MODERN COLLEGE OF LAW

Family Law – I
Hindu Law
(Paper Code: K-2003)

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 Paper – III
Family Law - I
(Hindu Law)
(Paper Code: K-2003)

The course shall comprise of the following:

(1) Sources of Hindu Law
(2) Schools and Sub-Schools of Hindu Law
(3) Marriage: Essentials of a Valid Marriage, Void and Voidable Marriage
(4) Matrimonial Relief: Concept and Grounds of Various Matrimonial Reliefs viz.
 Restitution of Conjugal Rights
 Judicial Separation
 Nullity of Marriage
 Divorce
(5) Legitimacy - Legal Status of Children Born of Void and Voidable Marriage.
(6) Adoption
(7) Hindu Minority and Guardianship Act, 1956
(8) Law of Maintenance - Hindu Adoption and Maintenance Act, 1956

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Ques. Who is a Hindu and to whom Hindu law is applicable.
Synopsis

 Who are Hindus?

 Person to Hindu Law applies
 Nature of Hindu Law
 Old Law & Present Law

Since the passing of Hindu Marriage Act of 1955, Hindu. Succession Act of 1956, Hindu Adoptions and
Maintenance Act of 1956 and Hindu Minority and Guardianship Act of 1956, the following persons shall be
deemed to be Hindus:

1. Any person who is Hindu by religion irrespective of or regardless of its forms or developments,
including-
(a) a Virashaiva, (b) a Lingayat, (c) a follower of the Brahmo, Prarthana or Arya Samaj.
2. Any person who is either-
(a) a Buddhist by religion; (b) a Jain by religion; or (c) a Sikh by religion.
3. Any other person domiciled in the territories to which this Act extends who is not-
(a) A Muslim by religion; or (b) A Christian by religion; or (c) a Parsi by religion; or (d) a Jew by
religion, except when it is proved that any such person would or usage as a part of that law (Hindu
Law) in respect of any of the matters which are dealt with in these Acts, if these had not been passed.

The following persons are Hindus, Buddhists, Jains or Sikhs by religion

(a) Any child, legitimate or illegitimate, both of whose parents belong to any of the above religion.
(b) Any child, legitimate or illegitimate, both of whose parents (father and mother) are Hindus, Buddhists,
Jains or Sikhs.
(c) Any child, legitimate or legitimate, one of whose parents (either father or mother) is a Hindu,
Buddhists, Jain or Sikh by religion and who is brought up as a member of the tribe, community, group
or family to which such parent (either the father or the mother)belongs or belonged;
(d) Any person who is a convert or reconvert to the Hindu, Buddhist, Jain or Sikh religion.

It was the old belief that Hindu Law applies only to those who are the followers of the rigid orthodox traditions
of Hindu religion. But the case of Ram Bhagwan Koer v. F.C Bose, [(1903) 30 I.A 2 : 31Cal. 11] has settled a

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rule that a Hindu does not cease to be governed by Hindu Law only because of the lapse from orthodox Hindu
practices or by deviation from its central doctrines.

In the case of Abraham v. Abraham, it has been decided that Hindu law is applicable to those persons who are
born as Hindus and have continued to be so. Those Hindus who have converted to another religion will not be
governed by Hindu Law.

The applicability of Hindu Law is not restricted or confined to those persons who are Hindus by birth. Its
application has been extended to those persons also who have accepted the Hindu religion.

Persons to whom Hindu law applies

1. Hindus by birth and also Hindus by conversion in any of its forms ore developments including Brahmans,
Arya Samajists, etc.
2. Illegitimate children whose parents are Hindus.
3. Illegitimate children born of a Christian father and a Hindu mother and brought up as Hindus.
4. Buddhists, Jainism and Sikhs and Namburdy Brahmans except, so far as such law is buried by custom and
Lingayats who are considered as Shudras.
5. Sons of Hindu dancing girls of the Naik caste converted to Mohammedanism where the sons are taken
into the family of Hindu grandparents and are brought up as Hindus.
6. A Hindu by birth who having renounced Hinduism, has reverted to it after performing the religious rites of
expiation and repentance, or even without a formal ritual of reconversion when he recognized as a Hindu
by the community.

Nature of Hindu Law

According to jurists of modern Europe, “Law is the command which the sovereign power, political society,
imposes on subject or members of the society. As the Hindu Codes do not profess to embody the commands of
any king on Earth, it might seem that the Hindus had never such a thing as could be called their law. It is true
that our Codes do not embody the commands of any scepter monarch. But is must be conceded by everyone
who knows anything of the mechanism of our society that the Brahmins were the real rulers of the country. As
long at least as Hindu Kings occupied the every one of the Hindu community, the Brahmins enjoyed supreme
legislative power, and the commands imposed by them were generally obeyed.”

Mayne defines Hindu Law “as the law of the ‘Smritis’ as expounded in the Sanskrit Commentaries and Digests
which, as modified and supplementary by custom, is administered by courts.”

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It is very significant that the term ‘Hindu’ even before the codification of some branches of Hindu law in 1955-
96 had not been defined strictly in terms of religion. Before 1955, a person who was a Hindu by religion was
certainly a Hindu, but the converse was not true. There were persons who certainly a Hindu, but the converse
was not true. There were persons, who could hardly be called Hindus by religion, yet Hindu law applied to
them; and, since Hindu law applied to them, they were called Hindus. Thus, at the time of codification we had
reached a stage when it was easier to indicate a Hindu negatively: a person who was not a Muslim, Christan,
Parsi or Jew was a Hindu. It was in respect of religious endowments that the definition of “Hindu” in terms of
religion was of some significance.

The persons to whom Hindu law applies may be put in the following three categories:

(a) Any person who is a Hindu, Jain, Sikh or Buddhist by religion, i.e., Hindus by religion.
(b) Any person who is born of Hindu parents (viz., when both the parents or one of the parents is a Hindu,
Jain, Sikh or Buddhist by religion), i.e., Hindus by birth, and
(c) Any person who is not a Muslim, Christan, Parsi or Jew, and who is not governed by any other Law.

Old Law- Hindu is born not made - This statement refers to the general rule that the status of a person as Hindu
is determined not by the person himself but by birth. According to the ancient Hindu textual rules a Hindu is
born and cannot be made. If a person is born of Hindu parents he is a ‘Hindu’ unless he alters his existing status
as a Hindu by becoming a member of such religion as would destroy his status as ‘Hindu’ and given him a new
one. A Hindu on his conversion to Christianity, Islam or Zoroastrianism ceases to be governed by the Hindu
Law.

Present Law- Statement not correct i.e., Hindus born as well as made.- But the above statement is no longer
correct as according to their Lordships of the Privy Council includes those born as ‘Hindu’ and also those who
become converts to Hinduism. Therefore, Hindus are born as well as made and thus the applicability of Hindu
Law is not restricted or confined to those persons only who are Hindus by birth. Its application has been
extended to those persons also who have accepted the Hindus religion or converted to Hinduism.

Quest- Discuss the various sources of Hindu Law and dwell on the role of custom in the development of
Hindu Law. Is it true to say that the clear proof of usage will out weight the written text of law Discuss.

Ans-.SYNOPSIS

 SOURCES OF HINDU LAW

I. Ancient Sources

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1. Shruti 2.Smruti 3.Commentaries and Digest 4.Customs
II. Modern Source
1. Equity, Justice, and Good conscience 2. Precedent 3. Legislation
Sources of Hindu Law
Sources of Hindu Law can be divided into two parts –

sources of
Hindu Law

Ancient Modern
source source

Ancient Sources-

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

Ancient Sources

Commentaries
Shruti Smruti Customs
and Digest

1. Shruti

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

2.Smruti
Smrit means "what is remembered". With smrutis, a systematic study and teaching of Vedas started. Many
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sages, from time to time, have written down the concepts given in Vedas. So it can be said that Smrutis are a
written memoir of the knowledge of the sages.
Immediately after the Vedic period, a need for the regulation of the society arose. Thus, the study of vedas and
the incorporation of local culture and customs became important. It is believed that many smrutis were
composed in this period and some were reduced into writing.

3. Commentaries and Digest:

The work done to explain a particular smriti is called a commentary. Digests were mainly written after that and
incorporated and explained material from all the smruitis. As noted earlier, some of the commentaries were,
manubhashya, manutika, and mitakshara. While the most important digest is Jimutvahan's Dayabhag that is
applicable in the Bengal and Orissa area. Mitakshara literally means 'New Word' and is paramount source of
law in all of India. It is also considered important in Bengal and orissa where it relents only where it differs
from dayabhaga. It is a very exhaustive treaties of law and incorporates and irons out contradicts existing in
smritis.

4. Customs

Most of the Hindu law is based on customs and practices followed by the people all across the country. Even
smrutis have given importance to customs. They have held customs as transcendent law and have advised the
Kings to give decisions based on customs after due religious consideration.
Valid custom

I. Ancient
II. Not against morality
III. Not against public policy
IV. Not against any law

II. Modern Sources The following are the modern sources of Hindu law:-

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 Modern
Sources

Equity, Justice,
and Good Precedent Legislation
conscience

1.Equity, Justice, and Good conscience -Equity means fairness in dealing. Modern judicial systems greatly
rely on being impartial. True justice can only be delivered through equity and good conscience. In a situation
where no rule is given, a sense of 'reasonableness' must prevail.

2.Precedent The doctrine of stare decisis started in India from the British rule. All cases are now recorded and
new cases are decided based on existing case laws. Today, the judgment of SC is binding on all courts across
India and the judgment of HC is binding on all courts in that state.

3.Legislation In modern society, this is the only way to bring in new laws. The parliament, in accordance with
the needs society, constitutes new laws. For example, a new way of performing Hindu marriages in Tamil Nadu
that got rid of rituals and priests was rejected by the SC on the basis that new customs cannot be invented.
__________

.Quset:- Mitakshra Coparcenary in a creation of Law and is not limited to four degrees. Comment.
Or

How the coparcenary is formed under Dayabhag School? What are the special features of Dayabhag
Coparcenary?

SYNOPSIS
 SCHOOLS OF HINDU LAW
 PRINCIPLE OF SCHOOLS
 MITAKSHARA
 DAYABHAGA
The two main schools of Hindu Law are the “Mitakshara” and the ‘Dayabhaga’. These two schools of Hindu
Law are marked by a vital difference of opinion and interpretation of the Smritis. The Mitakshara written by
Vijnaneshwara is a running commentary on the Smriti of Yajnavalkya and ‘the Dayabhaga’ written by
Jimutavahana is not a commentary on any particular Code, but professes to be a digest of all the Codes. The
Mitakshara School prevails throughout India except Bengal where the Dayabhaga School prevails.

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Mitakshara School of Hindu Law can be again divided into five sub-schools.
(1) Dravi da or Madras School of Hindu Law.
(2) Punjab School of Hindu Law.
(3) Banaras School of Hindu Law.
(4) Mithila Schools of Hindu Law.
(5) Maharashtra or Bombay Schools of Hindu Law.
All these schools acknowledge the supreme authority of Mitakshara, but give preference to certain treaties and
commentaries which control the certain passage of the Mitakshara.
In Rutcheputty v. Rajendra, it has been observed by the privy Council that the different schools of Hindu Law
have originated due to different local customs prevailing in different provinces of India. The commentators on
the Smritis could not ignore the local customs and usages and while interpreting the texts, they eventually
incorporated different local customs. The local conditions and customs of the different provinces have,
therefore, gone to mould the principles of law prevailing in each province.
Process of development- In the case of Collector of Madras V/s Moottoo Ramalinga, [(1968) 12 MIA 397], the
Privy Council has held, “The remoter sources of the Hindu Law (that is Smritis) are common to all the different
schools. The process by which those schools have been developed seems to have been of this kind. Works
universally or very generally received became the subjects of subsequent commentaries. The commentator put
his own gloss on the ancient text; and his authority having been received in one and rejected in another part of
Indian schools with conflicting doctrines arose.”
The variance between the sub-divisions of the Mitakshara school are comparatively few and slight. Following
are the reasons for these differences:-
(1) One reason which used to be given for this division is that “the glosses and commentaries upon the
Mitakshara are received by some of the schools but are not received by all”.
(2) Another reason given for this division into schools is that the commentaries in a particular province which
follow the Mitakshara put a particular gloss on it and are agreed upon it among themselves.
Dayabhaga- This school prevails in West Bengal as well as in Assam except in one point in which the written
law is at variance with the custom of the locality.
The following authorities are the chief exponents of this school:-
(i) Dayabhaga,
(ii) Dayatatva,
(iii) Dayakrama-Sangraha,
(iv) Viramitrodaya and
(v) Dattaka-Chandrika.
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 As a result of the above process two principles schools of Hindu Law sprang up, i.e.,
(i)Mitakshara and the
(ii) Dayabhaga.
Essential differences between the Mitakshara and the Dayabhaga Schools
The fundamental differences between the Mitakshara and Dayabhaga Schools of Hindu Law lie in the following
points:
1. As regards alimentation
MITAKSHARA DAYABHAGA
1. Members of joint family cannot dispose 1. Any member of joint family may sell or
of their shares while undivided. give away his share even when
undivided.

2. As regards inheritance
1. Before the Hindu Succession Act, 1956 1. Before the Hindu Succession Act, 1956
the principle of inheritance was the principle of inheritance was
consanguinity (i.e. blood-relationship). spiritual efficacy (offering of Pindas).
2. But cognates are postponed to agnates. 2. But cognates like sister’s son are
preferred to many agnates.

3. As regards joint property

1. Right to property arises by birth (of the 1. Right to property arises by death (of the
claimant); hence the son [and after the last owner); hence, son has no right to
Hindu Succession (Amendment) Act, ancestral property during father’s life-
2005, daughter] is a co-owner with the time.
father in ancestral property. 2. Father has absolute power of alienation
2. Father has a restricted power of and son can not claim partition or even
alienation and son (now daughter also) maintenance during the life time of the
can claim partition even against the father after attaining majority.
father. 3. The interest of every person would, on
3. Before the Hindu Succession his death, pass by inheritance to his heirs,
(Amendment) Act, 2005 the interest of like widow or daughters.
the members of joint family would on his

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 death, pass to the other members by
survivorship. The principle of
survivorship has been abolished by the
Hindu Succession (Amendment) Act,
2005 in Mitakshara law also.

As regards inheritance of separate property there is no difference between Mitajshara and the Dayabhaga
law after the commencement of the Hindu Succession Act, 1956.
4. As regards Doctrine of Factum Valet, i.e., a fact cannot be altered by hundred texts
1. It is recognised to a very limited extent. 1. Doctrine of factum valet is fully
2. Mitakshara is a commentary. recognised.
3. Mitakshara is an orthodox school. 2. Dayabhaga is a digest of all the Codes.
3. Dayabhaga is a reformed school.

Quest: - Is Hindu marriage a sacrament or a contract would it is useful for society to make it a full
contract keeping intact the sacramental rituals?

SYNOPSIS
 NATURE OF MARRIAGE UNDER THE OLD HINDU LAW
 HINDU MARRIAGE IS NOT A CIVIL CONTRACT
 NATURE OF MARRIAGE UNDER THE HINDU MARRIAGE ACT PRESENT LAW

Nature of marriage under the old Hindu Law

If we turn over the pages of our Hindu Shastras or if we have a glance over ancient Hindu Jurisprudence, we
find that marriage ceremony is the last of the ten sacraments of the purifying ceremonies. Marriage tie is a tie
which can never be broken and it is a relation established from birth to birth, according to ancient Hindu Law.
The object of marriage, according to the Hindus, it is getting of children and the proper performance of
religious ceremonies. The sanctity of marriage was held to be so great that it was regarded to have some divine
origin and was thought to be predestined. The husband receives his wife from the gods and must always
support his wife if she is Faithful.

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In case of Gopal Kishan v. Mithilesh Kumari, (A.I.R. 1979 All, 316), the Allahabad High Court observed that
the institution of matrimony under the Hindu Law is a sacrament, and not a mere socio-legal contract. Marriage
as a sacramental union implies several things; first, the marriage between man and woman is of religious or
holy character not a contractual union. For a Hindu, marriage is obligatory not merely for begetting a son in
order to discharge; the debt of his ancestors but also for the performance of other religious and spiritual duties.
Marriage, according to Shastras, is a holy sacrament and the gift of the girl to a suitable person is a sacred duty
put on the father on the performance of which the father gets great spiritual.

Hindu Marriage is not a civil contract (sacrament) – Thus under the Old Hindu Law. Hindu marriage is
unlike a Christian marriage where marriage is treated as a contract and can be made and broken by mere offer
and acceptance. This is different from any Muslim marriage which is contractual and has its objects to be
procreation and the legalization of children. It is a sacrament of a holy union for the performance of
religious duties. Divorce was unknown to old textual Hindu Law of marriage. The reason was that a
marriage, from the Hindu point of view, creates an indissoluble tie between the husband and the wife
Following are some points which support that Hindu marriage is not a civil contract
i. Hindu has always considered their marriage as a sacrament which has the implication that it is permanent
indissoluble (valid not merely in this life but in lives to come)
ii. Hindu marriage is holly marriage(performance of religious ceremonies is essential )
iii. Wife is also ardhangini (half of man) under Hindu concept.
Nature of marriage under the Hindu Marriage Act present Law – The Hindu marriage contemplated by the
Act hardly remains sacramental. Hindu Law concludes that a Hindu marriage under the Act is not entirely or
necessarily a sacrament but a union of one man with one woman to the exclusion of all others satisfied by
solemnization of the customary rites and ceremonies of either party essential for a marriage and directly it
exists, creates a relation and status not imposed or defined by contract but by law.
Section 13 and Section 13B of the Hindu Marriage Act, 1955, introduce a very vital and dynamic change in the
Hindu Law of marriage. Section 13 gives to both husband and wife the right to petition the court for divorce on
anyone of the grounds mentioned in this section. Section 13 provides the circumstances in which the right to
divorce accrues. Under Section 13B the Court may grant decree of divorce on the ground of mutual consent of
the parties. ________________________

Quest:- What are the grounds for Judicial separation under the Hindu Marriage Act.

SYNOPSIS

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  Judicial separation—Section10
I ) Adultery Ii) Cruelty Iii)Unsound Iv) Mind V) Conversion Vi) Leprosy Vii) Venereal Disease
Viii) Missing Spouse
 In case of wife she would be entitled to a degree of judicial separation on follow additional
grounds: - 13(2)
 Effect of Degree

Judicial separation—Section10 of the Hindu Marriage Act deals with judicial separation. Under the Textual
Hindu Law there was no scope either for judicial separation or for divorce. Nowhere these two terms have been
introduced except in recent enactments. It was pious duty of the husband to keep the wife under his roof and
maintain her. She was shown as better half (Ardhangini). Without the wife husband was not complete. He alone
could not perform any religious ceremony. Wives were to be honoured and respected by the husbands as they
were known Grihlakshmi (wealth of the house). But our recent enactments have prescribed separation and
divorce. Section10 of the Marriage Act deals with topic of judicial separation.

Section 10 (1) provides that either party to a marriage may present a petition to District Court praying for a
degree for separation on any of the Grounds specified in sub-section (1) of Section 13, and in the case of a wife
also on any of the grounds specified in subsection (2) there of as grounds on which a petition for divorce might
have been presented.

Section 10(2) of the act lays down,” where a degree for 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 of the truth of the statements made in such petition, rescind the degree if it
considers it just and reasonable to do so.”Now, under the Marriage Laws (Amendment) Act, 1976, the grounds
for divorce and judicial separation are virtually the same. Whatever the grounds of divorce under the amended
section 13 (10 have been similarly adopted in Section10. Thus under Section 10 now the grounds for judicial
separation are:

(i) Adultery: Where the other party has, after the solemnization of the marriage had voluntary sexual
intercourse with any person other than his or her spouse;
(ii) Cruelty: Where the other party has treated the petitioner with cruelty; or
(iii) Desertion: Where the other party has deserted the petitioner for a continuous period of not less than
two years immediately preceding the presentation of the petition; or

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 (iv) Unsound mind: Where the other party has been incurably of unsound mind or has been suffering
continuously or intermittently from mental cannot reasonably be expected to live with the respondent.
(v) Conversion: Where the other party has ceased to be a Hindu by conversion to another religion. On
this ground court direct provide divorce instead of judicial separation
(vi) Leprosy: Where the other party has been suffering from a virulent and an incurable form of leprosy;
(vii) Venereal disease: Where the other party has been suffering from venereal disease in communicable
form;
(viii) Missing Spouse,- Where the other party has not been heard of as being alive for a period of seven
years or more by those persons who would naturally have heard of him had that party been alive. On
this ground court directly provide divorce instead of judicially separation.
(ix) Renunciation of world - Where the other party has renounced the world by entering any religious
order. This is direct ground of divorce instead of judicial separation.

In case of wife she would be entitled to a degree of judicial separation on follow additional grounds: -
13(2)

(1)Bigamy: In case of any marriage solemnized before the commencement of this Act where the husbands
has married again before the commencement of this Act or the other wife was alive at the time of
solemnization of the marriage, or

(2)Rape, Sodomy or Bestiality: Where the husbands, since the solemnization of the marriage been guilty
of rape, sodomy or bestiality, or
(3)Degree or order awarding maintenance: Where a degree has been passed against the husband
awarding maintenance to wife and cohabitation has not resumed for a period of one year, or
(4)Repudiation of the marriage: Where her marriage was solemnized before she attained the age of
fifteen years and she repudiated the marriage before that age but before attaining the age of eighteen years.
Section 10 sub-clause (2) provides that it shall no longer be obligatory for the petitioner to cohabit with the
respondent where degree for judicial separation has been passed. But the court may, on the application by
petition of either party and on being satisfied of the truth of the statements made in such position, rescind
the degree if it considers it just and reasonable to do so.
Effect of Degree-
A degree of judicial separation does not snap the legal bond of marriage between the parties. However, it
gives a legal license to the petitioner to live separate from the respondent and the latter can no more insist
that the former cohabit and children may be decided by the court while deciding on a petition for judicial
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 separation and even earlier whole the petition is pending for disposal. If the cohabitation has not been
resumed for one year on more following a degree of judicial separation it is a ground for divorcé available
to either party. By implication of Section 10(2) it appears that in the absence of a degree for judicial
separation it is not legally obligatory for the parties to cohabit with one another.
Difference between Divorce and Judicial Separation
Judicial separation is different from divorce. Divorce puts the marriage to an end. All the mutual
obligations and right of husband and wife cease. In short after a decree of dissolution of marriage, marriage
comes to an end; parties ceased to be husband and wife and are free to go their on ways. There remain no
bonds between them except in relation to section 25(maintenance and alimony) and sec 26 custody,
maintenance and education of children). After divorce parties are free to remarry. On the other hand
judicial separation merely suspends marital rights and obligation during the period of subsistence of the
decree parties continues to be husband and wife.
The points of distinctions may be shown in the following tabular form.

Divorce. Judicial separation.

1. Marital tie comes to an end by divorce. Judicial separation does not put the marital tie to
an end.

2. In the case of divorce the mutual rights and But in case of judicial separation the mutual
obligations of husband and wife ceases to rights and obligations of husband and wife
continue. remain suspended only.

3. Divorce ends the bonds between husband and In Judicial separation, the parties continue to
wife. The wife is only entitled to the maintenance remain as husband and wife.
and alimony under section 25 and custody,
maintenance and education of the children under
section 26 of the Hindu Marriage Act.

4. Divorce gives the right to the parties to remarry. But judicial separation does not give the parties
the right to remarry because the marital tie
continues.

5. After divorce, the former husband’s intercourse But in case of Judicial separation , if the
with his former wife, without her consent, is a cohabitation does not take place between the
parties for a period of one year or upwards ,
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 punishable offence under section 376 of I.P.C. either of the parties may seek for divorce under
section 13 (1A)(i )of the Act . So , cohabitation is
expected for reconciliation amongst the parties in
case of Judicial separation

Quest:- What are the different types of marriage under Hindu Marriage Act, 1955?

SYNOPSIS
1. Valid Marriage 2.Void Marriages 3.Voidable Marriage

Valid Void Voidable

Marriage Marriages Marriage
Conditions of Valid marriage under Hindu Marriage Act, 1955
Now, under the Hindu Marriage Act, 1955, the identity of caste or sub-caste is not necessary for a valid
marriage. The Act does not recognize the prohibition in marriage on the basis of Sagotra relationship. The Act
has, however, provided five conditions prerequisite for a valid Hindu marriage which are as follows:-
(1) Monogamy- Section 5 (i) – The first condition of a valid marriage is that “neither party has a spouse living
at the time of the marriage.” A second marriage while a previous married wife is living is null and void.
Thus this clause provides the rule of monogamy and prohibits polygamy which was permitted before this
Act. This is a mandatory provision, the violation of which renders the party, marrying liable for
punishment under section 17 of the Act. In Smt. Yamunabai Anant Rao Adhar v. Anant Rao Thiraram
Adhar, (AIR 1988 S.C 644), it has been held that the marriage becomes null and void where it is in
violation of the first condition of section 5 .It becomes void ab initio and ipso facto the wife of a void
marriage cannot claim maintenance under Section 125 of the Code of Criminal Procedure.
(2) Sanity – Section 5 (ii)- The second condition for a valid marriage as provided under the ‘Marriage Laws
(Amendment) Act, 1976 is that at the time of marriage, neither party-
(a) Is capable of giving a valid consent to it in consequence of unsoundness of mind; or
(b) Though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to
such an extent as to be unfit for marriage and the procreation of children; or
(c) Has been subject to recurring attacks of insanity.
A marriage an account of lack of mental capacity is void able at the instance of the other party.

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(3) Age of marriage – Section 5 (iii) – It is provided as the third condition that “the bridegroom has
completed the age of twenty-one years and the bride the age of eighteen years at the time of the marriage.”
But in case a marriage is solemnized in contravention of this provision it is neither void nor voidable but it
would render the party, responsible for procuring the marriage, liable for punishment which is given under
sec-18 of Hindu marriage Act 1955 with simple imprisonment which may extend to fifteen days or
fine which may be extend to one thousand rupees or with both.
According to the Marriage Law(Amendment) Act, 1976, where the marriage of a girl has been effected
before she attained the age of fifteen years and after attaining the age of fifteen years but before
attaining the age of eighteen years, if she repudiates the marriage, the girl can obtain a decree of
dissolution of marriage. This is an additional ground made available to a girl, where marriage has been
solemnized below the age of fifteen years.
(4) Beyond prohibited degrees (Section 5 (iv)). The fourth condition lays down that “the parties are not
within the degrees of prohibited relationship, unless the custom or usage governing each of permits of
marriage between the two”. The custom, however, must be reasonable and not opposed to decency or
morality. [Balusami v.Balkrishna, A.I.R mad,79]. Where the parties to marriage are related to each
other within prohibited degrees the party responsible for procuring the marriage is liable for punishment
under Section 18(b) of the Act.
(5) Beyond Sapinda Relationship Section 5(v). This condition prohibits marriage between persons who
are ‘Sapindas’ of each other. A, marriage in contravention of this clause, i.e., section5 (v) will be ‘void’
and may be so declared under section11. The person contravening, the provisions of this clause will be
liable to simple imprisonment extending to one month or to fine of one thousand rupees or to both under
section 18 (b) of the Act.

Void marriages

Section 11 of the Hindu Marriage Act, says that “any marriage solemnized after the commencement of this Act
shall be null and void and may, on a petition presented by either party there to be so declared by a degree of
nullity if it contravenes any one of the conditions specified in clauses (i),(ii) and (v) of section 5.” Thus a
marriage will be void ‘ab initio’-

(i) Bigamy: If any party to the marriage has a spouse living at the time of the marriage the degrees [Section
5(i), (AIR 1964 SC 1625).
(ii) Prohibited degrees of relationship- if the parties are within the degrees of prohibited relationship unless
the custom or usage governing each of them permits such a marriage [Section 5 (iv)].
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(iii) Sapind Relationship- if the parties are Sapindas of each other, unless the custom or usage governing
each of them permits such a marriage [Section 5 (v).

Effect of Void marriage

The provisions of Section 11 of Hindu Marriage Act for declaration of a marriage null and void, and of Section
for divorce require that a petition under these sections is to be presented by either the husband or the wife.
Therefore, where the first wife of a person seeks declaration as to nullity of marriage between her husband and
some other lady, the suit shall not be governed by this Act, but shall be governing by Section 9 of C.P.C read
with Section 34 of specific Relief Act

Voidable marriage – According the Sec-12 any marriage solemnized, whether before or after commencement
of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds,
namely-

(a) Impotency: that the marriage has not been consummated to the impotence of the respondent. [Section 12
(1) (a)].The wife need not prove that the husband was impotent at the time of marriage and continued to be
so when the petition was filed. It is enough if it is proved that the marriage has not been consummated and
the non-consummated is due to the impotency of the husband.
(b) Insanity, Unsoundness of mind: that the marriage is in contravention of the condition specified in clause
(ii) of section 5. [Section 12 (1) (b)].Section 12 (i) (b) refers that any marriage shall be voidable and may
be annulled if the Marriage is in contravention of the condition specified in clause (ii) of Section 5. On a
plain reading of the said provision it is manifest that the condition prescribed in that section, if established,
disentitles the party to a void marriage. The marriage is not per se void but voidable under the clause [R.
Lakshmi Narayan v.Santhi, 2001 (45) ALR 515 (S.C)]
(c) Consent obtained by force or fraud: that the consent of the petitioner, or where the consent of the
guardian in marriage of the petitioner is required under section 5, the consent of such guardian, was
obtained by force or by fraud as to the nature of the ceremonies or as to any material fact or circumstances
concerning the respondent; [Section 12(1) (c).
(d) Pregnancy of the Respondent: that the respondent was at the time of marriage pregnant by some person
other than the petitioner. [Section 12 (1) (d)] Can divorce be granted on customary right? Point out the
difference between divorce and judicial separation.

Effect of voidable marriage

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A voidable marriage is a perfectly valid marriage so long as it is not avoided. A voidable marriage can be
avoided by only on the petition of one of the parties to the marriage. If one of the parties does not petition for
annulment of marriage the marriage will remain valid.

Distinction between void and voidable marriage.

A void marriage is void-ab- initio. It does not alter the status of the parties they do not become husband and
wife and it does not give rise to mutual rights and obligation of the parties. On the other hand voidable marriage
remains valid and binding and continues to subsist for all purpose unless a decree annuls it. The parties to a void
marriage may perform another marriage without getting a decree declaring their marriage as void and neither
will be guilty of bigamy.
Section 11 provides the grounds what make a Hindu marriage void .On the other hand section 12 enumerates
the grounds of voidable marriage .There is gulf difference in between the void and voidable marriage . The
points of distinctions may be shown in the following tabular form.

Void Marriage. Voidable Marriage.

1. In a void marriage, the parties do not acquire any On the other hand, in a voidable marriage the
status of husband and wife as such it does not parties acquire status of husband and wife and
confer any mutual rights and obligations upon the it confers mutual rights and obligations upon
parties. the parties for all purposes until a decree of
court annuls it.

2. A void marriage is void ab initio. It is void from the But a voidable marriage remains perfectly
very beginning. No decree of Court is required to valid unless it is avoided by a decree of court
annul the void marriage. However, if parties so nullifying it.
wishes, a void marriage is merely declared by the
court as void by a decree of annulment.

3. In a void marriage, either of the parties to the On the other hand, as the voidable marriage is
marriage may marry again without getting a decree valid unless a voided, neither of the parties can
declaring the marriage void. The offence of bigamy marry again without obtaining a decree of
is not attracted. nullity of marriage or else the offence of
bigamy is attracted.

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 4. In a void marriage, a wife is not entitled to claim But in a voidable marriage, the wife can claim
maintenance under section 125 of Cr.P.C as she maintenance until the marriage is annulled by a
acquires no status of wife. decree of declaration.

5. In void marriage, neither of the parties acquire right In case of voidable marriage, either of the
of inheritance on the death of other party when parties acquire right of inheritance on the death
succession opens. of other party when succession opens, if the
marriage is not annulled.

Quest: - What are the grounds under the Hindu Marriage Act, 1955 to file a petition for divorce.
SYNOPSIS
 GROUNDS OF DIVORCE
 GROUNDS OF DIVORCE AVAILABLE TO EITHER HUSBAND OR WIFE
 ADDITIONAL GROUNDS TO WIFE ONLY

GROUNDS OF DIVORCE AVAILABLE TO EITHER HUSBAND OR WIFE

A marriage on a petition presented by either the husband or the wife be dissolved by a decree of divorce on the
ground mentioned hereunder; under the Marriage Laws (Amendment) Act, 1976, the grounds for divorce and
judicial separation are virtually the same and we have mention here again divorce ground in detailed.

(1) Adultery- Where either party has, after the solemnization of the marriage, had voluntary sexual intercourse
with any person other than his or her spouse. [Section 13 (1) (i)]Under the Marriage Laws (Amendments)
Act, 1976, the expression ‘living in adultery’ has been replaced by “voluntary sexual intercourse with any
person other than his or her spouse”.
(2) Cruelty [Section 13 (1) (1-a) – By the Marriage Laws (Amendment) Act, 1976 the cruelty and desertion,
which were the grounds of judicial separation, have been made the grounds of divorce also. There is no
precise definition of cruelty because the term is so wide. Several situations and cases over past 100 years
have shown that cruelty can be mental or physical. In the case of Dastane vs Dastane 1970 Bom, it was
held that cruelty could be through words, gestures, or even by mere silence.
A general explanation of cruelty can be found in the case of Russel vs Russel 1897, in which it was held
that any conduct that poses a danger to life, limb, or health - physical or mental, or causes reasonable
apprehension of such danger, is cruelty.
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 Types of cruelty –
 Physical Cruelty Injury to body, limb, or health, or apprehension of the same. In the case
of Kaushalya vs Wisakhiram 1961 Punj, husband beat his wife so much so that she had to lodge police
complaint even though injury was not serious. It was held that serious injury is not required.
 Mental CrueltyIn Bhagat vs Bhagat 1994 SC held that a conduct that causes such a mental pain and
suffering that makes it impossible to live with that person is mental cruelty. Mental cruelty must be
such that it cannot reasonably be expected to live together. This has to be judged on the circumstances
of the case. In the case of N Sreepadchanda vs Vasantha 1970 Mysore, wife hurled abuses at the
husband and quarreled over trivial matters so much so that he became a laughing stock in the locality.
This was held to be mental cruelty against the wife. In Saptami vs Jagdish 1970 Calcutta, false
accusations of adultery were held to be mental cruelty. Yashodabai vs Krishnamurthi 1992 - Mere
domestic quarrels with mother in law is not cruelty. Shobha vs Madhukar 1988 SC - Constant demand
for dowry is cruelty. In the case of Jyotishchandra vs Meera 1970, husband was not interested in wife;
he was cold, indifferent, sexually abnormal and perverse. It was physical as well as mental cruelty.
(3) Desertion
Types –
 Actual Desertion,
 Constructive Desertion,
 Willful neglect.
(1) Actual Desertion - without reasonable cause, without consent, 2 yrs must have passed. Lachman vs
Meena - 1964 - Wife was from rich family. She was required to live in joint family of husband. She
went back to parents. Kept making fake promises of return but never did. Held desertion.
Jagannath vs Krishna - Wife became brahma kumari and refused to perform marital obligations. Held
desertion. Bipinchandra vs Prabhavati SC 1957 - Husband went to England. Husband's friend came to
house in India. Husband came back. Alleged affair, which was refuted by wife. Wife went to her parents
for attending marriage. Prevented her from coming back. Held no desertion by wife. Sunil Kumar vs
Usha 1994 - Wife left due to unpalatable atmosphere of torture in husband's house. Held not desertion.
(2) Constructive Desertion - If a spouse creates an environment that forces the other spouse to leave, the
spouse who created such an environment is considered deserter. Jyotishchandra vs Meera 1970 -
Husband was not interested in wife, he was cold, indifferent, sexually abnormal and perverse. Went to
England. Then came back and sent wife to England for PhD. When wife came back, did not treat her

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 well. Abused her and his in-laws physically. Wife was forced to live separately. Held desertion by
husband.
(3) Willful Neglect - If a spouse intentionally neglects the other spouse without physically deserting, it is
still desertion. Balihar vs Dhir Das 1979 - Refusing to perform basic marital obligations such as denial
of company or intercourse or denial to provide maintenance is willful neglect.
(4) Conversion {Section 13 (1) (b) – Where the other party has ceased to be a Hindu by conversion to another
religion; or
(5) Unsoundness of mind [Section 13 (1) (iii)] – Where either party has been incurably of unsound mind, or
has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent
that the petitioner cannot reasonably be expected to live with the respondent.
Insanity as a ground of divorce has the following two requirements-
i) The respondent has been incurably of unsound mind
ii) The respondent has been suffering continuously or intermittently from mental disorder of such a kind
and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.

(6) Leprosy [Section 13 (1) (iv) – Where the other party has immediately preceding the presentation of the
petition, been suffering from virulent and incurable form of leprosy.
(7) Venereal disease [Section 13 (1) (v)] - Where the other party has been suffering from venereal disease in a
communicable form. At present, it is a ground for divorce if it is communicable by nature irrespective of
the period for which the respondent has suffered from it. The ground is made out if it is shown that the
disease is in communicable form & it is not necessary that it should have been communicated to the
petitioner (even if done innocently).
(8) Renunciation of the world [Section 13 (1) (vi) – Where the other party has renounced the world by
entering any religious order; or. Under the Act, a person is presumed to be dead, if he/she has not been
heard of as being alive for a period of at least seven years. The burden of proof that the whereabouts of the
respondent are not known for the requisite period is on the petitioner under all the matrimonial laws. This
is a presumption of universal acceptance as it aids proof in cases where it would be extremely difficult if
not impossible to prove that fact. A decree of divorce granted under this clause is valid & effective even if
it subsequently transpires that the respondent was in fact alive at the time when the decree was passed.
(9) Presumed death [Section 13 (1) (vii) – Where the other party has not been heard of as being alive for a
period of seven years or more by those persons who would have naturally heard of it, had that party been
alive; or

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(10) Non-resumption of cohabitation after decree of judicial separation [Section 13 (1-A) (D) – Where
there has been no resumption of cohabitation between the parties to the marriage for a period of one year
after the passing of a decree for judicial separation in a judicial proceedings to which they were parties; or
(11) No resumption of conjugal rights after the passing of such decree [Section 13 (1-A) (ii)- Where
there has been no restitution of conjugal rights between the parties for a period of one year after the passing
of the decree for restitution of conjugal rights.

ADDITIONAL GROUNDS TO WIFE ONLY

The section has further provided additional grounds to a wife to secure divorce, namely that –

(i) Bigamy [Section 13 (2) (i)] – The husband had married a second time before the commencement of the
Act, and that the other party is alive; and
(ii) Rape, sodomy or Bestiality [Section 13 (2) (ii)] – That the husband, has since the solemnization of
marriage been guilty of rape, sodomy, or bestiality; or
(iii) Decree or order awarding maintenance [Section 13 W(2) ] – Where a decree or order for
maintenance has been passed under section 18 of the Hindu Adoptions and Maintenance Act, 1956 or in
a proceeding under Section 125 of the Code of Criminal Procedure, 1973 (or under the corresponding
Section 488 of the Code of Criminal Procedure, 1898) against the husband awarding maintenance to
wife not withstanding that she was living apart and since the passing of such degree or order,
cohabitation between the parties has not been resumed for one year or upwards; or
(iv) Repudiation of the marriage [Section 13 (2) (iv)]—That her marriage (whether consummated or not)
was solemnized before she attained the age of fifteen years and she has repudiated the marriage after
attaining that age but before attaining the age of eighteen years. Divorce can be now also be obtained by
mutual consent of the parties to marriage under Sec.13-B added by the Marriage Laws (Amendment)
Act1976.

A petition for dissolution of marriage may be presented by both the parties to a marriage together on the ground
that they have been living separately for a period of one year or more and they have been not been able to live
together and they have mutually agreed that the marriage should be dissolved. If the petition is not withdrawn
within eighteen months after the presentation of the petition, the court shall, on being satisfied after hearing the
parties pass a degree of divorce.

Divorce by mutual consent

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

 Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be
presented to the district court by both the parties to a marriage together, whether such marriage was
solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976, on the
ground that they have been living separately for a period of one year or more, that they have not been
able to live together and that they have mutually agreed that the marriage should be dissolved.
 On the motion of both the parties made not earlier than six months after the date of the presentation of the
petition referred to in sub section (1) and not later than eighteen months after the said date, if the petition
is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after
making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the
petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date
of the decree.

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

Requirements of divorce by mutual consent The requirements which have to be met to seek divorce under
Hindu Marriage Act are as follows:

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

The first requirement is that the parties should be living separately for a period of at least one year before filing
the divorce petition. It is necessary to understand what does the term “living separately’ means.

Living separately

The Supreme Court of India in the case of Sureshta Devi v Om Prakash[has ruled out “that the expression living
separately connotes not living like husband and wife. It has no reference to the place of living. The parties may
live under same roof by way of circumstances, and yet they may not be living as husband and wife. What seems
to be important is that they have no desire to perform marital obligations and with that they have been living
separately for a period of one year immediately preceding the presentation of the petition.” It has been ruled out
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by Supreme Court in various cases that the expression “have been living separately’ does not necessarily means
physical separation or living separately and apart what is material is that no marital obligations are performed
between the spouses and they are not living together as husband and wife.

Parties have not been able to live together

After establishing the first requirement that the parties were living separately for one year or more, the second
point that has to be established is that the parties have not been able to live together.

In Sureshta Devi v Om Prakash, the Supreme Court observed that expression “have not been able to live
together” seems to indicate the concept of broken down marriage so much so that there is no possibility of any
reconciliation. The parties need not establish the fact that they have not been able to live together. The very fact
that they have presented a petition by mutual consent is indicative of this fact that they have not been able to
live together. However, it is very imperative to determine whether consent given by both the parties is free and
not obtained by any kind of force, fraud or undue influence.

After satisfying the above two requirements and filing a joint petition for divorce by mutual consent, the parties
must wait for at least six months, usually termed as the “cooling period”. After the end of this period, if the
initial petition is not withdrawn by either of the parties or jointly, both the parties may move court by way of
joint motion within the stipulated period of 18 months from the initial date of the filing of the joint petition.
This period is given to parties to re-think their decision.-----------------------------------

Quest: - Write a note on Restitution of Conjugal Rights under Hindu Marriage Act 1955.

Ans: - Introduction

Marriage under all matrimonial laws is union imposing upon each of the spouses certain marital duties and
gives to each of them certain legal rights. The necessary implication of marriage is that parties will live
together. Each spouse is entitled to comfort consortium of the other. So after the solemnization of the marriage
if either of the spouses without reasonable excuse withdraws himself or herself from the society of the other
then aggrieved party has a legal right to file a petition in the matrimonial court for restitution of conjugal rights.
The court after hearing the petition of the aggrieved spouse, on being satisfied that there is no legal ground why
the application shall be refused and on being satisfied of the truth of the statements made in the petition may
pass a decree of restitution of conjugal rights.

Page 25 of 70
Origin

The principle of restitution of conjugal rights has been borrowed into Indian laws from English law. In English
law, wife and husband were treated as a single entity and therefore a wife could not sue her husband or vice
versa. The remedy for restitution for conjugal rights owes its origin to the Ecclesiastical Courts of the West.
Such courts by decree of restitution of conjugal rights compelled the recalcitrant spouse to discharge the due
obligation towards the complaining spouse. Later in England the remedy was recognized by the various
Matrimonial Causes Acts passed from time to time. From England these rights passed on to her various colonies
onto which her Anglo-Saxon jurisprudence was grafted and India was no exception in this regard. The
provision was never a part of Hindu, Sikh, Muslim or Parsi Law, but the British imported it into India, through
judicial pronouncements. Thus in the absence of any statutory law the Indian courts passed decrees for
restitution of conjugal rights for all religious communities.

Provision of Restitution of Conjugal Rights

Sec-9 of Hindu Marriage Act Provides that 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, for
restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such petition
and that there is no legal ground why the application should not be granted, may decree restitution of conjugal
rights accordingly. Explanation: Where a question arises whether there has been reasonable excuse for
withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn
from the society".

Thus, there are four necessary conditions laid down in this sub-section:

 The respondent has withdrawn from the society of the petitioner.

 The withdrawal by the respondent party is without a reasonable excuse
 The court is satisfied that the statements made in the petition are true.
 There is no legal ground for refusing to grant application

Constitutional Validity of the Provision

 T Sareetha v. Venkata Subbaiah AIR 1983 AP 356 the question of constitutional validity of section 9 of
Hindu Marriage Act, 1955, for the first time arose in this case. It was held that the remedy of restitution of
conjugal rights is violation of Articles 14, 19 and 21 of the Constitution of India.
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 Harvinder Kaur v. Harmandar Singh AIR 1984 Del. 66 The Delhi High Court upheld the constitutionality
of Section 9, soon after the T Sareetha case. Justice A.B. Rohtagi held, “it is to take the grossest view of the
remedy to say that it subjects a person by the long arm of the law to a positive sex act”
 Saroj Rani v. Sudarshan Kumar Chadha AIR 1984 SC 1562. The Supreme Court upheld the decision of the
Delhi High Court. In this case, it was observed that: “The right of the husband or the wife to the society of
the other spouse is not merely a creature of the statute. Such a right is inherent in the very institution of
marriage itself…There are sufficient safeguards in section 9 to prevent it from being a tyranny.---------------

Quest: - Define the term "Guardian" under Hindu Minority and Guardianship Act 1956. What are the
powers and liabilities of a guardian? How and when can a testamentary guardian be removed?

SYNOPSIS
 THE HINDU MINORITY AND GUARDIANSHIP ACT 1956
 OBJECT AND REASONS
 MINOR OR MINORITY
 GUARDIANS
 NATURAL GUARDIAN
 TESTAMENTARY GUARDIAN
 GUARDIAN DECLARED / APPOINTED BY COURT
 DE FACTO GUARDIAN
 AD HOC GUARDIAN
The Hindu Minority and Guardianship Act 1956
The Hindu Minority and Guardianship Act in both a codifying and supplemental Enactment It was passed in
1956 and come into force from 24th Aug 1956. The Act deals with the Law relating to minority and
Guardianship among Hindu. It contains 13 sections. The Indian Majority Act 1875 and the Guardian and wards
Act 1890 are the other statutes which deal with the minority and guardianship.

Object and Reasons

1. This is another installment of the Hindu Code and it deals with the law relating to minority and
Guardianship.
2. Under the Indian Majority Act 1875, a person attains majority on his. Completing the age of 18 years.
3. Guardians May be divided into three claries namely.
1.Natural guardians
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 2.Testamentary guardian
3.Guardian appointed under the guardians and wards Act 1890 or
4.De facts guardians.

Minor or Minority According to see-4 (a) Minor means a person who has not completed the age of 18 year. In
case any guardian is appointed by the court under the Guardian and wards Act 1890 to look after minor’s person
or property. The minority Extends till attaining the age of 21 years.
Guardians According sec 4 (b) of H.M. Act guardian means a person having the care of the person of a minor
or of his property or of both his person and property and includes.
a) Natural guardian
b) A guardian appointed by the will of the minor father or mother
c) Guardian appointed or declared by a court
d) De facto Guardian and hoc guardian
1) Natural Guardian A Natural guardian is one who becomes so by reason of his natural relationship with
minor Section 6 of the H.M.G Act give a list of Nature guardian as hereunder:-
a) Boy or unmarried girl In case of a boy or an unmarried girl:- The father and after him the mother
provided that the custody of a minor who has not completed the age of five years shall ordinarily be with
the mother.
b) Illegitimate Boy or Girl: In the case of an illegitimate boy and illegitimate unmarried girl. The mother
and after her, the father is Natural guardian.
c) Married Girl: - The husband is the Natural guardian of his minor wife.
Restriction (Section 6) A person cannot act as a Natural guardian:-
a) If he/she is ceased to be a Hindu
b) If he/she has completed and finally renounced the world by becoming a hermit.
Power of Natural Guardian (Section 8) Section 8 of the H.M.G Act deals with powers of a Natural guardian
with respect to minor’s person or property.
1) Necessary or reasonable and proper acts for the benefit of the minor The Natural guardian of a Hindu
minor has power subject to the provision of this section to do all acts which are necessary or reasonable and
proper for the benefit of the minor or for the realization perfection or benefits of the minor estate.
2) Benefit of the Estate A transaction to be binding on the minor must be one which not only confers a benefit
upon the estate but is necessary for its good management.
3) Compromise It is competent of Natural guardian to enter into a compromise on behalf of his wend.
4) Family among The Natural guardian has the power to enter into family settlement on behalf of a family.

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Power of alienation
The Natural guardian of a Hindu minor has power in the management of the estate to sell or Mortgage any part
of the estate in case of necessity or for benefit of the estate provided the natural guardian has taken permission
of the court prior to such alienation as provided in Section 8(2) of the Act. Section 8(2) lays down. 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 immovable property of the
minor
(b) Please 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 obtain majority.
(2) Testamentary Guardian
The testamentary guardian of a minor are those guardian who are appointed by a will of the natural guardian
entitled to act as a guardian for the minor. It is to be noted that a will become effective only after the death of
the Executor.
Power of testamentary Section- (9)
a) A Hindu Father entitled to act as the Natural guardian of his minor legitimated children may be will
appoint a guardian for any of them in respect of the minor’s person or in respect of the minor’s
property.
b) An appointment made under sub Section (9) shall have no effect. if the father pre deceases the mother
but shall revive if the mother dies without appointing by will; any person as guardian.
c) A Hindu widow entitled to act as the Natural guardian of her minor legitimated children and a Hindu
mother entitled to act as the Natural guardian of her minor.
d) 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:
e) The right of the guardian so appointed by will shall, where the minor is a girl cease on her marriage.
f) The guardian so appointed by will her the power to act as the minor’s guardian after the death of the
minor’s father or mother as the case may be and the Exercise all the powers of a natural guardian under
this Act to Such Extent and subjects to such restrictions, if any, as are specified in the minors is a girl,
cease on her marriage.
3) Guardian Declared/Appointed by Court:
Where the court is satisfied that it is for the welfare of a minor that an under should be made appointing a
guardian of his person or property or both the court may make an order under the guardian and wards Act 1890,
appointing a guardian. This ahs been laid down in section 13 of the H.M & G. Act 1956 ran as follows:-S13 (1)
Page 29 of 70
in the appointment or declaration of any person as guardian of a Hindu minor by a court the welfare of the
minor shall be the paramount consideration.
S-43 (2) no person shall be entitle to the guardianship by virtue of the provision of this Act or any law
relating to guardianship in marriage among Hindu if the court is of opinion that his or her guardianship will not
be for the welfare of the minor.
Who can apply for appointment as guardian?
1) The person desirous of being or claiming to be the guardian of the minor or
2) Any relative or friend of the minor or
3) The collector of the district or other local area in which:-
a) The minor ordinarily resides
b) The minor holds properly
4) If the minor belongs to a class, the collector who has authority with respect to that class.
Power of guardian appointed by the court
Power of the guardian appointed by the court and the control imposed by the Act over such powers are the same
as that of a natural or testamentary guardian.
4. De facto Guardian – (Section 11)
A de facto guardian of a minor, is neither a legal guardian, nor a testamentary guardian, nor a guardian
appointed by the court, but he is a person, who himself takes over the management of the affairs of the minor
as if he was a natural guardian this type of guardian having the care of properties of a minor but who is
neither a natural guardian, testamentary guardian nor a guardian appointed by the court is only a de facto
guardian and the restriction under 5-11 will apply to his acts.
Section 11 runs as follows:
“After the commencement of this Act, no person shall be entitled to dispose of or deal with the property of
Hindu minor merely on the ground of his or her being the de facto guardian of the minor”.
5. Ad hoc Guardian
When a person acts as guardian of the minor for temporary period or for a single transaction, he is called
‘Guardian and hoc”. He is not recognized as a de jure (natural) guardian. He is to de facto guardian An ad
hoc guardian does not fixed any place in the Act and any alienation of minors property by him would be
void.
Other Important provisions:
1) According to Section 10 a minor cannot act as the guardian of any other minor.
2) Section 11 says that a de facto guardian is not entitled to dispose of or deal with the property of minor.

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3) Section 12 says that no guardian can be appointed for a minor’s undivided interest in the joint family
property.
4) Section–13 provides that, the court while appointing a guardian must give maximum consideration to the
welfare of the minor.
Quest: - Explain the
(A) Distinction between ‘De Jure Guardian’ & ‘De Facto Guardian’
(B)Distinction between ‘Testamentary Guardian’ &‘De Facto Guardian’.
(A) Distinction between ‘De Jure Guardian and De Facto Guardian
Sec-11 De facto guardian not to deal with minor’s property- After the commencement of this Act, no person
shall be entitled to dispose of, or deal with, the property of a Hindu minor merely on the ground of his or her
being the de facto guardian of the minor.

DE JURE GUARDIAN DE FACTO GUARDIAN

1. The natural guardian, testamentary 1. De facto guardian is not recognized by
guardian and a guardian appointed by the law.
the court are de sure guardians and they
are recognized by the law.
2. Sections 6 to 8 HMGA, 1956 provide 2. Section. 11 of the HMGA, 1956 abolish
the definition, appointment and powers the system of de facto guardianship.
of testamentary guardians. The courts
and wards Act 1890 lays down the legal
Provisions relating to the guardians,
appointed by 3. The position of de facto guardian in the
3. The natural guardianship is recognised ancient Hindu Jurisprudence was
in almost all Jurisprudences in the past unique. This system is not or was not
and present. seen in any Jurisprudence. However, it
was abolish by the HMGA.
4. The de facto guardian has no power of
4. The de Jure guardian can alienate the alienation.
minor’s property, subject to certain
circumstances and conditions, and prior 5. The de facto guardian is not entitled to

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 permission of the court. contracts for minor.
5. The de jure guardian can perform
contracts for the benefit of the minor. 6. It is now settled law that de facto
6. The de jure guardian has the power to guardian has no power to acknowledge
acknowledge debt on behalf of the debt on behalf of the minor; to make a
minor, to make reference to arbitration, gift of minor’s property.
or to make a gift of minor’s property.

(B) DISTINCTION BETWEEN ‘TESTAMENTARY GUARDIAN’ AND ‘DE FACTO GUARDIAN’

Section 11
TESTAMENTARY GUARDIAN DE FACTO GUARDIAN

1. Testamentary guardian is a de Jure 1. De facto guardian is not recognised

guardian and is recognised by law. by law.

2. The Testamentary guardian can 2. He has no such Powers.

perform contracts for the benefit of
the minor.
3. Section 9 of the HMGA 1956 3. Section 11 abolishes the appointment
explains the appointment and powers of de facto guardian.
of the testamentary guardian.
4. Testamentary guardianship is 4. De facto guardianship is not and was
recognised in almost all the not seen in any Jurisprudence, except
Jurisprudences. in Hindu old law.
5. Section 9 of the HMGA, 1956 5. Section 11 abolishes the appointment
explains the appointment and powers of de facto guardian.

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 of the testamentary guardian.

Q3. Explain the

(A) Doctrine of Relation Back.
(B) Doctrine of Factum valet.
A. DOCTRINE OF RELATION BACK PATERNAL AFFILIATION
Before the Act, the doctrine of relation Back was in operation.
The Doctrine of Relation Back (Paternal Affiliation) Adoption confers rights on the chil w.e.f. the date
of adoption. This position was the same in the old law also. But under old law, when the adoption was made by
a widow, the adoption would come into force from the date of the death of her (widow’s) husband. This
doctrine gives retrospective effect to adoption by a widow under the old Law. In other words, all the rights of
the adoptee (person taking the son in adoption) related back from the date of death of the adoptive father
(widow’s husband).
The reason was the woman could not adopt on her own without the consent/authority of her husband or his
Sapindas. Therefore, the adoption is deemed to have taken place on the date of the death of her husband.The
Relevant leading case on this Point is Sawan Ram vs. Kalawati AIR 1967 S.C 1761.
The Supreme Court held that the son adopted by the widow was deemed to be the son of her deceased husband
and the adoption would be effective from the date of the death of her husband (i.e. in 1948). Therefore, the
adopted son was entitled to inherit the property of the deceased husband. The above view laid down in sewan
Ram’s case was followed by, the Supreme Court in Sitabai vs. Rama Chandran, AIR 1970 SC 345.The Doctrine
of Relation Back, “has been abolished by section 12 of the Hindu Adoptions and Maintenance Act 1956 and
hence, it is no more a law at present.
B. THE DOCTRINE OF FACTUM VALET
The maxim “Quod fiery non debris factum valet or the Doctrine of Factum valet” is a Latin maxim, which
means ‘what ought not to be done is valid, when done”.
After adoption the child becomes the aurasa (naturally burn son of the adoptive parents) and also gets
disqualified to perform ‘sradha karma, Pinda Karma or kanyadan of his natural parents. In case, there is no
other person competent to perform the ceremonies, shastras permit the adopted son to perform the Sradha
karma, panda Karma and Kanyadan. This is known as ‘Factum Valet’. This doctrine was recognised both by the
Mitakshara and Dauyabhaga Schools. When there is a rule, which governs an act (not to be done) and the act is
done, it cannot be rendered invalid. This doctrine does not have universal application since every prohibit Act,
when done cannot be ratified.

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Under the Hindu law, this doctrine gets recognition mainly in the law of Marriage and law of Adoption. Non-
compliance of certain things relates to a moral precept, and then the violation does not vitiate the proceedings
e.g. Marriage over looking age limit, marriage of a minor without the consent of the guardian. But where a
violation relates to an imperative provision of law viz. Incapacity, non-compliance of essential ceremonies
(Homa, saptapadi) renders the marriage void and the doctrine does not apply in such cases. There may be other
ceremonies, which are not essential, If they are omitted, such doctrine. The doctrine, applies where there is no
fraud or force ------------------------------
Quest- What is the rights of maintenance of widow daughter in law under the Hindu Adoption and
Maintenance Act 1956?

Maintenance of Widowed daughter-in-law Sec (19)

(1) A Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be
maintained after the death of her husband by her father-in-law. PROVIDED and to the extent that she is
unable to maintain herself out of her own earnings or other property or, where she has no property of her
own, is unable to obtain maintenance -

a. from the estate of her husband or her father or mother, or

b. From her son or daughter, if any, or his or her estate.

(2) Any obligation under sub-section (1) shall not be enforceable if the father- in- law has not the means to do
so from any coparcenary property in his possession out of which the daughter-in-law has not obtained any
share, and any such obligation shall cease on the re-marriage of the daughter-in-law.

COMMENTS

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.-Animuth v. Gandhimmal 1977 HLR 628. --------------------

Quest:-Who are "dependents” for the purpose of maintenance under Hindu Adoption and Maintenance
Act, 1956? What do you understand by maintenance? In what cases a wife can claim separate residence
without forfeiting her right to maintenance from husband?

Ans: - Historical Perspective

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Joint family system has been a main feature of the Hindu society since vedic ages. In a joint family, it is the
duty of the able male members to earn money and provide for the needs of other members such as women,
children, and aged or infirm parents.In Manusmriti, it has been said that wife, children, and old parents must be
cared for even by doing a hundred misdeeds. HAMA 1956 codifies a lot of principles governing the
maintenance of dependents of a Hindu male. Under this act, the obligation can be divided into two categories -
personal obligation and obligation tied to the property.

Dependents based on personal obligation

Personal obligation means that a Hindu is personally liable, irrespective of the property that he has inherited or
his earnings, to provide for certain relations who are dependent on him. These relations have been specified in
the following sections of HAMA 1956.

 Section 18(1) declares that whether married before or after this act, a Hindu wife shall be entitled to claim
maintenance by her husband during her lifetime.
 Sec 18(2) says that a wife is entitled to live separately without forfeiting her right to claim maintenance in
certain situations.
 Section 18(3) that a wife shall not be entitled to separate residence and maintenance of she is unchaste or
ceases to be a Hindu.In the case of Jayanti vs Alamelu, 1904 Madras HC held that the obligation to
maintain one's wife is one's personal obligation and it exists independent of any property, personal or
ancestral.
 Section 20(1) declares that a Hindu is bound to maintain his children, legitimate or illegitimate, and aged or
infirm parents.
 Section 20(2) says that a child, legitimate or illegitimate, can claim maintenance from father or mother,
until the child is a minor.
 Section 20(3) says that the right to claim maintenance of aged or infirm parents and unmarried daughter
extends in so far as they are not able to maintain themselves through their other sources of income.
In this case, a childless step-mother is also considered a parent.

Dependents based on obligation tied to property A person has obligation to support certain relations of
another person whose property has devolved on him. In this case, this obligation is not personal but only up to
the extent that it can be maintained from the devolved property. Section 21 specifies these relations of the
deceased who must be supported by the person who receives the deceased property.

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

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

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

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

How much maintenance

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

1. The position and status of the parties.

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

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

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

Wife's right to separate residence without forfeiting the right to maintenance

Section 18(2) says that a wife can live separately and still claim maintenance from husband in the following
situations.
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 1. Desertion: It the husband is guilty of deserting the wife without her consent, against wife's wishes, and
without any reasonable cause, the wife is entitled to separate residence. In the case of Meera vs
Sukumar 1994 Mad, it was held that willful neglect of the husband constitutes desertion.
2. Cruelty: If husband through his actions creates sufficient apprehension in the mind of the wife that
living with the husband is injurious to her then that is cruelty. In the case of Ram Devi vs Raja Ram
1963 Allahbad, if the husband treats the wife with contempt, resents her presence and makes her feel
unwanted, this is cruelty.
3. If the husband is suffering from a virulent form of leprosy.
4. If the husband has another wife living. In the case of Kalawati vs Ratan 1960 Allahbad, is has been
held that it is not necessary that the second wife is living with the husband but only that she is alive.
5. If the husband keeps a concubine or habitually resides with one. In the case of Rajathi vs Ganesan 1999
SC, it was held that keeping or living with a concubine are extreme forms of adultery.
6. If the husband has ceased to be a Hindu by converting to another religion.
7. For any other reasonable cause. In the case of Kesharbai vs Haribhan 1974 Mah, it was held that any
cause due to which husband's request of restitution of conjugal rights can be denied could be a good
cause for claiming a separate residence as well as maintenance. In the case of Laxmi vs Maheshwar
1985 Orrisa, it was held that if the husband fails to obey the order of restitution of conjugal rights, he is
liable to pay maintenance and separate residence. In the case of Sobha vs Bhim 1975 Orrisa, mere
drinking habit is not a sufficient cause for separate residence.

Section 18(3) says that a wife is not eligible for separate residence and maintenance if she is unchaste or has
ceased to be a Hindu. In the case of Dattu vs Tarabai 1985 Bombay, it was held that mere cohabitation does
not by itself terminate the order of maintenance passed under 18(2). It depends on whether the cause of such
an order still exists. ------------------------------------

Quest:-What are the requisites/essential conditions of a valid adoption according to Hindu Adoption and
Maintenance Act 1956? What are the effects of a valid adoption? Can a valid adoption be canceled?

SYNOPSIS
 NATURE OF ADOPTION UNDER THE OLD HINDU LAW
 OBJECTS OF ADOPTION UNDER THE OLD HINDU LAW
 REQUISITES OF A VALID ADOPTION
Meaning of adoption- According to “Manu” A son equal in caste and affectionately disposed whom his mother
or father (or both) give with water at a time of calamity, is known as the Dattrima son. Thus it is the
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transplantation of a son from the family in which he is born into another family by gift made by his natural
parents to the adopting parents. The adopted son is then taken as being born in the new family, and he acquires
rights, duties and status in new family, and his tie with the old family become severed . Some writers have said
that adoption is the civil death in the natural family and legal birth in the adoptive family.

Objects of adoption under the old Hindu Law- The object of adoption under the old Hindu law ere two-fold-
one spiritual and the other secular, the existence of male issue being favoured mainly for the sake of the parent’s
beautitude in the further life and the other secular. On the other hand, the secular objects could be gained only
by a son real or subsidiary. The main object of adoption is to continue the family line for according to Shastras,
those who do not have a son will not find a place in heaven. So it was the pious duty of every Hindu to have a
son.

Objects of adoption under the Hindu Adoptions and Maintenance Act- However, the Hindu Adoptions and
Maintenance Act, 1956, has steered off clearly from all the religious and sacramental aspects of adoption and
has made adoption a secular institution and secular act, so much so that even a religious ceremony is now not
necessary for adoption. Under the Hindu Adoptions and Maintenance Act, there cannot be two types of
adoptions, one purely secular, and the other sacramental. All adoptions after 1956 are secular and to be void
must conform to the requirements of the Act.

Requisites of a valid adoption- Section 6 of the Hindu Adoptions and Maintenance Act, 1956 lays down the
requisites of a valid adoption. It says that no adoption shall be valid unless-
(i) The person adopting has the capacity, and also the right, to take in adoption;(sec-7 & sec-8)
(ii) The person giving in adoption has the capacity to do so; (sec-9)
(iii) The person adopted is capable of being taken in adoption; (sec-10)
(iv) The adoption is made in compliance with the other conditions mentioned in Chapter II of the Hindu
Adoptions and Maintenance Act, 1956. (sec-11)
Capacity of a Male Hindu to take in adoption
Capacity of a male Hindu to take in adoption Section 7 of the Hindu Adoptions and Maintenance Act, 1956 lays
down that any male Hindu who is of sound mind and is not a minor has the capacity to take a son or a daughter
in adoption. But if the male Hindu has a wife living at the time of adoption, he shall not adopt except with the
consent of his wife. But this consent of the wife of a male Hindu is not necessary in the following three
conditions:-
(i) The wife has completely and finally renounced the world, or
(ii) The wife has ceased to be a Hindu, or

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(iii) The wife has been declared by a court of competent jurisdiction to be of unsound mind.
If a man has than one wife living at the time of adoption the consent of all the wives must be obtained. But if
any f them is suffering from any of the three disabilities (i.e. civil death, apostacy or unsoundness) the consent
of such wife who is under such disability may be dispensed with and the consent of all other wives must be
taken. Under the old Hindu Law, a male Hindu could take a son in adoption without the consent or against the
wish of his wife.
Capacity of a female Hindu to take in adoption.-According to Section 8 of the Act, 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 completely and finally renounced the
world or has ceased to be a Hindu or has been declared by court of competent jurisdiction to be of unsound
mind, has the capacity to take a son or daughter in adoption. During the continuance of marriage the wife has no
right to adopt except where the husband is suffering from any of the disabilities.
Who may be adopted- (The Hindu Adoptions and Maintenance Act, 1956) Sec :-( 10)
(1) Section 10 provides that the persons who may be adopted, includes females also among the persons who
may be adopted. This is an important change and daughter and son are on the equal footing.
(2) A superfluous clause as a precautionary measure has been added by mentioning that he or she has been not
already adopted; this simply means that a boy or girl cannot be adopted twice and reiterates the old law that two
persons cannot adopt the same boy and such an adoption is not valid.
(3) The controversy that an adoption must be done before upanayana. Now the child to be adopted should not
be to married unless there is a custom or usage applicable to the parties which permits persons who are married
being taken in adoption; another condition has also been prescribed that an adoption must be made before he or
she has not completed the age of fifteen years unless here is a custom or usage applicable to the parties which
permits persons who have completed the age of fifteen years being taken in adoption.
According the Sec. 11 of the Act in every adoption the following conditions must be complied with-
(i) 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;
(ii) If the adoption is of a daughter, the adoptive father or mother by whom the adoption is made 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;

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(iii)If the adoption is by a male and the person to be adopted is a female, the adoptive father is at least twenty-
one years older than the person to be adopted;
(iv) If the adoption is by a female and the person to be adoption is a male, the adoptive mother is at least
twenty-one years older than the person to be adopted;
(v) The same child may not be adopted simultaneously by two or more persons;
(vi) The child to be adopted must be actually given and taken in adoption by the parents or guardians or under
their authority with intent to transfer the child from the family of its birth to the family of its adoption.

Effects of adoption Sec (12)

An adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with
effect from the date of the adoption and from such date all the ties of the child in the family of his or her birth
shall be deemed to be severed and replaced by those created by the adoption in the adoptive family:

PROVIDED that -

a. The child cannot marry any person whom he or she could not have married if he or she had continued in
the family of his or her birth;
b. Any property which vested in the adopted child before the adoption shall continue to vest in such person
subject to the obligations, if any, attaching to the ownership of such property, including the obligation to
maintain relatives in the family of his or her birth;
c. The adopted child shall not divest any person of any estate which vested in him or her before the adoption.

COMMENTS

The assumption that all the ties of child with the family of his or her birth shall be severed operates only from
the day the adoption takes place and from the day the ties are replaced by those created by the adoption in the
adoptive family.-Kanwaljit Singh v. State of Haryana 1981 Pun LJ 64. Adopted girl is conferred an entitlement
to succeed the property within the meaning of s.8 of Hindu Succession Act despite the fact that the property
was owned by the deceased by reason of his adoption.- Neelawwa v. Shivawwa 1988 (2) HLR 799. Under the
provisions of s.14 of the Hindu Succession Act, widow becomes an absolute owner, and it is not possible that
the child adopted by her is divesting her of the right which has already been vested in her.- Dinaji v.Dadde AIR
1990 SC 1153. Where the property is in absolute terms vested in a person as the last surviving coparcener a
child subsequently adopted cannot divest him of it .-Krishnabai v. Ananda Sevaram AIR 1981 Bom 240----------

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Miscellaneous Provisions
Adoption under the present Hindu Law-

The Hindu Adoption and Maintenance Act, 1956, differ from the pure Hindu law of adoption in the following
respect.
(1) Now no minor who has attained the age of discretion has the capacity to take a son or daughter in adoption
as in the pure Hindu law of adoption.
(2) Now a male Hindu shall not adopt except with the consent of his wife unless the 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 a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind.
In case of a Hindu male having more than one wife the consent of all the wives is necessary unless the
consent of any one of them is dispensed with for any of the reasons specified above. But under the pure
Hindu Law no consent of the wife necessary.
(3) Now a female who is not married, or if married whose marriage has been dissolved or whose husband 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, has the capacity to take a son or a daughter in
adoption. This has been an important change in the law giving wide powers to a female. Under the old
Hindu Law an unmarried female had no power to adopt as the adoption was intended to adopt to her
husband and not to herself. A widow as has been discussed above had no power to adopt except under the
authority given by her husband.
Persons capable of giving a child in adoption-
Under the prior law only father or mother could give in adoption. At present the only persons can lawfully give
a boy in adoption are his father or his mother or the guardian (whether testamentary or appointed by the court).
Thus one brother cannot give another in appointed by the court. Thus one brother cannot give another in
adoption. Similarly a step-mother cannot give step-son in adoption. Nor can a grandfather give his grandson in
adoption. Under the present law following persons are capable of giving a child in adoption.
Right of father-
The primary right to give in adoption is that of the father. Sub-section (2) of Section 9 of the Hindu Adoptions
and Maintenance Act lays down that subject to the provisions of sub-section (3) and sub-section (4) the father,
if alive, shall alone exercised have the right to give in adoption, but such right shall not be exercised save 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.

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Right of mother- The mother may give the child in adoption if the father is dead, or has renounced the world or
has ceased to be Hindu or has been declared by a Court of competent jurisdiction to be of unsound mind.
Right of guardian- When both the parents are dead or when both the parents have completely and finally
renounced the world or both have been declared to be of unsound mind or where the parentage of the child is
not known or when both the parents have abandoned the child the guardian of the child may, with the
permission of the court to which he may be subordinate, give the child in adoption.
Delegation of power- Neither parents, therefore, can delegate the power to give a child to another person. But
the physical act of giving a son in adoption may be delegated to another, as such an act involves no exercise of
discretion.
Renunciation of Hindu Religion-
A Hindu father, who has become a convert to Mohammedanism does not by reason of his conversion, lose his
power of giving his son who has remained a Hindu in adoption. But since the physical act of giving a son in
adoption is accompanied by religious ceremonies such act must be delegated to another person who is a Hindu.
Mental capacity-
The person giving in adoption, must have attained the age of discretion, and must be of sound mind.
The Hindu Adoptions and Maintenance Act thus give wider powers to female:
(i) The father, if alive shall alone have the right to give in adoption, but right such right shall not be
exercised save 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. So the consent of the mother under the ordinary conditions is essential, but no such consent
was necessary under the pure Hindu Law of adoption.
(ii) Secondly, the mother’s right to give in adoption comes after the father and there is no question of any
express or implied prohibition from husband.
(iii) Thirdly, the power given to a guardian of a child (whether a testamentary guardian or a guardian
appointed or declared by a court) to give a child in adoption with the previous permission of the court is
quite new. No such power was given under the pure Hindu law to a guardian to adopt.
Sub-section (4) of Section 9 of the Hindu Adoptions and Maintenance Act lays down- “Where both the father
and mother are dead, or have completely and finally renounced the world or have abandoned the child or
have been declared by a Court of competent jurisdiction to be of unsound mind or where the parentage of
the child is not known, the guardian of a child may give the child in adoption with the previous permission
of the Court to any person including the guardian himself.”

Right of adoptive parents to dispose of their properties Sec (13)

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

COMMENTS

Where the child is taken in adoption by the sole surviving widow, oral relinquishment by her in favour of
adopted child is valid and effective.-Hirabai v. Babu Manika AIR 1980 Bom. 315

Determination of adoptive mother in certain cases Sec (14)

1) Where a Hindu who has a wife living adopts a child, she shall be deemed to be the adoptive mother.
2) Where an adoption has been made with the consent of more than one wife, the senior-most in marriage
among them shall be deemed to be the adoptive mother and the other to be step mothers
3) Where a widower or a bachelor adopts a child, any wife whom he subsequently marries shall be deemed
to be step mother of the step mother of the adopted child.
4) Where a widow or an unmarried woman adopts a child, any husband whom she marries subsequently
shall be deemed to be the step father of the adoptive child.

Valid adoption not to be cancelled Sec (15)

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

Presumption as to registered documents relating to adoption Sec(16)

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

COMMENTS

In case a challenge is thrown to the deed of adoption on the ground of its execution being by fraud, coercion or
undue influence, it is for the party challenging the document that has to establish that the execution was so
vitiated.-Sushil Chandra v. Bhoop Kunwar AIR 1977 All 441.

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Presumption as to registered documents relation to adoption is only a rebuttable presumption.-Bhoolo Ram v.
Ramlal 1989 (2) HLR 162

Where the validity of the adoption was asked for on the ground of not obtaining the consent if the husband on
account of his unsound mind but this fact found no place in the plaint as required by order 6, rule 6, CPCand
there was only the presentation of registered document it was held that presumption as under s. 16 of Hindu
Adoption and Maintenance Act would prevail over the provision of order 6, rule 6 of C.P.C. It is for the other
party if it wants to, to rebut the presumption.-1979 MP LJ 591.

Prohibition of Certain Payments Sec (17)

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

Quest: - Define Gift. What are the essential elements of will?

Ans: - Introductions
Hindu Law defines gift as “the creation of another person’s proprietary right after the extinction of one’s own
proprietary right in the subject matter of the gift.” Gift under Shastric Hindu law need not be writing, but a
gift under that law is not valid unless it is accompanied by delivery of possession of the subjects of the gift
from donor to the donee. Mere registration of a deed of a gift is not equivalent to delivery of possession; it is
not therefore sufficient to pass the title of the property from the donor to the done
Definition of Gift
According to the Mitakshara, “A gift consists in the relinquishment without consideration of one’s own right
of property, and the creation of the right of another. The creation of another man’s right is completed or that
other’s acceptance of the gift, but not otherwise.”
The essential elements of a gift
I. Parties: - There must be two parties to a gift transaction - the donor and the donee.
 The Donor: The donor is the person who gives the gift. Any person who is competent to contract can
make a gift of his property. A minor incompetent to contract is incompetent to transfer.
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  The Donee: Donee is a person who acquires any property under a gift, and, where a gift is made to a
Trustee for the benefit of another person includes both the Trustee and the beneficiary.
II. The absence of consideration
III. The subject-matter; the subject matter of gift must be certain existing movable or immovable property.
It may be land, goods or actionable claims.
IV. Voluntary: The term ‘voluntary’ clearly means without duress, force or undue influence. So, gift by
donor to donee should be a voluntarily act. It should not be made out of any force and compulsion

V. Delivery of possession: When the donor makes a declaration of a gift and the donee accepts, then the
possession of the thing gifted should also be given to the donee. Such delivery of possession may be actual
or constructive.
VI. Acceptance: The donee must accept the gift. This acceptance may be express or implied (that is, by
conduct). But the gift of a debt to a debtor or his heir is valid without acceptance and is not invalidated by
his rejection. For example, A owes Rs 100/- to B. B makes a gift of this debt of Rs 100/- to A, which A does
not accept and insists on paying the money to B. The gift shall, however, by valid and effective even on A’s
refusal to accept it.
VII. Declaration: Declaration does not mean simply an announcement of the gift but it also entails that the
donor should have a real intention of making the gift. Tyabi says: “Where there is no real and bona fide
intention to transfer the ownership of the subject of gift, an alleged gift may be of no effect.” Gifts without
intention may be Sham gifts, colourable or benami transactions, etc.
Which property can be disposed by Gift?
Under Hindu law, the following property can be disposed of by Gift

1). A Hindu is entitled to dispose of his separate or self-acquired property by gift. This is, in certain cases,
subject to the claims for maintenance of those members of his family, whom he is legally bound to maintain.
(See Sections 18-22 of the Hindu Adoptions and Maintenance Act, 1956.)
2). As regards a gift of coparcenary property, there is a difference of opinion prevailing amongst the two
Schools of Hindu law. According to the Dayabhaga School, a coparcener can gift away his coparcenary
interest, subject to the claims for maintenance of those who are entitled to be maintained by him. However,
according to the Mitakshara School, a coparcener cannot do so, except when he is the sole surviving
coparcener. The Mitakshara School, however, does recognise the right of a father to dispose of by gift a small
portion of the joint family property. (This has already been discussed in detail in an earlier Chapter.)

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 3). Under the Dayabhaga law, a father is entitled to dispose of even the whole of his property (whether
ancestral or selfacquired), subject to the claims of those who are entitled to be maintained by him.
4). Before 1956, a female Hindu was entitled to dispose of only her stridhana property by gift. Today, she can
dispose of all her property by gift, whether it be stridhana, or whether it is obtained by her by inheritance from
her husband or otherwise in whatsoever manner. (See Section 14 of the Hindu Succession Act, 1956.)
5). Earlier, a widow could dispose of a part of her widow’s estate by gift to her daughter on the occasion of the
daughter’s marriage or to her son-in-law on such an occasion. This, however, could not be done by a will.
However, her rights have now been considerably enlarged by S. 14 of the Hindu Succession Act, 1956.
6). A widow governed by the Mayukha law is entitled to alienate by gift, movable property which she has
inherited from her husband, although she cannot dispose it off by will. (Her rights have now been considerably
enlarged by S. 14 of the Hindu Succession Act, 1956.)
7). The owner of an impartible estate can dispose it of by gift (or by will), unless there is a special custom
prohibiting such alienation or the tenure is of such a nature that the estate cannot be alienated.
Revocation of Gift:
Under Hindu Law
Once a gift is complete, it is binding on the donor, and it cannot be revoked by him, unless it has been
obtained by fraud or under influence. (Ganga Bakash vs. Jagat Bahadar)
The courts have also observed that where a gift is made by a Hindu widow, the burden lies upon the done to
show that the widow made the gift with a full understanding.
In Deo kura vs. Man kura (1894), a gift was set aside in a suit brought eight years after the date of the gift on
the ground that the document of the gift was not explained to the donor.
Under Transfer of Property Act 1882 1862
When gift may be suspended or revoked
The donor and donee may agree that on the happening of any specified event which does not depend on the
will of the donor a gift shall be suspended or revoked; but a gift which the parties agree shall be revocable
wholly or in part, at the mere will of the donor, is void wholly or in part, as the case may be. A gift may also
be revoked in any of the cases (save want or failure of consideration) in which, if it were a contract, it might
be rescinded. Save as aforesaid, a gift cannot be revoked. Nothing contained in this section shall be deemed to
affect the rights of transferees for consideration without notice.
Illustrations
a.A gives a field to B, reserving to himself, with B's assent, the right to take back the field in case B and his
descendants die before A. B dies without descendants in A's lifetime. A may take back the field.

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b. A gives a lakh of rupees to B, reserving to himself, with B's assent, the right to take back at pleasure Rs.
10,000 out of the lakh. The gift holds goods as to Rs. 90,000, but is void as to Rs. 10,000, which continue to
belong to A.
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--------------
Quest: - Define will. What are the essential elements of will?
WILL
Will is the legal declaration of a person’s intention which he wishes to be performed after his death and
once the Will is made by the testator it can only be revoke during his lifetime. A person cannot give his
ancestors property in the form of a Will but he can make a Will only of his Self-Acquired property. A Will
does not involve any transfer, nor affect any transfer inter-vivos, but it is an expression of intending to appoint
a person who will look after the properties after his (Testator) death. A Will regulates the succession and
provides for succession as declared by the testator.
Historical Background of ‘Wills
As the time rolled the emergence of the Will became more popular, Indian Law which is governed under
‘Section: 5’ of “The Indian Succession Act, 1925” which provides different rules for intestate succession and
testamentary succession in India. It applies to all the communities in India except Muslim community. In India
there is a well developed system of succession laws that governs a person’s property after his death. ‘The
Indian Succession Act 1925’ applies expressly to Wills and codicils made by Hindus, Buddhists, Sikhs, Jains,
Parsis and Christians but not to Mohammedans as they are largely covered by Muslim Personal Law.
Statutory Definition of ‘Will’
The term ‘Will’ is defined under ‘Section: 2(h)’ of The “Indian Succession Act, 1925”, means the legal
declaration of the intention of a testator with respect to his property which he desires to be carried into effect
after his death. A testator is authorised with a power to appoint any person as beneficiary of his Will whereas
‘Section: 5’ deals with the law regulating succession to deceased persons moveable and immovable property
Meaning of ‘will’
A Will or testament is a legal declaration by which a person, the testator, names one or more persons to
manage his/her estate and provides for the transfer of his/her property at the time of death. A Will can be made
by anyone above 21 years of age in India. A Will is a statement made by a testator in the written form stating
the manner in which his estate/property must be distributed after his death. A Will being a testamentary
document comes into effect after the death of the testator and if the person dies without writing any Will then
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 he is said to be have died intestate. The person in whose favour the testator bestows the benefits called
beneficiary or legatee. A Will is otherwise called as Testament.
Features of Valid ‘Will’ There are certain characteristics which should be included in the instrument of will
such as:-
• The Name of the Testator: The name of the testator should be mentioned accurately without any error in
initials, spelling or grammatical mistake so that it will not affect the instrument of Will. The name of the
testator can also be clarified by looking into his birth certificate or any school certificates.
• Right to Appoint Legatee: The testator is having absolute right to appoint any person as a legatee or
beneficiary of a Will and legatee should execute the Will carefully and in accordance with the law.
• To Take Effect after Death: A testator who is having power to make the Will during his lifetime, but it
will take effect only after his death. A gift made by a person during his lifetime and will take effect during
his lifetime, cannot be considered as a Will.
• Revocability under the Law: In general a Will made by the testator can be revoke at any time during his
lifetime and testator can choose any other person as his legatee. There may be chances where a testator
wishes to bring some alterations in the Will then he can make some necessary amendments in the prepared
Will which is otherwise called as Codicil. A third party can not file a civil suit against the testator on the
ground of cancellation of the Will. A Will made by the testator may be irrevocable in some cases where an
agreement is entered into contrary to the Will, may bind the testator.
• Intention of The Testator supreme: The testator of the Will has right to revoke Will at any time which
can only be proved by the intention of the testator that whether he is intending to revoke the previous
testamentary instruments made by him or he can state in his Will that ‘This is my last Will’ then it can be
presumed that all the earlier testamentary instruments has been revoked.
• The Declaration to be ‘Last Will’: A person as testator has power to make declaration of Will
unnumerable times but it is always the last will of testator which will prevail. The words “I declare this to be
my last will” need not be stated in the instrument of the Will. Once the Will is made by the testator Inserting
of words ‘Last and Only will’ at the time of death it can be presumed that all the previous Wills will get
revoked and fresh Will has to be effected.
• Lost Subsequent ‘Will’: Mere loss of the original Will does not operate a revocation but it has to be
inferring by the stringent evidence to prove its revocability and a testator must show the genuine reasons for
the loss of the Will. Once it is proved that a original will is lost then ‘Subsequent Will’ will be valid.
Who Can Make ‘Will’: Every person who is competent to contract may make a will but he must be major,
sound mind and willing to write a Will. Any person who is the sole owner of a self-acquired property can
bequeath by way of will. A person of unsound mind can also make a will but only in lucid intervals. A Will
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 cannot be made by some persons i.e. minors, insolvent, persons disqualified under any law by the court. A
Will executed by a minor is void and inoperative though a testamentary guardian can be appointed for the
minor to dispose off the property. A Will can be made by the deaf and dumb person by showing consent
through writing or gestures in sign language. Nothing prevents a prisoner or alien in India from drawing a
Will.
For Whom The ‘Will’ Can Be Made: Any person capable of holding property can be a legatee under a will
and therefore a minor, lunatic, a corporation, a Hindu deity and other juristic person can be a legatee. Sections
112 to 117 of ‘Indian Succession Act, 1925’ put some restrictions on the disposition of property by will in
certain cases. Dispositions of property by will in some cases have been declared void. If the minor person has
been named as legatee by a testator then a guardian should be appointed by the testator himself to manage the
bequeathed property.
What Can Be Bequeath in ‘Will’: Any movable or immovable property can be disposed of by a will by its
owner that property must be a self acquired property of that person and it should not be an ancestral property
of the testator. According to Section: 30 of ‘Hindu Succession Act, 1956’ provides that any Hindu may
dispose off by will or other testamentary disposition any property, which is capable of being so, disposed of by
him in accordance with law.
Registration of ‘Wills’: According to the Section: 18 of the ‘Registration Act, 1908’ the registration of a
Will is not compulsory. Once a Will is registered, It is a strong legal evidence that the proper parties had
appeared before the registering officers and the latter had attested the same after. The process of registration
begins when a Will instrument is deposited to the registrar or sub-registrar of jurisdictional area by the testator
himself or his authorised agent. Once the scrutiny of Will instrument is done by the registrar and registrar is
satisfied with all the documents then registrar will make the entry in the Register-Book by writing year,
month, day and hour of such presentation of the document and will issue a certified copy to the testator. In
case if registrar refuses to order Will to be registered then testator himself or his authorised agent can institute
a civil suit in a court of law and court will pass decree of registration of Will if court is satisfied with the
evidence produced by the plaintiff. A suit can only be filed within 30 days after the refusal of registration by
the registrar. If the testator willing to withdraw the Will after the process of registration then a sufficient
reason has to be given to registrar, if satisfied he will order for the registration of Will.
Revocation of ‘Wills’: A Will is liable to be revoked or altered by the maker of it at any time when he is
competent to dispose of his property by Will. A Will can be revoked by testator of the Will at any point of
time which can be classified into two aspects such as:-
• Voluntary Revocation: A testator who wishes to revoke his original Will which is made by him on a
specified date and time, he can make revocation of the will himself by writing a subsequent Will or codicil
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 duly executed and by destruction of the previous will, means by burning, tearing, destroying or striking out the
signature of the original instrument of a Will.
• Involuntary Revocation: According to the Section: 69 of the Indian Succession Act, 1925 which deals with
revocation of will by the testator’s marriage, however this provision does not apply to Hindus. Section 57 of
the Indian Succession Act clearly states that a testator’s marriage will not make the Will invalid. ----------------
Quest: - Write a Short Note on Pious obligation under the Hindu Law.
Ans:-Concept of Pious Obligation under the Hindu Law

‘Pious obligation’ means the moral liability of sons to pay off or discharge their father’s non-avyavaharik
debts. The debts borrowed may not be of legal necessity or for benefit of estate. Thus, if the father is the Karta
of a Hindu joint family, he may alienate the coparcenaries property for discharging the antecedent debts. The
sons are under the obligation to recover such alienated property by repaying the debts. The ancient doctrine of
pious obligation was governed by Smriti law. There is a pious obligation on the sons and grandsons to pay the
debts contracted by the father and grandfather. According to Privy Council this obligation extends to great
grandsons also because all the male descendants’ up to three generations constitute coparcenary and every
coparcener is under a religious obligation to pay the debt contracted by their ancestor, provided such debt was
not taken for an immoral or unlawful purpose. The concept of pious obligation has its origin in
Dharmashastras, according to which non-payment of debt is a sin which results in unbearable sufferings in the
next world. Hence the debts must be paid off in all circumstances provided it was not for immoral and illegal
purposes. Vrihaspati has said, “If the father is no longer alive the debt must be paid by his sons. The father’s
debt must be paid first of all, and after that a man’s own debts, but a debt contracted by the paternal
grandfather must always be paid before these two events. The father’s debts on being proved must be paid by
the sons as if their own, the grandfather’s debt must be paid by his son’s son without interest, but the son of a
grandson need pay it at all. Sons shall not be made to pay (a debt incurred by their father) for spirituous liquor,
for idle gift, for promises made under influence of love or wrath, or for surety ship, nor the balance of a fine or
toll liquidated in part by their father. Yajyavalkya says, “A son has not to pay in this world father’s debt
incurred for spirituous liquor, for gratification of lust or gambling, nor a fine, nor what remains unpaid of a
toll; nor idle gifts.” But in case of debts for purposes other than the above, on the death of the father, or on his
going abroad, or suffering from some incurable disease, the debt contracted by him would be payable by his
sons and grandsons. The Mitakshara has presented the entire proposition in stronger words. According to it
when the father has gone abroad or is suffering from some incurable disease, the liability to pay the debt
contracted by him would lie on the sons and grandsons irrespective of the fact that the father had no property.

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 There are reasons for fixing this liability on sons and grandsons. The liability to pay the debt is in the order,
viz., in absence of father the son and in absence of son the grandson.

It is worth noting that the doctrine of pious obligation does not extend the liability to females notwithstanding
she has been given a share in the joint family property on partition. Where the wife gets a share on partition
between husband, sons and herself, still she would not be under any obligations to pay the debt of the ancestor
(father).

What is ‘Avyavaharika’ Debt?

Generally speaking, a debt is said to be “avyavaharika” when it is “repugnant to good morals”. In considering
this question, “one principle is firmly established, namely, that the son would not be liable for a debt incurred
by the father in circumstances which would render the father liable to a criminal prosecution; but he would be
liable for money for which the father has to account in a purely civil capacity”.
The word avyavaharika does not cover merely those debts which are illegal or immoral, but also all debts
which the Court regards as inequitable or unjust to make the son liable. The term avyavaharika has been
translated as being that which is not lawful or what is not just or what is not admissible under the law or under
normal conditions. Colebrook translated the term as “a debt for a cause repugnant to good morals”, and this
definition was approved by the Privy Council in S.M. Jakati v. S.M. Bokar (A.I.R. 1959 S.C. 282), as being
the nearest approach to the true conception of the term used in the Smritis.
According to Hindu texts, the sons are not compellable to pay debts incurred for: (i) losses at play, (ii)
alcoholic drinks, (iii) promises without consideration, (iv) promises made out of lust or under the influence of
wrath; (v) surety ship or (vi) fsines or bribes.
Nature of Liability:

 The liability is not personal. It is limited only to the son’s interest in the coparcenaries property.
 The liability is limited only to sons who are joint with the father. The separated sons are not liable for
debts incurred by the father after partition. A separated son would be liable for a pre-paration debt, only to
the extent of the share he has obtained on the partition. --------------------------------------------

Quest: - Discuss the various Types of Religious Endowment.

Ans:-Religious and Charitable Endowments under Hindu Law
The definition of endowments recognized by the courts since long includes the properties set apart or
dedicated by gift or devise for the worship of some particular deity or for the maintenance of a religious or

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 charitable institution, or for the benefit of the public or some section of the public in the advancement of
religion, knowledge, commerce, health, safety or for any other object beneficial to the mankind.
Amongst the religious and charitable endowments, hospitals, schools, universities alms houses (for
distribution of food to Brahmanas or poor), establishment of idols etc., are included. According to
Raghvachariar an endowment is referred to as the setting apart of property for religious and charitable
purposes in which there is a Karta and a specific thing which can be ascertained. A disposition in India to be a
public trust must be made with the purpose of advancement of either religion, knowledge, commerce, health,
safety or other objects beneficial to the mankind.

Different Kinds of Endowments

Endowments are of different kinds which can be placed in different categories in the following manner—
(a) Public or private; (b) Real or apparent; (c) Absolute or partial; (d) Religious or charitable; (e) Valid or
invalid.

Public and Private Endowment:

In order to ascertain the nature of the endowment as to whether it is public or private the subsequent conduct
of the settler and use of the evidence of the property set apart by the public at large are to be considered. In
fact when a temple is thrown open for public at large for worship, a valid inference can be drawn that a public
trust has been intended to have been created. Where the outsiders along with the members of the family of the
settler take part in worship in celebration of festivals in a temple as in public temples, the state of affairs point
out to the public nature of the endowment.
In contrast private endowment is that in which the public has no ingress, as an endowment for the worship of
the family deity of the settler. Where the property is kept separate safely for the worship of family deity by
family members only, with whom the public has nothing to do, it is a private endowment.
Even if other Hindu worshippers are allowed to worship a family deity, it will not confer public nature to the
endowment. In Venugopalaswamy v. H. R.E. Board, it was laid down that where the temple was initially set
apart for the use of the family members only and subsequently if some outsiders are allowed ingress therein, it
will not automatically alter the private nature to public.
The Madras High Court too in Keshav Gounder v. D.C. Rajan, held that there is very minute difference
between the public and private endowment. In public endowment the interest of general public or of a group
of persons is protected and involved, wherein in private endowment the interest of the settler of the trust or his
family members only is protected and involved. In fact in private trust the interest is to dedicate pleasurly to
the family diety something and the public has nothing to do with it.

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 Again the Supreme Court in G.S. Kaha Lakshmi v. Shah Ranchod Das, said that the temple of Sri Gokulnath
Nadeyad in a public temple and the trust created is of public nature dedicated and created by the Ballabh cult
and its supporters of Nadiad. The fact that any individual could enter into the temple only after the
worshipping by goswami is over, does not militate in any way the public nature of the temple. Further the fact
that temple is having house like appearance does not clearly establish that the temple is not a public temple.
The Supreme Court has delivered an important judgment after a lapse of a decade in Radha Kant Deo v. The
Commissioner, Hindu Religious Charitables. The Court observed that a religious endowment of private nature
cannot be conceived under English law. It can only be thought of in Hindu law. The court laid down the
following test to determine the public and private nature of endowment—

 Where the origin of endowment cannot be ascertained, the question to be determined is as to whether the
members of public use it by way of right.
 Another fact to be determined is that whether it is controlled by a group of persons or by the founder of
endowment only.
 It may be concluded that the endowment is of public nature where the document with respect to its creation is
available and it is clear from the language of the deed that the control over the endowment is vested in the
founder or in his family and a greater part of the property of the founder has been dedicated in the endowment
to that temple.
 Again in absence of any evidence to show that the founder has given any classification with respect to the fact
that the member of public would contribute any share to it, this itself proves that the endowment is of private
nature.
The Allahabad High Court too in Suit. Sarjoo v. Ayodhya Pd., founded the view that it is not possible to
conclude about the nature of endowment from a single characteristic alone. In fact the entire evidence and
circumstances are to be examined under which it was created. Non-appointment of a pujari shows the private
nature; but appointment of pujari by members of different families establishes the public nature.
Even giving permission to the members of public to perform puja will not convert it into public. In Radha
Kant Deo v. The Commissioner of Hindu Religious Charitables, the Supreme Court took the view that the idea
of a private religious trust could be conceived in Hindu law only and is foreign to the English law.
In such an endowment the prime purpose of the beneficiary is to establish a temple for the family worshippers.
Though public may be allowed access to such a temple but that will not convert its nature as the property in
facts vests with the beneficiaries and not with the diety. Certain worth mentioning tests were formulated by the
court which is as under—

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  Where the origin of endowment is not known, the question arises as to whether members of public use it by
way of right.
 The fact whether it is controlled by a group of persons or by the founder of endowment will also be
considered.
 Where the documentary evidence is available which clearly establishes that the control invested in the
founder or in his family and a greater part has been dedicated to the temple, so that it may be properly
managed, it all will suggest that the endowment is of a private nature.
 Again in absence of any proof available to show that the founder intended the public to contribute any
share to it, it will be treated as a private endowment.

Charitable Endowments:
Where the gifts are made for charitable purposes such as for the institution of Dharmashala, Anathashram
(choultries), Sadavratas of the establishment of educational and medical institutions or/and for the construction
of Anathashrams (orphanage) tanks, wells and bathing ghats etc., they are known as charitable endowments.
In such endowments property is dedicated through the usual ceremonies of Sankalpa and Utsarga.
The popular charitable institutions created through endowments and recognised under the Hindu law are
Dharmashala or rest houses, Sadavrats Anathashram, public institutions, constructions of tanks, wells, groves
etc. Dharmashalas are the rest houses provided for the travellers known as Pratishraya Griha in ancient times.
The property dedicated to the Dharmashalas vest in Dharmashalas itself. Its management may vest in the
founder himself or a committee constituted by the founder. The benefit of Dharmashala may be available to
public in general or it may be restricted to the members of a community or to the follower’s of a particular
religion.
Sometimes gifts are made for the establishment of educational institutions or hospitals. Imparting free
education to the people in general has been one of the prime objects of charity throughout the ages amongst
Hindus. Similarly hospitals and dispensaries known as Arogashalas have also been the objects of charitable
endowments.
The establishment and maintenance of Goshalas is also a valid charitable purpose. Similarly the excavation of
tanks and wells has also been recognised as charitable objects from the very beginning. According to
Dharmashastra, construction of a well is equal to Agnistoma sacrifice; in desert it equals the Aswamedha. The
well flowing with drinking water destroys all sins. The well maker, attaining heaven, enjoys all the worldly
pleasures. The consecration of trees and groves is also a well recognised charible purpose amongst Hindus.
Dedications for groves and trees have been held valid.

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 Similarly Sadavrats, where free distribution of food and alms to the needy and poor are arranged, have been
well known charitable institutions amongst Hindus. Langars and Anathashram are species of Sadavrats.
Endowments for them have been held valid. Similarly endowments for reciting sacred books and for the food
and maintenance of Brahmacharies and Brahamans have also been held valid --------------------------------
Quest: - Who can be a Karta? What is the position of a Karta under Hindu Joint Family? What are the
various rights and Duties of a Karta?
Ans: - Concept of Karta in Hindu Joint Family
In a Hindu Joint Family, the Karta or Manager occupies a pivotal and unique place in that there is no
comparable office or institution in any other system in the world. His office is independent of any other and
hence his position is termed as sui generis.
Who can be a Karta?
Senior-most Male Member
The senior-most male member of the family is entitled to this position and it is his right. His right is not
subject to any agreement or any other understanding between the coparceners. He may be aged, infirm or
ailing, yet if he is still alive, then he shall be entitled to Kartaship.
But once the Karta dies, the position passes to the next senior-most male member; it may be the uncle, or
brother or son.
Junior Male Member
By agreement between the coparceners, any junior male member can be made a by agreement between the
coparceners, any junior male member can be made a Karta. In this case, withdrawal of the coparcener’s
consent is allowed at any point of time.
Female Members as Karta
Regarding the issue of female members of a family assuming Kartaship, there has been considerable amount
of discussion in the Supreme Court of India as well as the High Courts. The Nagpur High court once held that
though a mother is not a coparcener, she can be the Karta in absence of male members. But the Supreme Court
reversed the Nagpur High Court’s findings in another judgment and declared that no female member can
assume Kartaship whatsoever.
To put an end to this controversy, few States namely, Kerala, Andhra Pradesh & Karnataka have amended
their succession laws so that equal rights are provided to females as compared to the males in the family.

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
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 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

Characteristics of a Karta:
Karta’s position is sui generis. As had been explained earlier, his position/ office is independent and there is
no comparable office in any system in the world.
He has unlimited powers and even though he acts on behalf of other members, he is not a partner or agent.
He manages all the affairs of the family and has widespread powers.
Ordinarily he is accountable to no one. The only exception to this rule is if charges of misappropriation, fraud
or conversion are levelled against him.
He is not bound to save, economise or invest. That is to say that he need not invest in land if the land prices
are about to shoot up, and hence miss out on opportunities etc. He has the power to use the resources as he
wishes, unless the above mentioned charges are levelled against him.
He is not bound to pay income of joint family in any fixed proportion to other members. This means that the
Karta need not divide the income generated from the joint family property equally among the family members.
He can discriminate one member from another and is not bound to treat everyone impartially. Only
responsibility is that he has to pay everyone something so that they can avail themselves of the basic
necessities such as food, clothing, shelter, education etc.
Apart from all the unlimited powers that are bestowed upon the Karta, he also has liabilities thrust on him.
Karta’s Liabilities:
Karta has to maintain all the members of the joint family properly. If there is any shortfall in his maintenance,
then any of the members can sue for maintenance. He is responsible for marriage of all the unmarried
members in the family. Special emphasis is laid with respect to daughters in this case. In case of any partition
suit, the Karta has to prepare accounts. He has to pay taxes on behalf of the family. Karta represents the family
in all matters including legal, religious and social matters.
The Position of Karta
The Karta, being the head of Ho joint family gets on the behalf of the member of the joint family. The position
of the ‘Karts’ is “sui generis” Sui generis in the sense that his position in not that of the manger of a
commercial Firm and his relationship with the other members is not that of the principal and agent or Firm and
Partners.
Powers of Karta:
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a. Power of Alienation: The most important case with respect to Karta’s power of alienation is Rani v.
Shanta. The Karta has very limited powers with respect to alienation of the joint family property. The Karta
can alienate the joint family property only with the consent of the coparceners. Alienation can be done only
for three purposes:
b. Legal Necessity: The term “legal necessity” has not been expressly defined in any law or judgment. It is
supposed to include all those things which are deemed necessary for the members of the family. “Necessity”
is to be understood, not in the sense of what is absolutely indispensible, but what would be regarded as
proper and reasonable. If it is shown that family’s need was for a particular thing and if property was
alienated for the satisfaction of that particular need, then it is enough proof that there was a legal necessity.
A few illustrative cases are:
a) Food, shelter and clothing.
b) Marriage (second marriages are not considered a legal necessity).
c) Medical care.
d) Defence of person accused of a crime (exception to this rule is murder of a family member).
e) Payments of debts, taxes etc.
f) Performance of ceremonies (like marriage, grihapravesham).
g) Rent etc.
Benefit of Estate: Karta, as a prudent manager, can do all those things which are in furtherance of the
family’s advancement, to prevent probable losses, provided his acts are not purely of speculative or visionary
nature. The last clause means that the property cannot be converted into money just because the property is not
yielding enough income.
Indispensable Duties: This term implies the performance of those acts which are religious, pious or
charitable. Examples of indispensable duties are marriages, grihapravesham etc. In this case there is a
requirement to differentiate between alienation made for indispensable duties and gifts for charitable purposes.
The difference lies in the fact that in the former case while discharging indispensable duties, the Karta has
unlimited powers in the sense that he can alienate the entire property for that purpose. But in the case of gifts
for charitable purposes, only a small portion can be alienated.
Other Powers:
These powers of the Karta are almost absolute. There are 9 powers in all and each of them has been dealt with
in brief below:

a. Powers of Management: It is an absolute power. The Karta may mismanage or may discriminate between
members and cannot be questioned on such aspects. But the Karta cannot deny maintenance and occupation
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 of property to any member altogether. The check on his powers in this case is the power of “partition”
vested in the coparcener.
b.Right to Income: All incomes of the joint family property should be brought to the Karta and it is for the
Karta to allot funds to members and to look after their needs and requirements.
c. Right to Representation: The Karta represents the family in all matters legal, social and religious. His acts
are binding on the family.
d.Power of compromise: The Karta has the power to compromise in all disputes relating to the family
property or management. His acts are binding on the members of the family; but in case of a minor, it has to
be approved by the court under O.32, Rule 7, and CPC. The compromise made by the Karta can be
challenged in court by any of the coparceners only on the ground of malafide.
e. Power to refer a dispute to Arbitration: The Karta has the power to refer any dispute with respect to
family property or management to an arbitration council and the decision is binding on the family.
f. Power of Acknowledgement: The Karta can acknowledge any debt due to the family or pay interest on a
debt or make part or full payment of principal etc. But the Karta has no power to acknowledge a time-barred
debt.
g.Power to Contract Debts: The Karta has implied authority to contract debts and pledge the credit and
property of the family. His decision is binding on the members of the joint family.
h.Loan on Promissory Note: When the Karta takes a loan for family purposes and executes a promissory
note, then the other members may be sued as well even if they are not parties to the note. But the members
are liable to the extent of their shares whereas the Karta is personally liable on the note.
i. Power to enter into Contracts: The Karta has the power to enter into contracts which are binding on the
family. ---------------------------
Other Provision

Quest: - Write a note on Math, Mahant and Sevayat

Ans: - In the 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 order, ordinarily, the disciples of
mahant. The basic purpose of a math is to encourage and faster spiritual learning and knowledge, by
maintenance of a competent line of teachers who impart religious instruction to disciples and follers of the
Math and to sthrengthen the doctrines of the sect or school to which Math subscribes. There can be sudra

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 maths also. Although, the mahant is the head of the math, but the the property dedicated to a math doesn’t vest
in him, but it vests in the math itself as a juristic person.

The position of Mahant

The mahant is neither is trustee nor a corporate 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 a dual capacity as he is the
manager of the properties, and the spiritual head of the math. In Ram Prakash v Anand Das the Privy
Councilobserved “The Mahant is the head of the institution. He sits upon Gaddi, he initiates candidates into
the mysteries of the cult; he suprintends the worship of the idol and the accustomed spiritual rites; he manages
the properties of theinstitution; he administers its affairs.”
The following functions are attributed to the mahant of a Math

 Management of the Math and its Properties-

Unless the founder has directed otherwise, the management and possession of properties of a Math belong to
the Mahant. It was observed by the Privy Council in the case of Arunachalam v Venkatachelapati “There
may be varieties of circumstances and tenure, and in respect of these, if the usage and custom are clear, they
constitute the law of the math”. The Mahant holds the properties of the Math for certain specific purposes as
laid down by the founder or by usage. In this regard the duties of the Mahant are upkeep of the Math and the
performance of the religious rites, ceremonies and the festivals of the religious order to which the Math
belongs.

 Right of Representation
The mahant of an Akhara or Math represents the Math and has both the right to institute a suit on its behalf as
also the duty to defend one brought against it. If the Math is not represented by a Mahant, the decree passed
against it is not binding as decided by the Supreme Court in the case of Guranditta v Amar Das . It is obvious
that it is the Mahant who represents the Math in all its dealing with the outside world. This mean that the
Mahant has power to do everthing that may be necessary in the interest and for the benefit of the Math. A
judgment against Mahant will bind his successors. This is also true of a compromise, no saction of the court
is necessary. When the Mahant himself is guilty of mismanagement or misaapropriation then a suit can be
filed by any person interested in the endowment.

 Power to borrow Money

The Mahant has power to borrow money for purposes connected with the Math. It is a well established
proposition of law that a Mahant has power to bind the endowed property by his debts taken for justifying

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 necessity. If the creditor has made bona-fide and proper inquiries as to the existence of a necessity, he is
protected and can obtain a decree which can be executed against the Math properties.

 Mahant’s Power of Alienation

Mahant’s power of alienating the property is the same as those of shebait. He can alienate the properties for
legal necessity or for the benefit of the Math Properties.

 Liability to Account
Mahant has wider powers over to the income of the endowed properties than the shebait. His powers are
almost unfettered. He must dicharge all obligation connected with the Math as laid down by the deed or by
the usage and custom. In the absence of a charge of lack of good faith, his discretion is unfettered. However
he can be charged with the maladministration of properties. -------------------------
Sevayat:

The property of the idol is called ‘Devottar’ property. The human agent who administers its affairs is called
‘Sevayat’. The literal meaning of Sevayat is ‘one who renders service’.

Rights of Sevayats

i) Rights in general- He has the right to do all that is necessary, reasonable and proper for the benefit and
protection of the property of the idol;

ii) Right in possession of Devottar- He has the right to the possession and custody of the Devottar;

iii) Right of remuneration- Ordinarily he has no right. But if the deed of the endowment or the custom gives
him some remuneration for his service, he can take it.

iv) Right of residence- He has a right to live in the temple dedicated to the idol;

v) Right of reimbursement for expenses- He has the right to reimburse for the expenses that he incurs from
his purse for the acts authorized regarding the Devottar and the idol;

vi) Right of litigation- He can file a suit for the benefit of the idol or the Devottar. If any suit is filed against
the idol or the Devottar, he has the right to defend it on behalf of the idol;

vii) Right to defend Sevayati rights- He can sue to obtain Sevayati rights and if there is any challenge to
such rights, he can defend them.
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 viii) Right to borrow money- He can borrow for the purpose of the idol or its property.

ix) Right to alienate Devottar- The property of an endowment is res extra commercium. Ordinarily it cannot
be alienated. But if it is necessary or benefitted for the idol, he can alienate it.

In Hunoomanpersaud v. Mst. Babooee- The Privy Council held that the Sevayat of an idol has the same
powers in respect of the alienation of the Devottar as the manager of an infant in respect of the property of the
minor ward.

Duties of Sevayat:

i) To keep accounts of the Devottar

ii) To discharge duties personally- He cannot delegate his duties to any other person.

iii) Not to purchase Devottar- He cannot buy it for himself or benami.

iv) Not to claim Devottar as personal property-

v) Not to embezzle Devottar- He cannot make use of the idol’s property for his personal purpose. -----------
Quest:-What do you mean by Partition under Hindu Law? What are the various modes of partition?

Introduction:-

Any division of real property or Personal Property between co-owners, resulting in individual ownership of
the interests of each is known as partition. Partition under Hindu Law, can be total or partial. In total partition
all the members cease to be members of the HUF and all the properties cease to be properties belonging to the
said HUF. Partition could be partial also. It may be partial vis-a-vis members, where some of the members go
out on partition and other members continue to be the members of the family. It may be partial vis-a-vis
properties where, some of the properties, are divided among the members other properties continue to be HUF
properties. Partial partition may be partial vis-a-vis properties and members both.

Modes of Partition

1. Partition by Mere Declaration: Partition under the Mitakshara law is severance of joint status and as
such it is a matter of individual volition. An unequivocal indication of desire by single member of joint
family to separate is sufficient to effect a partition. The filing of a suit for partition is a clear expression of
such an intention.
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 The oral or written communications by a coparcener could be enough to sever the joint status but the
communication could be withdrawn with the consent of other coparceners and with its withdrawal partition
would not take place.
It is not necessary that there should be a partition by agreement. It can take place by an act or transaction of
coparcener, by which there could be an indication of the separation of his interest. What type of act, conduct
or expression of intention would disrupt joint status, will be decided on the basis of facts in each case.
In Raghvamma v. Chenchemma, the Supreme Court laid down that it is settled law that a member of joint
Hindu family can bring about a separation in status by a definite declaration of his intention to separate
himself from the family and enjoy his share in severalty. Severance in status is brought about by unilateral
exercise of discretion.
It is implicit in the expression ‘declaration’ that it should be to the knowledge of the persons affected
thereby. An uncommunicated declaration is not better than a mere formation or harboring of an intention to
separate. It becomes effective as a declaration only after its communication to the person or persons who
would be affected thereby.
The Supreme Court in Puttorangamim v. Rangamma, reiterated that “it is, however, necessary that the
member of the joint Hindu family seeking to separate himself must make known his intention to other
members of the family from whom he seeks to separate. The process of communication may vary in the
circumstnaces of each particular case. The proof of a formal despatch or receipt of the communication by
other members of the family is not essential, nor its absence fatal to the severance of the status.
It is of course, necessary that the declaration to be effective should reach the person or persons affected by
some process appropriate to the given situation and circumstances of the particular case”.
“It is, of course possible for the members of the family by a subsequent agreement to reunite, but the mere
withdrawal of the unilateral decalaration of the intention to separate, which already had resulted in the
division in status, cannot amount to an agreement to reunite.”
The Patna High Court laid down that for separation a division of property by metes and bounds is not
necessary, there must be unequivocal declaration by a member to show that he separated from the rest of the
family.
There is no need of giving a written notice by one coparcener to the other coparcener. The expression of the
desire of a coparcener to separate can be inferred from the cognate circumstances. An undivided coparcener
cannot merely by declaration and definition of his share in a deed of transfer executed by him validly make
a transfer of a share to which he would have been entitled if he had effected a partition before making the
transfer.

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 2. Partition by Will: Partition may be effected by a coparcener by making a will containing a clear and
unequivocal intimation to the other coparceners of his desire to sever himself from joint family or
containing an assertion of his right to separate. In Potti Laxmi v. Potti Krishnamma, the Supreme Court
observed, “Where there is nothing in the will executed by a member of Hindu coparcenaries to
unmistakably show that the intention of the testator was to separate from the joint family, the will does not
effect severance of status.”
3. Conversion to another Faith: Conversion of a coparcener to any other religion or faith operates as
partition of the joint status as between him and other members of the family. The coparcener, who has
converted, no longer possesses the right of survivorship as he ceases to be a coparcener from the moment of
his conversion and he takes his share in the family property as it stood at the date of his conversion.
Reconversion of the convert to Hinduism does not ipso facto bring about his coparcenary relationship in
absence of subsequent act or transactions pointing out to a reunion.
4. Marriage under Special Marriage Act, 1954: Marriage of a Hindu under the Special Marriage Act,
1954 causes severance of joint status.
5. Partition by Agreement: An unequivocal expression of the desire to use the joint family property in
certain defined shares may lead the members of joint family to enter an agreement to affect a partition. The
two ideas, the severance of joint status and a de facto division of property are distinct. As partition under the
Mitakshara law is affected on severance of joint status, the allotment of shares may be done later. Once the
members of joint family or heads of different branches of the coparcenaries agree to specification of shares,
the same can be treated to result in severance of joint status though the division by metes and bounds may
take place later on.
6. Partition by Arbitration: An agreement between the members of joint family whereby they appoint an
arbitrator to arbitrate and divide the property, operates as a partition from the date thereof. The mere fact
that no award has been made is no evidence of a renunciation of the intention to separate. Where all the
coparceners jointly have referred the matter relating to the partition of their shares in the joint family to an
arbitrator, this very fact expressly indicates their intention to separate from joint status. In such cases even if
award is not given, their intention is not dissipated.
7. Partition by Father: The father may cause a severance of sons even without their consent. It is the
remnant of the ancient doctrine of ‘Patria Potestas’. The father during his lifetime is competent to effect
such partition under Hindu law and it would be binding on his sons.
It would be binding on the sons not because they have assented to it but because the father has got the power
to do so, although this power is subject to certain limitations on the basis of its utility and general interest of

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 the family. It has to be considered as to whether it is lawful in accordance with the spirit of Hindu law or
not.
According to Supreme Court’s decision is Kalyani v. Narayanan, a Hindu father under Mitakshara law can
effect a partition among his sons even in the lifetime of karta of joint family and such partition would be
binding on them. In such a case he can define and specify his share along with his sons and thus effectuate a
separation among them. But in no case ho can divide the joint family property among the different members
by virtue of a Will, although he could do it with their consent.
Where the father has divided the property unequally amongst his sons, then too it would be binding. But no
person can give his consent to the unequal share on behalf of a minor. The sons have the right to challenge
the unequal division of shares or an act of unilateral division of shares by the father, but it will have no
bearing on the severance of their joint status. Where the father has divided his self-acquired property
unequally among his sons, it could not be challenged by them, nor is there any need of a registered deed to
this effect.
8. Partition by Suit: Mere institution of a partition suit disrupts the joint status and a severance of joint
status immediately takes place. A decree may be necessary for working out the resultant severance and for
allotting definite shares but the status of a plaintiff as separate in estate is brought about on his assertion of
his right to separate whether he obtains a consequential judgment or not.
So even if such suit was to be dismissed, that would not affect the division in status which must be held to
have taken place when the action was instituted. Ordinarily a partition is affected by instituting a suit to this
effect. In case of a suit for partition in joint status, father’s consent to the suit for partition is no longer
necessary. The son is fully eligible to file a suit for partition even during the lifetime of father.
When the plaintiff files a suit for partition the share which he received in the earlier partition would not be
free from charges and liabilities. If the creditors have obtained the decree against the joint family property,
then even that share of the plaintiff which he did not receive, would also be liable in the same manner as that
of the other coparceners.
The above nine modes of partition are not exhaustive. There may be other situations as well which, if
expressed in equivocal intention for partition, will be admissible.
Exception: The general rule mentioned above will not apply where a suit is withdrawn before trial by the
plaintiff on the ground that he did not want separation any more. In such a case there would be no severance of
joint status. Where the suit is proved to be fraudulent transaction resorted to with intent to create evidence of
separation, no severance in the joint status takes place. If the defendant dies and the suit is withdrawn on that
ground there is no separation.

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 Mere institution of a suit for partition by a minor followed by abatement of the suit by death of the sole
defendant does not effect the severance of the joint status.

Reunion: - The leading text on re-union is the text of Brihaspati which says, “He who, being once separated,
dwells again through affection, with father, brother or a paternal uncle, is termed reunited with him.”
According to Mitakshara, re-union cannot take place with any person indifferently but with father, a brother or
a paternal uncle. According to Dayabhaga also, a re-union is valid only with a father, brother or paternal uncle.
There is a difference of opinion between the different schools on the question whether any two persons who
were parties to the partition may reunite. According to Bombay and Mithila schools any two persons who
were parties to the original partition can reunite. According to Banaras, Bengal and Madras schools reunion
can take place only with the father, the brother or uncle who has been expressly named in the text of
Brihaspati.
No writing is necessary for a reunion. It may take place by verbal arrangement but there must be an intention
to reunite. Mere living and carrying on business together is not conclusive evidence of reunion. [Bhabgati v.
Murlidhar, 1943 A.L.J. 328 P.C.).
Effect of reunion:
The effect of reunion is to remit the reunited members to their former status as members of a joint Hindu
family. [Pran Krishan v. Mathur Mohan (1865) 10 M.I.A. 403], The question is whether the property, which
was formerly joint but was later on parted as a result of partition will pass by survivorship or by inheritance.
The majority of High Courts are of the view that property will pass by survivorship like any other joint family
property.
There is no difference in coparcenaries by birth and coparcenaries by reunion. The special rules of inheritance
are applicable only to the separate property of the reunited members ------------------------------------------
A brief on Indian Succession Act
HINDU SUCCESSION ACT

I. Introduction
Although the Hindu Succession Act (“the Act”) is not a piece of commercial or corporate legislation but its
importance in today’s business world is being felt because of family separations and family feuds becoming
the order of the day the Act. The Act governs the law relating to intestate succession among Hindus. Indian
businesses have traditionally been family owned and run and often when the family patriarch dies intestate it
leads to family disputes over succession issues. These disputes are not just restricted to non-corporate entities
but corporate India too has also witnessed some of the most bitter succession issues.
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 It is quintessential to note that this Act would have no application in case of a testamentary succession, i.e., in
a case where there is a will. The Act would thus, only apply in a case where a Hindu male or female dies
without making a will and leaves behind various classes of heirs and property.
II. Application
1) As stated above the Act applies only in case of intestate succession by Hindus. The Act applies to
Hindus, Jains, Sikhs, and Buddhists and to any person who is not a Muslim, Christian, Parsi or a Jew.
Any person who becomes a Hindu by conversion is also covered by the Act. The Act overrides all
Hindu customs, traditions and usages and specifies the heirs entitled to such property and the order or
preference among them.
2) The Act lays down separate rules for succession for males and females. It is important to note that
succession can never be in abeyance, i.e., it can never lie in a vacuum. The moment a Hindu dies
intestate, his heirs (in order of succession) become entitled to succeed to his property.
III. Male intestate succession
The rules governing intestate succession of a Hindu male are specified in ss. 8 to 13 of the Act. The property
of an intestate Hindu male devolves on the following heirs in the order specified below:
(A) Firstly, upon his Class I heirs
(B) Secondly, if there is no Class I heir, then upon his Class II heirs
(C) thirdly, if there is no Class II heir, then upon his Agnates
(D) fourthly, if there is no Agnate, then upon his Cognates
The order of succession is in the order specified above. Thus, Class I heirs take the property in exclusion to all
others and so on and so forth.
Class I heirs: The following 12 heirs are Class I heirs -
a) Son; i) widow of a pre-deceased son;
b) daughter; j) son of a pre-deceased son of a pre-deceased
c) widow; son;
d) mother; k) daughter of a pre-deceased son of a pre-
e) son of a pre-deceased son; deceased son;
f) daughter of a pre-deceased son; l) widow of a pre-deceased son of a pre-
g) son of a pre-deceased daughter; deceased son
h) daughter of a pre-deceased daughter;
The above Class I heirs take the property in priority succession to all other heirs. Amongst them the distribution
is as follows:
a) The intestate’s children, mother and widow each take one equal share. It does not matter whether the
daughter is unmarried or married. She gets an absolute share equal to that which the son gets.
b) The heirs in the branch of each predeceased child take one share between them.
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 It may be noted that the terms ‘son’ and ‘daughter’ include both those which are natural and those which are
adopted.
Class II heirs: The following heirs are Class II heirs –
a) Father
b) Son’s daughter’s children and Sibling((1) Son's daughter's son, (2) son's daughter's daughter, (3)
brother, (4) sister)
c) Daughter’s grandchildren ((1) Daughter's son's son, (2) daughter's son's daughter, (3) daughter'
daughter's son, (4) daughter's daughter's daughter.)
d) Children of Siblings ((1) Brother's son, (2) sister's son, (3) brother's daughter, (4) sister's daughter.)
e) Father’s parents (Father's father; father's mother.)
f) Father’s widow (step-mother), Brother’s widow
g) Father’s sibling(Father's brother; father's sister)
h) Mother’s parents(Mother's father; mother's mother)
i) Mother’s siblings(Mother's brother; mother's sister)

Among the heirs specified in Class II, those in the first entry take the property simultaneously and in exclusion
to those in the subsequent entries and so on and so forth. Thus, if the father is surviving, he takes the property in
exclusion to all other Class II heirs, Agantes and Cognates. As regards the heirs specified in one entry all of
them get an equal share in the property.
Agnates and Cognates
Two people are called Agnates of each other if they are related (by blood or by adoption) wholly through
males. Agnates could be males or females. Thus, a father’s brother’s daughter is an Agnate but a father’s
sister’s son is not an Agnate because the relation is not entirely through males. Cognates On the other hand, two
people are called Cognates of each other if they are related (by blood or by adoption) but not wholly through
males. Cognates could be males or females. A mother’s brother’s daughter or a father’s sister’s son is a Cognate
because the relationship is not wholly through males. The relationship of Agnates and Cognates does not extend
to those relationships which arise because of marriage. Among two or more Agnates/ Cognates, the order of
succession is that the heir who has fewer or no degrees of ascent is preferred. If the degrees are same then those
who have fewer or no degrees of descent are preferred.
IV. Female Hindu’s property
By virtue of the provisions of s.14 of the Act, all property, whether movable or immovable, belonging to a
female Hindu is held by her as full owner and not as a limited owner. The property may be acquired by her
by way of inheritance, partition, will, gift, on marriage, own efforts, purchase, etc. However, in case she has
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 acquired the property by way of a gift or under a will and the terms of such gift/will prescribe a limited estate,
then such restriction shall prevail. Thus, a female Hindu has absolute power to deal with her property and she
can dispose off her property by way of a will, gift, etc. Prior to s.14 coming into effect a female Hindu did not
have any power to dispose of her property by will. But now that embargo has been removed by virtue of the
statutory provision.
V. Female intestate succession
The rules governing intestate succession of a Hindu female are specified in ss. 15 and 16 of the Act. Under s.15
(1), the property of an intestate Hindu female devolves on the following heirs in the order specified below
a) Firstly, upon her sons and daughters c) Thirdly, upon her parents
(including the children of any pre-deceased d) Fourthly, upon the heirs of her father
children) and husband e) Fifthly, upon the heirs of her mother
b) Secondly, upon the heirs of her husband;
The order of succession is in the order specified above. Thus, the heirs in the first entry take the property
simultaneously and in exclusion to all others and so on and so forth. Thus, the children and husband of a
female Hindu take the property in preference to all other heirs specified. The order of devolution as regards
her husband’s heirs would be as if it was her husband’s property and he had died intestate. The same principle
would apply as regards devolution on her father’s heirs.
S.15 (2) carves out an exception to the order of succession specified above. In case of a Hindu female dying
intestate and without any issue or any children or any predeceased children, any property inherited by her from
her parents shall devolve upon the heirs of her father. Such property shall not devolve upon the other heir’s
specified u/s. 15(1). Thus, property inherited from her parents would not devolve upon her husband or his heirs.
Recently, the Supreme Court, in an unreported decision, has reiterated the proposition that according to s.15(2)
the result would be that if a property is inherited by a woman from her father or her mother neither her husband
nor his heirs would get such property but it would revert back to the heirs of her father.
Similarly, in case a Hindu female dies intestate and without any issue or any children or any predeceased
children, then any property inherited by her from her husband or her father-in-law shall devolve upon the heirs
of her husband. Such property shall not devolve upon the other heirs specified u/s. 15(1). Thus, property
inherited from her husband would not devolve upon her father or his heirs.
It is important to note that both the above provisions of s.15(2) would only apply if the female dies without
leaving behind any children or children of any predeceased children. If she has left behind any children, then
they would take the property in preference to all other heirs. Further, the provisions only apply to “inherited”
property and not property acquired by way of a will or under a gift.
VI. Interest in HUF Property
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 On the death of a male Hindu his interest in a Hindu Undivided Family (HUF) devolves by survivorship upon
the other surviving members and is not governed by the succession rules laid down under the Act. Thus, if a
father dies, then his interest in the HUF will devolve by survivorship upon the other HUF members. However,
it is important to remember that this provision can only apply if the Hindu has not already disposed off his
interest in the HUF by way of a will. S.30 now expressly permits a Hindu to make a testamentary disposition
of his HUF interest.
An exception to the above provision is that in case the deceased has left behind a female relative specified in
Class I or a son of a predeceased daughter, then the interest of the deceased devolves by intestate succession
under the Act and not by succession.
An important amendment has been made in the State of Maharashtra by the insertion of ss.29A to 29C. By
virtue of s.29A, in an HUF, a member’s daughter would have the same rights in the HUF as that of a son and
she would become a member of the HUF just as a son would become. She would be subject to the same rights
and liabilities as a son would in the HUF property. Thus, a Hindu daughter would become a co-parcener in the
HUF property. She is also capable of disposing of such property by will. It is important to note that the above
provisions only apply to female Hindus, who are married after 22nd June, 1994. Further, if she dies intestate,
her interest in such HUF property shall devolve by survivorship upon the surviving members and not in
accordance with the provisions of the Act, i.e., ss. 15 to 16.
VII. Dwelling Houses
S.23 makes a special provision in respect of partition of dwelling houses. Where a Hindu (male or female)
intestate dies leaving behind both male and female heirs specified in Class I, and his / her property includes a
dwelling-house wholly occupied by member of his / her family, then, any such female heir cannot claim
partition of the dwelling-house until the male heirs choose to do so. However, the female heir shall be entitled
to a have right of residence in such house. If such female heir is a daughter, then she will be entitled to a right
to residence in the dwelling-house only if she is unmarried or has been deserted / separated from her husband,
or is a widow. Thus, this section prevents the female members from claiming partition of a dwelling-house till
such time as the male members decide to do so.
IX. Escheat
In case there are no heirs of an intestate who are qualified to succeed to the property in accordance with the
provisions of the Act, then such property would devolve upon the Government and the Government would take
such property.

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