENDOWMENTS

INTRODUCTION:- The Hindu society has always been, at least apparently, a religious society.
Therefore, there are innumerable religious and charitable endowments built here and there all over
the country. But strangely enough the legal literature of the subject is very meagre. It does not figure
in the eighteen topics listed of legal action listed by Manu.

In the case of Girjanund v. Sailajanund, {ILR (1896) 23 Cal 645, 650}.There is no treatise in it
unlike on subject of adoption and partition. This absence was for two reasons. First, the priests who
managed the institution has a high character giving little rise to disputes of claim. Dispute is the
mother of law, little dispute little law.
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Secondly, the religious endowments were regulated by their own customs and usage which were as
much binding as the smritis.Thus the law on the subjects has been largely constructed and developed
by the courts. The English judges who took considerable part in this job naturally introduced their
own ideas and ideals of such endowments. The Shastric Hindu law authorized the ruler to exercise a
right of supervision and protection over the management and functioning of the religious and
charitable endowments. The British asserted this right as rulers. They passed a number of
regulations and acts dating from 1810. They were revised and at present there are only two all India
enactments on the subject of endowment. The Charitable Endowments Act, 1890 and the Charitable
and Religious Trusts Act, 1920. The former relates to charitable endowments but not religious ones
and the latter touches both. These Acts are not comprehensive: they legislate on only a fraction of
the subject. Section 92 of the CPC also provides for instituting a suit for the proper management of
endowment.

THE HISTORICAL SIGNIFICANCE

It is certain that temples and Mutts did not exist in the Vedic period. In the Sutra period also mutts
did not exist, though it seems that temples in some form existed. Gautama Dharmasutra mentions a
temple of God at more than one place, but we do not know what type of temple that existed and
which were the deities that Hindus worshipped then. It is not easy to say when exactly idol worship
came into existence. It is certain that it did not exist in the Vedic period. The Hindus have been
worshipping Pouranic gods. The age of the Pourannas is uncertain.6 Between 4th century and 8th
century A.D., the worship of the pouranic gods became very popular. The Gupta Emperors were the
patrons of Pouranic faith. The idea of trinity of God- Brahma as God of creation, Vishnu as God of
preservation and Siva as the God of destruction is a Pouranic concept. With the emergence of idol
worship, there came to existence and dedication of property for the construction and maintenance of
temples, mutts and construction of idols. From this time onward Hindus have been dedicating
property for religious and charitable purpose. This has been mainly under two heads, Ista and Purta.
The former indicates the vedic sacrifices and rites associated with such sacrifices, while the latter
stands for all other religions and charitable acts and purposes unconnected with the vedic sacrifices.

The ista-purta have been considered as means for going to heaven. The istha works as enumerated
by Pandit Pran Nath Saraswati in his work on Endowments are- (a) Vedic Sacrifices, (b) gift offered
to priests at the vedic sacrifice, (c) preserving the Vedas, (d) religious austerity, (e) rectitude, (f)
Vaiswaradeva sacrifices, (g) Hospitality. The Purta works signify works of Public utility such as
building tanks, wells, groves, and the gift of food, dharmashalas, schools, asylums, supplying
drinking water, and relief for sick, gift for promotion of education and knowledge, temples and
processions of deities, etc. It is evident that no clear cut distinction was made between religious and
charitable acts. Hospitality was an Ishtha work and the construction of temples was a purta work.

The pouranas are said to be eighteen in no. and are attributed to sage Vyasa. Most of them seem to
be of the postBuddhistic compilations. The pouranas are a class of Hindu epic literature. They deal
with various matters such as exploits of gods, sages and kings how various Avatars of Vishnu came
of rites of worshipping gods and goddesses by praying, fasting, votive offering and pilramages, etc
of genealogies and cosmogony.5It is submitted that the philosophy that Hindu propounded the social
structure that they founded and the concept of law that they enunciated did not have any scope for
such distinction that we make today between religious objects and charitable objects. All objects of
dana enunciated by sages were meritorious as all dana led to heaven. In that context any distinction
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between the religious charity and the charity proper were wholly unfounded. Various types of gifts
were emphasized. But merely by making gifts of performing sacrifices, a charitable or religious
endowment does not come into existence. An endowment will come into existence only when some
property or fund is dedicated for a religious or charitable purpose or object.

ENDOWMENTS

Endowments are the dedication or entrustment of property either for a religious purpose or for a
charitable purpose or both: religious and charitable purposes. It may be called a religious
endowment or a charitable endowment depending upon its objects. In Dwarkanath v. Burroda,
(1878 4 Cal 443.) A Hindu who is of sound and not a minor may dispose of his property by gift or
will for religious and charitable purposes shall as the establishment and worship of an idol, feeding
the Brahmins and the poor, performance of religious ceremonies like shradh, endowment of a
hospital, etc. No list of what conduces to religious merit in Hindu law can be exhaustive. However,
when any purpose is claimed to be a valid one for perpetual dedication on the ground of religious
merit though lacking in public benefit, it must be shown to have a Shastric basis. The heads of
religious purposes determined by belief in acquisition of religious merit cannot be allowed to be
widely enlarged consistently with public policy and needs of modern society.

RELIGIOUS ENDOWMENTS ARE OF TWO KINDS:

1. PUBLIC ENDOWMENT
2. PRIVATE ENDOWMENT

In public endowment, the dedication is for the use or benefit of the public at large or a specified
class. But when property is set apart for the worship of a family God, in which the public are not
interested, the endowment is a private one. It has been held in the case of Bihar State Board of
Religious Trust V/s Ramashrey Prasad chaudhary (1973 BLJR 234) In a public trust the
beneficial interest is vested in an uncertain and fluctuating body of persons, either the public at large
or some considerable portion thereof answering a particular description, while in a private trust the
beneficiaries are definite and ascertained indiciduals, or who within a definite time, can be definitely
ascertained.

Requisites of a valid endowment: Following are the requisites of a valid endowment-

(1) The author or settler of the endowment must be competent to settle it.
(2) The object must be either religious or charitable or both.
(3) The dedication by the settler must be bona fide and unambiguous.
(4) The object or purpose of dedication must be definite or certain.
(5) The property dedicated must be ascertainable.
(6) The dedication must not be made in contravention of any provision of law. When the question as
to whether the endowment is real or fictitious, the mode of dealing with it by its donors and
successors is an important element for consideration.
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Doubt as to certain gifts- The High Court of Calcutta has expressed a doubt as to whether gifts to
Pandits holding tolls for learning in the country at the time of the Durga Puja, or for the reading of
the Mahabharata and Purana, or for the prayer of God during certain months are valid.

Superstitious uses not forbidden- in Juggut Mohini v. Sokheemoney, (1871 14 MLA 289 &
301)The English law relating to superstitious uses does not apply to Hindu religious endowments.
Thus, a gift in favour of an idol or for the performance of the worship of a deity is valid according to
the Hindu law, though it may not be valid according to the English Law. Disposition for religious
purposes are highly favoured by Hindu law and the learning of the court is also in the same
direction. Dedication of property by a Hindu to a deity is not only lawful, but also commendable in a
high degree from the Hindu point of view.

THE NEW LEGISLATION

A number of statutes have been enacted by State legislature in the last few years dealing with
religious and Charitable trusts and endowments. The validity of the provisions of a number of them
has been challenged under various Articles of the Constitution and courts have considered those
provisions inter alia in context of property of the trust or endowments, deities, idols, temples and
institutions as also the income and management of the property and affair of the same including the
right to and management of the worship of certain deities and idols. It is not necessary in this
chapter to refer to those decisions in any detail or to the constitutional questions raised and it will
suffice only to mention several decisions.

Competence of an Endower A person who has the following three qualifications can donate his
property for an endowment by a gift inter vivos or by testamentary disposition.(a) Age of
Majority- He must have attained the age of majority. It is not the Shastric Hindu law which decides
the age of majority here. There is no statutory provision also for this purpose under any act relating
to the personal Hindu law. The age of majority here is to be settled by the provisions of the Indian
Majority act, 1875. Section 7 of the Indian Trusts Act, 1882 provides that a trust may be created by
or on behalf of a minor also with the permission of a principal civil court of original jurisdiction. But
that does not govern the public or private religious endowments. Hence, a minor is totally
incompetent to settle or create a religious or charitable endowment.(b) Mental Soundness- He must
be of a sound mind. Here, the law as laid down in Section 12 of the Indian Contract Act, 1872 is to
be followed. The settler is of a sound mind if at the time he endows the property, he is capable of
understanding it and of forming a rational judgment as to its effect upon his interests. A person who
is usually of unsound mind but occasionally of sound mind may settle his property for an
endowment during a lucid interval. Similarly, a person who is usually of sound mind but
occasionally of unsound mind is not capable of making the endowments when he is of unsound
mind.(c) Right over Property- An endowment is made by making a gift of ones property either inter
vivos or by ones will. In Durga Prasad Mullick v. Sri Rameshwar Jew Siba Thakur, (AIR 1981
Cal 92). The Court has held that the settler must respect the limitations, restrictions and conditions
imposed upon him while making a donation by gift or will for an endowment. It was held by the
Calcutta High Court that an endowment by a Hindu Widow in 1948 was invalid because she
exceeded the reasonable limits within which she could endow out of her Hindu womens estate.

Religious or Charitable purpose:- The purpose of an endowment may be either exclusively

religious or exclusively charitable or both braided together. It is difficult to define which are
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religious purposes exclusively. The religions are all pervasive and consider nothing to be out of fold
of religious purposes. But the secular and scientific thinkers limit the bounds of religion to what is
considered as the other- worldly and spiritual affairs. Even if the ultimate aim is the good of human
beings or any other creatures they are charitable purposes and not religious ones. The religionists
hold the charitable purposes also as religious purposes and vice versa.

(i) Ishta-Purta- The Hindu Shastras make little distinction between religious and charitable
purposes. They describe religious purpose by the concept of Ishta-Purta. Prannath Saraswati has
perused the Hindu shastras in his Tagore Law Lectures on the Hindu Law of Endowments and
compiled the following as the ishti deeds which include Vedic sacrifices, gifts offered to priests at
the vedic offerings (Yajna), Preserving the Vedas, Religious austerity, Rectitude, Vaisvadara
sacrifices and hospitality. While the Purta deeds included Gifts offered outside the Yajna ground,
gifts offered in an eclipse or solstice, the construction of well or tank, the construction of temples for
the gods, the gift of food, and the relief for the sick. The distinction between the Ishta and Purta is
that the former is vedic and the latter is based on the smritis. According to Yama, smriti-writer,
heaven is attained by Ishta and one gets emancipation by Purta. Eg- the Ardajame Kattalai grants in
South India, which is an endowment for midnight service.

(ii) Religious purpose under Hindu religion- There are several religions in the world. Mostly they
agree among themselves but there are areas of disagreements also. Therefore what is a religious
purpose according to the Hindu religion has to be decided by the Hindu religion itself. If a purpose
is not considered as religious by Hinduism, it cannot be admitted as a religious purpose simply
because some other religion considers it to be so. The Supreme Court has made it clear in the case of
Saraswati Ammal v. Rajagopal Ammal (AIR 1953 SC 491,494) that “now it is correct to say that
what is a religious purpose under the Hindu Law must be determined according to Hindu notions.”

(iii) English Law- The English Law includes the religious endowments within the meaning of
„charitable endowments. In his celebrated judgment in Income Tax Special Purposes
Commissioners v. Pemsel (1891 A C 531, 583), Lord Macnaghten grouped the charitable purposes
under the following heads: Relief of Poverty, education, the advancement of religion, and other
purposes beneficial to the community not coming under any of the proceeding heads. In Guramma
v. Mallappa, (AIR 1964 SC 510).Thus the Indian Law and the English Law are inclined not to
separate the religious and charitable purposes. The former includes charitable within the meaning of
the religious while the latter does it otherwise. In the Hindu Public v. Rajdhani Puja
Samithee(1999 2 SCC 583.), the Supreme Court held that under the Societies Registration Act,
1860 “charitable purposes” include religious purposes. The only condition is that it should be for the
benefit of the public.

(iv) Separation between religious and charitable purposes- Theoritically speaking, the distinction
and separation between the exclusive religious purposes and the exclusive charitable purposes is the
contribution of the scientific and secular philosophies. They hold that all the purposes which have
been traditionally claimed as religious purposes by the religions of the world are essentially not
religious purposes. The purposes which relate to the management of our life here in this world are
not religious. If they purport to promote the well- being of mankind or even other creatures without
profit motive they are simply charitable and can be severed from the religious purposes.
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The religious purposes are exclusively those which relate to the other world: the relation between
man and God. It is submitted that it would be profitable if we treat these purposes as separate. It will
enable the State to prevent mismanagement of those affairs of the endowments which are not
spiritual and divine. In India, a proper recognition is being given to the distinction between these
two purposes. The Charitable Endowments Act, 1890 does not include the purposes which relate
exclusively to religious teaching or worship within the meaning of the charitable purposes. It
includes within the charitable purposes the relief of the poor, medical relief and the advancement of
any other object of general public utility.

(v) Legislature on religious or charitable purposes- The ultimate decision on whether or not an
endowment is religious or/and charitable rests not with the settler but with the legislature and the
court. The definition of charitable and religious endowments as given in the Rajasthan Public Trusts
Act, 1950 may be taken as a model for the legislatures understanding of these endowmwents,
“Section 2(3) „Charitable Endowments means all property given or endowed for the benefit of, or
used as of right by the community or any section thereof for the support or maintenance of object of
utility to the said community or section such as rest-houses, pathshalas, schools, colleges, houses for
feeding the poor and institutions for advancement of education, medical relief and public health or
other subjects of a like nature and includes institutions concerned. Section 2(13) „Religious
Endowments or endowments means all property belonging to or given or endowed for the support of
a religious institution or given or endowed for the performance of any service or charity connected
therewith and includes the premises of the religious institution as well as the idols, if any, installed
therein and nay public charity associated with a festival or observance of a religious character
whether connected with a religious institution or not, but does not include 20 Section 2(15) of the
Inco me Tax Act, 1961 defines charitable purposes:”Charitable purpose includes relief of the poor,
education, medical relief and the advancement of any other object of general public utility not
involving the carrying on of any activity for profit.”12gifts of property made as personal gifts to the
trustee or hereditary trustee or working trustee of such institution or to any service holder or other
employee thereof.”

(vi) Courts on Religious and Charitable purposes- In the cases of Saraswati A mmal v.
Rajagopal A mmal, (AIR 1953 SC 491). the court held the endowment to be for religious purposes
under the Hindu Law: for the worship of the family deity for the performance of the shradha of ones
self and of ones ancestors, for the propagation of Nama Dharma and continuance of Sarban Kirtan
Dharma for the shelter of sadhus, saints and religious mendicants.In the case of Malayammal v. A.
Malayalam Pillai, (1991 Supp (2) SCC 579.) the object of the endowment was held not to be
religious or charitable: entombment of the settler and worship at his tomb. The Supreme Court held
that the entombment of ordinary individuals is not enjoined by the Hindu Shastras, nor does it enjoy
wide recognition as a religious practice of a substantial and large class of persons. But if the
Samadhi is that of a great saint who is deified and worshipped, it is a valid endowment.

Endowments- how to be created: in Maddun Lal v. Ko mul Bibee {(1867) 8 WR 42}.No writing
is necessary to create an endowment except where the endowment is created by a will, in which case
the will must be in writing and attested by at least who witnesses if the case is governed by the
Indian Succession Act, 1925, s.57. In Sooniram Ramn iranjendrass v. Alogu Nachyar Koli
{(1939) Rang 59.13} held that a mere entry in the account of a firm of moneylenders showing that
the firm is indebted to the temple followed by creating of interest does not create an endowment. A
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Hindu who wishes to establish a religious or charitable institution may according to his law express
his purpose and endow it. A trust is not required for that purpose. All that is necessary is that the
religious or charitable purposes should be clearly specified and that the property intended for the
endowment should be set apart for or dedicated to those purposes. In SNP Nadar v. TPT Charity,
(AIR 1971 Mad 253). Held that even in the case of a dedication to an idol which cannot itself
physically hold lands, it is not necessary, though it is usual to vest the land in trustees. Nor it is
necessary that there should be any express words of gift to the idol. Ram Janki v. State, (AIR 1992
Pat 135.) held that no religious ceremony such as sankela, samarpan or pranapratishta is necessary
and a clear and unequivocal manifestation of intention to create a trust vesting of the same in the
donor or another as a trustee is enough to constitute dedication. Such a dedication is valid, but the
subject of the endowment has to be certain. In Narshimha v. Venkatalingu.M, {(1927) 50 Mad
687} held that the Indian Trusts Act does not apply to public or private religious or charitable
endowments. The Transfer of Property Act 1882, s.123- it has been held by the High Court of
Madras that a dedication of land for a public temple is not a gift within the meaning of s. 122 of the
Transfer of Property Act.

The provisions therefore of s. 123 of the Act, which require a gift of land to be effected by registered
instrument, do not apply to such a dedication. In Dasami v. Paran, {(1929) 51 All 621.14} Further,
held that section 5 of Transfer of Property Act which states that “transfer of property” means an act
by which a „living person‟ conveys property, in present or in future, to one of more other „living
persons‟, or to himself, or to himself and one or more other living persons, and “to transfer
property” is to perform such act. Hence this provision does not apply in the case of Hindu
Endowments. A valid endowment once created cannot be revoked by the donor.

THE PRINCIPAL HINDU ENDOWMENTS:- There are several forms of endowments accredited
by Hindu religion and the Hindu notions of charity and benevolence. In the case of Hindu Public v.
Rajdhani Puja Samithee, {(1999) 2 SCC 583}. Held that the idol, Math, Ghoshala, dharamshala,
well, baoli, tank or pond, orchard, grove or garden, etc. The Supreme Court has held that library,
mandap, garden, shops and office rooms are meant for religious purposes of the Hindu community.
However, the most important and popular of them are only two, the idol and the math. They
represent the two paths of spiritualism. The idol stands for the path of devotion and the math
represents the path of knowledge as the two are different means for salvation of the human soul.

DEBUTTER- ENDOWMENTS IN FAVOUR OF IDOLS AND TEMPLES

Idol worship prevails among the Hindus. The devotees believe the idol to be real form of their god.
They pray and worship it as if it entertains those expressions of their devotion. Though the Hindu
philosophers always held that it is an inferior kind of spiritualism, because it evidences only mental
smallness or retardation to think that the Creator of the limitless universe and the omnipresent God
can be bound in a small idol or image, yet the Indian landscape if full of innumerable temples of
numerous Gods and Goddesses. Some of them are very rich owing immeasurable movable and
immovable wealth and the enthusiastic devotees brave all troubles to visit them. Though there are
different forms of Gods yet the Hindu idea is that there is no superiority or inferiority amongst
different Gods. The Supreme Court has held in Ram Jankijee Deities v. State of Bihar, {(1999) 5
SCC 50.15} that there cannot be any fake deity. If two deities are established by a single person and
they come to be managed by a single Sevayat, they remain separate and both of them are entitled to
property separately under the ceiling laws.
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Legal Personality of Idol:-The idol has been recognized by Hindu law as a juristic person. It is not
an ordinary chattel.

Law recognizes all those entities as legal persons who can sue or be sued in a court of law- whether
by themselves or through the medium of a guardian or manager. Generally, the capacity of suing or
being sued is possessed by human being but law confers this capacity upon other institutions and
things also. In the ancient Roman law also we find that legal personality was conferred upon certain
institutions.

The idol is an example of the non- human legal personality under Hindu law. As a legal person it
can own property. A temple is the property of the idol. It must be noted here that a temple is not a
juridical person. It is the house of the idol. It may be known by a different designation. It is used as a
place of religious worship. Besides a temple, the idol may own other articles of movable and
immovable property are the income of the idol. The Supreme Court held in Yogendra Nath Naskar
v. CIT {(1969) 1 SCC 555, 560}.“There is no principle why a deity as such a legal person should
not be taxed if such a legal person is allows in law to own property even though in the ideal sense
and to sue for the property, to realise rent and to defend such property in a court of law again in the
ideal sense.” The court reiterated this position in the Official Trustee of W.B for the Trust of Chitra
Dassi v. CIT{(1974) 3 SCC 616.16}“….as a Hindu deity can hold property and be in receipt of
income and can also sue and be sued in a court of law there is no reason why its income should be
held to be outside the ambit of taxation of it can be brought within it without straining the language
of the statutory provisions. It would naturally be taxed through its shebaits who are in possession
and management of its property.”

Kinds of Idols

Idols or images are of several kinds. The first classification is made by the Padma Purana into the
self-created and the consecrated idols or images. If people find any shape which is naturally
inscribed on a piece of stone or wood and make it an object of worship, it is known as the self
created image or idol. It is called Anadi, i.e. without a beginning. It is not made but is only
discovered. It needs no consecration. Any idol or image which is made of inscribed on stone or
metal or clay or wood or is drawn on a piece of paper by a human being and which is consecrated
for worship, is known as the consecrated idol or image. The Gautam‟s tantras divide the manmade
idols into Lepya and Lekhya. The Lepya images are the moulded figures of metal or clay. The
Lekhya images are the pictorial images drawn on wood or metal or paper. The Matsya Purana has
classified the images into four kinds. (i) Inscribed on cloth, wall or utensil, (ii) moulded from clay,
(iii) moulded from metal, and (iv) chiseled on wood or stone. Yet another classification is made
between permanent and temporary images. The temporary images are prepared for a particular
occasion. They are offered to water after they have been worshipped.

Consecration of Idol:- Excepting the self-created idols, consecration imparts legal personality to
the images. An image is neither an object of worship nor a legal person before consecration. All
kinds of images, whether self-created or consecrated, Lepya or Lekhya, permanent or temporary are
capable of being clothed with justice personality.

Destruction of Idol:- The endowment does not come to a end with the destruction of the idol. A
new idol of the same deity may be consecrated for the idol which is destroyed or burnt or broken.39
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If the idol is unhurt it cannot be replaced by any other Idol.40But the unhurt idol also needs re-
consecration if it falls from its place, or is removed there from or is touched by an animal or an
outcaste or the hymns prescribed for another deity are recited before it. By these incidents, the idol
is defiled and it is believed that the deity leaves the idol. The deity returns when it is purified and
consecrated again. What is the effect if the broken and mutilated idol is not reconstructed or if the
defiled one is not re-consecrated? It is believed that re-consecration of an idol has religious
significance. If it is not so done the idol remains unsuited for worship. But it is submitted that it does
not affect the legal personality. A failure in the re-consecration is an act of mismanagement. On this
ground the person responsible for the management may be sued.

Removal of Idol:- An idol cannot be removed from its permanent place. In Narayan
Bhagwantrao v. Gopal Vinayak, (AIR 1960 SC 100, 112.18) that is tantamount to the construction
of a new temple. However, if the public agrees, it may be removed temporarily for a good reason,
e.g. flood, or earthquake or any other contingency. If the whole body of worshippers is of one mind,
the idol can be permanently removed to another habitation.

Property of Idol:- The property of an Idol is known as the Devottar. It can come into existence
once even before the consecration of the Idol, its owner. This is a special rule of Hindu Law The
purpose of having this rule is that sometimes the Idol is constructed or purchased on consecrated
with the help of its own Devottar property. If the existence of the Devottar property of an idol is not
recognized before the latter comes into existence the endowment may not be created. This special
rule has entered into the law of gifts and will also. The general rule is that no gift or will can be
made in favour of a non-existing entity. But when a gift or bequest is made for an idol, it is valid
even when it is not in existence at the time the gift is made or the bequest takes place.

MATHS

In its ordinary parlance math means an abode or residence of ascetics. In its legal connotation it is a
monastic institution presided over by its head known as mahant, a superior ascetic and established
for the use and benefit of ascetics, generally or of ascetics belonging to a particular, ordinarily the
disciples of the mahant. The basic purpose of a math is to encourage and foster spiritual learning and
knowledge by maintenance of a competent line of teachers who impart religious knowledge to
disciples and followers of the Math and strengthen the doctrine of the sect or school to which Math
subscribes. The presiding element in a math is the mahant or the religious teacher. Even when a
temple is attached with a math, the presiding element in the math remains the mahant. It is in the
Debutter that the presiding element is the idol. A math comes into existence when dedication of
properties is made to Math. A math may also come into existence as an off-shoot of an already
existing math. In such a case the second math is subordinated to the parent math and the latter
exercises some control over the former. There are several types of maths existing in our country.
Each of them is governed by its own customs and usages. Broadly speaking, Maths are of three
types: Mourushi Math, when the office of Mahant is elective and Hakimi math, when the founder
has reserved the power of nomination of mahant.

Property of a math vests with the Math:- The mahant is the head of the Math, but the property
dedicated to a math does not vest in him. The Hindu law like the Roman law recognizes not only
corporate bodies with right of property vested in the corporations apart from its individual members,
but also juridical person or subject called foundation. When property is dedicated for a particular
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purpose, the property itself gets impressed with that purpose, is raised to the status of a juristic
person and can become in law, the bearer of rights and duties. In Vidhyavaruthu v. Baluswami,
{(1921) 48 I.A. 302.19}Thus the endowed property in the case of a Math vests in the Math itself as a
juristic person and not in the mahant. In Shri Krishna v. Mathura, (1972 A.L.J. 155). A math is a
juristic person and is capable of acquiring, holding and vindicating legal rights through the medium
of some human agency which is ordinarily the agency of mahant. However the terms of a grant may
provide differently and may law down that the property will vest in an individual or a committee or
a body of trustees. In that case the property will vest accordingly.

Legal Position of Mahant: The mahant is neither a trustee nor a corporation sole. He is just the
manager of the math with wider powers than those possessed by a manager, trustee or dharmakarta
of a temple. He has dual capacity. He is the manager of properties and the spiritual head of the Math.
In Ram Prakash v. Anand Das, {(1916) 43 I.A. 73.} the Privy Council observed: “the Mahant is
the head of the institution. He sits upon the gaddi, he initiates the candidates into the mysteries of the
cult, he superintends the worship of the idol and the accustomed spiritual rites, he manages the
properties of the institution, and he administers its affairs.” In Vindhyawanuthi v. Balusani{(1921)
48 I.A. 302.} the Privy Council said, “Called by whatever name, he is only a manager and custodian
of the idol or institution. In almost every case he is given the right to a part of usufruct, the mode of
enjoyment and the amount of the usufruct, depending again on the usage and custom. In no case the
property is conveyed to or vested in him, nor is he a trustee in the English sense of the term,
although in view of the obligations and duties resting on him, he is answerable as a trustee in the
general sense for maladministration. This position clearly emerges from his power and functions.
When the Mahant himself is guilty of mismanagement or misappropriation, a suit can be filed by
any person interested in the endowment. In Thenappa v. Karruppan, the Supreme Court held that
even in the case of a private trust, a suit can be filed for the removal of the trustee or for the
settlement of a scheme for the purpose of effectively carrying out of the object of the trust. If there is
a breach of trust in the mismanagement on the part of the trustee, a suit can be brought by any
person interested in the Math and in the proper administration of endowment.

Termination of Mahantship:- Apart from the termination of mahantship on the death of the holder
of the office, there are other ways also by which the mahantship may be terminated. The mahantship
may be terminated-(a) By relinquishment of the office by mahant during his lifetime(b) By
supervising disability of mahant- The matter is not free from doubt. Incurring of a subsequent
disability law by a mahant does not amount to automatic forfeiture of office. His removal will be
necessary.(c) By removal- A mahant may e removed from his office on account of his mental
infirmity, bodily disease or on account of mismanagement or waste. He may also be removed if he is
leading an immoral life, or is acting contrary to the tenets or usage of the math.

3. CHARITABLE ENDOWMENTS

Under Charitable endowments are included all the endowments recognized under Hindu Law
except the Debutter and Math. A Hindu can make a gift for the ishta and the purta. The usual
charitable gift or bequest for charitable purposes are the institution of the dharamshala, annastrams,
Sadavarts, for the establishment or maintenance of educational and medical institution, for
construction and maintenance of source of supply of water, such as tanks and wells, bathing ghats,
etc. A Hindu can create a charitable trust for any of these purposes. He may also dedicate property
for any of these purposes and create an endowment. Such dedications are made by the usual
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ceremony of sankalpa and utsarga, though as has been pointed out earlier that no particular
ceremonies are obligatory. It will be very interesting to know in whose name the property actually
vests when a dedication is made for a tank, well, grove or dharmashala. When dedication to tanks
and trees is made, private ownership ceases, but the question of the property vesting in a corporate
body or institution does not arise. Nor does the question o f administration of such property
arise.51We may discuss dedications to some of these objects-1. Tanks and wells- The excavation of
tanks and wells has been a charitable purpose recognized in Hindu law from the beginning. It lists at
the forefront of the purta works. In the Vishnu Dharamashula, a passage runs: “as there is no
sustaining of life in both words without water, the wise man should always construct reservoir of
water. A well is equal to Agnistoma sacrifice, in a desert it equals the Aswamedha. The well flowing
with drinking water destroys all sins. The well maker, attaining heaven, enjoys all pleasure.”
Elaborate ceremonies are for the dedication of tanks and wells.

In Hindu law, grant of land for the construction of a water reservoir is also va lid. In Kamaraju v.
Subcollector, Urgole (1971 S.C 563.22)certain lands as inams were granted for the repairs and
maintenance of a tank. The question arose that what was the effect on this inam of the Andhra Inams
(Abolition and Conversion into Ryotwari) Act, 1956? The Supreme Court held that grant of the land
for the maintenance of the tank is a charitable purpose and for the purpose of the act the tank is an
institution. With the abolition of Inam the property of tank gets converted into Ryotwari land to be
managed by its manager, though it will be registered in the name of the Tank. The Court left open
the question whether tank is a juristic person.Groves and Trees- The consecration of trees and
groves is also a recognized charitable purpose from the earliest times. According to the
Mahabharata, “The trees honour the Gods with flowers, the names with fruits, the guests with shade.
The planter of trees procure the salvation of his deceased ancestors as well as those of succeeding
future generations.” The same is true for groves and such dedications are valid. In Chandra v.
Jnanendra, the Calcutta High Court held a dedication of a piece of land upon which group of five
trees, known as panchvati, was planted. Elaborate ceremonies for the consecration of trees and
groves are provided. Dharmashalas or Rest houses- Construction of dharamshalas too has been a
popular object of a charitable endowment from time immemorial. A dharamshala is a rest house. In
South India it is known as Choultry. In the choultries sometimes food is also provided for travelers.

In the ancient times they were known as Pratikshaya Griha.The property dedicated to the
Dharamshala vests in the dharamshala itself. The management of the dharamshala may vest in the
founder or may vest in other person or a committee. Our country abounds in dharamshalas. The
benefit of a dharamshala may be available to the public in general or it may be restricted to members
of a community or followers of a particular religion. Even in the latter case it will not distract from
the charitable nature of the dedication. Once dedication is made absolutely, it is not revocable. In
Shri Ram Krishana Mission v. Dogar Singh, (1984 All. 72.23)The provisions of the Indian Trusts
Act or the Transfer of Property Act do not apply to dedication of property to Hindu endowments.
Hospital, educational institutions and ghosalas- Gifts for education have always been placed on a
high pedestal. It is known as artidan or supreme gift. Imparting of free education has been the
cherished object of Hindus throughout the ages. The same is true of hospital and dispensaries known
as arogashalas. In the Nandi Purana we have the following passage: “One must establish a hospital
furnished with valuable medicines and necessary utensils placed under an experienced physician and
having servants and rooms for the shelter of patients.” Hindus hold the view that a person who
consecrates a hospital is the giver of everything. Bequest for hospitals and schools can be validly
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made. In the University of Bombay v. the Municipal commissioner(16 Bo m. 217)., the question
before the court was whether a university which did not impart any instructions but merely granted
degrees to those who attained a certain standard was a valid endowment? The Bombay High Court
held that it was. In D.A.V College v. S.N.A.S.H.S School, (1972 P AND H, 215.) a full bench of the
Punjab and Haryana High Court held that an educational institution or school, the object of which
is charitable or religious under Hindu law will be regarded as juristic person capable of holding
property. A Hostel attached to an educational institution is a valid charitable purpose.The
establishment and maintenance of ghosalas is a valid charitable purpose.585. Sradha and Sadabrats-
The sradha or oblations to departed ancestor is considered to be one of the obligatory duties of every
Hindu. A hindu often by an act inter vivos or by a bequest creates an endowment of the purpose of
the performance of his sradha after his death or for the performance of the sradha of his ancestors.
Such endowments have been held valid since very early times. In Dwarka Nath v. Bysack {(1875)
4 Cal. 443.} a testator provided inter alia, “I do direct my trustee to spend suitable sums for annual
sradha or anniverseries of my father, mother and grandfather as well as of myself after my demise,
for the performance of the ceremonies and the feeding of the Brahmins and the poor.” The bequest
was held valid.The Sadabrat is the free distribution of food and alms to the needy and poor. Langars
and annastras are species of sadabrat. An endowment for the sadabrat has been all along held. In
A.G. v. Strangman. an Annacharta was held valid. According to the Court, “An Annacharta is an
institution for distribution of food to Brahmins an mendicants, and varies from sadabrat in a
particular case which is immaterial. A gift to sadabrat has been held god.” 6. Reading of sacred
books and gift to Brahmins- Endowments for reading of sacred books and for gifts to Brahmins has
been also very popular among Hindus. In Dwarka v. Burodad{ (1875) 4 Cal. 443}., a testator gave
the following direction: “I do direct my trustee to…spend suitable sums for the perusal of the
Mahabharata and the Puranas and for the prayer of God during the month of Kartick.” The bequest
was held valid. In Kedar v. Atal {(1908) 12 C.W.N. 1083.25}, Fletcher J. observed, “The testator
was a hindu and his will must be construed with reference to Hindu Law. There can be no doubt
that the feeding and paying of the Brahmins would be in accordance with Hindu ideas of meritorious
act.”
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UNIT-IV

INHERITANCE:

We now come to the rules of inheritance. Here there is a divergence of principle between the two
schools. The Mitakshara prefers all male agnates, however remote, to any cognate, however near,
except the daughter's son. And, except under the Maharashtra sub-school in western India, which
does place some women in a more favoured position, the only women it brings in as near heirs are
the widow, daughter, mother, grandmother and great-grandmother. The basis of the scheme is
preference by nearness of agnate relationship. The scheme of the Daya Bhaga is based upon efficacy
of offerings made to the deceased, in fact it holds that the heir gets the estate because he makes the
offerings. No doubt the ancient rule, as Mayne surmises, was that the duty to make the offerings fell
upon the person taking the estate. But, for the benefit of the priesthood, the later ecclesiastical
theories of the Brahmans put all the stress upon the offerings, and said that the estate followed them.
This theory brings in some cognates in preference to more remote agnates.

There are three grades of offerings, the full cake, or Pinda, those making it being called Sapindas,
the offerings of crumbs made by Sakulyas, and the offerings of water made by Samanodakas. The
cake offering is made for three generations, and the crumb offering for three more. The leading rule
is that a Hindu has to make the cake offering to his father, his father's father, and his father's father's
father, and also to his mother's father, his mother's father's father, and his mother's father's father's
father. It is of importance that he does not make offerings to his father's mother's father, and so on.
A man is Sapinda to his sons, to their sons, and to their grandsons, as well as to his three direct
ancestors. And he is Sapinda to the three generations in the direct male line from his Sapinda
ancestors, paternal and maternal. Except in the case of the daughter's son, the claims of all connected
with the deceased through a woman on the ground of sapindaship are rejected by the Mitakshara in
favour of agnates however remote. But the Daya Bhaga admits these claims with the result, so far as
the inner circle of heirs are concerned, of bringing into it sister's son, father's sister's son, and
grandfather's sister's son. This inner circle includes those related to the deceased by being descended
from a common great-grandfather, or nearer relation, by agnation, and when we get beyond it the
differences between the two schools become much greater, for then the Daya Bhaga's preference of
all who offer the full cake over all who offer only crumbs, and its doctrines about mutual
sapindaship, and about the effects of sapindaship to the same person, have more far-reaching effect.

HINDU SUCCESSION ACT,1956

Explain the SALIENT FEATURES OF Hindu succession Act 1956 june 2013
Dec.2012,marks;15

The Hindu Succession Act, 1956, is a law that was passed by the parliament of India in 1956 to
amend and codify the law relating to intestate or unwilled succession, among Hindus. The Act lays
down a uniform and comprehensive system of inheritance and applies to persons governed by both
the Mitaksara and Dayaghaga schools It is hailed for its consolidation of Hindu laws on
succession into one Act. The Hindu woman's limited estate is abolished by the Act. Any property
 92

possessed by a Hindu female is to be held by her absolute property and she is given full power to
deal with it and dispose it off by will as she likes.

The Hindu Succession Act is applicable to any person who is a Hindu. This includes the followers of
the Brahmo, Prarthana and Arya Samaj. Further, it also includes Buddhists, Jains and Sikhs within
its ambit. In case there are others who might not be covered under these categories than any other
person who is not a Muslim, Christian, Parsi or Jew by religion would be covered unless it is proved
that such a person would not be governed by Hindu law.

1. Short title and extent

(1) This Act may be called the Hindu Succession Act, 1956.
(2) It extends to the whole of India except the State of Jammu and Kashmir

2. Application of Act

(1) This Act applies-

(a) To any person, who is a Hindu by religion in any of its forms or developments including a
Virashaiva, a Lingayat or follower of the Brahmo, Prarthana or Arya Samaj;

(b) To any person who is Buddhist, Jaina or Sikh by religion; and

(c) to any other person who is not a Muslim, Christian, Parsi or Jew by religion unless it is
proved that any such person would not have been governed by the Hindu Law or by any custom or
usage as part of that law in respect of any of the matters dealt with herein if this Act had not been
passed.

Explanation: The following persons are Hindus, Buddhists, Jainas or Sikhs by religion, as the case
may be:-

(a) Any child, legitimate or illegitimate, one of whose parents are Hindus, Buddhists, Jainas or
Sikhs by religion;

(b) any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jaina or Sikh
by religion and who is brought up as a member of the tribe, community, group or family to which
such parent belongs or belonged;

(c) any person who is convert or re-convert to the Hindu, Buddhist, Jaina or Sikh religion.

(2) Notwithstanding anything contained in sub-section (1) nothing contained in this Act shall
apply to the members of any Scheduled Tribe within the meaning of clause (25) of article 366 of the
Constitution unless the Central Government, by notification in the Official Gazette, otherwise
directs.
 93

(3) The expression "Hindu" in any portion of this Act shall be construed as if it included a
person who, though not a Hindu by religion, is, nevertheless, a person to whom this Act applies by
virtue of the provisions contained in this section.

3. Definitions and interpretations

(1) In this Act, unless the context otherwise requires-

(a) "agnate"- one person is said to be an "agnate" of another if the two are related by blood or
adoption wholly through males;

(b) "Aliyasantana law" means the system of law applicable to persons who, if this Act had not
been passed, would have been governed by the Madras Aliyasantana Act, 1949, or by the customary
Aliyasantana law with respect to the matters for which provision is made in this Act;

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

(d) the expressions "custom and "usage" signify any rule which having been continuously
and uniformly observed for a long time, has obtained the force of law among Hindus in any local
area, tribe, community, group or family:

PROVIDED that the rule is certain and not unreasonable or opposed to public policy:

PROVIDED FURTHER that in case of a rule applicable only to a family it has not been
discontinued by the family;

(e) "full blood", "half blood" and "uterine blood"-

(i) two persons said to be related to each other by full blood when they are descended from a
common ancestor by the same wife, and by half blood when they are descended from a common
ancestor but by different wives;

ii) two persons are said to be related to each other by uterine blood when they are descended
from a common ancestress but by different husbands;

Explanation: In this clause "ancestor" includes the father and "ancestress" the mother,

(f) "heir" means any person, male or female, who is entitled to succeed to the property of an
intestate under this Act;

(g) "intestate" 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;

(h) "marumakkattayam law" means the system of law applicable to persons-

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(a) who, if this Act had not been passed, would have been governed by the Madras
Marumakkattayam Act, 1932; the Travancore Nayar Act; the Travancore Ezhava Act; the
Travancore Nanjinad Vellala Act; the Travancore Kshatriya Act, the Travancore Krishnanvaka
Marumakkathayyee Acr; the Cochin Marumakkathayam Act; or the Cochin Nayar Act with respect
to the matters for which provision is made in this Act; or

(b) who belong to any community, the members of which are largely domiciled in the State of
Travancore - Cochin or Madras [as it existed immediately before the Ist November, 1956,] and
who, if this Act had not been passed, would have been governed with respect to the matters for
which provision is made in this Act by any system of inheritance in which descent is traced through
the female line; but does not include the Aliyasantana law;

(i)"Nambudri law" means the system of law applicable to persons who if this Act had not been
passed, would have been governed by the Madras Nambudri Act, 1932; the Cochin Nambudri Act;
or the Travancore Malayala Brahmin Act with respect to the matters for which provision is made in
this Act ;

(j) "related " means related by legitimate kinship:

PROVIDED that illegitimate children shall be deemed to be related to their mother and to one
another, and their legitimate descendants shall be deemed to be related to them and to one another;
and any word expressing relationship or denoting a relative shall be construed accordingly.

(2) In this Act, unless the context otherwise requires, words imparting the masculine gender
shall not be taken to include females.

Sec. 4. Overriding effect of Act:-As per Section 4 makes it clear that provision in s.8 are to prevail
over principles of Hindu law. Applying the principle it comes to conclusion that a son inheriting
separate property of his father, separate property of the father is his separate and individual property
and not joint family property.- Addl. Commissioner of Income Tax v. Karuppan Chettiar AIR
1979 Mad 1

As per the language of s.14 of the Hindu Succession Act, any property possessed by a female
Hindu, shall be held by her as full owner and not as a limited owner. By applying the provisions of
s.2 of the Hindu Widow's Remarriage Act,1856,a widow cannot be divested of the property as then
it would be an inconsistency with the provisions of this Act.-AIR 1973 Pat.170

Where the marriage of a widow took place prior to the coming into force of this Act, as because of
marriage her rights to property had already been lost ,provisions of this Act did not apply.-Sankar
Prasad v. Usha Bala AIR 1978 Cal. 525

Mode of devolution as laid down under section 36(5) of the Madras Aliyasantana Act has to give a
way to what is laid down in s.8 of the Hindu Succession Act as regard separate property and to s.7
(2) where the property is undivided interest- Sundari v. Laxmi AIR 1980 SC 198
 95

Prior to the present Hindu Succession Act came into force, there was a custom prevailing in Punjab,
disentitling daughters to inherit. But now the legal position different according to which where the
last male holder died after the Act, the previous law disentitling the daughters to succeed, is no more
valid.- Manshan v. Tejram AIR 1980 SC 558.

Act being only of prospective nature so where the heir is not a limited owner, this Act would in no
way affect his succession; but it is essential that succession should have taken place prior to the
commencement of this Act.-Rameshwar v. Hemant Kumar AIR 1985 Pat.168.

INTESTATE SUCESSION

GENERAL
Sec.5. Act not to apply to certain properties
This Act shall not apply to -
(i) Any property succession to which is regulated by the Indian Succession Act, 1925 by
reason of the provision contained in section 21 of the Special Marriage Act, 1954.
(ii) any estate which descends to a single heir by the terms of any covenant or agreement
entered into by the Ruler of any Indian State with the Government of India or by the
terms of any enactment passed before the commencement of this Act ;
(iii) the Valiamma Thampuran Kovilagam Estate and the Palace Fund administered by the
Palace Administration Board by reason of the powers conferred by Proclamation (IX
of 1124) dated 29th June, 1949, promulgated by the Maharaja of Cochin.

Where the son is brought up a Hindu, the Act in no way puts obstacle before the son being treated as
member of the Hindu undivided family.-Maneka Gandhi v. Indira Gandhi (AIR 1985 Del 114)

Sec.6. Devolution of interest of co-parcenary property

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

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

Explanation I: For the purposes of this section, the interest of Hindu Mitakshara coparcener shall be
deemed to be the share in the property that would have been allotted to him if a partition of the
property had taken place immediately before his death, irrespective of whether he was entitled to
claim partition or not.
 96

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

Property that is in the hands of the son cannot amount to coparcenary property, the reason behind
being that nature and character of ancestral property as far as Mitakshara law is concerned is
completely abrogated- Malchand Thirani & Sons v. CIT 1980 (121) ITR 976

In order to ascertain the nature of property within the meaning of s.6 relevant date is the date on
which the father acquired the property whether by succession or by dissolution-Ram Singh v.
Badhu Sen AIR 1981 All 126.

Where the separate property it got by the father in partition with his sons; the property is not to be
taken as coparcenary property in the hands of father. On father becoming dead each son takes as a
tenant-in-common and not as joint tenant-Satya Narayana v. Rameshwer AIR 1982 Pat 44.

In the case, actual partition takes place, share of the person, widow or the mother, entitled is to be
consider so as to ascertain the share of the deceased coparcener.-Viruprakash v.Bole dawwa 1981
(1) Kar LJ 433

Share of the heirs must be ascertained on the basis that they had separated from one another and had
received a share in the partition which has taken place during the life time of the deceased. The
allotment of his share is not a processual step devised merely for the purpose of working out some
other conclusion. Heir will get his or her shall in the interest which the deceased had in the
coparcenary property at the time of his death, in addition to the share which he or she received or
must be deemed to have received in the rational partition-Gurupada v.Heera Bai AIR 1978 SC
1239

Where upon the partition taking place, the widowed mother is allotted a share, she cannot be
deprived of her right to inheritance on the death of the son. She is entitled to have a share in the
interest of the son in the co-parcenary property-Savitri v. Devaki AIR 1982 Kar 67

Sec.7. Devolution of interest in the property of a tarwad, tavazhi, kutumba, kavaru or illom

The interest of a Hindu in the property of a tarwad, tavazhi or illom shall be deemed to be the share
in the property of tarwad, tavazhi or illom , as the case may be, that would have fallen to him or her
if a partition of that property per capita had been made immediately before his or her death among
all the members of tarwad, tavazhi or illom, as the case may be, then living whether he or she was
entitled to claim such partition or not under the marumakkattayam or nambudri law applicable to
him or her, and such share shall be deemed to have been allotted to him or her absolutely.

The interest of a Hindu in the property of kutumba or kavaru shall be deemed to be the share in the
property of the kutumba or kavaru as the case may be, that would have fallen to him or her if a
partition of that property per capita had been made immediately before his or her death among all
the members of the kutumba or kavaru, as the case may be, then living, whether he or she was
 97

entitled to claim such partition or not under the aliyasantana law, and such share shall be deemed to
have been allotted to him or her absolutely.

The family of a sthanamdar shall include every branch of that family, whether divided or undivided,
the male members of which would have been entitled by any custom or usage to succeed to the
position of sthanamdar if this Act had not been passed.

Examples-The mode of devolution which s.36 (5) of the Aliyasanthana Act prescribes has to give
way to the provisions of s.8 of the Hindu Succession Act prescribing a different mode of
succession.-Ramanaraj v. Jagannath AIR 1982 Kar 270

Devolution of the undivided interest of the deceased or the separate property of the deceased is to be
in accordance with the s.7 (2) and s.17 of the Hindu Succession Act only.- Ramanaraj v.
Jagannath AIR 1982 Kar 270

Order of Inheritance. Now as to the order of inheritance, the first heirs are sons, agnate grandsons
and agnate great grandsons. Grandsons and great-grandsons between whom and the deceased a son
or grandson survives do not take directly, but representation is allowed in the case of those the links
between whom and the deceased are already dead. But for this case representation is nowhere
allowed in Hindu law, e.g., a brother excludes sons of deceased brothers. After the three generations
of descendants come the widow, then the daughter, and then the daughter's son. Daughters' sons take
per capita, and a living daughter excludes all sons of deceased daughters. Next come the parents, of
whom the Mitakshara places the mother, and the Daya Bhaga the father, first of the two. Then
brothers, sons of brothers, and agnate grandsons of brothers. Here the Daya Bhaga interpolates the
sister's son. Then the grandparents and a like three generations from them, with the father's sister's
son interpolated by the Daya Bhaga. Then the great-grandparents and the three generations from
them. For the complications beyond this point, especially under the Daya Bhaga, the reader should
consult the works of Mayne and Trevelyan. The Maharashtra school brings in the sister between the
two grandparents, and after each circle of heirs brings in widows of members of that circle before
going on to males in the next larger circle.

Male or female Hindu died intestate, intestate means without WILL. A person who died
without writing a WILL is called as ‘intestate’ in legal terminology. Inheritance under Hindu
law is possible either through WILL or through operation of law.

As a general principle whenever a Hindu died intestate then a legal presumption comes in to
force that the property get vested in to legal heir automatically and it belongs to Joint Hindu Family.

Once a dispute arise or members of joint Hindu Family feels that there is requirement of distribution
of inherited property then following legal recourses can be helpful and one should have basic
information in this area: -

1) Have a family arrangement within legal heirs deed (though an oral and written arrangement) is
acceptable but preferably have a written arrangement and get it registered.
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2) Alternatively a partition deed within legal heirs can also be prepared in the same manner.

3) Deeds should be prepared by a competent lawyer having adequate experience and exposure to
Hindu Law.

4) Carry a mutation proceeding on the basis of partition/ settlement deed before Tahasildar
(executive magistrate) in case of agricultural property and before Municipal authorities in case o f
urban property. ‘Mutation’ means the change of name in Govt. Records.

5) Mutation can also take place on the basis of death certificate of the intestate supported by an
affidavit of the legal heirs for the same but remember that mutation cannot be the sole basis of
transfer of title. Order of mutation can be challenged in civil court.

6) In the case of disputes among legal heirs on inherited property then a civil suit of partition and
possession can be filed under code of civil procedure praying the court to declare the portion of
inherited property in favor of petitioner and the trial begins thereafter. Once the court passes a
decree of partition then accordingly mutation can take place.

7) So, it can be said basically, inheritance under Hindu Law revolves around Hindu Succession Act,
Hindu Law, state’s land revenue code, Municipal Act, stamp & registration, Civil Procedure Code
etc.

Division of Property of intestate

Whenever a Hindu dies then the property get vested among his/her heirs by virtue of Hindu Law.
Now, Hindu Law, which is a well developed law, has four schedule or we can say categories of
Legal heirs. If the first category fails then second comes and then third and so on. First category are
direct relatives, second category is second line relative and third category is of ‘agnate’ (relatives
from father side and forth categories are ‘cognates’ that is relatives of mother side.

Remember if any Hindu dies intestate and without any relatives of abovementioned categories then
the property get vested with the State Government under due procedure of Law.

Today we will see the first category only for inheritance of Male Hindu : -

Rule1.- The intestate’s widow, or if there are more widow than one, all the widows together, shall
take one share.
Rule 2.- The surviving sons and daughter and the mother of the intestate shall each take one share.
Rule 3.- The heirs in the branch of each pre-deceased son or each pre-deceased daughter of the
intestate shall take between them one share.
Rule 4.- The distribution of the share referred to in Rule 3-

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

Similarly there are division of property among rest of the three category defined under Hindu
Succession Act, 1956 and (amendment) Act, 2005.

The amendment made in 2005 gives women equal rights in the inheritance of ancestral wealth,
something reserved only for male heirs earlier. It indeed, is a significant step in bringing the Hindu
Law of inheritance in accord with the constitutional principle of equality. Now, as per the
amendment, Section 6 of the Hindu Succession Act, 1956 gives equal rights to daughters in the
Hindu Mitakshara coparcenary property as the sons have. The amendment was made because there
was an urgent need for certainty in law.

Though the 2005 amendment gives equal rights to daughters in the coparcenery. An important
question is still unanswered whether women or daughters can be allowed to become managers
or karta of the joint family. The objection to this issue of managing a joint family as visualized is
that daughters may live away from the joint family after their marriage but it is well appreciated that
women are fully capable of managing a business, taking up public life as well as manage large
families as mothers. Another doubt being considered is that as managers of their fathers' joint family
they could be susceptible to the influence of their husbands or husbands' families.

The Hindu Succession (Amendment) Act, 2005

The Hindu Succession (Amendment) Act, 2005 was seeks to make two major amendments in the
Hindu Succession Act, 1956. First, it is proposed to remove the gender discrimination in section 6 of
the original Act. Second, it proposes to omit section 23 of the original Act, which disentitles a
female heir to ask for partition in respect of a dwelling house, wholly occupied by a joint family,
until the male heirs choose to divide their respective shares therein. However in the instant project
we have focused specifically on the changes brought in Section 6 in regards to the position of
woman and has made a clause-by-clause consideration of the section thus amended.

Section 6 of the Hindu Succession Act, 1956 has been restated for convenience-
Devolution of interest in coparcenary property. - When a male Hindu dies after the commencement
of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his
interest in the property shall devolve by survivorship upon the surviving members of the
coparcenary and not in accordance with this Act: Provided that, if the deceased had left him
surviving a female relative specified in class I of the Schedule or a male relative specified in that
class who claims through such female relative, the interest of the deceased in the Mitakshara
coparcenary property shall devolve by testamentary or intestate succession, as the case may be and
not by survivorship.

Explanation 1. For the purpose of this section, the interest of a Hindu Mitakshara coparcener shall
be deemed to be the share in the property that would have been allotted to him if a partition of the
property had taken place immediately before his death, irrespective of whether he was entitled to
claim partition or not.
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Explanation 2. Nothing contained in the proviso to this section shall be construed as enabling a
person who has separated himself from the coparcenary before the death of the deceased or any of
his heirs to claim on intestacy a share in the interest referred to therein.

The Hindu Succession (Amendment) Act, 2005- Sec.6 (l). Devolution of interest in coparcenary
property.

(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint
Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,--

(a) by birth become a coparcener in her own right the same manner as the son ;

(b) have the same rights in the coparcenary property as she would have had if she had been a son;

(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son, and
any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter
of a coparcener: Provided that nothing contained in this sub-section shall affect or invalidate any
disposition or alienation including any partition or testamentary disposition of property which had
taken place before the 20th day of December, 2004.

(2) Any property to which a female Hindu becomes entitled by virtue of subsection (1) shall be held
by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything
contained in this Act or any other law for the time being in force in, as property capable of being
disposed of by her by testamentary disposition.

(3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005,
his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by
testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and
the coparcenary property shall be deemed to have been divided as if a partition had taken place and,-

(a) the daughter is allotted the same share as is allotted to a son;

(b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they
been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or
of such pre-deceased daughter; and

(c) the share of the pre-deceased child of a pre-deceased son or of a predeceased daughter, as such
child would have got had he or she been alive at the time of the partition, shall be allotted to the
child of such pre-deceased child of the pre-deceased so or a pre-deceased daughter, as the case may
be.

Explanation.-- For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener
shall be deemed to be the share in the property that would have been allotted to him if a partition of
the property had taken place immediately before his death, irrespective

whether he was entitled to claim partition or not.

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(4) After the commencement of the Hindu Succession (Amendment) Act, 2005, no court shall
recognize any right to proceed against a son, grandson or great-grandson for the recovery of any
debt due from his father, grandfather or great-grandfather solely on the ground of the pious
obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt:
Provided that in the case of any debt contracted before the commencement of the Hindu Succession
(Amendment) Act, 2005, nothing contained in this sub-section shall affect--

(a) The right of any creditor to proceed against the son, grandson or great-grandson, as the case may
be; or

(b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or
alienation shall be enforceable under the rule of pious obligation in the same manner and to the same
extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had
not been enacted.

Explanation.--For the purposes of clause (a), the expression "son", "grandson" or "great-grandson"
shall be deemed to refer to the son, grandson or great-grandson, as the case may be, who was born or
adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005.

(5) Nothing contained in this section shall apply to a partition, which has been effected before the
20th day of December 2004.

Explanation- For the purposes of this section "partition" means any partition made by execution of a
deed of partition duly registered under the Registration Act, 1908 or partition affected by a decree of
a court.

Section 6 seeks to make the daughter a coparcener by birth in a joint Hindu family governed by the
Mitakshara law, subject to the same liabilities in respect of the said coparcenary property as that of a
son.

Laws reflect the face of society and its evolution over the time. To respond to the needs of a
dynamic social system, laws have to be changed and amended, at regular intervals. As far as the
basic objective of the Act is to remove gender discriminatory practices in the property laws of the
Hindus, whereby daughters have been given the status of coparceners
in the Mitakshara joint family system. However, the position of other Class I female heirs should not
suffer as a result of this move.

However, it does not interfere with the special rights of those who are members of Hindu
Mitakshara coparcenary except to provide rules for devolution of the interest of a deceased male in
certain cases. The Act lays down a uniform and comprehensive system of inheritance and applies,
inter alia, to persons governed by the Mitakshara and Dayabhaga
schools and also to those governed previously by the Murumakkattayam, Aliyasantana and
Nambudri laws. It is proposed to remove the discrimination as contained in section 6 of the Hindu
Succession Act, 1956 by giving equal rights to daughters in the Hindu Mitakshara coparcenary
property as the sons have.
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The Pattern of Inheritance to the properties of a Hindu woman:-

Discuss the changes brought out before and after passing the Hindu Succession Act 1956 in
respect of the property rights of the femal heirs. Marks:15

The inheritance of the Hindu woman is also governed by both Hindu Succession Act and Indian
succession in case, concerned person has executed a valid Will.

In regard to woman the Hindu Succession Act has got different principles to apply on the basis of
source of the property and descendants of hers.

Broadly there are three categories of the Hindu women at time of her death:-

a) A Hindu female with child on the date of her death.

b).A Hindu female without a child but the concerned property was inherited by her from her father
or mother
c).A Hindu female without a child, the concerned property was inherited by her from her father in
law and husband.

(A).When a Hindu female dies leaving behind a child and husband the property will devolve upon
them in the first instance. In case there is no child and the property was not property inherited from
father in law or husband or father or mother, it would devolve on the heirs of the husband i.e class -1
or II heirs as living on the date of her death. In the absence of the heirs of the husband upon the
father and mother, no father or mother is alive upon heirs of the father or if heirs of the father is not
alive upon the heirs of the mother.

For example:- `A` a government servant dies leaving behind her husband , all her Provident fund
will be paid to her husband and her children. If no there is no child or husband is alive, but mother
of the husband is alive she is entitle to the share. For this purpose the husband would be assumed to
have died on last breath of the `A`. Again all the Class-1 heir of husband will be entitled to property
to exclusion of any other.

But if none of the Class -1 heir of the husband is alive, that mean the couple had no issues and the
mother-in-law of the deceased lady is was died before her death, Under those circumstance the
Class-II of heirs of the deceased husband will take. Here again if there are two of the `A` ‘s
husband’s, one of the brothers is already dead and one alone is alive, that living person will alone
inherit the estate of the `A` but not sons and daughters or wives of predeceased brother, who would
be excluded from it.

(B). When the property was inherited from her father or mother it would devolve upon the heirs of
the father. For example Stridhana given at time of the marriage of woman would be treated as
though she had inherited from her father. None of the `in-laws` would be entitled to it.

(C).In case of a female, the property was inherited from husband or her father in law, the property
would devolve upon the heirs of the husband in case of absence of the heirs to the husband property
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would be es cheated i.e stand vested with concerned state Government, if there is no heirs the
property would be es cheated but it will not go to father or mother of the deceased female.

Before June, 17, 1956, the date of commencement of the Hindu Succession Act 1956, the Hindu
law of succession was basically the traditional Hindu law, with some marginal statutory
modifications.

The traditional Hindu law of succession was different in two main schools of Hindu law, namely the
Mitakshara and Dayabhaga schools. These two schools had their regional modifications as well. The
Mitakshara school itself was divided into four sub- schools, viz., the Benares, the Mithila, the
Bombay and the Dravida. The customary law also modified the traditional Hindu law of succession
in some areas and in some communities. In certain parts of Himachal Pradesh and in some areas of
South India, particularly in Kerela and Tamil Nadu, the matrimonial system was also recognised. In
relation to some big estates and jagirs and traditional law of succession stood modified by the
impartible estates and the doctrine of primogeniture.

Under the traditional Mitakshara law, two modes of devolution of property were recognized:

(a) Joint family property devolved by survivorship.

(b) Separate property devolved by succession.

Each joint Hindu family had a coparcenary, inclusive of the head of the family, i.e., the ‘karta’, and
three generations male lineal descendants of the karta. All these persons had a vested right to
property from the time of their conception. All of them had equal rights over the joint hindu family
property. However, their quantum was not specific. Their share would increase with the death of
existing members and would decrease with the birth of new coparceners.

The female members of the family and other members who were not coparceners, were to be
allotted maintenance, but not a share in the family property.

Three specific females were given the right to claim a share in the family property at the time
of partition, although they did not have the right to demand for a partition:

(a) The wife of the father – when partition took place between father and sons during the father’s
lifetime.

(b)The widow of the father – when the partition took place between the sons of the deceased father.

(c)The paternal grandmother of the coparceners – when the partition took place between the
grandsons.

The property devolved on the basis of the doctrine of survivorship. The coparcenary members had to
survive till the date of partition to claim any right over the property. On the death of a coparcener,
his interest devolved, not upon his legal heirs, but upon the remaining coparceners, equally. The
karta had no right to alienate the family property except under specified circumstances.
 104

When all the members of a coparcenary body died leaving behind a single member, all the family
property devolved upon him and he became the ‘sole surviving coparcener’. He was to treat the joint
family property as separate property and had absolute ownership rights over the same; except that he
had to provide for the maintenance of the remaining members of the joint family and that no new
coparcener was adopted by or born to any of the female members.

The classical Hindu law recognized the concept of the pious obligation of the coparcenary members
to repay the debt of the deceased karta. This was their religious or moral responsibility as the
persons who may offer funeral cake to the deceased karta and guide his soul to heaven. It was
believed that by repaying the deceased karta’s debt, the sons purged him of any sins.

The son had the initial responsibility of paying of the entire debt amount, with the interest. Then, the
grandson had to pay the whole debt amount excluding the interest. The great- grandson had to pay
only three fourths of the amount and its interest. Although all three had equal rights over the
property, they had separate interests. This responsibility extended beyond the interest received by
the coparceners.

Under Dayabhaga law, however, no coparcenary could be formed during the lifetime of the karta.
No person had any right to the family property held by him or her, as long as the karta was alive. It
was only after the death of the karta that the legal heirs had the right to succeed to his or her
property.

In traditional Hindu law, a female Hindu’s property was of two kinds; stridhana and women’s
estate. Stridhana was all the property she received from any one on her wedding day as gifts. This
was her absolute property of which she was the undisputed owner. She could alienate it according to
her own will and after her demise it devolved upon her heirs.

Her estate, however, was the property received by her after her marriage, usually from her in- laws.
Over such property, she had limited ownership rights, barring the right of alienation. She had
absolute rights of use and enjoyment but she could not alienate the property. After her death, the
property reverted back to its first owner, or their heirs.

After the Act of 1956, the situation has undergone vast change. Women have been granted rights to
the family property and the definition of ‘coparcenary’ has also been extended so as to include the
daughters of the karta.

Examine the general principles of succession of a male Hindu. January,2011, Marks :15
The Separate property of a male Hindu dying intestate shall devolve according to the provisions
under section 8 -13 of Hindu Succession Act H.S.A.) 1956.

(a) Firstly, upon the heirs, being the relatives specified in class I of the Schedule;
(b) Secondly, if there is no heir of class I, then upon the heirs, being the relatives
specified in class II of the Schedule;
(c) Thirdly, if there is no heir of any of two classes, then upon the agnates of the
deceased; and
(d) lastly , if there is no agnate, then upon the cognates of the deceased.
 105

Subsequent to the compromises decree, property would revert back to the estate of the donor after
his lifetime, and it is the Hindu Succession Act that is to govern the succession to the property.-
Maushan v. Taj Ram AIR 1980 SC 558

Where a partition of a joint family property takes place and a separate share is given to the mother,
then in the case of death of one of the sons the mother would be entitled to have a share in the
separate property of her son. Fact that earlier when the partition took place she was given a share
would not place any bar.-Savitri v. Devaki AIR 1982 Kar. 67

In the case of a Hindu male governed by Mitakshara under s.8 of the Act, the property that devolves
on him will be his separate property. Such a property would never amount to join family property in
his hands as against his son.-Yudhishtir v. Ashok Kumar AIR 1987 SC 558
In case the widow remarries, she would not be divested of the property inherited by her simply on
account of her remarrying.-Udham Kaur v. Harbans 1983 HLR 579

Among the heirs specified in the Schedule, those in class I shall take simultaneously and to the
exclusion of all other heirs; those in the first entry in class II shall be preferred to those in the second
entry; those in the second entry shall be preferred to those in the third entry; and so on in succession.
(Sec.9) List of heirs specified in class 1 as following.
Son; daughter; widow; mother; son of a pre-deceased son; daughter of a pre-deceased son; son of a
pre-deceased daughter; daughter of a pre-deceased daughter; widow of a pre-deceased son; son of a
pre-deceased son of a pre-deceased son, daughter of a pre-deceased son of a pre-deceased son;
widow of a pre-deceased son of a pre-deceased son.

( Example. A Hindu dies itestate leaving a widow and a father .The widow will take the whole
of property excluding the father.Because father is not in this class 1).

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

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

Rule 1-The intestate's widow, or if there are more widows than one, all the widows
together, shall take one share.
Rule 2- The surviving sons and daughters and the mother of the intestate shall each take one
share.
Rule 3- The heirs in the branch of each pre-deceased son or each pre-deceased daughter of
the insteatate shall take between them one share.
Rule 4- The distribution of the share referred to in Rule 3-
(i) Among the heirs in the branch of pre-deceased son shall be so made that his widow
(or widow together) and the surviving sons and daughters get equal portions; and the
branch of his predeceased sons gets the same portion;
(ii) Among the heirs in the branch of the pre-deceased daughter shall be so made that the
surviving sons and daughters get equal portions to that of surviving sons and
 106

daughters. (If any widow dies ,her portion devolves on her heirs and not to surviving
widow).

CLASS II HEIRS
I. Father
II (1) Son's daughter's son, (2) son's daughter's daughter,(3) brother, (4) sister.
III (1) Daughter's son's son (2) daughter's son's daughter, (3) daughter's daughter's son (4)
daughter's daughter's daughter.
IV. (1) Brother's son (2) sister's son, (3) brother's daughter, (4) sister's daughter.
V. Father's father; father's mother.
VI. Father's widow; brother's widow.
VII. Father's brother; fathers' sister.
VIII. Mother's father; mother's mother.
IX. Mother's brother, mother's sister.

Explanation:- It is the order of succession entry 1-1x. In this Schedule, reference to a brother or
sister do not include reference to a brother or sister by uterine blood.

Applicability

In the case of males

The property of a Hindu male dying intestate, or without a will, would be given first to heirs within
Class I. If there are no heirs categorized as Class I, the property will be given to heirs within Class
II. If there are no heirs in Class II, the property will given to the deceased’s agnates or relatives
through male lineage. If there are no agnates or relatives through the male’s lineage, then the
property is given to the cognates, or any relative through the lineage of males or females.

There are two classes of heirs that are delineated by the Act. Class I heirs are sons, daughters,
widows, mothers, sons of a pre-deceased son, daughters of a pre-deceased son, sons of a pre-
deceased daughter, daughters of a pre-deceased daughter, widows of a pre-deceased son, son of a,
pre-deceased sons of a predeceased son, daughters of a pre-deceased son of a pre-deceased son, and
widows of a pre-deceased son of a predeceased son. If there is more than one widow, multiple
surviving sons and daughters, or multiples of any of the other heirs listed above, each shall be
granted one share of the deceased’s property. Also if the widow of a pre-deceased son, the widow of
a pre-deceased son of a pre-deceased son or the widow of a brother has remarried, she is not entitled
to receive the inheritance.

Class II heirs are categorized as follows and are given the property of the deceased in the following
order:

1. Father
2. Son's daughter's son
3. Son's daughter's daughter
4. Brother
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5. Sister
6. Daughter's son's son
7. Daughter's son's daughter
8. Daughter's daughter's son
9. Daughter's daughter's daughter
10. Brother's son
11. Sister's son
12. Brother's daughter

In the case of females

Under the Hindu Succession Act, 1956, females are granted ownership of all property acquired
either before or after the signing of the Act, abolishing their “limited owner" status. However, it was
not until the 2004 Amendment that daughters were allowed equal receipt of property as with sons.
This invariably grants females property rights.

The property of a Hindu female dying inestate, or without a will, shall devolve in the following
order:

1. upon the sons and daughters (including the children of any pre-deceased son or daughter)
and the husband,
2. upon the heirs of the husband.
3. upon the heirs of the father, and
4. upon the heirs of the mother.

Certain exceptions

If, and the heirs are both male and female, the female heir is not allowed to request partition until the
male heir chooses to divide their respective shares. If this female heir is a daughter, she has the right
to reside in the home if she is unmarried, divorced or widowed. --- After the Hindu Succession
(Amendment) Act, 2005- Section 6 The difference between the female and male inheritor has been
abolished - Now even female inheritor [daughter] can also claim partition of the ancestral property.

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

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

Sec.12.Order of succession among agnates and cognates

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

Rule1-Of two heirs, the one who has fewer or no degrees of ascent is preferred.

Rule2- Where the number of degrees of ascent is the same or none, that heir is preferred who has
fewer or no degrees of descent.
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Rule3- Where neither heirs is entitled to be preferred to the other Rule 1 or Rule 2 they take
simultaneously.

Sec.13. Computation of degrees

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

Sec.28. Escheat: (Failure of heirs) If an intestate has left no heir qualified to succeed to his or her
property in accordance with the provisions of this Act, such property shall devolve on the
government; and the government shall take the property subject to all the obligations and liabilities
to which an heir would have been subjected..The right of Govt. to get the property is called as
Escheat. The govt. cannot be traced as heir under the Act.

The provisions of the act is not retrpspective operation. It is based on the nearness of relationship
and presumed natural affection of the deceased. The act also provides that illegitimate son or
daughter are not included in class- 1.

Explain the general rules of succession of a Hindu Female dying intestate.June 2010,
Dec.2012Marks:15

SEC.14- 20
Under the Hindu law, before the commencement of the Act , separate rules existed

Under the Hindu Law, before the commencement of the Act, separate rules existed for the
devolution of a women’s property. prior to the Act a female Hindu Possessed two kinds of property:
(1) Stridhan, (2) Hindu Women’s Estate. Over stridhan, she had full ownership and on her death it
devolved on her heirs. With regard to the property which she acquired as women’s estate, her
position was that of owner but her power of alienation was limited. On her death, such property
devolved not on her own heirs but upon the next heirs of the last full owner. But now Sec.14 of the
Act abolished the Hindu women’s limited estate and confers on the woman the absolute ownership
over all her property howevsoeer acquired by her.

Sec.14.Property of a female Hindu to be her absolute property

(1) Any property possessed by a female Hindu, whether acquired before or after the
commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.

Explanation:- In this sub-section "property" includes both movable and ssimmovable property
acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or
arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her
 109

marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner
whatsoever, and also any such property held by her as stridhana immediately before the
commencement of this Act.

Examples:-This section recognises equality of sexes and elevates the women from subservient
position in the field of economy to a higher pedestal. Now the women can enjoy and have full
powers as regards disposal of property held by them. They are to be taken as owners without putting
any artifical limitations on their right of ownership.- Bai Vijaya v. Thakuribai Chela Bhai AIR
1979 SC 993

Where the death of the husband took place in the year 1936, before the Hindu Women's Right to
Property Act came into force, as at that time only right of maintenance was conferred upon the
widow, there would not be any application of s.14 (1)- Suraj Mul v. Babulal AIR 1985 Del 95

Besides possessing an existing right of maintenance, a woman in the Hindu family is also conferred
right in the family property. It cannot be said that partition deed is something creating a new right in
her in so far as the property is concerned; nor it amounts to acquiring of the property by her by
virtue of partition deed when the facts are so, there would be the application of sub-s. (1) of s.14 and
not of sub-s.(2) of the said section.-Tulasamma v. Seshareddi AIR 1977 SC 1944

Where the property is acquired by the Hindu female under a written instrument or decree and such
acquisition is not traceable to any antecedent title, there would be the application of sub-s. (2) and
when antecedent title is traceable, a document like will is of no consequence and sub s. (1) would
come into operation-Jaswant Kaur v. Majid Harpal Singh 1990(1) MLJ SC 1.

In the instant case mutation took place and the records showed as widow of the last male holder.
When present Hindu Succession Act came into force, collaterals raised the contention that mutation
was without any right in the property and the collaterals had the right in the property it was held that
as s.14 (1) conferred absolute right on the widow, collaterals had nothing to say.-Bishwanath
Pandey v. Badami Kaur AIR 1980 SC 1329

Application of the provision of s. 14 (2) is confined to causes where on account of some grant or
disposition, a right is conferred with certain restrictions on the widow for the first time and not in
recognition of any pre-existing right-Abirami v. Mathuram 1984 (2) MLJ 391

Where a stipulation in the will suggested the wife to enjoy the property for her life and thereafter the
property had to revert back to the successors of the testator, it was held that the widow had an
absolute estate and there was the application of s. 14 (1) Pritam Singh v. Bachan Kaur AIR 1985
Punj 4

Where the Hindu female in possession of the property of her husband becomes absolute owner and
the property is subsequently sold by her, the purchaser would get absolute right in the property
despite the fact that there was no such necessity or benefit before the family requiring the disposal.-
Veerangowda v. Basant Gowda 1981(2) Kar LJ 385
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Sec.15.General rules of succession in the case of female Hindus

(1) The property of a female Hindu dying intestate shall devolve according to the rules
set out in section 16:
(a) firstly, upon the sons and daughters (including the children of any pre-
deceased son or daughter) and the husband;
(b) secondly, upon the heirs of the husband;
(c) thirdly, upon the mother and father;
(d) fourthly, upon the heirs of the father; and
(e) lastly, upon the heirs of the mother.
(2) Notwithstanding anything contained in sub-section (1)-
(a) any property inherited by a female Hindu from her father or mother shall
devolve, in the absence of any son or daughter of the deceased (including the
children of any pre-deceased son or daughter) not upon the other heirs
referred to in sub-section (1) in the order specified therein, but upon the heirs
of the father; and
(b) any property inherited by a female Hindu from her husband or from her
father-in-law shall devolve, in the absence of any son or daughter of the
deceased (including the children of any pre-deceased son or daughter) not
upon the other heirs referred to in sub-section (1) in the order specified
therein, but upon the heirs of the husband.

Examples:-Within the expression " son and daughter" there is no inclusion of step-son and step
daughter.-Visalakshi v. Chelliah Pillai 1988 (2) MLJ 511

Clause (a) of the sub s. (1) does not include the widow of a predeceased son and the husband of a
predeceased daughter in the category of heirs. On the death of a female intestate, the daughter of the
predeceased son is given the preference over the sister of her husband.-Mohindero v. Kartar
Singh AIR 1991 SC 257.

Sec.16.Order of succession and manner of distribution among heirs of a female Hindu

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

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

Rule 2- If any son or daughter of the intestate had pre-deceased the intestate leaving his or her own
children alive at the time of the intestate's death, the children of such son or daughter shall take
between them the share which such son or daughter would have taken if living at the intestate's
death.
Rule 3- The devolution of the property of the intestate on the heirs referred to in clauses (b), (d) and
(e) of sub-section (1) and in sub section (2) of section 15 shall be in the same order and according to
the same rules as would have applied if the property had been the father's or the mother's or the
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husband's as the case may be, and such person had died intestate in respect thereof immediately after
the intestate's death.

Example:-Where there was the pendency of the suit filed by a female Hindu against the family of
her father for the partition of the family property but the female filling the suit died issueless, her
husband was not granted permission to enter as her legal representative for the fact that the property
devolved upon the father of the deceased under s. 15 (2) (a)- Raghuvar v. Jhaniki Prasad AIR
1981 MP 39

Sec.18.Full blood preferred to half blood

Heirs related to an intestate by full blood shall be preferred to heirs related by half blood, if the
nature of the relationship is the same in every other respect.

Example:-Brothers and sisters, when some of them are son of the same mother as that of the
intestate and some not, may be related by full blood while some by half blood. When that is so, heirs
by full blood exclude the heirs by half blood.- Narayanan v. Pushparajini AIR 1991 Ker 10
Se. 19 Lays down a general rule of distribution of the property. it says that when two or more heirs
succeed to the property of an intestate, they take the property per capita and as tenants-in-common
unless there is an express provision to the contrary. Instances of exceptions to the general rule about
distribution per capita are laid down under Rules 1, 3 and 4 of section 10 and Rule 2 of Section 16
etc.
Right of child in womb –Sec.20:- Sec. 20 provides tht, “ A child who was in the womb at the time of
the death of an intestate and who is subsequently born alibe 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 best in such a case with effect fromn the date of the death of the intestate”.

STRIDHANA-WOMEN’S PROPERTY

Stridhan is a traditional practice that was primarily meant to provide women with some level of
economic security in adverse situations like divorce, widowhood, etc.

‘A’ married ‘B’ in April 1996. But she soon discovered that her husband was in a relationship with
another woman and had no intentions of breaking it even after marriage. After a few unsuccessful
attempts to reconcile the matter, she decided to file for divorce on grounds of adultery and cruelty,
and demanded the return of the cash and gifts worth Rs 1.75 lakh given by her parents. The trial
court decreed that ‘B’ should return the money. An appeal in the Allahabad High Court was
dismissed and it was held that ‘A’ was not only entitled to her stridhan (woman’s property) but also
an interest of 6% per cent from the date of judgment until payment.

Among Hindus, it is interpreted in various ways; in general, stridhan is defined as that portion of a
woman’s wealth over which she alone has the power to sell, gift, mortgage, lease or exchange —
whole or in parts. Usually, stridhan is passed from mother to daughter, unless the woman decides
otherwise. Any dues from her can also be recovered from her stridhan.
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Besides the ornaments and trousseau given at marriage, stridhan also includes all the gifts of money,
property, jewellery and so on received by the woman before, during and after marriage from her
family, her husband’s family, friends and even strangers.

It includes property inherited by the woman from her family or husband’s family; property received
by her under a compromise, adverse possession or in lieu of maintenance; property obtained in
partition; and property bought using proceeds from stridhan.

However, gifts to the husband by the woman or her relatives will not be part of her stridhan.

In the case of a working woman, the law under Section 14 of the Hindu Succession Act, 1956
enumerates that the property acquired by means of a woman’s earnings, during her maidenhood as
well as widowhood, is her stridhan.

Importantly, a woman who does not wish to accept stridhan cannot be forced to do so; she can also
choose to accept or reject the gifts given to her as part of the stridhan.

Protection of stridhan:-A woman’s right to her stridhan is protected under law.

Criminal proceedings can be filed against anyone who attempts to misappropriate a woman’s
stridhan through force or intimidation.

Section 12 of the Protection of Women from Domestic Violence Act, 2005 safeguards a woman’s
right to her stridhan in cases where she is a victim of domestic violence.

The husband has no right over his wife’s stridhan.

Shivani’s father died in 1994 and his will stipulated that his house in Kalkaji would be divided
equally between his widow and his daughter. Shivani married Narsing in 2001 and they lived in her
family home. Narsing bought furniture, refrigerator and TV for the house. However, the marriage
soon ended in divorce. According to law, the house is a part of Shivani’s stridhan and she has
absolute rights over it. Narsing has no right to live in it. However, the furniture, refrigerator and TV
that he bought are not a part of the stridhan.

If a husband utilises the wife’s stridhan in times of need such as illness and so on, he is bound to
restore it to the wife later.

Too often, women lose out on their stridhan as they are unaware of the rights and safeguards
bestowed on them by law. Moreover, a woman is often unable to prove that the gifts or property
received by her are part of her stridhan in the absence of any written record or other proofs to back
her claim.

Women who wish to protect their stridhan rights must take precautionary steps.

Make a list of the gifts and/or properties received before, during and after marriage from your
family, your husband’s family, friends and other acquaintances.
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Keep evidence for the gifts received by you such as wedding pictures. Also, ensure that the gifts and
their bills are in your name and preserve these bills.

Maintain a separate account in your name for your salary.

Get involved in family finances and keep a record of bank accounts and the investments made out of
your stridhan.

Ensure that the title to the property given to you and those bought from your stridhan are clear and
that the investments made from these assets are in your name.

Open a bank locker in your name for storing jewellery and instruments of money, property and so
on.

It would be advisable for parents to gift daughters income-generating property, rather than expensive
consumer items which are difficult to account for.

Have witnesses — statements of witnesses will be important evidence — for gifts of movables
(including jewellery) at the time of marriage.

Such precautionary steps will not only help safeguard stridhan but also preserve the true spirit of the
practice — ensuring women’s economic independence.

Gifts under Hindu Law

Gift is a relinquishment without consideration of one’s own right in property and the creation of the
right of another. A gift is completed only on the other’s acceptance of the gift.
What property may be gifted?
 A Hindu may dispose of by gift his separate or self acquired property, subject in certain
cases to the claims for maintenance of those he is legally bound to maintain.
 A coparcerner, may dispose of his coparcernary interest by gift subject to the claims of those
who are entitled to be maintained by him.
 A father may by gift dispose of the whole of his property, whether ancestral or self acquired,
subject the claims of those he is entitled to be maintained by him.
 A female may dispose of her stridhana by gift or will, subject in certain cases to the consent
of her husband.
 A widow may in certain cases by gift dispose of a small portion of the property inherited by
her from her husband, but she cannot do so by will.
 The owner of an impartible estate may dispose of the estate by gift or will, unless there is a
special custom prohibiting alienation or the tenure is of such a nature that it cannot be
alienated.
A gift under Hindu law need not be in writing. However, a gift under the law is not valid unless it is
accompanied by delivery of possession of the subject of the gift from the donor to the donee.
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However where physical possession cannot be delivered, it is enough to validate a gift, if the donor
has done all that he could do to complete the gift, so as to entitle the donee to obtain possession.

Gifts by Hindus where transfer of property act applies.

A gift under the above act can only be effected in the following manner.
a. For the purpose of making a gift of immovable property, the transfer must be effected by a
registered instrument signed by or on behalf of the donor, and attested by at least two
witnesses.
b.
For the purpose of making a gift of a movable property, the transfer may be effected by a
registered document signed by the donor or by delivery.

Gifts to unborn persons:- Under pure Hindu law, a gift cannot be made in favor of a person who
was not in existence at the date of the gift. This rule has been altered by 3 acts namely
The Hindu Transfers and Bequests Act 1914, Hindu Disposition of Property act 1916, and the Hindu
Transfers and Bequests (City of Madras) Act 1921

Reservation of life interest: - A gift of property is not invalid because the donor reserves the
usufruct of the property to himself for life.

Conditions restraining alienation or partition:- Where property is given subject to a condition

absolutely restraining the donee from alienating it, or it is given to two or more persons subject to a
condition restraining them from restraining it, the condition is void, but the gift itself remains good.

Revocation of gift:- A gift once completed is binding on the donor, and it cannot be revoked by him
unless it is obtained by fraud or undue influence.
Gift in fraud of creditors
A gift made with the intent to defeat or defraud creditors is voidable at the option of the creditors.
WILLS

Definition Of Will & Other Related Terms

Will: A Will is a solemn document by which a dead man entrusts to the living to the carrying out of
his wishes. S. S.2(h) of Indian Succession Act, 1925 provides that Will means the legal declaration
of the intention of a person with respect to his property, which he desires to take effect after his
death Will has been defined in Corpus Juris Secundum as A ‘Will’ is the legal declaration of a
man’s intention, which he wills to be performed after his death, or an instrument by which a person
makes a disposition of his property to take effect after his death.

Codicil: Codicil is an instrument made in relation to a Will, explaining, altering or adding to its
dispositions and is deemed to be a part of the Will. The purpose of codicil is to make some small
changes in the Will, which has already been executed. If the testator wants to change the names of
the executors by adding some other names, or wants to change certain bequests by adding to the
names of the legatees or subtracting some of them, a Codicil in addition to the Will can be made to
do so. The codicil must be reduced to writing and has to be signed by the testator and attested by
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two witnesses. It is also the duty of the court to arrive at the intention of the testator by reading the
Will and all the codicils.

Executor: An executor is appointed by the testator, as distinguished from an administrator who is

appointed by the court. Where the Will confers the powers to collect the outstanding, pay debts and
manage the properties, the person can be said to be appointed as an executor by implication.

Probate: Probate is an evidence of the appointment of the executor and unless revoked, is conclusive
as to the power of the executor. The grant of probate to the executor however does not confer upon
him any title to the property.

Letter Of Administration: Letter of Administration is a certificate granted by the competent court to

an administrator where there exists a Will authorizing him to administer the estate of the deceased in
accordance with the Will. If the Will does not name any executor, an application can be filed in the
court for grant of Letter of Administration for the property

Attestation Of Will: Attesting means signing a document for the purpose of testifying the signature
of the executants. Therefore an attesting witness signing before the executants has put his mark on
the Will, cannot be said to be a valid attestation. It is necessary that both the witnesses must sign in
the presence of the testator but it is not necessary that the testator have to sign in their presence.
Further it is not necessary that both the witnesses have to sign at the same time. It is also not
necessary that the attesting witnesses should know the contents of the Will.

Essential Features Of A Will:-A Will can be made at any time in the life of a person. A Will can
be changed a number of times and there are no legal restrictions as to the number of times it can be
changed. It can be withdrawn at anytime during the lifetime of the person making the Will. A Will
has to be attested by two or more witnesses, each of who should have seen the testator signing the
Will.

The essential features are:- 1. Legal declaration: The documents purporting to be a Will or a
testament must be legal, i.e. in conformity with the law and must be executed by a person legally
competent to make it. Further the declaration of intention must be with respect to the testator’s
property It is a legal document, which has a binding force upon the family.

2. Disposition of property: In a Will, the testator bequeaths or leaves his property to the person or
people he chooses to leave his assets/belongings. A Hindu person by way of his Will can bequeath
all his property. However, a member of an undivided family cannot bequeath his coparcenery
interest in the family property

3. Takes effect after death: The Will is enforceable only after the death of the testator

Under section 18 of the Registration Act the registration of a Will is not compulsory. Also, the SC in
Narain Singh v. Kamla Devi has held that mere non-registration of the Will an inference cannot be
drawn against the genuines of the Will. However it is advisable to register it as it provides strong
legal evidence about the validity of the Will. Once a Will is registered, it is placed in the safe
custody of the Registrar and therefore cannot be tampered with, destroyed, mutilated or stolen. It is
to be released only to the testator himself or, after his death, to an authorized person who produces
the Death Certificate

Since a testamentary disposition always speaks from the grave of the testator, the required standard
of proof is very high. The initial burden of proof is always on the person who propounds the Will.
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Kinds Of Wills

Conditional Wills: A Will maybe made to take effect on happening of a condition. In Rajeshwar v.
Sukhdeo the operation of the Will was postponed till after the death of the testator’s wife. However
if it is ambiguous whether the testator intended to make a Will conditional, the language of the
documents as well as the circumstances are to be taken into consideration.
Joint Wills: Two or more persons can make a joint Will. If the joint Will is joint and is intended to
take effect after the death of both, it will not be admitted to probate during the life time of either and
are revocable at any time by either during the joint lives or after the death of the survivor.

Mutual Wills: Two or more persons may agree to make mutual Wills i.e. to confer on each other
reciprocal benefits. In mutual Wills the testators confer benefit on each other but if the legatees and
testators are distinct, it is not a mutual Will. Mutual Wills are also known as reciprocal Wills and its
revocation is possible during the lifetime of either testator. But if a testator has obtained benefit then
the claim against his property will lie. Where joint Will is a single document containing the Wills of
two persons, mutual Wills are separate Wills of two persons.

Privileged Wills: Privileged Wills are a special category of Wills and other general Wills are known
as unprivileged Wills. S.65 of ISA provides that a Will made by a soldier or a airman or a mariner,
when he is in actual service and is engaged in actual warfare, would be a privileged Will. S.66
provides for the mode of making and rules for executing privileged Wills. Ss. 65 and 66 are special
provisions applicable to privileged Wills whereas other sections relating to Wills are general
provisions which will be supplementary to Sections 65 and 66 in case of privileged Wills.

Who Can Make A Will: - S.59 of Indian Succession Act provides that every person who is of
sound mind and is not a minor can make a Will.

Persons Of Unsound Mind

U/s. 59 of ISA the existence of a sound mind is a sine quo non for the validity of the Will. Most of
the Wills are not made by young persons who are fully fit but are made by persons who are aged and
bed ridden Hence, law does not expect that the testator should be in a perfect state of health , or that
he should be able to give complicated instructions as to how his property was to be distributed. A
sound disposing mind implies sufficient capacity to deal with and understand the disposition of
property in his Will -

1) the testator must understand that he is giving away his property to one or more objects
2) he must understand and recollect the extent of his property 3) he must also understand the persons
and the extent of claims included as well as those who are excluded from the Will. In Swifen v.
Swifen it was held that the testator must retain a degree of understanding to comprehend what he is
doing, and have a volition or power of choice.

Minors: A minor who has not completed the age of 18 years is not capable of making Wills. The
onus of proof on determining whether the person was a minor at the time of making a Will is on the
person who has relied upon the Will. S.12 of the Indian Contract Act also provides that a minor is
incompetent to contract.

Other Persons Incapable Of Making A Will: Explanation I to S.59 of ISA provides that a Hindu
married woman is capable of disposing by Will only that property which she can alienate during her
lifetime. Explanation II provides that the persons who are deaf, dumb or blind can prepare a Will if
they are able to prove that they were aware of what they were doing. Explanation III provides for
persons who are mentally ill and insane. However subsequent insanity does not make the Will
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invalid i.e. if a person makes a Will while he is of sound mind and then subsequently becomes
insane the Will is valid and is not rendered invalid by subsequent insanity. Further a person of
unsound mind can make a Will during his lucid interval. A Will made by a person who is
intoxicated or is suffering from any other illness, which renders him incapable of knowing what he
is doing, is invalid.

Though the burden of proof to prove that the Will was made out of free volition is on the person
who propounds the Will , a Will that has been proved to be duly signed and attested Will be
presumed to have been made by a person of sound mind, unless proved otherwise. Further, a bequest
can be made to an infant, an idiot, a lunatic or other disqualified person as it is not necessary that the
legatee should be capable of assenting it.

Revocability:- S.62 of the Indian Succession Act deals with the characteristic of a Will being
revocable or altered anytime during the lifetime of the testator. S. 70 of ISA provides the manner in
which it can be revoked

A mere intention to revoke is not an effective revocation. The revocation of the Will should be in
writing and an express revocation clause would revoke all the prior Wills and codicils. If there is no
express clause to the effect then the former Will would become invalid to the extent of its
inconsistency with the latest Will, this is known as an implied revocation (however it should be
shown that the differences are irreconcilable). However if there is no inconsistency between the
Wills then they cannot be considered as two separate Wills but the two must be read together to
indicate the testamentary intention of the testator.

Revocation can also be made in writing through declaring an intention to revoke and the writing
must be signed by the testator and attested by two witnesses. The deed of revocation has to be
executed in the same way as the Will itself.

The Will maybe burnt or torn by the testator or by some other person in his presence and by his
direction with the intention of revoking the same. The burning of the Will must be actual and not
symbolic. The burning must destroy the Will atleast to the extent of his entirety. Further the Will
need not be torn into pieces. It would be sufficient if it is slightly torn with the intent of revocation.

The Will can be revoked expressly by another Will or codicil, by implied revocation, by some
writing, by burning or tearing or by destroying otherwise. Cancellation of a Will by drawing lines
across it is not a mode of revocation. Under the Hindu Law the Will is not revoked by marriage or
by subsequent birth.

Alterations:- S.71 of ISA is applicable to alterations if they are made after the execution of the Will
but not before it. The said section provides that any obliteration, interlineations or any other
alteration in a Will made after its execution is inoperative unless the alteration is accompanied by
the signatures of the testator and the attesting witnesses or it is accompanied by a memorandum
signed by the testator and by the attesting witnesses at the end of the Will or some other part
referring to the alterations. the alterations if executed as required by the section would be read as a
part of the Will itself. However, if these requirements are not fulfilled then the alterations would be
considered to be invalid and the probate will be issued omitting the alterations. The signatures of the
testator and the attesting witnesses must be with regards to the alteration and must be in proximity of
the alteration. Further they should be in the Will itself and not in a separate distinct paper. But if the
obliteration is such that the words cannot be deciphered then the Will would be considered as
destroyed to that extent.
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Wording Of The Will: - S.74 of ISA provides that a Will maybe made in any form and in any
language. No technical words need to be used in making a Will but if technical words are used it is
presumed that they are in used in their legal sense unless the context indicates otherwise. Any want
of technical words or accuracy in grammar is immaterial as long as the intention is clear.

Another general principle applied is that the Will is to be so read as to lead to a testacy and not
intestacy i.e if two constructions are possible then the construction that avoids instestacy should be
followed.

Further there is another principle, which says that the construction that postpones the vesting of
legacy in the property disposed should be avoided. The intention of the testator should be decided
after construing the Will as a whole and not the clauses in isolation. In Gnanambal Ammal v. T.
Raju Aiyar the Supreme Court held that the cardinal maxim to be observed by the Court in
construing a Will is the intention of the testator. This intention is primarily to be gathered from the
language of the document, which is to be read as a whole.

The primary duty of the court is to determine the intention of the testator from the Will itself by
reading of the Will. The SC in Bhura v Kashi Ram held that a construction which would advance
the intention of the testator has be favoured and as far as possible effect is to be given to the
testator’s intention unless it is contrary to law. The court should put itself in the armchair of the
testator. In Navneet Lal v. Gokul & Ors the SC held that the court should consider the surrounding
circumstances, the position of the testator, his family relationships, the probability that he would use
words in a particular sense. However it also held that these factors are merely an aid in ascertaining
the intention of the testator. The Court cannot speculate what the testator might have intended to
write. The Court can only interprete in accordance with the express or implied intention of the
testator expressed in the Will. It cannot recreate or make a Will for the testator.

Execution Of A Will:- On the death of the testator, an executor of the Will (executor is the legal
representative for all purposes of a deceased person and all the property of a testator vests in him.
Whereas a trustee becomes a legal owner of the trust and his office and the property are blended
together) or an heir of the deceased testator can apply for probate. The court will ask the other heirs
of the deceased if they have any objections to the Will. If there are no objections, the court grants
probate. A probate is a copy of a Will, certified by the court. A probate is to be treated as conclusive
evidence of the genuineness of a Will. It is only after this that the Will comes into effect.

Signature Of The Testator:- S.63(a) of ISA provides that the testator shall sign or affix his mark.
If the testator is unable to write his signature then he may execute the Will by a mark and by doing
so his hand maybe guided by another person. In another words a thumb impression has been held as
valid.

Restrictions On A Will

1. Transfer to unborn persons is invalid.

Where a bequest is made to a person by a particular description, and there is no person in existence
at the testator's death who answers that description, the bequest is void. S.113 of Indian Succession
Act, 1925 provides that for a transfer to an unborn person, a prior interest for life has to be created in
another person and the bequest must comprise of whole of the remaining interest of the testator. In
Sopher v. Administrator-General of Bengal a grandfather made the bequest to his grandson who
was yet to be born, by creating a prior interest in his son and daughter in law. The Court upheld the
transfer to an unborn person and the Court held that since the vested interest was transferred when
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the grandsons were born and only the enjoyment of possession was postponed till they achieved the
age of twenty one the transfer was held to be valid.

In Girish Dutt v. Datadin , the Will stated that the property was to be transferred to a female
descendant (who was unborn) only if the person did not have any male descendant. The Court held
that since the transfer of property was dependent on the condition that there has to be no male
descendant, the transfer of interest was limited and not absolute and thereby the transfer was void.
For a transfer to a unborn person to be held valid, absolute interest needs to be transferred and it
cannot be a limited interest.

2. Transfer made to create perpetuity:- S.114 of the Indian Succession Act, 1925 provides that
no bequest is valid whereby the vesting of the thing bequeathed may be delayed beyond the lifetime
of one or more persons living at the testator's death and the minority of some person who shall be in
existence at the expiration of that period, and to whom, if he attains full age, the thing bequeathed is
to belong.

The rule against perpetuity provides that the property cannot be tied for an indefinite period. The
property cannot be transferred in an unending way. The rule is based on the considerations of public
policy since property cannot be made inalienable unless it is in the interest of the community. The
rule against perpetuity invalidates any bequest which delays vesting beyond the life or lives-in-being
and the minority of the donee who must be living at the close of the last life. Hence property can be
transferred to a unborn person who has to be born at the expiration of the interest created and the
maximum permissible remoteness is of 18 years i.e the age of minority in India.

In Stanely v. Leigh it was laid down that for the rule of perpetuity to be not applicable there has to
be 1)a transfer 2)an interest in an unborn person must be created 3)takes effect after the life time of
one or more persons and during his minority 4)unborn person should be in existence at the
expiration of the interest

3. Transfer to a class some of whom may come under above rules:- S.115 of ISA provides that
if a bequest is made to a class of persons with regard to some of whom it is inoperative by reasons of
the fact that the person is not in existence at the testator's death or to create perpetuity, such bequest
shall be void in regard to those persons only and not in regard to the whole class.

A number of persons are said to be a class when they can be designated by some general name as
grandchildren, children and nephews. In Pearks v. Mosesley defined gift to a class as a gift to all
those who shall come within a certain category or description defined by a general or collective
formula and who if they take at all are to take one divisible subject in certain proportionate shares.

4 Transfer to take effect on failure of prior Transfer:- S.116 of ISA provides that where by
reason of any of the rules contained in sections 113 and 114 and bequest in favour of a person of a
class of persons is void in regard to such person or the whole of such class, any bequest contained in
the same Will and intended to take effect after or upon failure of such prior bequest is also void.

he principle of this section is based upon the presumed intention of the testator that the person
entitled at the subsequent limitation is not intended to be benefited except at the exhaustion of the
prior limitation. In Girish Dutt case one S gave property to B for life and after her death if there be
any male descendants whether born as son or daughter to them absolutely. In the absence of any
issue, whether male or female, living at the time of B’s death, the gifted property was to go to C. it
was held that the gift in favour of C was dependent upon the failure of the prior interest in the favour
of daughter and hence the gift in favour of C was also invalid. However alternative bequests are
valid.
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Invalid Wills

Wills invalid due to fraud, coercion or undue influence:- S.61 of ISA provides that a Will, or
any part of Will made, which has been caused by fraud or coercion, basically not by free will, will
be void and the Will would be set aside.

Fraud: S.17 of the Indian Contract Act provides for fraud. Actual fraud can be committed through 1)
misrepresentation 2) concealment . Fraud in all cases implies a willful act on the part of anyone
whereby, another is sought to be deprived by illegal or inequitable means, of which he is entitled to.

Coercion: S.15 of Indian Contract Act defines coercion. Any force or fear of death, or of bodily hurt
or imprisonment would invalidate a Will. In Ammi Razu v. Seshamma , a man threatening to
commit suicide induced his wife and son to give him a release deed. It was held that even though
suicide was not punishable by the Indian Penal Code yet it was forbidden by law and hence the
release deed must be set aside as having been obtained by coercion.

Undue influence: Undue influence u/s.16 of Indian Contract Act is said to be exercised when the
relations existing between the two parties are such that one of the parties is in the position to
dominate the will of the other and uses that position to obtain an unfair advantage over the other.
However neither fiduciary relationship nor a dominating position would raise a presumption of
undue influence in case of Wills as all influences are not unlawful. Persuasion on the basis of
affection or ties is lawful. The influence of a person in fiduciary relationship would be lawful so
long as the testator understands what he is doing. Thus it can be said that a testator maybe led but
cannot be driven.

Wills Void Due To Uncertainty:- S.89 of ISA states that if the Will were uncertain as regards
either to the object or subject of the Will then it would be invalid. The Will may express some
intention but if it is vague and not definite then it will be void for the reason of uncertainty. The Will
may depose of the property absurdly or irrationally i.e the intention maybe irrational or
unreasonable, but that does not make it uncertain. For uncertainty to be proved it has to be proved
that the intention declared by the testator in the Will is not clear as to what is he giving or whom is
he giving. Only if the uncertainty goes to the very root of the matter, then only the Will has to be
held void on the grounds of uncertainty.

Will Void Due To Impossibility Of Condition :- S. 124 of ISA provides that a contingent legacy
can take effect only on happening of that contingency. A conditional Will is that Will which is
dependent on the happening of a specific condition the non-happening of which would make the
Will inoperative. S.126 of ISA provides that a bequest upon an impossible condition is void. The
condition maybe condition precedent or condition subsequent.

Will void due to illegal or immoral condition:- S.127 of ISA provides that a bequest, which is
based upon illegal or immoral condition, is void. The condition which is contrary, forbidden, or
defeats any provision of law or is opposed to public policy, then the bequest would be invalid. A
condition absolutely restraining marriage would also make the bequest void. S.138 of ISA provides
that the direction provided in the Will as to the manner in which the property bequeathed is to be
enjoyed then the direction would be void though the Will would be valid.
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UNIT-V

NATURAL GUARDIANS

Who are the Natural guardianof Hindu Minor child and what are their
powers.Marks:15

Explain the different types of guardians and their powers with reference to Hindu
Minority and guardian Act 1956

In Hindu law only three persons are recognized as natural guardians father, mother and husband,
Father. “Father is the natural guardian of his minor legitimate children, sons and daughters." Section
19 of the Guardians and Wards Act, 1890, lays down that a father cannot be deprived of the natural
guardianship of his minor children unless he has been found unfit. Me effect of Lh1s provision has
been considerably whittled down by judicial decisions and by Section 13 of the Hindu Minority and
Guardianship Act which lays down that welfare of the minor is of paramount consideration and
father's right of guardianship is 5;ubordinate to the welfare of the child. The Act does not recognize
the principle of joint guardians. The position of adopted children is at par with natural-born children.
The mother is the natural guardian of the minor illegitimate children even if the father is alive.
However, she is the natural guardian of her minor legitimate children only if the father is dead or
otherwise is incapable of acting as guardian. Proviso to clause (a) of Section 6, Hindu Minority and
Guardianship Act lays down that the custody of a minor who has not completed the age of five years
shall ordinarily be with the mother. Thus, mother is entitled to the custody of the child below five
years, unless the welfare of the minor requires otherwise.

In Gita Hariharan v. Reserve Bank of India and Vandana Shiva v. Jayanta Bandhopadhaya,
the Supreme Court has held that under certain circumstances, even when the father is alive mother
can act as a natural guardian. The term 'after' used in Section 6(a) has been interpreted as 'in absence
of' instead 'after the life-time'. -

Rights of guardian of person:-The natural guardian has the following rights in respect of minor
children:-

(a) Right to custody, .

(b) Right to determine the religion of children,

(c) Right to education,

(d) Right to control movement, and

(e) Right to reasonable chastisement

These rights are conferred on the guardians in the interest of the minor children and therefore of
each- of these rights is subject to the welfare of the minor children. The natural guardians have also
the obligation to maintain their minor children.
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Testamentary Guardians:- When, during the British period, testamentary powers were conferred
on Hindus, the testamentary guardians also came into existence. It was father's prerogative to
appoint testamentary guardians. By appointing a testamentary guardian the father could exclude the
mother from her natural guardianship of the children after his death. Under the Hindu Minority and
Guardianship Act, 1956, testamentary power of appointing a guardian has now been conferred on
both parents.' The father may appoint a testamentary guardian but if mother survives him, his
testamentary appointment will be ineffective and the mother will be the natural guardian. If mother
appoints testamentary guardian, her appointee will become the testamentary guardian and father's
appointment will continue to be ineffective. If mother does not appoint, father's appointee will
become the guardian. It seems that a Hindu father cannot appoint a guardian. of his minor
illegitimate children even when he is entitled to act as their natural. guardian, as S.9(1) confers
testamentary power on him in respect of legitimate children. In respect of illegitimate children,
Section 9(4) confers such power on the mother alone.

Under Section 9, Hindu Minority and Guardianship Act, testamentary guardian can be appointed
only by a will. The guardian of a minor girl will cease to be the guardian of her person on her
marriage, and the guardianship cannot revive even if she becomes a widow while a minor. It is
necessary for the testamentary guardian to accept 'the guardianship. Acceptance may be express or
implied. A testamentary guardian may refuse to accept the appointment or may disclaim it, but once
he accepts, he cannot refuse to act or resign except with the permission of the court.

Guardians Appointed by the Court:- The courts are empowered to appoint guardians under the
Guardians and Wards Act, 1890. The High Courts also have inherent jurisdiction to appoint
guardians but this power is exercised sparingly. The Hindu Minority and Guardianship Act is
supplementary to and not in derogation to Guardians and Wards Act. Under the Guardians and
Wards Act, 1890, the jurisdiction is conferred on the District Court: The District Court may appoint
or declare any person as the guardian whenever it considers it necessary in the welfare of the child.'
In appointing ,,a" guardian, the court takes into consideration various factors, including the age, sex,
wishes of the parents and the personal law of the child. The welfare of the children is of paramount
consideration.

The District Court has the power to appoint or declare a guardian in respect of the person as well as
separate property of the minor. The chartered High Courts have inherent jurisdiction to appoint
guardians of the- person as well as the property of minor children. This power extends to the
undivided interest of a coparcener

The guardian appointed by the court is known as certificated guardian. Powers of Certificated
guardians. Powers of certificated guardians are controlled by the Guardians and Wards Act, 1890.
There are a very few acts which he can perform without the prior permission of the court. In the
ultimate analysis his powers are co-extensive with the powers of the sovereign and he may do all
those things (though with the permission of the court) which the sovereign has power to do. A
certificated guardian from the date of his appointment is under the supervision, guidance and control
of the court.

Guardianship by affinity:- In pre-1956 Hindu law there existed a guardian called guardian by
affinity. In Chinna v Vinayaghathammal, (AIR 1929 Mad 110 at 112) the guardian by affinity is
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the guardian of a minor widow. Mayne said that "the husband's relation, if there exists any, within
the degree of sapinda, are the guardians of a minor widow in preference to her father and his
relations."' The judicial. pronouncements have also been to the same effect. The guardianship by
affinity was taken to its logical end by the High Court in Paras Ram v. State(AIR 1960 All 479.) In
this case the father-in-law of a minor widow forcibly took away the widow from her mother's house
and married her for money to an unsuitable person against her wishes. The question before the court
was whether the father-in-law was guilty of removing the girl forcibly. The Allahabad High Court
held that he was not, since he was the lawful guardian of the widow.

A question has come before our courts, whether the nearest sapinda of the husband automatically
becomes a guardian of the minor widow on the death of her husband or whether he is merely
preferentially entitled to guardianship and therefore he cannot act as guardian unless he is appointed
as such? Paras Ram seems to subscribe to the former view, and the Madras and the Nagpur high
Courts to the latter view. Under Section.13, Hindu Minority and Guardianship Act, in the
appointment of 'any person as guardian, the welfare of the child is paramount consideration. The fact
that under Hindu law father-in-law has preferential right to be appointed as guardian is only a matter
of secondary consideration.

In our submission, it would be a better law if the guardianship of the minor wife, both of her person
and property, continues to vest in the parents. We do not have much of textual guidance or case law
on the powers of the guardians by affinity. Probably his powers may be taken to be at par with those
of the natural guardian.

Who are dejure and defacto guardian ? Explain the rights of dejure and defacto guardian under
Minority amd guardian Act 1956. Marks:15

De Facto Guardian:- A de facto guardian is a person who takes continuous interest in the welfare
of the minor's person or in the management and administration of his property without any authority
of law. Hindu jurisprudence has all along recognized the principle that if liability is incurred by one
on behalf of another in a case where it is justified, then the person, on whose behalf the liability is
incurred or, at least, his property, is liable, notwithstanding the fact that no authorization was made
for incurring the liability.'

The term 'de facto guardian' as such is not mentioned in any of the texts, but his existence has never
been denied in Hindu law. In Ethilulu v Pathakal, (AIR 1950 Mad 390) Sriramulu, Kanta. said
that Hindu law tried to find a solution out of two difficult situations : one, when a Hindu child has
no legal guardian, there would be no one who would handle and manage his estate in law and thus
without a guardian the child would not receive any income for his property and secondly, a person
having no title could not be permitted to intermeddle with the child's estate so as to cause loss to
him. The Hindu law found a solution to this problem by according legal status to de facto guardians.

A mere intermeddler is not a de facto guardian. An isolated or fugitive act of a person in regard to
child's property does not make him a de facto guardian. To make a person a de facto guardian some
continuous course of conduct is necessary on his part. In other words, a de facto guardian is a person
who is not a legal guardian, who has no authority in law to act as such but nonetheless he himself
has assumed, the management of the property of the child as though he were a guardian. De facto
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guardianship is a concept where past acts result in present status. The term literally means 'from that
which has been done.'

The de facto guardian was recognised in Hindu law as early as 1856. The Privy Council in
Hanuman Pd. {(1856) 6 MIA 393}. said that 'under Hindu law, the right of a bona fide
incumbrancer, who has taken a de facto guardian a charge of land, created honestly, for the purpose
of saving the estate, or for the benefit of the estate, is not affected by the want of union of the de
facto with the de jure title.

Powers and duties of guardians

Section 8 deal with Powers of natural guardian

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

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

(a) Mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the
immovable property of the minor, or
(b) Lease any part of such property for a term exceeding five years or for a term extending more
than one year beyond the date on which the minor will attain majority.

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

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

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

(a) Proceedings in connection with the application shall be deemed to be proceedings under that
Act within the meaning of section 4A thereof;
(b) The court shall observe the procedure and have the powers specified in sub-sections (2),(3)
and (4) of section 31 of that Act; and
(c) An appeal shall lie from an order of the court refusing permission to the natural guardian to
do any of the acts mentioned in sub-section (2) of this section to the court to which appeals
ordinarily lie from the decisions of that court.
(6) in this section, " court " means the City Civil Court or a District Court or a court empowered
under section 4A of the Guardians and Wards Act, 1890, within the local limits of whose
jurisdiction the immovable property in respect of which the application is made is situate, and where
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the immovable property is situate within the jurisdiction of more than one such court, means the
court within the local limits of whose jurisdiction any portion of the property is situate.

Explanation:-Sec. 8 statutorily recognises some of the powers which used to be enjoyed by the
natural guardian under the old Hindu law and imposes two important restrictions on him in dealing
with the property of the minor. The first restriction is that the guardian can in no case bind the minor
by a personal covenant. The second restriction is that he shall not mortgage or create a charge or
transfer by sale, gift, exchange or otherwise or even lease out the property for a term exceeding five
years or for a term extending more than a year beyond the date on which the minor will attain
majority, without the previous permission of the court. These restrictions on the natural guardian in
relation to the property of the minor apply only to the separate or absolute property of the minor.
Though the expression used is"minor estate" it cannot include the minor's undivided share in the
joint family property as under s.6 there cannot be a natural guardian in respect of such property
which is specifically excluded.- Miriyalu v. Bodireddi Subbayamma 1966 (1) An WR 368, Sri
Narayan Bal v. Sri Sridhar Sutar 1996 (1) HLR 174 (SC)

Under s.12 in regard to the undivided interest of the minor in joint family property no guardian can
be appointed. Courts have consistently held that under the Guardians and Wards Act, no legal
guardian can be appointed for the undivided interest of the minor in joint family property governed
by the Mitakshara law unless the minor is the sole surviving coparcener or unless all the coparceners
are minors. Under the old Hindu Law, the manager or the karta of the family of the minor can
alienate the minor's undivided interest in the joint family property without the permission of the
court, where the alienation is for legal necessity or for the benefit of the minor and this right is left
untouched by this Act.-Krishnakant, In re AIR 1961 Guj 68

On the other hand , this is recognised by the present Act by providing in section 12 that when the
joint family property is under the management of an adult member of the family, no guardian shall
be appointed for the undivided interest of the minor in the joint family property.

Section 9 deal with Testamentary guardians and their powers:-

(1)A Hindu father entitled to act as the natural guardian of his minor legitimate children may, by
will, appoint a guardian for any of them in respect of the minor's person or in respect of the minor's
property (other than the undivided interest referred to in section 12) or in respect of both.

(2)An appointment made under sub-section (1) shall have no effect if the father predeceases the
mother, but shall revive if the mother dies without appointing, by will, any person as guardian.
(3) A Hindu widow entitled to act as the natural guardian of her minor legitimate children and
Hindu mother entitled to act as the natural guardian of her minor legitimate children by reason of the
fact that the father has become disentitled to act as such, may, by will, appoint a guardian for any of
them in respect of the minor's person or in respect of the minor's property (other than the undivided
interest referred to in section 12) or in respect of both.
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(4) A Hindu mother entitled to act as the natural guardian of her minor illegitimate children may,
by will, appoint a guardian for any of them in respect of the minor's person or in respect of the
minor's property or in respect of both.

(5) The guardian so appointed by will has the right to act as minor's guardian after the death of the
minor's father or mother, as the case may be, and to exercise all the rights of a natural guardian
under this Act to such extent and subject to such restrictions, if any, as are specified in this Act and
in the will.

(6) The right of the guardian so appointed by will shall, where the minor is girl, cease on her
marriage.

Explanation:-Under the old Hindu law, a Hindu father alone and no other had the power to appoint a
testamentary guardian of his minor children. A husband had no power to appoint his minor wife's
father as her testamentary guardian under his Will.-Kapila Annapumamma v. Ramanujeya
Ratnam AIR 1959 AP 40. A father was entitled to appoint by will a guardian of the person of his
minor children even to the exclusion of thier mother.-Alagappa v. Mangatrai IL 40 Mad 672

A Hindu mother cannot appoint by Will a guardian even for the person of a minor. Under
Mitakshara law, the management of the whole property including the minor's share in joint family
property would be vested not in the mother but in the eldest male member. It would be otherwise
where the family is divided or where the minor has separate property.-Anusitavathi v. Siromani
1938 ILR 40 (Mad) A Hindu father or other senior coparcener of a Mitakshara family has no power
to appoint, by will or otherwise , testamentary guardians for the coparcenary property of the minor-
Chidambaram Pillai v.Rangaswami AIR 1941 Mad 561

The present Act preserves the old law insofar as it excludes the undivided interest of the minor in
joint family property from the operation of s.9. A father cannot appoint a testamentary gurardian in
respect of the undivided interest of a minor in joint family property- Pattayee v. Subbaraya 1980
HLR 500 (Mad).

ADOPTION

What is an adoption? Explin the effect of adoption on a) Natural family b)Adoption

family.Jan2010 M:15

Explain the capacity of a female Hindu to take Adoption. Jan.2010june 2013,Marks:15

Discuss the powers of a male and female of Hindu in adoption as per the Hindu Adoption and
Maintenance Act 1956. Marks :15

The Shastric Hindu Law looked at adoption more as a sacramental than secular act. Some judges
think that the object of adoption is twofold:

to secure one's performance of one's funeral rites and 2) to preserve the continuance of one's lineage
Inder Singh v. Kartar Singh (AIR 1966 Punj. 258),. Hindus believed that one who died without
 127

having a son would go to hell called poota and it was only a son who could save the father from
going to Poota. This was one of the reasons to beget a son. Ancient Hindu Shastras recognized
Dattaka and Kritrima as types of sons.

In the Hindu Shastras, it was said that the adopted 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
relations on the paternal and maternal side in the adoptive family also came into existence. This
means he cannot marry the daughter of his adoptive parents, whether the daughter was natural-born
or adopted. In the modern adoption laws, the main purpose is considered to be to provide
consolation and relief to a childless person, and on the other hand, rescue the helpless, the unwanted,
the destitute or the orphan child by providing it with parents. However, in the Chandrashekhara
Mudaliar v. Kulandaiveluo Mudaliar’s (AIR 1963 SC 185), Case it was held that the validity of
an adoption has to be judged by spiritual rather than temporal considerations and devolution of
property is only of secondary importance.

Adoption is the transplantation of a son from the family in which he is born,to another family where
he is given by the natural parents by way of gift.The adopted son is then taken as being born in the
new family and acquires rights ,duties and status there only ,and his ties with the old family come to
an end.Under the texual Hindu law the main motive was religious.

Requirements for a valid adoption:- sec.6

i)The person adopting is lawfully capable of taking in adoption(sec.7)

ii)The person giving in adoption is lawfully capable of giving in adoption(sec.8)

iii)The person adopted is lawfully capable of being taken in adoption (sec.10)

iv)The other conditions mentioned in compliance of adoption(sec.11)

The adoption is completed by an actual giving and taking and the ceremony called datta homam
(oblation to the fire) has been performed. However this may not be essential in all cases as to the
validity of adoption.

Capacity and right to adopt

Capacity of male (sec.7) :Any male Hindu, who is of sound mind and is not a minor, has the
capacity to take a son or daughter in adoption. Provided that if he has a wife living, he shall not
adopt except with the consent of his wife, unless his wife has completely and finally renounced the
world or has ceased to be a Hindu, or has been declared by a court of competent jurisdiction to be of
unsound mind. If a person has more than one wife living at the time of adoption the consent of all
the wives is necessary unless the consent of one of them is unnecessary for any of the reasons
specified in the preceding provision.

Capacity of female : Any female Hindu a. who is of sound mind b. who is not a minor, and c. who
is not married, or if married, whose marriage has been dissolved or whose husband is dead or has
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completely and finally renounced the world or has ceased to be a Hindu, or has been declared by a
court of competent jurisdiction to be of unsound mind, has the capacity to take a son or daughter in
adoption.

Where the woman is married it is the husband who has the right to take in adoption with the consent
of the wife. The person giving a child in adoption has the capacity/right to do so: a. No person
except the father or mother or guardian of the child shall have the capacity to give the child in
adoption.

b. The father alone if he is alive shall have the right to give in adoption, but such right shall not be
exercised except with the consent of the mother unless the mother has completely and finally
renounced the world or has ceased to be a Hindu, or has been declared by a court of competent
jurisdiction to be of unsound mind.

c. The mother may give the child in adoption if the father is dead or has completely and finally
renounced the world or has ceased to be a Hindu, or has been declared by a court of competent
jurisdiction to be of unsound mind.

d. Where both the father and mother are dead or have completely and finally renounced the world or
have abandoned the child or have been declared by a court of competent jurisdiction to be of
unsound mind or where the parentage of the child is unknown - the guardian of the child may give
the child in adoption with the previous permission of the court. The court while granting permission
shall be satisfied that the adoption is for the welfare of the child and due consideration will be given
to the wishes of the child having regard for the age and understanding of the child .The court shall
be satisfied that no payment or reward in consideration
of the adoption except as the court may sanction has been given or
taken.

e.After the father , the mother is competent to give the child in adoption(not the step mother).

Further, Sec 8 authorises a maiden ,a divorced woman or a widow to take a child in adoption.

Qualifications for Adoption : (se.10) No person can be adopted unless;

a. he or she is a Hindu;

b. he or she has not already been adopted

c. he or she has not been married, unless there is a custom or usage applicable to the parties which
permits persons who are married being taken in adoption;

d. he or she has not completed the age of fifteen years unless there is a custom or usage applicable to
the parties which permits persons who have completed the age of fifteen years being taken in
adoption.

Right of male and female to adopt (sec.11):- In every adoption the following conditions must be
followed:-
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a. if the adoption is of a son, the adoptive father or mother by whom the adoption is made must not
have a Hindu son, son's son or son's son's son (whether by legitimate blood relationship or by
adoption) living at the time of adoption

b. if the adoption is of a daughter, the adoptive father or mother by whom the adoption is made must
not have a Hindu daughter or son's daughter (whether by legitimate blood relationship or by
adoption) living at the time of adoption;

c. if the adoption is by a male and the person to be adopted is a male, the adoptive father is at least
twenty one years older than the person to be adopted;

d. if the adoption is by a female and the person to be adopted is a male, the adoptive mother s at least
twenty one years older than the person to be adopted;

e. the same child may not be adopted simultaneously by two or more parents; the child to be adopted
must be actually given and taken in adoption with an intent to transfer the child from the family of
birth.

Effect of adoption on a) Natural family b) Adoption family

a) Natural family On adoptionthe child ceases to have any right or subjectd to any liability or
disability as a member of the family of his birth. But the tie of blood betweenhim and the members
of that family and disabilities arising therefrom continues. In spite of adoption he or she cannot
marry any person from the natural family witfin the prohibited degree. The date of adoption will
be considered for all purposes.Before adoption any property effected, willnot be re-opened for
purposes of readjustment of the joint family properties. .

b) Adoption family : All rights and priveleges of the family of birth cease to exist and gets in
adopted family.The adopted child is deemed to be that of adoper’s family.Adopted father and
mother is treated as real father and mother. According to sec.12 of the act,from the date of
adoption the child deems as replaced. But the child cannot marry as that of natural born son . And
property vested in any person before the date of adoption shall continue with such person and
subject to obligations.The property vested in adopted child do not divest to any person. Under sec.
13, the adoptive parents have an absolute right of disposal in the properties belonging to them
either by intervivos or by will.