Hindu Law
Frequently Asked Questions on Hindu Law
Ans. Hindu Law is considered to be one of the most ancient law. Hindu Law is considered to be about 6000 year old. In this span of 6000 years it passed through various phases. The concept of Hindu Law is deeply rooted in Hindu philosophy and connected with "Religion" i.e. "Dharma". Though since ancient time Hindu Law has underwent various ups and downs but basic principles of Hindu Law remained unaffected during its thousands years of existence in Hindu society.
Hindu Philosophy and Religion
Hindu Law is deeply connected with religion or "Dharma". Origin of Hindu Law is primarily based on "Religion". Religion or "Dharma" is a wide expression and means aggregate of duties and obligations which a man has to observe morally, socially and legally. Hindu religion is based on the philosophy, that soul-is-immoral, a man dies but his soul does not die, chain of birth and re-birth continues till a man attains "moksh" i.e. Salvation. All activities of human being, according to Hindu philosphy are aimed for attaining "moksh" and for that purpose "Religion" lays down certain modes of activities for ultimate purpose of attaining Salvation.
Law, according to Hindu jurists, is the enforceable part "Dharma" or "Religion". According to Mannu "the Vedas", the smriti, the approved usage and and what is agreeable to one's soul or good conscience are the quadruple direct evidence of Dharma."
About the nature and scope of Hindu Law, Dr. Jullius Jolly stated that-
"The Indian soil has not only been productive in deep thinkers, eminent founders of world religions and gifted poets, but it has brought forth a system of law, which after having spread in the whole vast continent of India, has generated at an early period into Burma and Siam and has become the foundation of the written law in these two countries."
Origin of Hindu Law There are two views about the origin of Hindu Law. The first view believes it to be of divine origin and other view is based upon immemorial usages and customs. (i) Hindu Law To Be Of Divine Origin - One view regarding origin of Hindu Law is that Hindu Law is revealed law which means that God or almighty has directed the human beings, ways of living. Hindu sages in ancient days had attained such great spiritual heights as they directly heard from God the revelation of sacred law. This revelation is contained in "Shruti" or "Vedas" which simply means what is heard. So "Shruti" or "Vedas" are considered to be revelation of God, dealing with various ceremonies, rituals etc. So "Shruti" was accepted as original utterings of Almighty. "Samriti" means, literally, re-collections. Samriti though accepted as precepts emanating from that source, were couched in the words of Rishis or Sages of antiquity who saw or received the revelation and proclaimed their re-collections. (ii) Hindu Law To Be Based On Immemorial Usage etc. - The other view is that Hindu Law is based upon immemorial Customs which existed prior to and independent of Brahmanism. It is said that, after arrival of Aryans into India, they found that there were number of usages either same or slightly different. They, accepted these usages with or without modification. According to this view, the ancient law promulgated in the smritis was essentially traditional and Law was not to be found in the text of the Smritis but also in practices and usages which had prevailed under it. The importance attached to the Law-creating efficacy of custom in Hindu Jurisprudence was so great that exponents of law were unanimous in accepting custom as itself constituent part of the law. Nature of Hindu Law An Eminent Jurist "Austin" has defined the law to be "Command of Sovereign". Sovereign means a specific person (king or parliament or legislator) who has power in society to impose law on its members. But Hindu Law is stated to be not coming fit with this definition. It has been remarked that 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. To this remark, the answer is that it is true that our codes do not embody the commands of any accepted monarch but it must be conceded by every one who knows anything of the mechanism of our society that the Brahmins were the dual rulers of the country. So long as at last Hindu Kings occupied the throne of the Hindu Community, the Brahmins enjoyed supreme legislative power and the commands imposed by them were generally obeyed. So, no doubt, Hindu Law cannot strictly be said to have been promulgated by any sovereign but inasmuch as Hindu Law is a body of principles or rules recognized and applied to govern the subjects inasmuch as what a Sovereign can command can be taken to have been impliedly commanded, by Hindu Law in a qualified sense, even the Hindu Law can be said to have been promulgated by the Sovereign within the definition of Austin. It is one of the most ancient systems of law known to the world. Maine recognized this fact in his treaty "Hindu Law and Usage", be observed that -"Hindu Law has the oldest pedigree of any known system of jurisprudence and now it shows no sign of decrepitude."
Ans. Who are Hindus ? - The expression "Hindu" has not been precisely defined because any effort to put the term "Hindu" into specific words is perhaps is not practicable in view of multi-dimensional aspects of the term. It is very significant that expression "Hindu", even before enactment of some branches of Hindu Law in 1955-56 had not been defined strictly in terms of religions. Before 1955, a person who was Hindu by religion was certainly a Hindu but converse was not true and therefore those persons who were not strictly Hindu by religion, yet Hindu Law applied to them and because of this, they were considered as Hindu.
The general rule that Hindu is born and not made has an exception that expression Hindu includes those who are Hindu by birth as well as those who converted to Hinduism. Moreover Hindu Law has not confined its application to persons who are of Hindu religion either by birth or conversion but to those who are Hindu by implication for the purpose of application of Hindu Law. It is for this reason term `Hindu' has never been comprehensively defined, covering all aspects and therefore term has been negatively defined by indicating that a person who was not a Muslim, Christian, Parsi or Jew, was Hindu. So persons to whom Hindu Law applies may be put in 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 (i.e. when both or one parents is Hindu, Jain, Sikh or Bhuddhist by religion) i.e. Hindu by birth.
(c) Any person who is not a Muslim, Christian, Parsi or Jew and whois not governed by any other law i.e. Hindu by Implication.
(A) Hindu By Religion Under this category two types of persons fall :-(i) Persons who are Hindu, Jain, Sikh or Buddhist by religion by birth.
(ii) Persons who converts or re-converts to Hindu, Jain, Sikh or Buddhist religion.
Any person who follows Hindu religion in any of its form or development, either by practicing it or by professing it, is a Hindu. The most remarkable feature of Hinduism is that it has always permitted religious innovations and thus over the period of time new dimentions are added to Hindu religion. Prominent among modern developments are `Brahmos', `Arya Smajists', `Radha Swamis', `Satsangis' etc. All these movements or development purport to free Hinduism from orthodoxy practices and rigidity. Followers of Jainism, Sikhism and Budhism :- Even before codification of Hindu Law on certain aspects, it was well settled that Jainism, Sikhism and Buddhism were governed by Hindu Law and Codified Hindu Law also indudes them under the term "Hindu" Converts and Reconverts to Hinduism :- A person, who after renouncing his faith, adopts the Hindu religion, is said to be convert to Hindu by religion. Usual way of conversion is by undergoing the ceremonies of conversion prescribed by religion which is adopted. Under Hindu Law, a person does not lose his faith by mere renunciation of it nor does he belong to another faith by mere professing it or practicing it. Among Hindu it is only Arya Smajists who prescribe a ceremony of conversion known as "Sudhi". However in Peerumal v. Punnu Swami, AIR 1971 SC 2352 it was observed :-"A person may also become Hindu if after expressing an intention, expressly or impliedly, he lives as a Hindu and the community or caste into the fold of which he is ushered in accepts him as a member of that community or caste. In such a case one has to look to the intention and conduct of the convert, and if the consensus of the community into which he was initiated is sufficiently indicative of his conversion, then the lack of some formalities cannot negative what is an accomplished fact. In such a case no formal ceremony of purification or expiation is necessary to effectuate conversion."
In Commr. of Wealth Tax Madras v. R. Sridharan (1976) 4 SCC 489, it was observed - "Under the codifying Acts namely the Hindu Marriage Act, 1955, the Hindu Succession Act, 1956, the Hindu Minority and Guardianship Act, 1956 and the Hindu Adoptions and Maintenance Act, 1956, the orthodox concept of the term `Hindu' has undergone a radical change and it has been given an extended meaning. The aforesaid codifying Acts not only apply to Hindus by birth of religion i.e. to converts of Hinduism but also to a large number of other persons. According to Explanation (b) to Section 2(1) of the Hindu Succession Act, 1956, Hindu Adoptions and Maintenance Act, 1956 and Hindu Marriage Act, 1955 as also according to Expln. (ii) to Section 3(1) of the Hindu Minority and Guardianship Act, 1956, any child legitimate or illegitimate, one of whose parents is a Hindu by religion and who is brought up as a Hindu is a Hindu. (B) Hindu By Birth Under the modern Hindu Law, irrespective of fact whether a person is or is not a Hindu by religion, he will be Hindu -(i) If he is born of Hindu parents i.e. when both mother and father of child are Hindu, the child is Hindu by birth.
(ii) If he is born to a Hindu parent i.e. One parent (either father or mother) is Hindu and child is brought up by such Hindu parent as Hindu. Under this category, a child will be Hindu by birth if - (a) at the time of his birth, one of the parents was Hindu and (b) child is brought up as member of tribe, community, group or family to which Hindu parent belonged at the time of birth of child.
(C) Hindu By Implication As noted above Hindu Law does not confine its application only to those who are Hindu by religion or Hindu by birth, but it applies to all those person who may not be Hindu in strict sense, but law applies to them as they are not Muslim, Christian, Parsi or Jew by religion. In Hindu Marriage Act 1955 and Hindu Minority and Guardianship Act, 1956 while defining the term `Hindu' in Section 2(2) it is provided that, a person who is not Muslim, Christian, Parsi or Jew and who is domiciled in India shall be subject to above said law. However in Hindu Succession Act, 1955 and Hindu Adoption and Maintenance Act, 1956, while defining the expression on above said lines `condition of being domiciled in India is not there'.
Ans. Hindu Law is one of the most ancient systems of Law. Hindu Law is considered to be about 6000 years old. In span of 6000 years, it passed through various phases. It is said that Hindu Law is product of "Shruti", "Smriti" and "Puranas". One view is that in Ancient time Hindu Law was originated from "Shruti" and "Smritis". Whereas other view is that immemorial practices, usages and customs were foundations of Hindu Law. However to study the various sources of Hindu Law, various sources can be divided into two heads :-
(1) Ancient Sources
(a) Shruti (c) Commentaries and Digests (Nibandhas)
(b) Smritis (d) Customs and Usages.
(2) Modern Sources(a) Equity, Justice and Good Conscience
(b) Precedents
(c) Legislations
Ancient Sources (a) "Shruti" :- Hindu Law is considered to be divine law, a revealed law. The theory is that some Hindu sages had attained such a great spiritual height that they could hear the Almighty or God, they heard the scared law as revealed to them by God. This revelation is contained in "Shruti" - which liberally means "What was heard". So `Shruti' is considered to be fundamental source of Hindu Law. According to Mannu -"By `shruti' or what was heard from above is meant veda. It (Veda) is believed to contain the very words of God. It is primary and paramount source of Hindu Law."
In sum, the "Shruti" (or the Vedas) depict the life of our early ancestors, their way of life, their way of thinking, their customs, thoughts but does not deal with rules of law in any systematic manner, whatever rules of law exist, these have to be deduced from vast material. Contained in four vedas which are :-(i) Rig Veda
(ii) Yajur Veda
(iii) Sam Veda
(iv) Atharva Veda.
(b) Smritis :- The word "Smriti" literally means "what has been remembered". In theory the Smritis are based on the memory of the sages who were the repositories of the sacred Revelation. The Smritis may be divided into early Smritis and the later Smritis. The former are called, the Dharmasutras, and the later, the Dharmashastras. Both "Shruti" and `Samriti' refer to the utterance and precepts of the almighty which have been heard and remembered respectively and handed down by the Rishis from generation to generation. (i) `Dharama Sutras' :- The Dharmasutras were mostly written in prose. The main `Dharma sutras' are Gautama, `Boudhayana' `Apastamha' `Vasistha' and `Vishnu'. Dharmsutras deal with duties of men in their various relation. (ii) `Dharma Shastras' :- Dharma shastras are mostly in metrial verses and are later in age than `Dharma Sutras'. The most eminent authors thereof are, Manu, Yajnavalkya, Narada, Vishnu, Vyas and Vrihaspati etc. Although Smritis deal with rules of morality and religion, we find in them more of Secular law, than in the Srutis. For all practical purposes the interpretation put on the Smritis by the commentaries written on the Smritis form the basis of Hindu Law. (c) Commentaries and Digests (Nibandhas) All the Smritis did not agree with one another in all respects, and this conflict led to several interpretations put upon them. This, in turn, gave rise to commentaries called Nibandhas. Nibandhas are thus nothing but the interpretations put on the Smritis by various commentators. However, it is intersting to note that what these commentators did was not merely interpreting the Smriti, but they also recited the customs and usages which the commentators found prevailing around them. In other words, while professing to interpret the Law as laid down in Smritis these commentators introduced modifications in order to bring it in harmony with the current usages., One important result of such modifications has been that despite the fact that such commentators have modified the original texts in order to suit them to local customs and conditions, the commentaries are now considered to be more authoritative than the original texts themselves. The reason for this is that although the interpretations of the age old text may be inaccurate, they nevertheless have the sanction of usage. Thus it is considered to be the duty of courts to recognize the rules contained in such Nibandhas, the reason being that under the Hindu system of law "clear proof of usage will outweigh the written text of the law". (d) Custom and Usages :- One of the most important source of Hindu Law is `Custom' and `Usages'. In fact, one view is that the foundation of Hindu Law immomriable customs. Customs was main vehicle of legal development. Though `Vedas' and `Smritis' are said to contain divine revelation but in fact they incorporated mostly the customs of their times. After the law was reduced into writing by Samritikars, the process of legal development was carried on by the Digests and Commentaries. Digest writers and Commentators in their turn further incorporated the existing custom Regarding the origin of Customs in Rabindera v. State, AIR 1969 Cal. 55 it was observed :- "When human beings came to live in groups, it was but natural that they should, for harmonious group-life, conform to certain patterns of human behaviour. By experience man learnt that a particular mode of behaviour or conduct was conducive to collective living. In course of time a pattern of behaviour emerged, and by consistent adherence to it, it achieved spontaneous and conscious following by the members of the group. When this stage is reached, the pattern of human behaviour is called usage. As Mayne puts it, "A belief in the propriety of the imperative nature of a particular course of conduct, produces a uniformity of behaviour in following it; and a uniformity of behaviour in following a particular course of conduct produces a belief that it is imperative or proper to do so. When from either cause or from both causes, a uniform and persistent usage has moulded the life and regulated the dealing of a particular class of community, it becomes a custom." In modern law, before a custom can be enforced by a court it is necessary to prove the existence of custom. For a custom to receive recognition it is necessary that it should be ancient and invariable, it should be established by unambiguous evidence, and it should be continuous, certain and ancient." So following are essentials of valid Custom :-(a) Custom should be ancient.
(b) Custom should be continuous.
(c) It should be certain
(d) If should not be unreasonable and immoral
(e) If should not be opposed to Public Policy and opposed to law.
Modern Sources (a) Equity, Justice and Good Conscience - In its modern version, concept of equity, justice and good conscience is considered as important source of Hindu Law, which owes its origin to the beginning of British Administration. The charters of several High Courts established by British Government, directed that in the absence of any specific law in Hindu texts like `Samriti' or `Nibandh' or in the event of conflict between principles of Smritis, the principle of equity, justice and good conscience would be applied. In other words what would be most fair and equitable in the opinion of Judge would be done in any case. In Gurunath v. Kamla Bhai (1951) 1 SCR 1135, Supreme Court that said it is now well established that in the absence of any rule of Hindu Law the courts have authority to decide cases on principles of justice, equity and good conscience, unless in doing so, the decision would be repugnant to or in consistent with, any doctrine or theory of Hindu Law. (b) Judicial Decisions - About judicial decisions being source of law there are two views. One view is that judges are makers of law while other view is that judges do not make the law but they declare the law. First view is known as Judge-made-Law-Theory while second is known as Declaratory Theory. Strictly speaking it cannot be said that judicial decisions are a source of law. This is so because judge is supposed to interpret and explain the existing law, and not to create new law. Nevertheless, since all the important aspects of Hindu Law but have now found their way into Law Reports, these may be considered as a source of Hindu Law. Such decisions have played an important part in ascertaining and sometimes in development and crystallizing Hindu Law. The commentaries are silent on many points and the judges have filled in these blanks whilst deciding cases coming before them. Since the time the administration of Hindu Law was taken up by courts, Judicial decision have not only become a source of Hindu Law have been the chief agency by which changes have been effected in that law. The progress made by the Hindu Law in 19th and 20th centuries is entirely due to decisions of the courts which have superseded the commentaries. (c) Legislation - In modern era, efforts had been made to consolidate and codify the Hindu Law on different aspects like marriage, partition of Joint family, Adoption, Succession etc. Since British rule, many Enactments of Hindu Law came in force, to give uniform and consistent principles of Hindu Law, which though was difficult because of multidimensional principles of old Hindu Law. Therefore legislation is one of the important sources of Hindu Law. These legislative enactments declare, abrogate or modify the ancient rules of Hindu Law. The Hindu Law Committee appointed in 1941 recommended that this branch of law should be codified in gradual stages and most important enactments were those which came in force in 1955 and 1956. Indian Parliament passed four major enactments which made vital and dynamic changes in the law of marriage, succession, adoption, guardianship and maintenance. Though after enactment of certain Acts on certain aspects of Hindu Law importance of general Hindu Law cannot be overlooked as in Sitaben v. Bhanna Bhai Madari Bhai Patel, AIR 2000 Guj. 376, it was rightly observed that General Hindu Law does not stand abolished as a whole on account of enactment of these specific or particular Acts dealing with certain aspects of Hindu Law.
Ans. Custom is a rule which in a particular family or particular community or in a particular district has from long usage obtained the force of law. Section 3(a) of Hindu Marriage Act says "Expressions `Custom' and `Usage' signify any rule which having been continuously and uniformly observed for along time, have obtained the force of law among Hindus in any local area, tribe, community group or family. Provided that the rule is certain and not unreasonable or opposed to public policy and provided further that in case of a rule applicable only to a family it has not been discontinued by the family.
A custom or usage to be recognised as a law is required to satisfy certain conditions such as (a) Continuity (b) Uniformity in observation for a long time (c) Certainty (d) Rationality and not opposed to public policy.
In Dr. Surajmani Stella Kujur v. Durga Charan Hansdah 2001(1) Recent Criminal Reports 851 (SC) Supreme Court has observed "No custom can create an offence as it essentially deals with civil right of parties.... For custom to have a colour of a rule of law, it is necessary for the party claiming it to plead and thereafter prove that such custom is ancient, certain and reasonable. The party relying on a custom is obliged to establish it by clear and unambiguous evidence.
CUSTOM AS A SOURCE OF HINDU LAW
When human beings came to live in groups, it was but natural that they should, for harmonious group life, conform to certain patterns of human behaviour. By experience man learnt that a particular mode of behaviour or conduct was conducive to collective living. In course of time a pattern of behaviour emerged, and by consistent adherence to it, it achieved spontaneous and conscious following by the members of the group. When this stage is reached, the pattern of human behaviour is called usage. As Mayne puts it, "A belief in the propriety of the imperative nature of a particular course of conduct, produces a uniformity of behaviour in following it; and a uniformity of behaviour in following a particular course of conduct produces a belief that it is imperative or proper to do so. When from either cause or from both causes, a uniform and persistent usage has moulded the life and regulated the dealing of a particular class of community, it becomes a custom." In modern law, before a custom can be enforced by a court it is necessary to prove the existence of custom. For a custom to receive recognition it is necessary that it should be ancient and invariable, it should be established by unambiguous evidence, and it should be continuous, certain and ancient. (Rabindra v. State, AIR 1969 Cal. 55).
CUSTOM AS A SOURCE OF MUSLIM LAW
Custom was never formally recognised as a source of Muslim Law, though it has been occasionally referred to as supplementing the law. The Muslim Law includes many Rules of pre-Islamic customary law, which have been embodied in it by express or implied recognition. Sir Abdur Rahim says: "The groundwork of Mohammedan legal system, like that of any other legal system, is to be found in the customs and usages of the people among whom it grew and developed. Those customs and usages of the people of Arabia, which were not expressly repealed during the lifetime of the Prophet, are held to have been sanctioned by the Law-giver by his silence.
The requirements of a valid custom are as follows:
(1) General prevalence is necessary. The practice of a limited number of individuals cannot be recognised as custom;
(2) It must be territorial;
(3) It should be immemorial;
(4) It must be ancient and invariable; and
(5) It should not be opposed to public policy.
Shariat Act, 1937 aims at restoring the law of Islam to all Muslim communities residing in India and abolishing customs contrary to the Shariat. Section 2 of this Act has abrogated customs and usage in so far as they had displaced the Rules of Muslim Law. But in the following matters a Muslim is still governed by customary law :(i) agricultural land;
(ii) testamentary succession in certain communities; and
(iii) charities, other than wakfs.
Ans. Before codification of Hindu Law, there were various thoughts of different jurists and intelects on different aspects of Hindu Law. Schools of Hindu Law emerged with emergence of era of Commentaries and Digests. Different jurists interpreted old Hindu texts like Smritis, etc. differently, so there were conflicting opinion of different jurists on various aspects of law, which developed in different line of thoughts as a whole, which were then termed as school. Primarily there two main schools of Hindu Law :-
(1) Mitakshara School
(2) Dayabhaga School
(1) Mitakshara School - The Mitakshara School owes its name to Vijnaneshwara's commentary on "Yajnavlkya Smiriti" by the name of "Mitakshara". It prevails in whole of India except Bengal and Assam. The Mitakshara is not only a running commentary on Yajnavalkya Smriti but is digest of all leading Smritis and deals with all aspects of Hindu Law Mitakshara School of Hindu Law is sub-divided into following sub-schools :-(a) Benares School - Which prevails in Northern and North-Western India
(b) Mithila School - Which operates primarily in Bihar
(c) Maharashtra School - Which prevails in Western India
(d) Dravida or Madras School - It covers Southern India.
All these above stated sub-school of Mitakshara though subscribe to Mitakshara thoughts on Hindu Law barring certain exceptional aspects where there is conflict of opinion (2) Dayabhaga School :- Dayabhaga thought was originated from Jimutavahana's digest on leading samritis. It prevails in Bangal and Assam and dealing with partition and inheritance It may be noted that the Mitakshara is the orthodox school whereas the Dayabhaga, or the Bengal School, as it is sometimes called, is the reformed school of Hindu Law. The Mitakshara and Dayabhaga schools differ on important issues as regards the rules of inheritance. However, the branch of law is now codified by the Hindu Succession Act 1956 which has removed the differences between the two. However following are the points of difference : (1) Mitakshara school basically is commentary on old texts whereas Dayabhaga is digest of all codes. (2) Mitakshara thoughts are orthodox in nature whereas Dayabhaga is of reformatory (3) Mitakshara school bases its law of inheritance on principle of propinquity (nearness of blood relationship) which means one who is nearer in blood relationship succeds. However principle of propinquity has not been fully applied and limited by two exception i.e. (a) exclusion of female from inheritance and (b) preference of agnates over cognates, whereas Dayabhaga school bases its law of succession on principle of religious efficacy or spiritual benefit which means one who confers more religious benefits or `pindadana' on deceased is entitled to inheritance in preference to other -This difference between these two school is no longer of any significance in view of enactment of Hindu Succession Act, 1956.
(4) The concept of joint family property under Mitakshar school of Hindu Law implies the notion of community of ownership and unity of possession. Each coparcener's interest in joint family property keep on fluctuating by death or birth in family and no individual coparcener can say that he owns so much specific share in joint family property until actual partition of it whereas in Dayabhaga school there is no concept of birth right and coparceners have specified and ascertained share in joint family property which do not fluctuate by any happening (5) Mitakshara school propounds the doctrine of Son's (i.e. Son, Son's son, Son's Son's Son and so on) right by birth in joint family property which means, each son on his birth acquires equal interest with his father and doctrine of survivorship will be carried upon the death of any coparcener, interest in joint property will devolve to surviving coparceners equally whereas in Dayabhaga school, doctrines of son's birth right and devolution of property by survivorship do not find any place and son has no birth right interest in joint property and all properties devolve by inheritance (6) Doctrine of factum-valet i.e. a fact cannot be altered by hundred texts is recognised to limited extent only under Mitakshara school whereas it has been recognized to full extent in Dayabhaga.
Ans. Joint family is an integral part of Hindu Life and Hindu society Joint family institution is one of most cherished institutions of Hindus. A joint and Undivided Hindu family is normal condition in Hindu society. It means :
"Joint Hindu family consists of all persons who are lineally descended from common ancestor and includes their wives and umarried daughters."
On marriage a daughter ceases to be member of her father's family and becomes member of her husband's family. Ordinarily an undivided Hindu family is joint not only in estate but also in food and wordship. Existence of joint estate, however, does not ipso facto indicate existence of joint or undivided family. Joint estate is one of the factors for coming to conclusion whether there is joint family or not and it is possible to have joint family which does not own any estate. In V. Venugopala v. Union of India, AIR 1969 SC 1094, it was observed that the Mitakshara law of joint family is founded upon agnatic relationship : the undivided family is characterised by community of interest and unity of possession among persons descended from a common ancestor. In Rajeshwari v. Balchand Jain, AIR 2001 M.P. 179, it was observed that it is settled principle that there is no presumption that joint family possesses joint property. Merely because a family is joint, every property purchased or held by its member is not property of joint family. The burden of proving it to be so is on the party asserting it. So joint family system is organized on principle of family relationship or sapindaship. Hindu Joint family is an unit and in all affairs it is represented by "Karta" or Head. Following are generally understood as members of Joint Hindu family -(1) Those who are lineally connected in male line.
(2) Collaterals
(3) Wife of male member
(4) Widowed wife of male member
(5) Unmarried daughter
(6) Adopted son or daughter
So Joint Hindu family does not only consist of male members, but female member like wife of male members or widowed wife of male member and unmarried daughter are also members of Hindu undivided family. In Surjitlal Chadha v. Commr. of I.T., AIR 1976 SC 109, it was observed that joint Hindu family is a larger body, consisting of group of persons who are united by the tie of `Sapindaship' arising by birth, marriage and adoption Hindu Coparcenary. - Coparcenary is narrower body of males only within a joint family and consists of father, Son, Son's Son and Son's Son's Son. A coparcenary consists of father and his three male lineal descendants. However for its continuity it is not necessary that there should be father-son relationship and coparcenary can consist of grand-father and grand son, of brothers, of uncle and nephew and so on. In T.V. Venkata Subamma v. T. Rattamma, AIR 1987 SC 1775, it was observed that - The essence of a coparcenary under the Mitakshara School of Hindu Law is community of interest and unity of possession. A member of joint Hindu family has no definite share in the coparcenary property, but he has an undivided interest in the property which is liable to be enlarged by deaths and diminished by births in the family. As interest in the coparcen property accrues to a son from the date of his birth, his interest will be equal to that of his father. A copartner has on interest in joint family property by birth. However such interest keeps on fluctuating and enlarges by deaths and diminishes by births in family until actual partition takes place. Every coparcener is entitled to have joint possession and enjoyment of each part of joint family property. Every coparcener is bound by the alienation made by karta for legal necessity or benefit of estate. Every coparcener has right to object any challenge alienation made without his consent and made without legal necessity. It is also important to note that every coparcener has a right of partition and survivorship. So in State Bank of India v. Ghamandi Ram, AIR 1969 S.C. 2330 the Supreme Court has listed the following as the incidents of Mitakshara coparcenary viz.(i) firstly that the lineal made descendants of a person upto the third generation acquire on birth ownership in the ancestral properties of such a person;
(ii) secondly that such descendants can, at any time, work out their right by asking for a partition;
(iii) thirdly that till such a partition, each member has got ownership extending over the entire property jointly with the other coparceners;
(iv) fourthly that as a result of such co-ownership the possession and the enjoyment of the properties is common;
(v) fifthly, that no alienation of the property is possible without the concurrence of the coparceners unless it is for a necessity; and
(vi) sixthly, that the intrest of a deceased member passes, on his death, to the surviving coparceners.
Joint Family or Coparcenary Property. - Property according to Hindu Law may be divided into the following two classes viz.,1. Joint family or coparcenary property; and
2. Separate property
Joint family property which is also called coparcenary property is that in which every coparcener has joint possession and joint ownership. The coparcenary property consists of :-(i) Ancestral property
(ii) Separate property of coparceners voluntarily thrown into the common coparcenary stock with the intention of abandoning all separate claims upon it.
Ancestral property consists of the property inherited by a male Hindu from his father, grandfather or great grandfather. A business under Hindu Law is a distinct heritable asset. When a Hindu dies leaving a business, it descends like other heritable property on his heirs. In the hands of male issues it becomes joint family property. As a general rule there is no presumption that Joint family is possessed with only joint property, as in Harihar Sethi v. Ladu Kishore Sethi, AIR 2002 Ori. 110 it was observed that a Hindu, even if joint family may possess separate property. Such property belongs exclusively to him. No other member of the coparcenary not even his male issue acquire any interest in it by birth and on his death intestate, it passes by succession to his heirs and not by survivorship to surviving coparceners.
Ans. In Joint Hindu family, "Karta" or `Head' of the family occupies the most important position. In fact joint family is represented by `Karta' of the family. The person who manages all affairs and property of Joint Hindu family is called "Karta". The father or other senior male member of joint family is presumed to be its Karta or manager until contrary is proved. But a junior member of family may be appointed the `Karta' with the consent of other members. The Nagpur High Court, once held that mother though not a coparcener can be, in the absence of adult male member, karta of joint family but Supreme Court in Commr. of I.T. v. Seth Gobind Ram, AIR 1966 SC 24 has held that Mother or any other female could not be the Karta of Joint Hindu family.
Position of "Karta"
Relations of `Karta' of Joint Hindu family with its other members are not that a principal and agent or partners. He being head of the family acts on behalf of the family but not as Partner or Agent because his powers are much wide and unlimited. Unless there are charges of misappropriation etc. he is master of family affairs and no one can question him regarding his authority. So he is not bound for his positive failures, nor he is bound to give fixed amount of income to family. He to bound to carry out the interests of joint family to optimum by best of his ability and judgment. He is bound to manage joint family business for whole of the family. However, any coparcener can ask him for partition.
Karta's Liabilities :- `Karta' of a joint Hindu family is a being representative of whole family, bound to maintain all members of the family. If he improperly excludes any member from maintenance, he can be sued for maintenance as well as for arrear of maintenance. `Karta' of family is bound to manage the joint property and business of the family to the greatest advantage. Karta has duty to spend reasonably. `Karta' of the Joint Hindu family is also responsible for all unmarried members of family specifically an unmarried daughters. Karta has to pay tax and other due on behalf of family. He can be sued or he can sue, on behalf of family.
Powers of `Karta'
1. Manager's Power Over Income and Expenditure -- The Manager or Karta of a joint Hindu family has complete control over its income and expenditure. He is neither a trustee nor an agent of other members. So long as he spends the income of the family for the purposes of the family he is not under any legal obligations to economize or to make savings. The family purposes for which he is authorized to spend the family income are the maintenance, residence, education, marriage, Sradha and other religious ceremonies of the copareners and their families. If the manager spends more on such items than what the other coparceners approve, their only legal remedy would be to ask for a partition.
A Karta cannot, however, misappropriate family funds or misapply them to purposes other than those of the family. If he does so he is liable to make good all such sums to the other members of the family.
2. Power of Alienation -- He can alienate for value, family property so as to bind interests of the other coparceners adults or minors provided that the alienation is made for legal necessity, or for the benefit of the estate or for the legitimate and proper purposes of family business.
3. Power to Contract Debts -- The Manager of a joint Hindu family has an implied authority to contract debts and pledge the property of the family for this purpose. Such debts would be binding on the other members of the family to the extent of their interest in such property. However, the manager himself would be liable personally also and not to the extent of his interest in the property as he is the party to the contract.
4. Powers to Contract -- He has the power of making contracts, giving receipts and compromising or discharging claims ordinarily incidental to the business of the family.
5. Power to Acknowledge Debts -- A manager of a joint family has the power to acknowledge debt but he has no power to relinquish a debt due to the family. Nor can be pass a promissory note to receive a debt which is already time-barred.
6. Power to Manage a Family Business or to start a New Business - The Karta has the power to manage the joint Hindu family business. His position is not akin to that of a trustee or of an agent though some of his duties and functions may appear to be similar in character to those of trustees strictly so called. He has also the authority to start a new business for the family with the required consent of members.
7. Power to Give a Valid Discharge -- He has power to give a valid discharge for debt due to the joint family. Hence if one of the members is a minor, he cannot claim the benefit of Section 7 of Limitation Act.
8. Power to Represent the Joint Family Property in Suits and Other Proceedings -- He may sue or be sued as representing the family in respect of a transaction entered into by him as a manager of the family or in respect of the joint family property and the decree would bind other coparceners even if they are not parties to the suit.
9. Power to Refer Disputes to Arbitration - A Manager has also the power to refer disputes relating to joint family property to arbitration provided that he does so bona fide i.e., without any fraud or collusion and for the benefit of the family.
10. Power of the Manager to Compromise -- If a Manager of a joint Hindu family enters into a compromise bona fide for the benefit of the family such a compromise binds all the other members of the family including.
Ans. Generally speaking, "the normal state of every Hindu family is joint. Presumably every such family is joint in food, worship and estate. In the absence of proof of division, such is the legal presumption." In other words, "given a joint family continues joint". However, there is no presumption that a family, because it is joint, possesses joint property or any property.
To render the property joint the plaintiff must prove that the family was possessed of some property with the income of which the property could have been acquired or from which the presumption could be drawn that all the property possessed by the family is joint family property or that it was purchased with joint family funds, such as the proceeds of sale of ancestral property or by joint labour. None of these alternatives is a matter of legal presumption. It can only be brought to the cognizance of a Court in the same way as any other fact, namely, by evidence.
Where it is established or admitted that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the presumption arises that it was joint property and the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family. But no such presumption would arise if the nucleus is such that with its help the property claimed to be joint could not have been acquired. Whether the evidence adduced by a party is sufficient to shift the burden which initially rested on him of establishing that there was adequate nucleus out of which the acquisitions could have been made, is one of fact depending on the nature and extent of the nucleus. See Shrinivas Krishnarao v. Narayan (1995) S.C.R. 1.
In Baikuntha Nath Paramanik v. Sashi Bhusan Paramanik and others, AIR 1972 SC 2531, it was held by the Supreme Court of India that when a joint family is found to be in possession of nucleus sufficient to make the impugned acquisitions then a presumption arises that the acquisitions standing in the names of the persons who were in the management of the family properties are family acquisitions.
Turning to the case in hand, it is evident that the joint Hindu family in question was in possession of nucleus sufficient to make fresh acquisitions. The impugned acquisitions have been made in the name of the member of the family in charge of the management of joint property. In view of the law discussed above, there is no escape from the conclusion that these fresh acquisitions are to be treated as part of the Joint Hindu Family property.
Ans. Coparcenery under Mitakshara school is narrower body of persons within a Joint family. Mulla in "Principles of Hindu Law" (12th edition) has stated that Joint family consists of all persons lineally descended from common ancestor and includes their wives and unmarried daughters. Hindu Coparcenary is much narrower body than Joint family and it includes only those persons who acquire by birth an interest in joint or coparcenary property. The conception of Joint Hindu family constituting a coparcenary is that of common male ancestor with his lineal descendants in male line within four degree counting from and inclusive of such ancestor. No coparcenary can commence without common male ancestor although after his death it may consist of collaterals. No female can be a co-parcener. Coparcener has following Rights :-
1. Community of Interest and Unity of Possession -- The nature of ownership of Mitakshara Coparceners in the joint family property is communal ownership. Each coparcener, right from day of his birth acquires a interest joint family property and he has right of common enjoyment and use of whole of property. As coparcener's interest in property are not specified or ascertained each coparcener has joint and equal interest in whole of joint property of family
2. Share of income -- A member of a joint family has no definite share in the joint family property. He cannot predicate, at any given moment, as to what is his share in the joint family property. Such a share becomes definite only when a partition takes place. His interest is fluctuating one which is likely to be increased or diminished by deaths and births in the family. Thus no member is entitled to any definite share of the income of the property. The whole income of the joint family property is brought to the common purse of the family and then it is dealt with as per the right of the member to enjoy such property.
3. Right of Inheritance by Survivorship - Once of the most remarkable feature of Mitakshara Coparcenery that every coparcener has right of inheritance by survivorship which means that upon death of any coparcener deceased's interest in coparcenary property will devolve to surviving coparceners. This is the reason, why coparcener's interest in joint family property keeps on fluctuating as on birth of any coparcener, he acquires equal interest in property from day of birth thereby diminishing the interest of each coparcener and upon death of any coparcener his interest in joint family property devolves to all surviving coparceners, which increase each coparcener's interest.
4. Right of Maintenance and other Necessary Expenses -- Every coparcener is entitled to be maintained out of the estate of the family. For this reason, he is entitled to receive from the coparcenary property the maintenance for himself, his wife and children as also for those whom he is bound to maintain. Beside such maintenance, a coparcener is also entitled to get money from the coparcenary property for the purpose of the marriage of his children and for the performance of the Shradha and Upanayana ceremonies.
5. Right to Restrain Improper Acts -- Every coparcener has the right of restraining improper acts on the part of other coparceners, where such an act causes substantial injury to his rights as a member of the family. Thus, if a coparcener erects a building on land belonging to the joint family so as to materially alter the condition of the property, he may be restrained by an injunction of a court of law from doing so.
6. Right to ask for Partition :- A coparcener in Mitakshara school of Hindu Law, acquire interest in Joint Hindu family property from the day of his birth and at any time during his life if he wants to separate or indvidualize his interest, he can do so by filing suit for partition. In such eventuality, coparcener also has right to ask for accounts etc of joint estate during pendency of suit for partition.
7. Right of Alienation :- No coparcener has any right to gift away or alienate in any way his undivided interest in coparcenary property. It is however important to point out that any such unauthorized alienation by coparcener is not void but voidable at the option of other coparceners.
A "Karta" or a coparcener has certain special powers of disposition over the coparcenary property which no other coparcener has.
8. Right to Impeach Unauthorized Alienation -- Every coparcener has the right to impeach alienation of the coparcenary property by the manager or any other coparcener in excess of their power. Such an alienation can be impleaded only by a coparcener or by a transferee who has acquired the entire interest of a joint family in the property alienated. A female member of the family has no such power.
9. Right to Renounce -- A coparcener has right to renounce his interest in the coparcenary property. He can do so by expressing his intention to that effect, and if he does so, no other formalities would be necessary. Such a renunciation must, however, be in favour of the whole body of coparceners. If he renounces in favour of one or more individual members, the renunciation operates for the benefit of all the coparceners.
10. Right to Acquire Properties :- A coparcener has right to acquire personal property. As it was observed in Harihar Sethi v. Ladukishore Sethi, AIR 2002 Ori. 110, that a Hindu even if joint may possess separate property. Such property exclusively belongs to him and no other member of coparcenary has got any interest in it.
11. Right to Manage :- Every senior coparcener of family is entitled to manage the coparcenary property and business and to look after the interests of family.
Ans. Under the Dayabhaga school there can be no coparcenary between a father and his son. So long as the father is alive, the son does not take any interest in the ancestral property in the hands of the father and the right by birth in the said property accorded to the son under the Mitakshara does not exist under the Dayabhaga. As a corollary the son cannot claim partition against the father, and the father, as the absolute owner, is entitled to dispose of the property in any way he likes by way of gift, will, sale etc.
Dayabhaga coparceners are in the position of tenants in common with the result that on the death of any of them, his own heirs, even though they be females step into the shoes of the deceased and become coparceners with his surviving coparceners.
Thus while the Mitakshara coparcenary cannot consist of females, it is not rare to find a Dayabhaga coparcenary consisting of both males and females, the females being the widows or daughters of a coparcener who had died without male issue.
The conception of coparcenary under the Dayabhaga law is entirely distinct from that under the Mitakshara Law. According to Mitakshara law, the sons of the holder of the ancestral property for the time being acquire an interest therein by birth and form a coparcenary with him. According to Dayabhaga law the sons do not acquire an interest by birth in the ancestral property held by their father. It is only on the death of the father that the sons take the property left by the father, whether ancestral or separate by succession and not by survivorship.
It, therefore, follows that so long as the father is alive there is no coparcenary in the strict sense of the word between him and the male issue. It is only on his death leaving two or more male issues i.e., sons, grandsons etc. as heirs that the foundation of coparcenary is first laid. His male issues inheriting separate as well as ancestral property left by him, hold it as coparceners and form a coparcenary amongest themselves.
Ans. Supreme Court in Ammathayee @ Perumalakkal v. Kumaresan @ Balkrishnan, AIR 1967 SC 569 has observed :-
"Hindu Law on the question of gifts of ancestral property is well settled. So far as moveable ancestral property is concerned, a gift out of affection may be made to a wife, to a daughter and even to a son, provided the gift is within reasonable limits. A gift for example of the whole or almost the whole of the ancestral moveable property cannot be upheld as a gift through affection. (See Mulla's Hindu Law, 13th Edn., p. 252, para 225). But so far as immovable ancestral property is concerned, the power of gift is much more circumscribed than in the case of moveable ancestral property. A Hindu father or any other managing member has power to make a gift of ancestral immovable property within reasonable limits for "pious purposes". (see Mulla's Hindu Law, 13th Edn., para 226 p. 252). Now what is generally understood by "pious purposes" is gift for charitable and/or religious purposes. But this Court has extended the meaning of "pious purposes" to cases where a Hindu father makes a gift within reasonable limits of immovable ancestral property to his daughter in fulfilment of an antenuptial promise made on the occasion of the settlement of the terms of her marriage, and the same can also be done by the mother in case the father is dead.
Reference can be made of Kamla Devi v. Bachulal Gupta, AIR 1957 SC 434. Similarly recently Supreme Court in Thimmaiah and others v. Ningamma and other, AIR 2000 SC 3529(2), has observed that Gift of ancestral property made by father to his daughter, in the absence of any evidence that it was made within reasonable limit or in fulfilment of ante-nuptial promise (if any) made on occasion of settlement of terms of daughter's marriage such gift is not valid even if denor died after Hindu Succession Act 1956 came in force and sole surviving coparcener had given consent to such gift. Rationale behind the impermissibility of such dispositions of coparcenary property is protection of interests of other coparceners.
Ans. Power of Alienation - Although no coparcener including the `Karta', has any power to dispose of the joint family property without consent of all others, as recognized by `Dharm shastra' an member has power to alienate joint family property.
According to "Vijnaneshwara" in following three exceptional circumstance, alienation of joint family property could be made:-
(1) `Apatkale' i.e. in the time of distress or emergency
(2) `Kutumbarthe' i.e. for the sake of family
(3) `Dharamarthe' i.e. for religious or spritual duties
The formulation of Vijnaneshwara has undergone modification in two respects -1st power cannot be exercised by any member except `Karta', IIndly joint family property can be alienated for :-(1) Legal necessity
(2) Benefit of estate
(3) Acts of indispensable duty
Karta's Power Of Alienation - As noted above `Karta' of joint Hindu family has power to alienate the joint family property, provided alienation is for the purpose of (i) Legal necessity (ii) Benefit of estate (iii) Acts of indispensable duty. It has been in numerous decisions of `Privy Council' and `Supreme Court' held that when `Karta' exercises power of alienation in above said exceptional cases, consent of other coparceners will be implied. Let us discuss these exceptional circumstances :- 1. Legal Necessity :- Expression `Legal Necessity' has not been, in fact, cannot possibly be defined. Broadly speaking `Legal necessity' will include all those things which are lawfully, reasonably, necessary for welfare of family. Term "apatkale" as used in Vijnaneshwra's proposition is probably synonymous to `legal necessity'. Thus legal necessity does not mean actual compulsion. It simply means, a pressure upon the estate which in law may be regarded serious and sufficient prompting `Karta' to alienate the property. In Gangadharan v. Janardhan Mallan and others, AIR 1996 SC 2127, Supreme Court after relying the judgments reported in AIR 1927 P.C. 37, AIR 1967 SC 574 and 1971 SC 1028 has observed that in case of sale or alienation of joint property by `Karta' for legal necessity, where purchaser acts in good faith and after due inquiry and able to show that sale itself was justified by legal necessity even if small portion of sale consideration, might have been used for such `legal necessity'. He is under no obligation to inquire into the application of any surplus and therefore is not bound to make re-payment of such surplus to members of family who are later challenging the `sale' being not for `legal necessity'. 2. For the benefit of the estate -- An alienation may also be justified if it is made by the Karta for the benefit of the estate. It is not possible to give an exact definition of what would amount to benefit of the estate of the family. The preservation of the estate from extinction or protection of the estate against deterioration by inundation would obviously be `for the benefit of the estate. The difficulty, however, is in drawing a line between acts that are beneficial to the estate and those which cannot be said to be so. Broadly speaking, benefit of estate means anything that is done which will benefit the joint family property. Supreme Court in Bal Mukand v. Kamla Wadia, AIR 1964 SC 1385 has observed that to be for the benefit of estate', a transaction need not necessarily be of a defensive character. In each case court would have to be satisfied from material placed before it that it conferred benefit on the family. 3. Indispensable duties :- The term "indispensable duties" implies performance of those acts which are religious, pious or charitable. Vijnaneshwara gave one instance of dharmarthe, viz., obsequies of the father and added "or the like". It is clear that this expression includes all other indispensable duties such as sradha, upanayanama and performance of other necessary samskaras. Performance of marriage is a samskara and therefore performance of marriage of members of the joint family, particularly of daughters, is an indispensable duty, though it is also covered under legal necessity. Sole Surviving Coparcener's Right of Alienation - When all coparceners die leaving behind one, such a coparcener is known as sole surviving coparcener. When the joint family property passes into the hands of the sole surviving coparcener, it assumes the character of separate property, so long as he does not have a son. In Guruamma v. Mallappa, AIR 1964 SC 510, it was observed that the sole surviving coparcener has full power of alienating the property the way he likes, by sale, mortgage or gift since at the time of alienation there is no other member who has joint interest in the family property. Such an alienation cannot be challenged by a subsequently born or adopted son. But if another member was in the womb of his mother at the time of alienation, he does not have the power of alienation, and the member on his birth can challenge such alienation or he may ratify it on attaining majority.
Ans. Under Mitakshara School of Hindu Law, power of alienation cannot be exercised by any member except Joint family property can be alienated for following purposes only:
(a) Legal necessity
(b) Benefit of estate
(c) Acts of indispensable duty
(d) For payment of antecedent debt of father.
Karta can alienate the joint family property with the consent of coparceners even if none of the above exceptional cases exist. If alienation is neither for legal necessity nor for payment of antecedent debts etc. other coparceners are entitled to the declaration that alienation is void and is done without consent. However when there is sole surviving coparcener, then he has full right of alienation of joint family property but if at the time of alienation another coparcener is in the womb, on his birth, he can challenge such an alienation. However an alienation of joint family property made by father, when there being no male issue in existence at the date of alienation, then it is valid even though made without necessity. Such alienation can not be objected by son conceived and born after the alienation on the ground that it was made without legal necessity. Moreover, an alienation made neither for legal necessity nor for payment of antecedent debts, by a father, without consent of son living, cannot be challenged by a subsequently conceived and born son when living sons either have ratified it or have predeceased their father and no other son was conceived or born at the time of alienation. Therefore in this case, right to challenge alienation was vested in B. But he, during his life time did not challenge the alienation and predeceased his father `A'. Father become sole surviving coparcener and was free to alienate joint family property even without legal necessity. At the time of alienation `C' was not even in the womb of his mother. He was conceived and born subsequent to alienation made by A, therefore, he has no right to challenge the alienation of property made by his father.
Ans. (i) ANTECEDENT DEBT : The father of joint family may sell or mortgage the joint family property including the son's interest therein to discharge a debt contracted by him for his own personal benefit and such alienation binds the sons provided :
(a) the debt was antecedent to alienation and
(b) it was not incurred for an immoral purpose.
In Sashi v. Subhash, AIR 1972 Del 84 it was observed that the father can himself alienate the joint family property for the discharge of his personal debts and sons can challenge it only if debts is tainted i.e. debts were taken for immoral purpose. Doctrine of antecedent debts is an example of what father can not do directly he can do indirectly. Generally a father can not alienate joint family property for obtaining money for his personal use. But he can take personal debts and failing to pay it, alienate the joint family property, such alienation is binding on the sons. Mulla in his Principles of Hindu law has stated "Where the sons are joint with their father and debts have been contracted by the father for his own personal benefit the sons are liable to pay the debts, provided they were not incurred for an illegal or immoral purpose." (S. 298). In Prasad v. Govinda Swami, AIR 1982 SC 84 Supreme Court observed the validity of an alienation made to discharge an antecedent debt rests upon the pious duty of the son to discharge his father's debt not tainted with immorality. "Antecedent debt" means antecedent in fact as well as in time, that is to say, that the debt must be truly independent of and not part of the transaction impeached. The debt may be a debt incurred in connection with a trade started by the father. The father alone can alienate the sons' share in the case of a joint family. The joint family property for payment of an antecedent debt is the privilege only of the father, grandfather and great-grandfather qua the son or grandson only. No other person has any such privilege. There is, however, another condition which must be satisfied before the son could be held liable, i.e., that the father or the manager acted like a prudent man and did not sacrifice the property for an inadequate consideration. In the instant case on the finding arrived at that the consideration for the sale deed in question was thoroughly inadequate, the sale could not be upheld, an obligation of religion and piety which is placed upon the sons under Mitakshara law is to discharge the father's debt where the debts are not trained with immortality.' (ii) MITAKSHARA COPARCENARY : Coparcenary under Mitakshara school is a narrower body of persons within a joint family and consists of father son, son's son and son's son's son. Like joint family to begin with it consists of father and his three male lineal descendants in its continuance, the existence of the father-son relationship is not necessary. Thus a coparcenary can consist of grandfather and grand son. Mulla in his `Principles of Hindu Law' (12th edition) at page 313 has stated JOINT HINDU FAMILY consists of all persons lineally descended from a common ancestor and includes their wives and unmarried daughters. A daughter ceases to be a member of her father's family on marriage and becomes member of her husband's family. The joint and undivided family is the normal condition of Hindu society. An undivided family of Hindus is ordinarily joint not only in estate but also in food and worship. At page 314 Mulla stated Hindu Coparcenary is much narrower body than the joint family. It includes only those persons who acquire by birth an interest in joint or coparcenary property. The conception of joint Hindu family constituting a coparcenary is that of common male ancestor with his lineal descendants in male line within four degree counting from and inclusive of such ancestor. No coparcenary can commence without common male ancestor though after his death it may consist of collaterals. No female can be a coparcener under the Mitakshara law. Even a wife though she is entitled to maintenance out of her husband's property and had to that extent an interest in his property but she is not her husband's coparcener. In State Bank of India v. Ghamandi Ram, AIR 1969 SC 1930 Supreme Court observed that the coparcenary property is held in collective ownership by all the coparceners in a quasi corporate capacity. Coparcenary are : Firstly the lineal male descendants of person upto third generation acquire on birth ownership in ancestral properties of such persons. Secondly that such descendants can at any time work out their rights for partition. Thirdly that till partition each member has got ownership extending over the entire property conjointly with the rest. Fourthly that as a result of such coownership the possession and enjoyment of properties is common. Fifthly that no alienation of property is possible unless it is for necessity without the concurrence of coparceners. Sixthly that the interest of a deceased member passes on his death to surviving coparceners. (iii) PIOUS OBLIGATION : Under Mitakshara school of Hindu Law, the sons (Expression `son' throughout includes sons, and son's son and son's son) are under pious obligation to pay the debts of their male lineal ancestor i.e. father, grand father, great grand father provided the debts were not incurred for illegal or immoral purpose. The liability to pay the debts contracted by father though for his own benefit arises from an obligation of religion and piety to discharge the father's debt. It is thought that if a person's debt are not paid and he dies in the state of indebtedness, his soul may have to face evil consequences. In Sat Narain v. Sri Kishan Dass, AIR 1936 P.C. 277 the Privy Council held that the basis of doctrine is spiritual and its sole object is to confer spiritual benefit on the father. This doctrine was not based on pious obligation of the sons to see their father's debt is paid. The condition is that the debt must not be for an immoral or illegal purpose. (iv) HINDU : There has not been precise definition of the term `Hindu', available for all purposes. However, Hindu law applies to all those persons who are Hindus, it is necessary to know who are Hindus. In simple words, any person who follows Hindu religion in any of its form or development either by practicing it or by professing it, is a Hindu. Since Hindu religion is multifaced it is difficult to say with precision what is Hinduism. Any definition of `Hindu' in terms of religion will always be inadequate. For the purpose of Hindu law, a person may be (i) Hindu by birth (ii) Hindu by Religion i.e. convert to Hindu religion (iii) Illegitimate children where both parents are Hindu (iv) Illegitimate children, where one of his parents is Hindu and such child is brought up by such Hindu parent (v) Jain, Sikhs, Buddhists and Lingayats. Hindu Marriage Act 1955, Hindu Succession Act 1956, Hindu Minority and Guardianship Act 1956 and Hindu Adoption and Maintenance Act 1956 have extended the application of these Acts to all persons who can be regarded as Hindu, in this broad and comprehensive sense. Section 2 of Hindu Marriage Act, for instance provides: (1) This Act applies -(a) to any person who is Hindu by religion, in any of its forms or developments including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Smaj,
(b) to any person who is a Buddhist, Jain or Sikh by religion, and
(c) to any other person domiciled in the territories to which this Act extends who is not a Muslim, Christian, Parsi or Jew by religion unless it is proved that any such person would not have been governed by the Hindu Law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed.
Explanation : The following persons are Hindu, Buddhist, Jainas or Sikhs by religion as the case may be:(a) Any child legitimate or illegitimate both of whose parents are Hindu, Buddhist, Jain or Sikh by religion.
(b) Any child legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jain or Sikh by religion and who is brought up as a member of tribe, community, Group or family to which such parent belongs or belonged.
(c) Any person who is a convert or reconvert to Hindu, Buddhist, Jain, Sikh religion.
Sub-Section (3) of Section 2 says "The expression `Hindu' in any portion of this Act shall be construed as if it included a person who though not a Hindu by religion is nevertheless, a person to whom this Act applies by virtue of the provision contained in this Section" .
Ans. What is Partition ?
Partition is the intentional severance of coparcenary property by members of a joint family. The true test of partition of property, according to Hindu Law, is the intention of members of the family to become separate owners. It has been held that it is a matter of individual volition and reduces the members to the position of tenants-in-common, requiring only a definite, unequivocal intention on the part of a member to separate and enjoy his share in absolute severally.
The partition of a joint estate under the Mitakshara Law, consists in defining the shares of the coparceners in the joint property. It is not necessary that there should be an actual division of the property by metes and bounds. Once the shares are defined, there is a severance of the joint status, thereafter the parties may decide to live together and enjoy the property in common but the property ceases to be joint, when the shares are defined and right to take by survivorship is extinguished.
For a partition no consent of other members nor a decree of a court or any other writing is necessary. A member may effect a separation in status by giving a clear and unmistakable intimation by his acts or declarations of a definite intention to become separate, even though he goes on living jointly with the other members of the family and there is no division of property.
In Kalyani v. Naryanan, AIR 1980 SC 1173 it was observed that - To constitute a partition all that is necessary is a definite and unequivocal indication of intention by a member of a joint family to separate himself from the family. What form such intimation, indication or representation of such interest should take would depend upon the circumstances of each case. A further requirement is that this unequivocal indication of intention to separate must be to the knowledge of the persons affected by such declaration. A review of the decisions shows that this intention to separate may be manifested in diverse ways. It may be by notice or by filing a suit. Undoubtedly, indication or intimation must be to members of the joint family likely to be affected by such a declaration. Partition is a word of technical import in Hindu Law. Partition in one sense is a severance of joint status and coparcener of a coparcenary is entitled to claim it as a matter of his individual volition. In this narrow sense all that is necessary to constitute partition is a definite and unequivocal indication of his intention by a member of a joint family to separate himself from the family and enjoy his share in severalty.
Ans. Under Mitakshara School of Hindu Law `Partition of Joint Family' involves (i) Severance of joint status or interest (ii) Actual division of property i.e. Partition by metes and bounds. Severance of status is quite distinct from `de facto' division into specific shares of joint property.
For severance of joint status or interest a clear, definite and unequivocal expression of intention of partition by any coparcener is sufficient. In Giraja Nandani v. Bijendera, AIR 1967 SC 1124, it was observed by Supreme Court "Partition can be made by a definite, unambiguous declaration of intention by any member to separate himself from the family. If this is done, it would amount to division of status. Whatever mode of partition may be used, partition may be effected by institution of suit or by parties to arbitration or by demand for share in properties or by conduct which evinces an intention to sever the joint family."
Minor Coparcener : Hindu Law makes no distinction between a Minor Coparcener and a major coparcener, in respect of his right in the joint family property.
In Bishudeo v. Seogeni, AIR 1951 SC 180 Supreme Court held that Minor coparcener has also right of partition. A suit for partition may be filed on behalf of minor by his next friend or guardian. In Pedosuhhaya v. Akkamma, AIR 1958 SC 1042 Supreme Court has observed that a minor is person of immature intellect and court has the duty to protect minor's interest, if "Karta" is squandering the joint family property to the prejudice of minor coparcener or if he is illtreating him or discriminating him. Guardian or next friend of minor may, if deem it proper, file suit for partition on behalf of minor, and when a suit is filled on behalf of minor, court has to be satisfied that the partition will be for the benefit of minor.
Dayabhaga School : Conception of a coparcenary and coparcenary property according to Dayabhaga school is entirely different from that under Mitakshara school. According to Mitakshara Law, the foundation of coparcenary is first laid on the birth of the son. The son's birth is the starting point of coparcenary according to that law. But according to Dayabhaga law, foundation of coparcenary is laid on the death of father. So long as the father is alive, there is no coparcenary in the strict sense of the word between him and his male issue. It is only on his death leaving two or more male issues that a coparcenary is first formed.
The essence of coparcenary under the Mitakshara law is unity of ownership. On the other hand, the essence of coparcenary under the Dayabhaga law is unity of possession. It is only unity of possession not unity of ownership. Every coparcener takes a defined share in the property and he is owner of that share. That share is defined immediately when the inheritance falls in. It does not fluctuate with birth or death in family as in Mitakshara law. Even before partition any coparcener can say that he is entitled to particular share. According to Dayabhaga law, each coparcener has, even whilst the family remains undivided, a defined and certain share in joint property of which he is owner, though the possession is joint. Partition according to that law consists in separating the share or separating the joint possession as assigning to coparcener his specific portion of property.
Ans. Under the Mitakshara School partition of joint family does not merely mean division of property into specific share, it also means division of status. So under Mitakshara school division involves -
Firstly: Severance of status or interest.
Secondly: Actual division of property, known as partition by metes and bounds. Partition or severance of joint status or interest is effected by clear and unequivocal expression by words or conduct of an intention to partition. In Syed v. Jorawar, AIR 1922 P.C. 353 it was observed by the Privy Council : "It is a settled law that a severance of estate is effected by an unequivocal declaration on the part of one of the joint holders of his intention to hold his share separately, even though no actual division takes place."
So any adult coparcener may sever his interest by an unequivocal communication of his intention of partition. This proposition of law was accepted by Supreme Court in Rukhmabai v. Laxaminaryan, AIR 1960 SC 335 and then later in Raghvamma v. Chenchemma, AIR 1964 SC 136 wherein Subba Rao, J had observed that a member of Joint Hindu Family seeking to separate himself from others will have to make known of his intention to all interested parties (coparceners). It is necessary that there must be intimation, indication or representation of an intention to partition though in what form the manifestation of an intention is made will depend upon circumstances of each case. In case in hand A, B and C are coparcener of Mitakshara Joint Hindu family and A is Karta of the family. C posted registered notice indicating his intention of partition from joint family. Latter however C changed his mind and withdrew his notice from Post Office but his intention of petition became known to A. As said above, severance of estate does not require any formal procedure, clear and unequivocal declaration (in any form) communicating in any way of intention to severance from joint family status, is sufficient for effecting partition. Facts of the case in hand are taken from Putturangumma v. M.S. Rangamma, AIR 1968 SC 1018 wherein it was observed by Supreme Court that process of communication may vary with the circumstances of each particular case. The proof of formal despatch or receipt of communication by other members of family is not essential, nor its absence fatal to severance of the status. What is necessary is 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. Supreme Court held in this case that communication was sufficient and effective and it could not be withdrawn. So in case in hand it can beheld that C's notice was sufficient declaration to bring severance in joint status even if later he had withdrawn and C died separated from joint family.
Ans. Under the Mitakshara school of Hindu Law `partition' means two things:
(i) Severance of status or interest.
(ii) Actual division of property according to shares which is also known as partition by `metes and bounds'.
Severance of Joint Status or Interest : What is necessary to bring about severance is a clear and unequivocal expression by words or conduct, of an intention to partition. In Rukhma Bai v. Laxmi Narayan, AIR 1960 SC 335 it was observed that it is a settled law that any adult coparcener may sever his interest by an equivocal communication of his intention to partition. Coparcener expressing an intention to sever need not assign any reason nor does it matter in what form and what manner communication of an intention is made. However the expression of intention must be conscious and informed act of coparcener. In Giraja Nandini v. Bijendera, AIR 1967 SC 1124 it was observed by Supreme Court that a partition can be made by a definite unambiguous declaration of intention by any member to separate himself from the family, if this is done it would amount to division of status whatever mode of partition may be used. Partition may be effected by institution of suit by submitting the dispute as to division of properties to arbitration or by demand for share in the properties or by conduct which evinces an intention to sever the joint family. In the case in hand A, B and C all brothers are members of joint Hindu family governed by Mitakshara school of Hindu law. A sues against B and C for partition. Under Mitakshara school of Hindu law, filing of suit for partition amounts to clear and unequivocal declaration of intention to partition of joint family which immediately results in severance of joint status, as stated above, even before suit is finally decided. Decree in suit will bring formal and actual division i.e. division by metes and bounds. Privy Council in Palani v. Muthu Venkataharalu, AIR 1925 PC 49 has held when a coparcener files a suit for partition it amounts to an unequivocal intimation of intention to sever and consequently severance of status takes place from the date when suit is instituted. A decree may be necessary for working out the result of severance i.e. for division of property by metes and bounds. But severance has taken place from date of filing the suit. In view of above discussion, it is clear that institution of suit for partition by A had resulted in severance of his joint status from the date when it was instituted. Therefore A's share does not pass by survivorship to B and C but it descends to his widow as his heir and she as such is entitled to continue the suit.
Ans. Partition of Hindu coparceners can be made by a definite and unambiguous declaration of intention by any member to separate himself from family. There can be many modes of partition. An agreement to separate is not required by law to be in writing. Therefore partition of immovable properties can be made orally. But if partition of immovable properties is effected by written document, then it requires registration.
In Bal Kishan Das Aggarwal v. Smt. Radha Devi, AIR 1989 All. 133 it was held that it is only when partition of coparcenary property is involved that an unequivocal and definite indication of intention to separate by a member of the joint family may be enough to constitute a partition. This intention to separate may be maintained either in writing or orally. Law places no obligation on members of joint family that the agreement to separate must be in writing. Even if parties agree in writing to separate without effecting any division as such, no registration is required. However, this rule is not applicable when partition of immovable property worth more than Rs. 100 is effected among co-owners. It requires then both in writing and registration.
In AIR 1968 Kant. 225 it was held that it is well established proposition of Hindu Law that when partition is effected by deed of immovable property worth Rs. 100 or more registration is compulsory.
Ans. Marriage among Hindus has always been considered to be a sacrament act. Marriage among Hindus is more a religious necessity than for a physical luxury. Marriage is a religious cermony by which father of bride give "Kanyadan" to bridegroom, which means after marriage `Bridegroom' gets the responsibility to take care of bride. According to "Veda" a Hindu Marriage is "the union of flesh with flesh and bone with bone". A Hindu marriage is a indissoluble union of husband-wife. A woman under Hindu tradition take birth in her father's house and takes last breath in her matrimonial home.
Marriage under Hindu Law is not a contract. Under Hindu traditions, a marriage is indissoluble tie for whole life. The Vedic rules expressly declare that a Husband is considered to be "God" for his wife and Wife is "Ardthangini" half of body of her husband. Any religious rites or cermony cannot be completed without wife. Thus status of `Wife' under Hindu law is very high. Concept of `Divorce' was not at all prevalent in early days. 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. It is not a mere contract in which a consenting mind is indispensable 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. Mayne has commented: "In the Vedic period the sacredness of the marriage tie was repeatedly declared, the family ideal was decidedly high and was often realized." Only the present Hindu Marriage Act has introduced divorce or dissolution of marriage. Manu disapproves of divorce and remarriage of women. None can trace out divorce in ancient Hindu Law. The ancient textual Hindu Law never allowed divorce or judicial separation except in some categories of lower castes. Remarriage is found in the text of Narada and Kautilya but the field is very narrow.
Hindu Marriage In Modern Hindu Law
With the change in thoughts in society, concept and meaning of `Marriage' has also changed, however it pertinent to mention at the very outset that inspite of changes, the basic fabric of marriage among Hindus is still the same. Before enactment of Hindu Marriage Act 1955, Society had seen various changes among different sects regarding marriage, Marriage was no longer an indissoluble tie of husband and wife and concept of separation and divorce had also started coming up in Hindu marriage. Before enactment of Hindu Marriage Act 1955 which by itself was a complete code for regulating the marriage and related aspects among Hindus, there were following legislative enactments regarding Hindu Marriage :-
1. Hindu Widow Re-Marriage Act 1856. - Marriage of a widow was prohibited among certain sects of Hindus and life of a widow was in miserable desirable state, in order to uplift her status, "The Hindu Widow's Remarriage Act 1856" was passed, it legalised the marriage of a Hindu widow in certain cases. But this Act has now been replaced by `Hindu Re-marriage (Repeal) Act 1983.
2. The Child Marriage Restraint Act, 1929. - This Act has brought about modification of pure Hindu Law in that it prohibits the marriage between male under 18 years and a female under 15 years of age. Child Marriage Restraint (Amendment) Act, 1978 has altered the marriageable age of bridegroom to 21 years and of bride to 18 years.
3. The Special Marriage Act, 1954. - The Special Marriage Act, 1954, which has repealed the Special Marriage Act, 1872, makes provisions for solemnization of Special Hindu Marriages under certain conditions.
It legalises inter-religious marriages.
4. The Arya Samaj Marriage Validation Act, 1973. - It legalised inter- caste marriages provided that the parties prefer to the Arya Samajists at the time of marriage.
5. Hindu Marriage Act 1955. - The Hindu Marriage Act 1955 (Act No. 25 of 1955) has brought some important changes in Hindu Marriage concept. Present Act has retained the ceremonial character of marriage as it is required to be accompanied by cermonies and rites acceptable to parties to marriage
Moreover in the Marriage Laws (Amendment) Act 1976, certain changes of far- reaching consequences have been introduced which have materially affected the sacrament character of Marriage.
The Act has provided for Divorce by Muthal Consent of parties to marriage. This provision denotes an inherent and implied suggestion that marriage is now no longer a `Sacrament Act' but has acquired certain colours of a `Contract'. Apart from it present Act provides certain grounds like cruelty, desertion, insanity, communicable diseases etc. on the basis of which any party to marriage can take divorce from other. So after enactment of present Act, one can easily say that on the one hadn essential features of Hindu marriage have been retained but on the other hand, with the change in society, provisions for judicial separation, declaration of marriage `nullity', divorce by decree or consent have been made.
In Swarjya Laxmi v. G.G. Padama Rao (1974) SCC 58 it was observed that original concept of Hindu Marriage treating it Sanskara or Sacrament is not destroyed by Hindu Marriage Act, 1955.
Ans. A : Full blood ; Half-Blood ; Uterine Blood
The question of relationship subsisting between the parties to a marriage i.e., whether it is full blood or half-blood, becomes relevant when dealing with restrictions arising from Sapinda relation and degrees of prohibited relationship because there are certain imperative prohibitions in the Act. Relationship between parties by full blood or half-blood may bring the parties within these imperative bars and render a marriage between them absolutely void.
Full Blood
Two persons are said to be related to each other by full blood when they are descended from a common ancestor by the same wife. It means where father and mother of two persons are the same.
Half-blood
Two persons are said to be related to each other by half-blood when they are descended from a common ancestor but by different wives. It means where father of two persons is same but mothers are different.
Uterine blood
Two persons are said to be related to each other by uterine blood when they are descended from a common ancestress but by different husbands. It means when mother of two persons is same but fathers are different.
(B) Degree of Prohibited Relationship. - A marriage of two persons who are related to each other within prohibited degree is void under section 11 of Hindu Marriage Act 1955 and person solemnizing such marriage in contravention of this provision is liable to punishment u/s 18 of the Act.
Section 3(g) of Hindu Marriage Act says that two persons are said to be within the degree of "prohibited relationship" -
(i) if one is a lineal ascendant of other
(ii) if one was the wife or husband of a lineal ascendant or descendant of the other, or
(iii) if one was the wife of the brother or of the father's or mother's brother or of the grandfather's or grandmother's brother of the other; or
(iv) if the two arte brother and sister, uncle and niece, aunt and nephew, of children of brother and sister or of two brothers or of two sisters.
It should be noted that prohibited relationship includes :-(i) relationship by half or uterine blood as well as by full blood;
(ii) illegitimate as well as legitimate blood relation;
(iii) relationship by adoption as well by blood; and all terms of relationship in those clauses shall be construed accordingly.
Section 5(iv) of Act says marriage of two Hindus is not valid if parties are within degree of prohibited relationship, unless the custom or usage governing each of them permits the marriage between two. So only exception to rule prohibiting marriage of two Hindus related to each within prohibited degree of relationship, is custom or usage of each parties allowing such marriage, However such "customs" or "usage" should be of long time and continuously and uniformly observed and which have obtained force of law. Marriage between parties related to each other within the degree of prohibited relationship is for bidden apparently to prevent :-1. Physical degeneracy of the race which the marriage between near relations would lead to.
2. Moral degeneracy and consequent evil results which affect the society built on the edifice of joint family system.
The original Hindu text went to the extent of prohibiting a man marrying a girl even of the same `gotra', i.e., an agnate or `parawara' on the theory that his father and girl's father were both descendants of a common ancestor in the male line, and all such marriages were held invalid until the Hindu Marriage Disabilities Removal Act, 1946, was passed and the disability was removed by it. (C) Spinda Relationship - Section 5(v) of Hindu Marriage Act says that Marriage between two Hindus who are `Spindas' of each other is prohibited. Such marriage has been declared to be "void" by Section 11 of Act. Solemnization of such marriage in contravention of Section 11 is punishable under section 18(b) of Act. Meaning - The words `sapinda' etymologically means one of the same `pinda'. In the Hindu texts, the word has been used in two senses; in the one, it means a relation connected through the same body; and in the other, it means relation connected through funeral oblation of food. Before Vijnaveshwar, sapindas were recognised as those persons who offer `pindas' to the same ancestor. Thereafter Vijnaveshwar propounded the theory of `particles of the same body' by changing the meaning of `pinda'. According to him sapinda relationship arises between two persons on account of their being connected by particles of one and the same body. The Hindu Marriage Act, 1955, under section 3(f) lays down its own rules to determine whether a person is the sapinda of another or not. It says that :-(i) Sapinda relationship with reference to any person extends as far as the third generation (inclusive) in the line of ascent through the mother; and the fifth (inclusive) in the line of ascent through the father, the line being traced upwards in each case from the person concerned, who is to be counted as the first generation;
(ii) two persons are said to be `sapinda' of each other if one is a lineal ascendant of the other within the limits of sapinda relationship, or if they have a common lineal ascendant who is within the limits of sapinda relationship with reference to each of them.
The sapinda relationship includes :-(i) relationship by half or uterine blood as well as full blood;
(ii) illegitimate blood relations as well as legitimate;
(iii) relationship by adoption as well as by blood; and all terms of relationship in those clauses shall be construed accordingly.
So the sapinda relationship according to the clause of the Act extends as far as -(i) the third generation (inclusive) in the line of ascent through the mother; and
(ii) the fifth generation (inclusive) in the line of ascent through the father.
Ans. Section 5 of Hindu Marriage Act, 1955 contains conditions for a Hindu Marriage. Section 5 of the Act lays down that "A marriage may be solemnized between any two Hindus if the following conditions are fulfilled
(i) neither party has a spouse living at the time of marriage.
(ii) at the time of marriage neither party:
(a) is incapable of giving valid consent to it in consequence of unsoundness of mind or
(b) though capable of giving valid consent, has been suffering from mental disorder of such kind or to such extent as to be unfit for marriage and the procreation of children or
(c) has been subject to recurrent attacks of insanity or epilepsy.
(iii) the bridegroom has completed the age of twenty one years and the bride the age of eighteen years at the time of the marriage.
(iv) the parties are not within the degree of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two.
(v) The parties are not spindas of each other unless the custom or usage governing each of them permits of a marriage between the two.
So Section 5 prescribes the essential requisites for a Hindu Marriage such as (i) Monogamy (ii) Mental capacity of parties (iii) Age of parties (iv) degree of prohibited relationship (v) Spinda relationship. These conditions of a Hindu marriage are supplemented by certain ceremonies as provided in Section 7 of the Act. In Swarajya Laxami v. G.G. Padama Rao (1974) SC C 58 it was observed : Original concept of Hindu marriage treating it as Sanskara or Sacrament is not destroyed by Hindu Marriage Act. This Act retains the character and nature of a Hindu Marriage as Sacrament and a holy union for performance of religious duties.
Ans. Ceremonies necessary for a Hindu Marriage
Section 7 of the Hindu Marriage Act 1955 provides about ceremonies for a Hindu Marriage. It lays down that -
(1) A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto.
(2) Where such rites and ceremonies include the Saptapadi (that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and binding when the seventh step is taken.
Thus the Act does not prescribe any special ceremony for marriage but leaves it to the discretion of the parties to follow any customary rites or ceremonies which are prevalent either amongst the bridegroom's party or bride's side. Under the ancient Hindu Law all the necessary ceremonies which were prevalent in any community whether prescribed by custom or by Shastras, must be observed : "The status to husband and wife is constituted by the performance of the marriage rites, whether prescribed by the Shastras or by custom" - Mayne. Under the textual law there were two essential ceremonies to the validity of Hindu marriage which were :-(i) invocation before the sacred fire, and
(ii) `saptapadi' i.e., the taking of seven steps by the bridegroom and the bride jointly before the scared fire. Under the present law neither of these two ceremonies are essential and the party may follow any particular rites or ceremonies which are existing in any part of the country.
(iii) panigrahana ceremony.
In -------------------, AIR 1969 Cal. 55 it was observed that validity of a marriage will depend on observance of `customary rites and cermonies' of either party as were prevlent in 1955. Expression, `Customary rites and cermonies' means such `Shastric' cermonies which the caste or community to which party belongs is customarily following. Customary rites and cermonies to be accepted must be shown to have been followed definitely as an essence of marriage ceremony from ancient times and recognized such cermonies as obligatory. The Supreme Court in Shanker Bhan Rac Lokhande v. The State (AIR 1955 S.C. 1664), clearly laid down that if the necessary ceremonies are not observed the marriage would become ineffective. A marriage in absence of performance of religious ceremonies will not be recognised in law.
Ans. Any Marriage between two Hindus must satisfy essential conditions as prescribed in Section 5 of Hindu Marriage Act. Section 5 provides that a marriage may be solemnized between any two Hindus, if the following conditions are fulfilled namely:
(i) neither party has a spouse living at the time of the marriage.
(ii) at the time of the marriage, neither party:
(a) is incapable of giving 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 extent as to unfit for marriage and procreation of children or
(c) has been subjected to recurrent attacks of insanity or epilepsy.
(iii) the bridegroom has completed the age of twenty one years and the bride age of eighteen years at the time of the marriage.
(iv) the parties are not within the degree of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two
(v) the parties are not sapindas of each other unless the custom or usage governing each of them permits of marriage between the two.
So above are essential conditions for any valid Hindu marriage. Apart of this Section 7 of Hindu Marriage Act 1955 requires that a Hindu Marriage may be solemnized in accordance with customary rites and ceremonies of either party thereto. Where such rites and ceremonies include the `Saptapadi' (i.e.) taking of seven steps by bride and bridegroom from Holy fire), the marriage becomes complete and binding when the seventh step is taken. Section 11 of Act provide about void marriage and Section 12 provide for voidable marriage. Section 11 of Act says any marriage solemnized in contravention of clauses (i), (iv) and (v) of Section 5 is null and voidable and can be so declared by decree of nullity. Section 12 inter alia provides that any marriage in contravention of condition specified in clause (ii) of Section 5 voidable and may be annulled by decree of nullity. Coming to case in hand Janak married Rekha who was aged 17 years in 1986 and thus marriage between Janak and Rekha contravene the condition specified in clause (iii) of Section 5. However marriage of Janak and Rekha is neither void nor voidable u/s 11 or 12 of Act. Contravention of clause (iii) of Section 15 only attracts penal provisions of Section 18. In Smt. Neetu Singh v. State and othera 1999, Family Law Cases 195 Delhi High Court has held that marriage in contravention of Section -15(III) of Hindu Marriage Act 1955 is neither void nor voidable and only attracts provision of Section 18 of said Act. So, it is clear from the above the discussion that marriage of Janak and Rekha solemnized in 1986 was valid and binding, now in 1988, Janak married another girl Rita in gandharva form of marriage by exchange of garlands in the presence of two witnesses. Question arises whether Section 17 of Hindu Marriage Act is applicable on Janak and thus he is guilty of Section 494 of Indian Penal Code (Bigamy). Section 17 of Act says any marriage between two Hindus solemnized after the commencement of this Act is void if at the date of such marriage either party had a husband or wife living and the provisions and Sections 494 and 495 of I.P.C. shall apply accordingly. Supreme Court discussed the scope of Section 17 of Act in L. Ohulamma v. L. Venkata Reddy, AIR 1979 SC 848 by observing `Unless a marriage is celebrated and performed with proper ceremonies and due form it can not be said to be `solemnized' within the meaning of this Section . It is therefore essential for the purpose of this Section that marriage to which Section 494 I.P.C. applies on account of provisions of this Act, should have been celebrated with proper ceremonies and due form. Merely going through certain ceremonies with intention that parties be taken to be married, will not make the ceremonies prescribed by law or approved by any established custom. In Santi Dev Beema v. Kanchan Prava Devi, AIR 1991 SC 816 Supreme Court held "When there is no plea that the marriage was solemnized in accordance with the customary rites and usage which do not include `saptapadi' there can not be inference as to the performance of essential ceremonies for valid marriage even if the accused and his alleged second wife were living as husband and wife. So in case in hand second marriage of Janak with Rita in 1988 was not in accordance of provisions of Section 7 of Hindu Marriage Act which provide for essential and customary rites and ceremonies for Hindu marriage specifically when there is no plea that customs and usage of either Janak or Rita dispense with ceremony of `Saptapadi' and thus marriage of Janak and Rita is not marriage in the eye of law and therefore Janak is not guilty of Bigamy.
Ans. Registration of Hindu Marriages
About the registration of Hindu marriages, section 8 of the Act provides as follows :-
1. For the purposes of facilitating the proof of Hindu marriages the State Government may make rules providing that the parties to any such marriage may have the particulars relating to their marriage entered in such manner and subject to such conditions as may be prescribed in a Hindu Marriage Register kept for the purpose.
2. Notwithstanding any thing contained in sub-section (1) the State Government may, if it is of opinion that it is necessary or expedient so to do, provide that the entering of the particulars referred to in sub-section (1) shall be compulsory in the State or in any part thereof, whether in all cases or in such cases as may be specified, and where such direction has been issued, any person contravening any rule made in this behalf shall be punishable with fine which may extend to twenty five rupees.
3. All rules made under this section shall be laid before the State Legislature as soon as may be, after they are made.
4. The Hindu Marriage Register shall at all reasonable times be open for inspection, and shall be admissible as evidence of the statements therein contained and certified extracts therefrom.
Thus the omission to get the marriages registered, even when the registration is made compulsory, does not affect in any manner the validity of the marriage but will invite the penalty of a fine which may extend to twenty five rupees.
Ans. Marriage imposes an obligation on both the spouses to cohabit with each other. The necessary implication of marriage is that parties will live together. Marriage implies `consortium' i.e. husband and wife are entitled to each other's company and comfort. Restitution of Conjugal rights means that if one of the parties to marriage withdraws from the society of the other, latter is entitled to compel the former to live together.
Section 9 of the Hindu Marriage Act provides that when either husband or wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply by petition to District Court, for restitution of conjugal rights and courts on being satisfied of truth of the statement 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.
In Surinder v. Gurdeep, AIR 1973 P&H 134 it was held that for decree of Restitution of Conjugal rights, three conditions must be satisfied i.e. (i) respondent has withdrawn from the society of petitioner without reasonable excuse (ii) the court is satisfied about the truth of the statement made in such petition (iii) there is no legal ground why the relief should not be granted.
So petitioner must satisfy that respondent has withdrawn from the society without "reasonable excuse." What amounts to "withdrawal of society without any reasonable cause or excuse", can not precisely be defined. Explanation to Section 9 only says that where a question arises whether there has been reasonable excuse for the withdrawal from the society the burden of proving reasonable excuse shall be on the person who has withdrawn from the society.
Coming now to question as to whether refusal of wife to resign from her job does amount to withdrawal of society without reasonable cause. Full Bench of Punjab and Haryana High Court in Kailashwati v. Ajudhaya Prasad 1977 H.L.R. 175 held that "obligation to live together under common roof is inherent in the concept of Hindu Marriage and it can not be torn unilaterally by the desire of wife to live separately and away from matrimonial home merely for reason of either securing or holding the job else where."
However, Allahabd High Court in Shanti v. Romesh reported in 1971 Allahabad Law Journal 67 has held that mere refusal of wife to resign her job at the instance of husband is not sufficient ground for granting decree of restitution in favour of husband as wife's taking up of job even against the wishes of husband would not amount to withdrawing from society without reasonable excuse. Similarly Rajasthan High Court in Mirchumal v. Devi, AIR 1977 Raj. 114 has observed that proposition that wife must always stay under the roof of the husband might be right in past but it is no longer true in the age of equality of opportunity in employment to both sexes. So wife's taking up of job or not giving it up at the instance of the husband can not amount to withdrawal from his society. Reference may also be made Swaraj Garg v. K.M.Garg, AIR 1978 Del. 296 and Pravin Ben v. Suresh Bhai, AIR 1975 Guj. 69.
So from the above discussion it can be stated that particular facts and circumstances of each case have to be taken into consideration for deciding the question as to whether refusal of wife to resign from her job, amounts to withdrawal from society without reasonable excuse for the purpose of Section 9 of the Act.
Ans. After the marriage, husband is entitled to the society and company of his wife and similarly wife to the society of her husband. Foundation of the right is fundamental rule of matrimonial law that one spouse is entitled to society and comfort consortium of other spouse. Where either spouse has abandoned or withdrawn from the society of the other spouse without any reasonable excuse or just cause, court can grant decree for restitution of conjugal rights under Section 9 of Hindu Marriage Act 1955 in favour of aggrieved party.
In Smt. Surjit Kaur v. Ujjal Singh (1978) 80 Punjab Law Reporter 693 Punjab and Haryana High Court granted the decree of restitution of conjugal rights to the husband, even though the wife was gainfully employed away from matrimonial home, where the husband lived, on the consideration that husband had right to determine the place of matrimonial home and that he had the means to support his wife. Similarly in Kailash Wati v. Ajudhaya Prasad 1977 Hindu Law Reporter 175 Punjab and Haryana High Court had observed "obligation to live together under common roof is inherent in the concept of Hindu marriage and it can not be torn unilaterally by the desire of wife to live separately and away from matrimonial home merely for reason of either securing or holding a job elsewhere."
However, Allahabd High Court in Shanti v. Romesh reported in 1971 Allahabad Law Journal 67 has held that mere refusal of wife to resign her job at the instance of husband is not sufficient ground for granting decree of restitution in favour of husband as wife's taking up of job even against the wishes of husband would not amount to withdrawing from society without reasonable excuse. Similarly Rajasthan High Court in Mirchumal v. Devi, AIR 1977 Raj. 114 has observed that proposition that wife must always stay under the roof of the husband might be right in past but it is no longer true in the age of equality of opportunity in employment to both sexes. So wife's taking up of job or not giving it up at the instance of the husband can not amount to withdrawal from his society. Reference may also be made Swaraj Garg v. K.M.Garg, AIR 1978 de. 296 and Pravin Ben v. Suresh Bhai, AIR 1975 Guj.69.
From a persual of all the aforesaid authorities it becomes clear that the real consideration for the court in such cases is to see the animus of the wife to take up service at a place different from the place of business or vocation of her husband. In the present case, the wife is employed at Ambala even before the marriage. She has never denied her company to her husband. The husband has at all times access to her. Therefore, mere refusal on the part of the wife to quit the job in itself is no ground to order restitution.
Ans. Void Marriage
Marriage under Hindu Law is a voluntary union of a man with a woman to the exclusion of all others. However it is necessary that marriage is proper and valid. Section 5 of Hindu Marriage Act prescribe following essentials for a valid Hindu Marriage :-
(a) Monogamy i.e. neither party has spouse living at the time of marriage.
(b) Sanity i.e. each party is mentally sound to give free and voluntary consent to it.
(c) Age : i.e. bridegroom has completed twentyone years and bride has completed eighteen years.
(d) Beyond Prohibited Degree i.e. parties to marriage are not related to each other within `prohibited degree of relationship.'
(e) Beyond Spinda relationship i.e. neither party is spinda to each other.
Section 11 of Hindu Marriage Act provides about void marriage in the following terms :-"Any marriage solemnized after the commencement of Act shall be null and void and may, on a petition presented by either party thereto against the other party be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of section 5."
The three conditions, as per section 11, are as follows and if breach of any one of these three conditions is made the marriage is void :-1. (i) Neither party has a spouse living at the time of the marriage;
2. (iv) the parties are not within the degree of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two.
3. (v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two.
The non-fulfilment of any of these three conditions renders a marriage void ab initio i.e., null and void from its very inception and either party to such marriage can obtain a decree of nullity from the court. Voidable Marriage According to Section 12 of Hindu Marriage Act, 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 owing to the impotence of the respondent.
This provision has been amended by the Marriage Laws (Amendment) Act, 1976, so that now she 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- consummation is due to the impotency of the husband. [Smt. Suvarna v. G.M. Achary, AIR 1979 A.P. 169].
(b) Insanity, Unsoundness of mind : that the marriage is in contravention of the condition specified in clause (ii) of section 5; or
(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; or
(d) Pregnancy of the Respondent : that the respondent was at the time of marriage pregnant by some person other than the petitioner.
Distinction Between Void and Voidable Marriage - The main distinction between the two is that :(1) A void marriage is void ab initio and is a nullity. It is void ipso facto. A voidable marriage, on the other hand, is a marriage which is legal for all purposes whatsoever unless it is annulled by the Court on the petition of the aggrieved party.
(2) A fresh marriage contracted during the subsistence of a voidable marriage and before it is annulled by a decree of nullity will be considered a bigamous one, and either spouse of the second marriage is liable under the penal provisions of section 18 of the Act. But it is not so in the case of void marriage.
Under section 11, a marriage, solemnised after the commencement of the Act, shall be null and void if it is in contravention of clauses (i), (iv) and (v) of Section 5. But any marriage may be declared void by a decree of nullity whether solemnised before or after the commencement of the Act, under section 12. The scope of section 11 of the Act wider than the scope of Section 12 in view of the fact that Section 11 restricts its application only to some of the conditions of a valid marriage, whereas several other grounds apart from some of the grounds of a valid marriage, also come within the purview of section 12.
Ans. (a) Section 25 of Hindu Marriage Act, 1955 provides "(i) Any court exercising jurisdiction under this Act may at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose by either the wife or the husband as the case may be, order that the respondent shall pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as having regard to respondent's own income and other property if any, the income and other property of the applicant, the conduct of the parties and other circumstances of the case, it may seem to the court to be just and any such payment may be secured if necessary by a charge on the immovable property of the respondent."
Thus under Section 25 a court of competent jurisdiction either at the time of passing any decree under Hindu Marriage Act 1955 or any time subsequent thereto on application of one spouse, may order the other spouse to pay permanent or periodical maintenance, after having regard to income and properties and other circumstances of each spouse. Once if the decree under the Hindu Marriage Act 1955 is passed is decree of nullity under Section 11 of the Act. Therefore words `Wife' or `Husband' have to be liberally construed and thus wife or husband under void or voidable marriage also are entitled to claim maintenance under Section 25(1) of the Act.
In Kuldeep v. Geeta, AIR 1977 Delhi 124Delhi High Court has held that the wife under a void or voidable marriage is also entitled to maintenance and alimony under Section 25 of the Hindu Marriage Act 1955.
Similarly reference may be made of Dayal Singh v. Bhajan Kour, AIR 1973 Punj. 44
(b) Legitimacy of Children Under Void and Voidable Marriages
Section 16 of the Hindu Marriage Act 1955 provides that "(1) Notwithstanding that a marriage is null and void under Section 11 any child of such marriage who would have been legitimate if the marriage had been valid shall be legitimate, whether such child is born before or after the commencement of Marriage Law (Amendment) Act 1976 and whether or not decree of nullity is granted in respect of that marriage under this Act and whether or not marriage is held to be void otherwise than on petition under this Act.
(2) Where a decree of nullity is granted in respect of voidable marriage under Section 12, any child begotten or conceived before the decree is made who would have been legitimate child if the parties to the marriage at the date of decree it had been dissolved instead of being annulled, shall be deemed to be their legitimate child notwithstanding the decree of nullity.
(3) Nothing contained in Sub-Sections (1) and (2) shall be construed as conferring upon any child of a marriage which is null and void or which is annulled by a decree of nullity under Section 12 any right in or to the property of any person other than parents, in any case where but for passing of this Act, such child would have been incapable of possessing or requiring any such rights by reason of his not being legitimate child of his parents.
So the object of Section 16 of the Hindu Marriage Act is to confer the status of legitimacy on children born in void and voidable marriages. Section 16 by legal fiction lays down that even if a child born of void or voidable marriage is conferred with the status of legitimacy but it is debarred from inheriting to property of any person other than its parents.
In Rameshwari Devi v. State of Bihar, AIR 2000 SC 735 Supreme Court has observed that marriage of parties may, because of being in contravention of clause (i) of Section 5 of Hindu Marriage Act was void marriage but under Section 16 of the said Act children of void marriage are legitimate for the purpose of succession to property of father.
Ans. Section 12 of Hindu Marriage Act 1955 provide regarding voidable marriage. Section 12(1)(c) says that `any marriage solemnized whether before or after the commencement of this Act, shall be voidable and may be annulled by decree of nullity on the ground that the consent of the petitioner or where consent of the guardian in marriage of the petitioner was required under Section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act (2 of 1978) the consent of such guardian was obtained by force or by fraud as to nature to ceremony or marriage or as to any material fact or circumstances concerning the respondent.'
Provisions as given in clause (c) of Sub-Section (1) of Section 12, have to read with clause (a) of Sub-Section (2) of Section 12 which lays down that notwithstanding anything contained in Sub-Section (1), no petition for annulling a marriage (a) on the ground specified in clause (c) of Sub-section (1) shall be entertained if:
(i) the petition is presented more than one year after the force had ceased to operate or as the case may be fraud had been discovered.
(ii) the petitioner has with his or her full consent, lived with the other party to marriage as husband or wife after the force had ceased to operate or as the case may be, the fraud had been discovered.
Expression `Fraud' has not been defined in the Act. In Nand Kishor v. Smt. Munni Bai, AIR 1979 MP 45, it was observed that the term `fraud' means those conditions in which there is absence of real consent. The term fraud has been used in the sense which lacks the element of consent and there is an intention to defraud. Here it is not to be understood in that sense in which it has been used in Section 17 of Indian Contract Act. Similarly in Anurag Anand v. Sunit Anand 1997 Family Law Cases 178, Delhi High Court held that term fraud as used in Section 12 of the Act can not be given same meaning as has been assigned to it u/s 17 of Indian Contract Act. Word `Fraud' used in Section 12 of Act would only connote deception and misrepresentation. Important aspect of `fraud' in Matrimonial Law is that it is not every misrepresentation or concealment which amounts to fraud. The Marriage Law (Amendment) Act 1976, lays down that the `fraud' vitiative of the consent should relate to:(i) Nature of ceremonies or
(ii) any material fact or circumstances concerning the respondent.
In Rajender Singh v. Promila, AIR 1987 Delhi 285, it as observed : "the word `fraud' used in this clause connotes deception or misrepresentation. If there is misrepresentation or concealment of material fact concerning the respondent then the provisions contained in clause (c) would definitely be attracted for annulling the marriage. What is a misrepresentation or concealment of material fact depends upon the facts and circumstances of each case. In Bijender Bir Singh v. Mst. Vinod, AIR 1995 P&H 42 Punjab and Haryana High Court held that u/s 12(1)(c) of Act it is not necessary that consent is obtained by practicing fraud at the time of marriage. It is enough if it was obtained even at an earlier stage. In this case girl was represented to be graduate and legally divorced but later it was found that neither she was graduate nor legally divorced at the time of engagement with petitioner. It was held that consent of petitioner was obtained by fraud. In Rama Kanta v. Mohinder Laxami Das, AIR 1996 (P&H) 99 the fact that wife had already married twice before the present marriage and that she had given birth to a son in first wedlock was not disclosed to the husband and High Court held that non-disclosure of said facts to husband before the marriage amount to `fraud' on him and marriage may be annulled on this ground.
Ans. Section 13(1)(ib) of Hindu Marriage Act 1955 provides that a Hindu can seek dissolution of his or her marriage by a decree of divorce, whether marriage solemnized before or after the commencement of Act on the ground that other party has deserted the petitioner for a continuous period of not less than 2 years immediately preceding the presentation of petition.
Desertion -- Desertion means the desertion of the petitioner by other party to marriage without reasonable cause and without consent or against the wishers of such party and includes wilful neglect of petitioner by other party to marriage.
In A.B. Alwar v. A.B. Sridevi, AIR 2002 SC 88, it was observed that "For "Desertion" two essential condition must be there namely (i) Factum of separation and (ii) the intention to bring cohabitation permanently to an end (Animus diserendi). Similarly two elements are essential so far as deserted spouse is concerned i.e. (a) absence of consent and (b) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid---------The petitioner for divorce bears the burden of proving those elements and their continuance throughout the statutory period of two years."
Ans. Section 5 of the Hindu Marriage Act, 1955 inter alia provides that a marriage may be solemnized between any two Hindus provided neither party has a spouse living at the time of the marriage. Section 11 of the Act enacts any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto against the other party, be so declared by a decree of nullity if the opposite party has a spouse living at the time of such marriage.
For the purpose of declaring a marriage as void, it is necessary to prove firstly, that the second marriage is a valid marriage but for this provision and secondly, the spouse of the first marriage was the legally wedded spouse and that marriage was subsisting on the date of the second marriage. To put it in other words, during the lifetime of a legally wedded wife or husband, and when the marriage is subsisting, the husband or the wife as the case may be, cannot have a second marriage. The place or country where the first marriage was performed is immaterial and of no consequence.
Consequently, the wife can file a petition under Section 11 of the Act for getting declared her marriage as null and void.
(ii) One of the conditions for a marriage between two Hindus as laid down by Section 5 of the Act is that the bridegroom has completed the age of twenty one years and the bride the age of eighteen year at the time of the marriage. The omission of clause (iii) of this Section from the category of void marriages under Section 11 or voidable marriages under Section 12 appears to be deliberate on the part of the Legislature. Hence the marriage in contravention of these limits can neither be void nor voidable, though it is punishable under Section 18.
In Neetu Singh v. State 1999 Family Law Cases 195, it was observed that marriage in contravention of Section 5 (iii) of Hindu Marriage Act 1955 is neither void nor voidable only attract provisions of Section 18 of the said Act.
Ans. Provisions as to decree of Judicial separation are given in Section 10 of Hindu Marriage Act, 1955 and provision regarding dissolution of marriage by decree of divorce are provided in Section 13 of the Act.
Section 10 of the Act lays down that either party to marriage, whether solemnized before or after the commencement of the Act, may present petition praying for decree of judicial separation on any of grounds as specified in Sub-section (1) of Section 13 of the Act and in case of wife, also on any of the grounds as specified in Sub- Section (2) of Section 13 of the Act. After the Amendment Act of 1976, grounds for decree of judicial separation and for decree of divorce are same. Sub-Section (2) of Section 10 of the Act further provide that where decree of judicial separation has been passed it shall no longer be obligatory for petitioner to cohabit with respondent, but the court may on the application by petition of either party and on being satisfied of truth of a statement made in such petition rescind the decree if it considers it just and reasonable to do so.
Judicial separation is different from divorce because Judicial separation simply implies suspension of Marital rights and obligations between parties but marital status of parties remain intact. Divorce on the other hand dissolves the marriage between the parties. After the decree of divorce, parties no longer stand in relation of husband and wife. But by decree of judicial separation, parties only stop cohabiting together and their inter se relation does not cease but only suspends. Parties after decree of Judicial Separation, still enjoy the status of husband and wife of each other.
Ans. A. Section 13 of the Hindu Marriage Act, 1955 lays down the grounds on which a Hindu can seek dissolution of his or her marriage by a decree of divorce under the Act. It provides as under:
(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party
(i) has, after the solemnization of the marriage had voluntary sexual intercourse with any person other than his or her spouse; or
(ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; or
(ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or
(ii) has ceased to be a Hindu by conversion to another religion; or
(iii) 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.
(iv) has been suffering from virulent and incurable form of leprosy.
(v) has been suffering from venereal disease in a communicable form.
(vi) has renounced the world by entering into any religious order or
(vii) 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 it, had that party been alive;
(1A) Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or
(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceedings to which they were parties.
(2) A wife may also present a petition for the dissolution of their marriage by a decree of divorce on the ground(i) in the case of any marriage solemnized before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner:
Provided that in either case the other wife is alive at the time of the presentation of the petition; or
(ii) that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality;
(iii) that in a suit under Section 18 of Hindu Adoptions and Maintenance Act, 1956 or in a proceeding under Section 125 of the Code of Criminal Procedure, 1973 a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards; or
(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.
B. Section 13B of the Hindu Marriage Act, 1955 provides as under:"(1) subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976, on the ground that they had been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.
(2) On the motion of both the parties made not earlier than six months after the date of 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 enquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree".
C. Section 14 of the Hindu Marriage Act, 1955 states that notwithstanding anything in this Act it shall not be competent for any court to entertain any petition for dissolution of a marriage by a decree of divorce unless at the date of the presentation of the petition one year has elapsed since the date of the marriage. But under the proviso the court is conferred a discretionary power to entertain the petition before one year, if it finds on the allegations in the affidavit filed in support of the petition that prima facie there is exceptional hardship to the petitioner or exceptional depravity on the part of the respondent. Sub-Section (2) presupposes an application for leave of the court to present a petition for divorce before the expiry of one year from the date of the marriage and also emphasises that the court while dealing with such an application shall have due regard to the interests of any children of the marriage and to the question whether there is a reasonable probability of reconciliation between the parties before the expiration of the said period of one year. Thus, Section 14 provides restrictions presumably designed to prevent hasty recourse to legal proceedings before the parties have made a real effort to save their marriage from disaster. In the case in hand, the petitioner has alleged simple cruelty on the part of her husband A. No aggravating circumstances have been alleged or disclosed to point out exceptional hardship to the petitioner to file the petition within one year of her marriage. Nor even any application for leave as envisaged by Section 14 has been filed. In these circumstances, the petition is liable to be rejected as premature.
Ans. Section 23 of Hindu Marriage Act 1955 contains some vital clauses of considerable importance and consequence relating to power and duty of the court in the matter of granting any of the reliefs recognised under the Act. Sub-Section (1) to Section 23 of the Act provides that in any proceeding under this Act (whether defended or not) if the court is satisfied that any of the ground for granting relief exist and (a) Petitioner (except in cases where the relief is sought by him on the ground specified in sub-clauses (a), (b) and (c) of clause (i) of Section 5) is not taking advantage of his or her own wrong or disability for the purpose of such relief.
(b) Where the ground of petition is ground specified in Section 13(i) (i) Petitioner has not in any manner been accessory to or connived at or condoned the acts complained of
(c) When divorce is sought on the ground of mutual consent and such consent has not been obtained by force, fraud or undue influence.
(d) Petition has not been presented in collusion with the respondent.
(e) There has not been unnecessary delay in instituting the proceeding.
(f) there is no legal bar to grant the relief.
Then in such case but not otherwise the court shall decree such relief. So court may refuse to grant relief, despite the fact that ground for relief exists, if the case of petitioner comes in any of the sub-clauses of Sub-section (1) of Section 23 of Act.
In Tara Chand v. Smt. Naraini Devi, AIR 1976 P&H 300 it was observed that Section 23 of Hindu Marriage Act is based on an equitable principle that he who comes to the court must come with clean hands, in other words a wrong doer should not be permitted to take advantage of his or her own wrong or disability while seeking relief from the Court.
In T Srinivasan v. T. Vara Laxami 1998 Family Law Cases 430 (SC) husband obtained decree for restitution of conjugal right, but did not act in obedience thereof rather refused to allow his wife to enter the house so there was no restitution of conjugal right between parties for one year after decree u/s 9 of Act passed. Supreme Court held Acts of husband were positive wrongs amounting to "misconduct" uncondonable for the purpose of Section 23(1) (a) of Hindu Marriage Act 1955 hence he was rightly denied relief under Section 13(1A) of the said Act.
Ans. (1.) Section 13(1)(iA) of Hindu Marriage Act 1955 lays down that any marriage solemnized whether before or after the commencement of the Act, may on petition by either husband or wife, be dissolved by decree of divorce on the ground that the other party has after the solemnization of marriage, treated the petitioner with cruelty. Term `Cruelty' has not been defined in the Act. Cruelty in matrimonial law may be of infinite variety. It can be subtle or brutal. Legal concept of "Cruelty" had varied from time to time as social and economic conditions changes.
Act of physical violence by one spouse to another resulting in injury to body, limb or health or causing reasonable apprehension of the same have been considered `cruelty'. Cruelty for Section 13 of the Act need not necessarily be physical cruelty only, it also includes mental cruelty. In S. Hanumantha Rao v. S. Ramani 1999 Family Law Cases 337 Supreme Court observed that Mental Cruelty as envisaged under Section 13(1) (1A) of the Act means when either party causes mental pain, agony or suffering of such magnitude that it severs the bond between wife and husband and as a result of which it becomes impossible for parties to live together.
In Rita v. Balkishan Nijhawan, AIR 1973 Del. 200 Delhi High Court observed that "If either of the parties to a marriage being healthy and having physical capacity refuses to sexual intercourse, the same would amount to cruelty entitling the other to a decree". Similarly in Sri Kant v. Anuradha, AIR 1984 Kar. 8 it was held "failure to comply with one of the essential obligations of marital life by husband by persistent refusal to marital intercourse without any cause amounts to subjecting wife to cruelty."
So having considered the case law, wife in the case in hand is entitled to decree of divorce u/s 13(1) (1A) of the Act on the ground of cruelty by persistent refusal to have marital intercourse by husband without any reasonable cause.
(2.) Section 5 of the Hindu Marriage Act, 1955 prescribes the essential conditions for a marriage between two Hindus after the commencement of the Act. First condition is that neither party has a spouse living at the time of marriage. A marriage in contravention of this conditions is void ab initio. Section 17 of the Act expressly declares such marriage to be void and the concerned person to be guilty of an offence of bigamy under Sections 494 and 495 of the Penal Code.
If a married person marries another woman, the first wife can seek a declaration that the second marriage of her husband is a nullity. She can prosecute her husband for an offence of bigamy. Further, she can apply under Section 13(1) (i) of the Hindu Marriage Act 1955 for dissolution of her marriage by a decree of divorce on the ground that her husband, after the solemnization of the marriage, had voluntary sexual intercourse with another female.
Still further, she can claim maintenance from her said husband under Section 18(i) of the Hindu Adoptions and Maintenance Act 1956. The right of a wife to claim maintenance is an incident of the status or estate of matrimony and a Hindu is under a legal obligation to maintain his wife. Sub-section (1) of Section 18 of the Act substantially reiterates that right. The question is whether she is entitled to separate residence within the meaning of S.18(2) of the said Act. This Sub-section says that a Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance if he has any other wife living."
(3.) Section 9 of the Hindu Marriage Act, 1955 provides "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. The foundation of the right to bring a suit for restitution of conjugal rights is the fundamental rule of matrimonial law that one spouse is entitled to the society and comfort consortium of the other spouse.
Wife is not entitled to decree of divorce because u/s 13(1)(ib) of Hindu Marriage Act period of desertion must not be less than 2 years immediatily preceding the presentation of petition.
Therefore, in the present case the wife can file an application for a decree of restitution of conjugal rights. Further, the wife is entitled to maintenance and separate residence under Section 18(2) (a) of the Hindu Adoptions and Maintenance Act, 1956. The said Sub-section provides as under:
"(2) A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance,
(a) if he is guilty of desertion, that is to say, of abandoning her without reasonable cause and without her consent or against her wish, or of wilfully neglecting her."
Thus, a Hindu wife is entitled to live separately from her husband and claim maintenance, if he is guilty of desertion.
Ans. (a) Section 13(1) (1A) of Hindu Marriage Act 1955 provides that any marriage solemnized, whether before or after the commencement of the Act, may on petition presented by either husband or the wife be dissolved by decree of divorce on the ground that the other party has after the solemnization of marriage, treated the petitioner with cruelty.
Term `cruelty' has not been defined in the Act. Cruelty in matrimonial law may be of infinite variety. It can be subtle or brutal level. Concept of cruelty had varied from time to time as social and economic conditions change. `Cruelty' under matrimonial law may be physical as well as mental.
Persistent refusal to have marital intercourse or impotency of husband, amounts to cruelty. In Rita v. Balkishan Nijhawan, AIR 1973 Del. 200 Delhi High Court observed " the law is well settled that if either of the parties to marriage being healthy and having physical capacity refuses to have sexual intercourse the same would amount to cruelty entitling other to a decree. In our view it would make no difference in law whether denial of intercourse is result of sexual weakness of respondent disabling him from having sexual union with the appellant or it is because of any wilful refusal by respondent."
This view was confirmed by Supreme Court in Siraj Mohd Khan v. Hafizu Nissa, AIR 1981 SC 1972. Therefore, a wife is entitled to decree of divorce on the ground that her husband has become impotent and is unable to have marital intercourse with her. "Impotency" of any party to marriage if exists, at the time of marriage the aggrieved party is then entitled to decree of nullity of marriage under Section 12 of the Act.
(b) Section 13(1A) of Hindu Marriage Act 1955 provides that "Either party to marriage whether solemnized before or after the commencement of this Act may present petition for dissolution of marriage by decree of divorce on the ground that there has been no resumption of cohabitation as between parties to marriage for a period of one year or upward after the passing of decree of judicial separation in proceedings to which they were parties."
Provisions of Section 13(1A) of the Act have been amended vide Marriage Law (Amendment) Act 1976. Now position of Law is that if once a decree of Judicial separation has been passed and cohabitation between parties has not been resumed for period of one year or more, then either party to marriage can apply under Section 13(1A)(i) of the Act for decree of divorce. But that does not mean, once the ground u/s 13(1A) (i) or (i) of Act is proved to exist court will mechanically grant decree of divorce, without seeing whether party seeking relief was wrong-doer or trying to defeat the provisions of law. Though there is no denial of the fact that a party against whom decree of Judicial separation or Restitution of conjugal rights has been passed can lawfully present petition under Section 13(1A) of the Act. But court will not overlook the provisions of Section 23 of the Act while granting any relief and will see the facts of each case. If the ground for relief exist, but party seeking such relief himself is wrong-doer and is trying to take advantage of his or her own wrong then in such situation court may refuse to grant relief.
In the case in hand Decree of Judicial separation was passed on 5.2.1997, against husband `H' on the ground of adultery. Fact that husband was living in adultery with other woman was the reason why wife asked for Judicial separation and court passed the decree of judicial separation. Therefore, husband himself was wrong doer and he himself did not resume cohabitation and then filed the petition for dissolution of marriage by decree of divorce under Section 13(1A((i). He can not take advantage of his own wrong as provided by Section 23 of Act.
In S.K. Deshmukh v. Chitera Lekha 1998 Family Law Cases 537 wife obtained decree for Judicial separation on the ground that the husband was living in adultery. After passing of said decree, there was no resumption of cohabitation between parties and the husband filed petition for divorce under Section 13(1A) (i) of the Act. It was held since decree of judicial separation was passed on the application of wife on the ground that husband is living in adultery with other woman during the life time of first wife, the wrong was committed by him and he can not take advantage of such wrong and therefore in view of provisions of Section 23(1) (a) of the Act, he is not entitled to decree of divorce under Section 13(1A) (i) of Act.
In view of the above discussion in the case in hand, decree of divorce can not be granted.
(c) Section 13(2) of Hindu Marriage Act 1955 provides "A wife may also present a petition for the dissolution of her marriage by decree of divorce on the ground (iii) that in a suit under Section 18 of Hindu Adoption and Maintenance Act 1956 or in proceeding under Section 125 of Code of Criminal Proceeding Code 1973 decree or order as the case may be has been passed against husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year of upwards."
Sub-section (2) to Section 13 of the Act provide additional grounds to wife for decree of divorce. Clause (iii) of Sub-section (2) to Section 13 as stated above was added vide Marriage Law (Amendment) Act 1976, providing that if period of one year or more has elapsed after passing of decree awarding maintenance to wife under Section 18 of Hindu Adoption and Maintenance Act or order under Section 125 of the Cr.P.C. and there has not been any reconciliation between the parties during that period, then wife is entitled to decree of divorce by showing that cohabitation has not been resumed for one year or upwards after the passing order or decree of maintenance.
(d) Section 13(2) (iv) of Hindu Marriage Act 1955 provides that a wife may present a petition for dissolution of her marriage by decree of divorce on the ground 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 age of eighteen years."
In the case in hand the marriage of `W' was solemnized when she was 14 years of age. She after attaining the age of 16 years has withdrawn her company from her husband i.e. she repudiated her marriage at the age of 16 years, but filed petition for divorce under Section 13(2) (iv) of Act after attaining the age of eighteen years. If she has repudiated the marriage after attaining 15 years of age but before eighteen year, she will be entitled to decree of divorce even if petition for decree of divorce might have been filled after the age of eighteen as Explanation to this clause says that this clause applies whether marriage was solemnized before or after the commencement of Marriage Law (Amendment) Act 1976.
Ans. Section 13 of Hindu Marriage Act 1955 lays down that husband or wife may by presenting petition, get the marriage dissolved by decree of divorce on the grounds enumerated therein. Clause (v) of Sub-section (1) of Section 13 says lays down that petitioner may apply for decree for divorce on the ground that other party has been suffering from venereal disease in communicable form.
In case in hand, R can get decree of divorce dissolving his marriage with W on the ground that W has for sometime been suffering from venereal disease in communicable form. If we see the defence taken up by W, then the fact that disease is curable is not helpful to W, because from perusal of bare provision, it will be clear that once it is proved by petitioner that respondent is suffering from venereal disease in communicable form, it is sufficient and it is no defence to urge that disease is curable. So first plea of W is not sustainable.
Coming to second plea, taken up by W i.e. disease has been contracted from R himself. Here Section 23 of Hindu Marriage Act is relevant. Clause (a) of Sub-Section (1) of Section 23 lays down that "if the court is satisfied that (a) any of the grounds for granting relief exists and petitioner ...... is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief and there is no other legal ground why relief should not be granted, then, and in such a case, but not otherwise, the court shall decree such relief. The later part of clause (a) of S.23(1), i.e. "is not in any way taking advantage of his or her own wrong or disability" read with the words at the end of Sub-section (1) "then and in such a case, but not otherwise" makes it abundantly clear that the Court cannot pass a decree granting any relief under the Act in favour of a petitioner who is in any way taking advantage of his or her own wrong or disability for the purpose of such relief. It is not enough that the petitioner has established the ground on which relief is sought. His or her own wrong or disability is an absolute bar to the relief sought by the petitioner.
In Tarachand v. Smt. Narain Devi, AIR 1976 Pun. 300 Punjab and Haryana High Court observed that Section 23 is based on equitable principle that he who comes to the court, must come with clean hands in other words a wrong-doer should not be permitted to take advantage of his or her own wrong or disability while seeking relief from the court.
In Dharmendera Kumar v. Usha Kumar, AIR 1977 SC 2218 Supreme Court observed that in order to be "wrong" within the meaning this clause, the conduct alleged must be misconduct, serious enough to justify denial of relief.
In case in hand, it is proved by W (Wife) that disease in question has been contracted to her from R (Husband) therefore in view of provisions of Section 23 of Act petitioner is not entitled to decree of divorce because he is trying to take advantage of his own wrong and disability.
Ans. Maintenance Pendente lite - Section 24 of Hindu Marriage Act 1955 deals with Maintenance pendente lite i.e. maintenance during pendency of litigation. Provision is based on the principle that any party to marriage should not be deprived of taking any relief under the Act only because he or she has less or no means to approach the court or engage the counsel. Section 24 of the Act provides :-
"Where in any proceeding under this Act it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner's own income and the income of the respondent, it may seem to the court to be reasonable."
So once either party to marriage has initiated any proceedings under Hindu Marriage Act then during pendency of such proceedings, either party to marriage may demand maintenance and cost of proceedings from other party to the marriage and if this prayer is granted by court, then other party is bound to pay maintenance and cost as directed by court. In P.S. Krishna Murthy v. P.S. Mahadevi, AIR 1987 A.P. 237 it was observed : A reading of the provision of Section 24 of the Act would adumbrate that the condition precedent for an application under Section 24 is that the spouse, either wife or husband has no independent income sufficient to the spouse for his or her maintenance and of necessary expenses. In determining the quantum regard should also be had to the petitioner's own income and the income of the other spouse in computation of the monthly maintenance payable by the other spouse and that matter was left to court's discretion determine the quantum on the fact and circumstances in such case. In Jasbir Kaur Sehgal v. Dist. Judge Dehradun, AIR 1997 SC 3397 it was observed that Section 24 of the Act, no doubt talks of maintenance of wife during pendency of the proceedings, but this section cannot be read in isolation and cannot be given restricted meaning, therefore right of wife to maintenance u/s 24 of the Act would include her own maintenance as well as maintenance of her unmarried daughter living with her. Permanent alimony and Maintenance. - Section 25 of the Hindu Marriage Act, 1955, lays down that :(1) Any court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, an application made to it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent's income and on other property, the applicant, the conduct of the parties and other circumstances of the case, it may seem to the court to be just, and any such payment may be secured if necessary, by a charge on the immovable property of the respondent.
(2) If the court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under sub-section (1), it may, at the instance of either party, vary, modify or rescind any such order in such manner as the court may deem just.
(3) If the court is satisfied that the party in whose favour an order has been made under this section has remarried, or if such party is the wife that she has not remained chaste, or if such party is the husband that he has had sexual intercourse with any woman outside wedlock, it may at the instance of the other party vary, modify or rescind any such order in such manner as the court may deem just.
Ans. Disposal of property of a Hindu spouse. - Section 27 of the Hindu Marriage Act, provides that -
In any proceeding under this Act, the Court may make such provisions in the decree as it deems just and proper with respect to any property presented at or about the time of marriage which may belong to both the husband and wife.
Scope of section - In Balkrishna Ram Chandra Kadam v. Sangeeta B. Kadam, AIR 1997 SC 3562 it was observed that Section 27 of Hindu Marriage Act unmistakably vests the jurisdiction in court to pass an order, at the time of passing a decree in matrimonial cause in respect of property presented at or about the time of marriage, which may belong jointly to husband and wife. Section 27 provides an alternative remedy to wife so that she can recover the property which is covered by the section by including it in the decree in matrimonial proceedings without having to take recourse to filing of separate Civil Suit and avoid further litigation ------------The property as contemplated by Section 27 is not the property which is given to the wife at the time of marriage only. It includes the property given to parties before or after marriage also, so long as it is relatable to the marriage. The expression "at or about the time of marriage" has to be properly construed to include such property which is given before or after the marriage to parties to become their "joint property".
Ans. Section 27 of the Hindu Marriage Act reads thus:
"Disposal of property -
In any proceeding under this Act the court may make such provisions in the decree as it deems just and proper with respect to any property presented, at or about the time of marriage, which may belong jointly to both the husband and the wife."
While interpreting this provision in Balakrishna Ramchandra Kadam v. Balkrishna Kadam, JT 1997(7) SC 1742, the Supreme Court observed : On a plain reading of the Section, it becomes obvious that the Matrimonial Court trying any proceedings under the Hindu Marriage Act, 1955, has the jurisdiction to make such provision in the decree as it deems just and proper with respect to any property presented "at or about the time of marriage" which may belong jointly to both the husband and the wife. This Section provides an alternative remedy to the wife so that she can recover the property which is covered by the Section , by including it in the decree in the matrimonial proceedings, without having to take recourse to the filing of a separate Civil Suit and avoid further litigation.
In the case in hand, if the wife succeeds in proving that the jewellery was given to her at the time of reception after about a week of the marriage the same would be relatable to the marriage and covered by Section 27 of the Act. The court will have to pass an appropriate order regarding such jewellery deciding the petition for divorce.
Ans. The Hindu Succession Act, 1956, is one is series of enactments purporting to change the personal law of Hindus. The fact is that the ancient law which had been governing the Hindus now for centuries had remained almost unimpaired except for few customs here and there. There had been modifications to suit the changing needs of the time and society and exigencies of local conditions. The Hindu Succession Act 1956, was the culmination of movement for changing the ancient Hindu Law for a more equitable, consistent and coherent system of jurisprudence.
An Expert Committee was constituted to draft comprehensive code to govern the Hindus of India. This committee consisting of leading lawyers and learned jurists, recommended codification and prepared two draft Bills one dealing with the law of intestate succession and the other law was regarding Marriages. These Bills were presented to Assembly but by resolution, Hindu Law Committee was revived and directed to formulate an exhaustive piece of legislation covering all branches of Hindu Law. The Hindu Code Bill was then divided into parts relating to Marriage, Succession, Adoption, Guardianship etc.
Object. - The object of Hindu Succession Act, 1956, is to evolve a fairly uniform system of law for all Hindus with respect to intestate succession. It removes inequalities between men and women with respect to rights in property and evolves a list of heirs entitled to succeed on intestacy based on natural love and affection rather than religious efficacy.
Thus the main objects may be enumerated as under :
(1) to evolve a fairly uniform system of law for all Hindus with respect to intestate succession, that is to say, succession to property in respect to which a deceased person has not made a will;
(2) to give a right to inheritance to daughters which previously under all systems of pure Hindu law was not given to them;
(3) to evolve a list of heirs entitled to succeed on intestacy based on natural love and affection rather than or religious efficacy;
(4) the law should be administered as it is found on the statute book and the customs ought not to hamper or alter statute law.
Scope. - The scope of the Act has been widened to include, every citizen of India who is not a Muslim, Christian, Parsi or Jew by religion. Section 2 of the Act defines persons to whom the Act applies. It will apply to all Hindus domiciled in the said remaining territory; Hindus domiciled outside India, will be governed by the well-defined principles of international law. The Indian Courts should, therefore, give effect to the Act and its territorial nature brings all Hindus within the scope of the Act, irrespective of residence, provided the matter arises before an Indian Court. The differences prevailing up to this time in Mitakshara and Dayabhaga Schools of Hindu Law have been removed and now the followers of both the Schools are to be governed by the same simple statute law.
Ans. (1) Agnate -- One person is said to be an agnate of another if the two are related to each other either by blood or adoption wholly through males. The agnatic relation may be male or female. Such relationship is the relationship by blood and not by marriage. Thus the ascendants and descendants of a Hindu in the male line of succession or those who come in the family by adoption through males are agnates. Thus one's father, grandfather etc. in ascending line, uncle's son etc. in the collateral line and son, grandson in the descending line are his agnates.
(2) Cognate -- One person is said to be cognate of another if the two are related by blood or adoption but not wholly through males. A person is said to be cognate of another if the two are related through a female such as sister's son or daughter's son. This class includes relationship by marriage.
(3) Full Blood -- The persons are said to be related to each other by full blood when they have descended from a common ancestor by the same wife e.g., full brother, full sister, full paternal uncle etc.
(4) Half-Blood -- The persons are said to be related to each other by half blood when they have decended from a common ancestor but by different wives. Thus the step brothers born of father's different wives are related to each other by half blood.
(5) Uterine Blood -- Two persons are said to be related to each other by uterine blood when they are descended from a common ancestress by her different husbands. Thus a woman having two husbands at a time or one after another giving birth to children creates relationship by uterine blood among her children.
(6) Intestate -- A person is said to die intestate in respect of property of which he or she has not made a testamentary disposition. A person may dispose of his property by testamentary disposition. The property then devolves according to the terms of the will. There may be a will which is not capable of taking effect, e.g., the will made for an illegal purpose. So the will must be an operative will and if the will is void and incapable of taking effect is will be deemed that the testator had died intestate.
(7) Related -- Related means one related to other by legitimate kinship. Kinship is created by blood or by adoption. Legitimacy depends upon marriage laws and is to be determined accordingly. Illegitimate children shall be deemed to be related to their mother and to one another and their legitimate descendants shall be deemed to be related to them and to another and any words expressing relationship of denoting a relative shall be construed accordingly. Therefore an illegitimate child shall not be recognized as an heir to his father. The mother will however be treated as fountain of descent and establishing relationship between her and her issues. As regard descendants only the legitimate issues of her own issue shall be deemed to be related to the mother and to her legitimate children.
Ans. The Hindu Succession Act 1956 does not apply to the following three special kinds of properties :-
1. Where Indian Succession Act 1925 applies.
2. Estates devolving on single heir--Impartiable estate.
3. V.T.K. Estate.
1. Where Indian Succession Act 1925 applies -- As per Section 5(i) of the Act, the Hindu Succession Act 1956 is not applicable to any property succession to which is regulated by the Indian Succession Act 1925 by reason of the provision contained in Section 21 of the Special Marriage Act, 1954 which deals with succession to property of parties married under Special Marriage Act and lays down that --"Notwithstanding any restriction contained in the Indian Succession Act 1925 with respect to its application to members of certain communities succession to the property of any person whose marriage is solemnized under this Act and to the property of issue of such marriage shall be regulated by the provisions of the said Act and for the purposes of this Section that Act shall have effect as if Chapter III of Part V (Special Rules for Parsi Intestate) had been omitted therefrom."
2. Impartible Estate -- As per Section 5(ii) of the Act, any estate which descends to a single heir by the terms of any covenant or agreement entered into by the Ruler of any Indian State with the Government of India or by the terms of the enactment passed before the commencement of this Act is exempted from the application of this Act. Thus it is not every impartible estate which is exempt from the application of the Act but only such impartible estate as enumerated in Section 5(ii) of the Act are exempt and rest are governed by the Act. 3. V.T.K. Estate -- Section 5(iii) of the Act provides that the Hindu Succession Act 1956 is not applicable in case the Valiamma Thampuran Kovilagam Estate and the palace fund administered by the palace administration Board by reasons for power conferred by proclamation dt. 29th June 1949 promulgated by Maharaja of Cochin. The Allahabad High Court has taken the view that the provisions of the Act cannot be made applicable to agricultural plots governed by the U.P. Zamindari Abolition and Land Reforms Act. Under the U.P. Zamindari Abolition and Land Reforms Act which regulated tenancy rights, there is no provision applying personal law to any of the tenures created under that Act and thus the provisions of the Hindu Succession Act are wholly inapplicable to the land tenures under the U.P. Zamindari Abolition and Land Reforms Act. [Prema Devi v. Jt. Dir. Consolidation, AIR 1970 All. 238]
Ans. Under Mitakshara school of Hindu law, two modes of devolution of property, are recognized i.e. by Survivorship and Succession. The rule of devolution of interests by survivorship applied to Joint family property. Rule of succession applied to separate or "self acquired property. The property of a Hindu male may consist of `Self-acquired property" and "interest in joint family property". Therefore, whenever a question regarding devolution of property of a male under Mitakshara school arises, a distinction must always be drawn between ancestral and self acquired property.
Principle of devolution of Joint family property interests by Survivorship has been retained in Modern Law, after commencement of Hindu Succession Act, 1956. Section 6 of the Act says :-
When a male Hindu dies, after the commencement of this Act, having at the time of his death, an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act.
Provided that if the deceased had left him surviving a female relative specified in Class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship.
Explanation I
For purposes of this section, the interest of a Hindu Mitakshara co- parcener shall be deemed to be the share in the property that would have been allotted to him if the partition of the property had taken place immediately before his death irrespective of the fact whether he was entitled to claim partition or not.
Explanation II
Nothing contained in the proviso to this section shall be construed as enabling a person who has separated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred therein.
Section 6 of the Act contains the mist important provision of the Act in the sense that while the object of enacting this Act has been to remove the effects of the old Hindu Law, this Act still recognizes the devolution of the property by survivorship. But on the other hand by providing the proviso to the section, the effect of the section has been nullified in the sense that if there is a female then property will devolve by succession and not by survivorship and one can hardly imagine of a family without a female as detailed in Class I. So it is a peculiar provision recognizing survivorship but nullifying it virtually to the fullest extent. Moreover, the section, in its explanation No. I contains an idea of notional partition.
In Bengal Immunity v. State of Bihar, AIR 1955 SC 661, it was observed that death of a coparcener leaving behind a female does not mean automatic partition among heirs. It is a fiction of law, it neither effects a severance of status nor does it demarcate the interests of other coparceners, this notional partition is to ascertain the share of deceased coparcener.
Ans. Section 6 of Hindu Succession Act 1956 provides "When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara Coparcenary property, his interest in the property shall devolve by survivorship upon surviving members of coparcenary and not in accordance with this Act :
Provided that if the deceased had left him surviving a female relative specified in class I of the schedule or male relative specified in that class who claims through such female relative, the interest of deceased in coparcenary property shall devolve by testamentary or intestate succession.
Explanation No. 2 to Section 6 says that nothing contained in the provision of this Section shall be construed as enabling a person who has separated himself from coparcenary before death of deceased. Section 8 of Hindu Succession Act says that property of a male Hindu dying intestate shall devolve according to provisions of chapter (a) firstly upon the heirs being relatives specified in class I of the schedule...." Since under old Mitakshara School of Hindu Law, joint family property devolves the survivorship. This concept has been retained in Section 6 of the Hindu Succession Act. However proviso to Section 6 says if a deceased having interest in coparcenary property at the time of his death is survived by female relative of class I of schedule of Act or male relative of said class, claiming through such female then his interest in coparcenary property shall devolve by testamentary or intestate succession and then provisions of Section 8 of the said Act will apply, while keeping in mind, that as per Explanation 2 of Section 6, any heir, who has got separated from the family before the death of coparcener will be excluded from rule of succession as given u/s 8 of the Act. This rule of succession as provided under Section 6 read with Section 8 of the Act has its application only in respect of deceased's share in coparcenary property. But where there is no coparcenary property of deceased, or intestate has left behind only self acquired property, then same shall devolve according to Rules as provided under Section 8 of the Act and the fact that a son had separated himself from family before death of intestate will not affect his right to claim share in self acquired property of male Hindu died intestate. Turning to the case in hand, it is clear that originally coparcenary consisted of A and his three sons, B, C, and D. It is further clear that the son B separated himself during the life time of his father, and the coparcenary continued between A and his two sons C and D. A has died leaving behind his three sons and a widow W. The widow W is class I female heir of the deceased. Therefore, the interest of the deceased in the coparcenary property shall devolve upon his two sons C and D, and his widow W as provided in Sections 6 and 8 of the Act. B is not entitled to get any share in the said coparcenary interest of the deceased. However B is entitled to get 1/4th share in the separate property of the deceased as laid down in Section 8 of the Act.
Ans. Section 6 of Hindu Succession Act 1956 says "When a male Hindu dies after the commencement of this Act having at the time of his death an interest in Mitakshara Coparcenary property, his interest in property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act. Proviso to the Section lays down that if a Mitakshara Coparcener dies living behind a female relative or a male relative claiming through a female in class I, his undivided interest will not devolve by survivorship but by succession as provided under the Act.
Then question arises as to what is the interest of a deceased coparcener when he dies. Explanation 1 to Section 6 says "For the purpose of this Section, the interest of a Hindu Mitakshara Coparcener shall be deemed to be share in property that would have been allotted to him if partition of property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not."
Death of a coparcener leaving behind a female does not mean automatic partition among heirs. Explanation 1 to Section 6 contemplates a notional partition only for determining the share of deceased in Coparcenary property.
Then Explanation 2 to the Section says that nothing contained in the provision shall be construed as enabling a person who has separated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein. Section 8 lays down that the property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter, (a) firstly, upon the heirs, being the relative specified in Class I of the Schedule, and so on.
A plain reading of these two Sections shows that Section 8 is a general provision and Section 6 is in the nature of an exception of Section 8. Section 8, therefore, applies to all cases of intestacy of a male Hindu except those to which Section 6 applies. Section 6 applies to the case of a male Hindu having at the time of his death an interest in a Mitakshara coparcenary property.
This being the legal position, coming now to problem (a) Since the male Hindu in Mitakshara Coparcenary has died leaving behind his Class I female heirs, his share in the coparcenary property shall not devolve upon the surviving coparceners but by intestate succession. Further, the separated son is not entitled to any share in the coparcenary interest of the deceased in view of Explanation 2 to Section 6 of the Act.
If a notional partition of the coparcenary property is made as if the deceased is alive, he would be entitled to 1/5th share therein. This share shall devolve upon the widow, three sons and the daughter in equal share as per Section 8 of the Act. Thus, each of them shall have 1/25th share in the coparcenary interest of the deceased.
(b) Section 8 of Hindu Succession Act, 1956 lays down the general Rules of succession in the case of males. It enacts that the property of a male Hindu dying intestate shall devolve according to the provisions of Chapter II:
(a) firstly, upon the heirs, being the relative specified in Class I of the Schedule;
(b) secondly, if there is no heir of Class I, then upon the heirs, being the relatives specified in Class II of the Schedule;
(c) x x x x x x
(d) x x x x x x
Section 9 provides that among the heirs specified in the Schedule, those in Class I shall take simultaneously and to the exclusion of all other heirs. Section 10 lays down four Rules for distribution of property among heirs in Class I of the Schedule. In the case in hand, brother of the deceased is Class II heir and the remaining relatives are Class I heirs. Therefore, brother stands excluded. In accordance with the provisions of Sections 9 and 10, the property shall be distributed among the remaining five Class I heirs, each taking 1/5th share.
Ans. Provisions regarding succession in case of male Hindu dying intestates are contained in Sections 8, 9 and 10 and 11 of Hindu Succession Act 1956. Section 8 of the said Act inter alia provides `property of male Hindu dying intestate shall devolve, firstly upon the heirs being relative specified in class I of the schedule'. Section 9 of the Act provides "Among the heirs specified in the schedule those in class I shall take simultaneously and to the exclusion of all other heirs...." Section 10 of the Act then provides that `The property of intestate shall be divided among heirs in class I of the schedule. Rule 1 says intestate's widow shall take one share and Rule 2 says surviving sons and daughters and mother of the intestate each shall take one share each..."
So reading together all above said provisions of Hindu Succession Act 1956, it is clear that in the case in hand widow of A (AW) and A's two daughters ADI and ADII will get equal share from Rs. 60000. Now question arises whether the son `X' adopted by widow of A after the death of A will get any share from Rs. 60000 left by A.
Though Section 12 of Hindu Adoption and Maintenance Act 1956 lays down that: "An adopted child shall be deemed to be child of his adoptive father or mother for all purposes with the effect from date of 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 adoption in the adoptive family.
Provided that:
(a) The child cannot marry any person whom he or she would 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.
Section 12 lays down very important provisions. It says that from the date of adoption of child adopted child ceases to be child of natural family and adopted child is deemed to child of the adopter. From the date of adoption, there shall be complete transplantation of child in adoptive family. Only tie of an adopted child which remains with his or her natural family is that he can not marry any person in his or her natural family whom he could not have married before his adoption. Though an adopted child from date of adoption is presumed to be child of his or her adoptive family for all purposes including inheritance by virtue of Section 12 of Hindu Adoption and Maintenance Act 1956 but Proviso (c) to Section 12 makes it clear that the adopted child shall not divest any person of any estate which vested in him or her before the adoption. That means if before adoption any property or interest has already been vested in any member or naturally born daughters, adoption shall not disturb such right. Therefore in case in hand, on the death of A his widow AW, two daughters ADI and ADII inherited property i.e. 60000/- in equal shares as stated above, because after the death of an intestate, inheritance of his property can not be kept pending. Latter AW adopted a son `X', after the death of her husband (a) Adoption of `X' shall take effect from date of his adoption and `X' will be deemed to be son of his adoptive family from date of adoption but adoption of X will not divest AW (Widow of A) and ADI and ADII (A's daughters) the estate which vested in them before his adoption in view of provision (1) to Section 12 of the Act.
Ans. (ii) Sections 8 to 11 Hindu Succession Act 1956 deal with succession of property of Hindu male.
Section 8 of the Act says : "Property of male Hindu dying intestate shall devolve:
Firstly, upon the heirs being the relatives specified in class I of Schedule.
Secondly, If there is no heir of class I, then upon the heirs being relatives specified in class II of Schedule.
Thirdly, If there is no heir of any of the two classes then upon agnates of deceased.
Lastly if there is no agnate then upon cognates of deceased."
Section 9 then provides "Among the heirs specified in the schedule, those in class I shall take simultaneously and to the exclusion of all other heirs and those in first entry in class II shall be preferred to those in second entry, those in second entry shall be preferred to those in third entry and so on in succession. So reading Sections 8 and 9 together it is clear that heirs of intestate as specified in class I of the schedule of Act will be preferred to class II and if there is no heir of class I, then heirs in first entry of class II shall be preferred to next entry in class II and so on. Section 10 then says that property of intestate shall be divided among heirs of Class I as Rule 1 says intestate widow and if there are more than one widow all widows together will take one share. Rule 2 Surviving sons and daughters and mother of intestate, each will take one share. Rule 3 Heirs in the branch of each predeceased son or each predeceased daughter will take between them one share. Rule 4 Distribution of share among the heirs in the branch of predeceased son shall be so made that his widow and surviving sons and daughters get equal portion and branch of his predeceased son get the same portion. (ii) Among the heirs in the branch of predeceased daughter shall be so made that surviving sons and daughter get equal portion. Section 11 then says property of an intestate shall be divided between heirs specified in any one entry in class II of the schedule so that they get equal share. That being the legal provision, let us now decide the succession of intestate's property in each set of heirs. Set I Son (S), Daughter (DD) and Grand Son's widow (SSW) being class I heirs, will succeed to intestate's property in equal shares and father (F) is class II heir, therefore will be excluded. Set II Daughter (D), Mother (M), Widow (W) and Son's Widow (SW) are class I heirs of intestate and therefore will succeed to intestate's property in equal share and father (F) being Class II heir of intestate will be excluded. Set III Brother (B), son's daughter's son (SDS) and Daughter's son's son (DSS) are class II heirs of intestate. Brother (B) and son's daughter's son are in second entry of Class II and will succeed to intestate's property in equal share. Daughter's son's son comes in IIIrd entry of Class II and thus has to be excluded.
Ans. Section 14 of the Hindu Succession Act 1956 provides as under:
(1) "Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.
Explanation : In this Sub-section , `property' includes both movable and immovable property acquired by a female Hindu by inheritance or devise or at a partition or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not before, at or after her marriage, by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.
(2) Nothing contained in Sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property."
So under Section 14(1) of Hindu Succession Act any property acquired by Hindu female either before or after the commencement of this Act except that which is covered by Sub-Section (2) will be her absolute property. Section 14 has been given retrospective effect. Two conditions are necessary for application of Section 14: (a) Ownership of property must vest in her and (b) She must be in possession (either actual or constructive) of the estate when the Act came into force.
In Eramma v. Veerupana, AIR 1966 SC 1879 Supreme Court observed "Words `as full owner thereof and not as limited owner' as given in the last portion of Sub-Section (1) of Section 14 clearly indicate that legislature intended that limited ownership of a Hindu female should be enlarged into full ownership. The property possessed by a female Hindu as contemplated in Section 14 is clearly the property to which she has acquired some kind of title whether before or after the commencement of the Act. Section 14 does not confer a title on the female Hindu where she did not infact possess any.
So any property that a Hindu female acquires after coming into force the Act will be her absolute property unless given to her with limitation. Section 14(2) lays down that if the gift, will or any instrument, decree or order of a civil court or award grants only restricted estate to Hindu female she will take restricted property.
In V. Tulasamma v. Sesha Reddi (1997) 3 SCC 99 Supreme Court observed : Section 14(2) applies only to cases where grant is not in lieu of maintenance or in recognition of pre-existing rights but confers a fresh right or title for the first time and while conferring the said title certain restrictions are placed by grant or transfer. Where, however, grant is merely in recognition or in implementation of a preexisting right to claim maintenance the case falls beyond the purview of Section 14(2) and comes squarely within the Explanation to Section 14(1).
Similarly in Raghubir Singh v. Gulab Singh (1998) 6 SCC 314 Supreme Court again observed that "It is by force of Section 14(1) of the Act, widow's limited interests gets automatically enlarged into an absolute right notwithstanding any restriction placed under the document or the instrument. So far as Sub-Section (2) of Section 14 is concerned, it applies to instrument, decrees, awards, gifts etc. which create an independent or a new title in favour of the female for the first time. It has no application to cases where the instrument/document either declares or recognizes or confirm her share in property or her pre- existing right to maintenance."
Reference can also be made of Smt. Beni Bai v. Raghubir Prasad AIR 1999 SC 1147.
Ans. Sections 15 and 16 of Hindu Succession Act 1956 provide rule as to succession of property of female Hindu died intestate.
Section 15 of the Act says
(1) The property of a female Hindu dying intestate shall devolve according to Rules set out in Section 16.
(a) Firstly, upon the sons, daughters (including children of any predeceased son or daughter) and husband.
(b) Secondly, upon the heirs of the husband.
(c) Thirdly, upon the mother and father.
(d) Fourthly, upon the heirs of the father and
(e) Lastly, upon the heirs of the mother.
(2). Notwithstanding anything contained in Sub-section (1)(a) any property inherited by female Hindu from her father or mother shall devolve in the absence of any son or daughter of deceased (including the children of predeceased son or daughter) not upon the other heirs as referred to in Sub-section (1) in order specified therein but upon the heirs of the father and
(b) any property inherited by female Hindu from her husband or from her father-in-law shall devolve in the absence of any son or daughter of the deceased (including the children of any predeceased son or daughter) not upon the other heirs referred to in Sub-section (1) in the order specified therein but upon the heirs of the husband.
In Bhagat Ram by L.Rs. v. Teja Singh, AIR 2002 SC 1, it was observed taht in view of provisions of Section 15(2)(a) of Hindu Succession Act, if property held by a female was inherited from her father or mother, in the absence of any son or daughter of deceased including children of pre-deceased son or daughter, it would devolve upon the heirs of the father. Similarly under clause (b) of sub-selection (2) of Section 15, the property inherited by a female Hindu from her husband or her father-in-law shall also under similar circumstances devolve upon heirs of husband. It is the source from which property was inherited by Hindu Female which is most important for the purpose of devolution of her properly. Fact that female Hindu originally had limited rights and latter acquired full rights in any way would not alter the rules of succession given u/s 15(2). Reading the Section 15 of the Act, keeping in view facts of case in hand, it is clear that Hindu female (a) has been survived by son (X) and two daughters (D and E) and two sons of a predeceased son (R and M) beside her husband. Therefore Sub-section (2) of Section 15 has no application to case in hand. Section 16 of the Act says: The order of succession among the heirs referred to in Section 15 shall be and the distribution of the intestate's property among those heirs shall take place according to following Rules namely: Rule 1 : Among the heirs specified in Sub-section (1) of Section 15, those in one entry shall be preferred to those in any succeeding entry and those included in same entry shall take simultaneously. Rule 2 : If any son or daughter of the intestate had predeceased the intestate leaving his or her own children alive at the time of intestate's death, the children of such son or daughter shall take between them the share which such son or daughter would have taken if living at the intestate's death. Rule 3 : x x x x x x x" Thus in the case in hand, property of female Hindu shall devolve upon Husband (H), son (X), daughters (D and E) and two sons of a predeceased son (R and M), being heir in clause (a) of Sub-section (1) of Section 15 of the Act and other relations of female Hindu shall not get anything in view of Rule 1 of Section 16. It is important to note that R and M being sons of a predeceased son of female Hindu would get that share to which their father would have been entitled to in view of Rule 2 of Section 16 of the Act. Therefore Estate of female Hindu dying intestate shall be divided in following ratio : son (X) and daughter (D and E) and husband (H) would get 1/5th share each. R and M would together get 1/5th share. R would get 1/10th and M would get 1/10th.
Ans. In case of a Hindu female dying intestate her natural born son will naturally inherit, being related by legitimate kinship. Then question arises as to "Adopted Son" of female Hindu. Section 12 of Hindu Adoption and Maintenance Act 1956 makes it clear and provides that an adopted child shall from the date of his or her adoption, deemed to be child of his or her adoptive father and mother for all purpose's and from the date of adoption all the ties of adopted child shall be deemed to be severed upon his or her family of birth and replaced by those created by adoption in the adoptive family. Therefore in view of Section 12, of Hindu Adoption and Maintenance Act 1956, an adopted son shall be on the same footing with natural born son for succession.
Section 3(1)(J) of Hindu Succession Act has defined the term `Related' as `Related' means related by legitimate kinship provided that illegitimate children shall be deemed to be related to their mother and to one another and their legitimate descendants shall be deemed to be related to them and to one another and any word expressing relationship or denoting a relative shall be construed accordingly. So an illegitimate son shall be deemed to be related to his mother as her son.
Now it is clear that property of Hindu female shall devolve upon Natural born son, adopted son as well as illegitimate son in the ratio as provided by Sections 15 and 16 of Hindu Succession Act. Section 15(1) of the Act says that "The property of female Hindu dying intestate shall devolve according to Rules set out in Section 16 (a) Firstly upon sons and daughters (including children of predeceased son or daughter) and the husband..." Then Section 16 Rule 1 says intestate's property among the heirs specified in Sub-section (1) of Section 15, those in one entry shall be preferred to those in any succeeding entry and those included in same entry shall take simultaneously." Therefore son, the adopted son and illegitimate son of female intestate shall succeed simultaneously to her estate in equal shares.
Ans. Section 23 of Hindu Succession Act 1956 provides: "Where a Hindu intestate has left surviving him or her both male and female heirs specified in class I of the schedule and his or her property includes a dwelling house wholly occupied by members of his or her family, then notwithstanding anything contained in this Act, the right of any such female heir to claim partition of the dwelling house shall not arise until the male heirs choose to divide their respective shares therein, but the female heir shall be entitled to right of residence therein, provided that where such female heir is a daughter she shall be entitled to right of residence in the dwelling house only if she is unmarried or has been deserted by or has separated from her husband or is a widow."
So Section 23 of the Hindu Succession Act says that it would be wrong on the part of the female heirs to ask for partition of the dwelling house unless the male heirs of intestate choose to divide their respective shares therein. Section 23 has provided two safeguards:
(a) Dwelling house should wholly be occupied by the members of the family of intestate.
(b) Female heirs of intestate shall have a right of residence in dwelling house. However, married daughters have no right of residence in the dwelling house.
However if a married daughter becomes widow, separates from her husband or is deserted by her husband, her right of residence revives. In Narashimha Murthy v. Smt. Susheela Bai and others, AIR 1996 SC 1826, it was observed that when succession of a Hindu intestate is open his/her class I heirs are entitled at a partition to their respective shares. Succession cannot be post-poned. However, exception has been engrafted by Section 23 respecting tradition of preserving family dwelling house to effectuate family unity and prevent its disintegration by dividing it by meets and bounds------. A female heir's right to claim partition of the dwelling-house does not arise until the male heirs chose to divide their respective shares therein, but till that happens the female heir is entitled to the right to reside therein. The female heir already residing in the dwelling-house has a right to its continuance but in case she is not residing, she has a right to enforce her entitlement of residence in a Court of law. The proviso makes it amply clear that where such female heir is a daughter, she shall be entitled to a right of residence in the dwelling-house only if she is unmarried or has been deserted by or has separated from her husband or a widow. The proviso thus is meant to cover all daughters, the word "daughter" in the proviso is meant to include daughter of a predeceased son, daughter of a predeceased son of a predeceased son and daughter of a predeceased daughter. It was also observed that, Dwelling house is that house which is in actual, physical inhabited possession of one or more members of intestate's family and if some are absent due to exigencies of service or vacations, the dwelling house remains available to them to re-enter without obstruction or hinderance and on that premise enabling the female heir to assert a right of residence and entery therein. A tenanted house does not fit into this description.
Ans. General provisions relating to succession have been laid down in the Hindu Succession Act, 1956 in Section 18 and onwards and the same may be described as under --
1. Full blood preferred -- As per Section 18 of the Act full blood is preferred to half blood. Section 18 lays down that heirs related to an intestate by full blood shall be preferred to heirs related by half blood, if the nature of the relationship is the same in every other respect.
Heirs descending from the common ancestor by the same wife are to be preferred to those who are descended from the same common ancestor but by different wives. Thus the full sister's daughter shall be preferred to half brother's son.
2. Devolution per capita -- As per Section 19 of the Act it two or more heirs succeed together to the property of an intestate they shall take the property :
(a) Save as otherwise expressly provided in this Act, per capita and not per stripes; and
(b) As tenants in common and not as joint tenant.
Succession to the estate of the deceased shall be individual and not joint. Each heir shall take his or her share individually and not branch- wise. The heirs shall not succeed the estate of the deceased jointly but take their individual shares simultaneously as tenants in common. This system practically finishes off the joint family system which was the backbone of Hindu Society in good olden days. 3. Right of child in womb -- Section 20 of the Act provides about the right of a child in womb. It lays down that a child who was in the womb at the time of the death of intestate and who is subsequently born alive shall have the same right to inherit to the intestate as if he or she had been born before the death of the intestate, and the inheritance shall be deemed to vest in such a case with effect from the date of death of the intestate. A child in womb at the time of intestate's death has been given the right to share the property of the deceased if it is born alive subsequently. The inheritance in such a case shall be deemed to vest in the child with effect from the date of the death of intestate. If, however, a child is born he or she will divest the shares allotted to other heirs and there will have to be a re-adjustment of the shares. If, however, the other heirs upon whom the property might have vested belong to Class II of the schedule then they will be completely divested and excluded from their shares and therafter born child whether a son or a daughter shall alone inherit the entire property. 4. Presumption in case of simultaneous deaths -- Section 21 of the Act lays down that where two persons have died in circumstances rendering it uncertain whether either of them and if so which survived the other, then, for all purposes affecting succession to property, it shall be presumed until the contrary is proved that yonger survived the elder. 5. Right of pre-emption - Preferential Right -- Section 22 of the Succession Act embodies the law which is more or less analogous to the law of pre-emption as it is understood under the Mohammedan Law. It confers upon the heirs of Class I of the Schedule a preferential right to acquire an interest which any other heir of the same class may be contemplating to transfer to an outsider. This will be known right of pre-emption with regard to sales has been extended with scope to all kinds of transfers including sales, mortgages, gifts and leases etc. It has been further extended by including immovable property along with business. The provisions are as follows : Where after the commencement of this Act an interest in :-1. any immovable property or
2. any business carried on by him or her whether solely or in conjunction with others :
(i) devolves upon two or more heirs specified in Class I of the Schedule; and
(ii) any one of such heirs proposes to transfer his or her interest in the property or business the other heirs shall have a preferential right to acquire the interest proposed to be transferred.
Sub-section (2) of Section 22 provides that the consideration for which any interest in the property of the deceased may be transferred in the absence of any agreement between the parties will be determined by the Court on application made for the purpose and if any person proposing to acquire the interest is not willing to acquire it for the consideration so determined, such person shall be liable to pay all costs or incidents to the application. Sub-section (3) of Section 22 lays down that if there are two or more heirs specified in Class I of the Schedule proposing to acquire any interest under this section, that that one who offers the highest consideration for the transfer shall be preferred. 6. Remarriage by widow -- Section 24 of the Act provides that certain widows remarrying may not inherit as widows. It lays down that any heir who is related to an intestate as the widow of a predeceased son, the widow of a predeceased son of a predeceased son or the widow of a brother shall not be entitled to succeed to the property of the intestate as such widow, if on the date of succession she has remarried. In the case of Smt. Kasturi Devi v. D.D., C.A.I.R. 1976 S.C. 2105 it has been held by the Supreme Court that a mother cannot be divested of her interest in the property on the ground of remarriage. The essential condition for the exclusion of these widows from their shares of inheritance is that they have remarried before the death of the intestate. Remarrying will be a disqualification if it takes place before the succession opens i.e., before the death of the intestate but if once the succession has opened out and property has vested in such widows then their subsequent remarriage will not have the effect of divesting them of their shares of the property of the deceased which they have inherited as absolute owners. 7. Unchastity. --Under the present Act unchastity is no ground for exclusion from inheritance. 8. Murderer disqualified -- Section 25 of the Act lays down that murderer is disqualified from inheritance. It lays down that a person who commits murder or abets the commission of murder shall be disqualified from inheriting the property of the person murdered, or any other property in furtherance of the succession to which he or she committed or abetted the commission of the murder. 9. Convert's descendants disqualified -- Section 25 of the Act specified that where before or after the commencement of this Act, a Hindu has ceased or ceases to be a Hindu by conversion to another religion, children born to him or her after such conversion and their dscendants shall be disqualified from inheriting the property of any of their Hindu relatives unless such children or descendants are Hindus at the time when the succession opens. 10. Decease, Defect etc. Not to Disqualify -- Section 28 of the Act makes it clear that no person shall be disqualified from succeeding to any property on ground of any disease, defect or deformity, etc. 11. Succession When Heirs Disqualified -- Section 27 of Act lays down that if any person is disqualified from inheriting any property under this Act, it shall devolve as if such person had died before the intestate. Moreover such off springs of disqualified heirs mentioned in Sections 25 and 26 shall succeed to estate of intestate as if their father predeceased the intestate when the succession opened. 12. Failure of Heirs Escheat -- Section 29 of the Act lays down that if an intestate has left no heirs qualified to succeed to his or her property in accordance with the provisions of this Act such property shall devolve on the Government and Government shall take the property subject to all obligations and liabilities. 13. Will -- The present Act makes important changes with regard to the disposition of property by will. A male Hindu Coparcener, as per Section 30 of the Act has been empowered to dispose of his Mitakshara Coparcener interest by will.
Ans. A. Under the provisions of Hindu Adoption and Maintenance Act, 1956, the giving of child in adoption to another person is not the sole and absolute privilege of the father. His absolute power to give his child in adoption is now qualified to the extent that he cannot do so without the consent of the child's mother. The Act has effected the following important changes :-
(1) It has considerably enlarged the powers of Hindu female to adopt a child. A Hindu woman need not take prior permission of the husband to adopt a child. A widow and an unmarried Hindu female have full right to adopt a child.
(2) Now the Act provides the adoption not only of son, but also that of a daughter.
(3) The performance of Dattaa Homan, a religious ceremony is no longer necessary.
(4) The simple ceremony of giving and taking is only necessary. [Ranjit Kumar Jain v. Kamal Kumar Chowdhury and another (AIR 1982 Cal. 493)].
(5) The upper age limit of the child who is adopted has been fixed at fifteen years unless the custom permits such adoption.
(6) The law has been given an uniformity and all differences between various schools and sub-schools have been removed.
(7) The father, without the consent of the mother, cannot give a child in adoption except in certain circumstances.
(8) The adoptee must be below 15 years of age and unmarried unless the custom permits such adoption.
(9) Adoptive father or mother shall not be deprived of their power to transfer the property merely by reason of adoption of a child.
(10) Provisions relating to registration and presumption therefore has been made.
(11) Specific provisions regarding the maintenance of wife have been incorporated.
(12) The list of the persons entitled to maintenance has been clearly provided. Their rights to get it and the amount to which they will be entitled have been clearly laid down by the Act.
Ans. Hindu Adoption and Maintenance Act 1956 codifies the law relating to Adoption. No adoption can be made except in accordance with provision of this Act. Section 6 provides the requisites of a Valid Adoption and lays down that
No adoption shall be valid unless:
(1) the person adopting has capacity and also the right to take in adoption.
(2) the person giving in adoption has capacity to do so.
(3) The person adopted is capable of being taken in adoption.
(4) The adoption is made in compliance with other conditions mentioned in Chapter II of Act.
Let us understand the requirement of law for valid adoption under following heads: (1) CAPACITY AND RIGHT TO TAKE IN ADOPTION (i) HINDU MALE : Section 7 of the Act says any Hindu male who is of sound mind and who is not minor has capacity to take son or daughter in adoption. However, if such Hindu male has a wife living, then consent of wife is essential for Hindu male to take a child in adoption. However consent of wife is not required where she has completely and finally renounced the world or has ceased to be Hindu or has been declared by court of competent jurisdiction to be of unsound mind. (ii) HINDU FEMALE : Section 8 says any Hindu female who is of sound mind and has attained majority and who is either not married or if married, such marriage has been dissolved or whose husband is dead or has completely and finally renounced the world or has ceased to be Hindu or has been declared to be of unsound mind by court of competent jurisdiction, shall have capacity to take son or daughter in adoption. So law does not give a capacity to married woman to take any child in adoption. She cannot adopt even with the consent of her husband. If there is to be an adoption, it must be made by her husband unless as provided in Section 8. (2) CAPACITY OF PERSONS GIVING IN ADOPTION (i) Capacity of Father to give in Adoption : Section 9 says father of the child if alive shall alone have right to give child in adoption. But father will not exercise this right except with the consent of mother. However consent of mother shall be dispensed with where (i) Mother has completely and finally renounced the world or (ii) ceased to be Hindu or (iii) has been declared by court of competent jurisdiction to be of unsound mind. (ii) Mother : A mother can give her child in adoption if father of child is dead or has completely and finally renounced the world or has been declared by court of competent jurisdiction to be of unsound mind or has ceased to be Hindu. (iii) Guardian : When both mother and father of a child is dead or have completely and finally renounced the world or have abandoned the child or have been declared by court of competent jurisdiction to be of unsound mind or where parentage of child is not known, Guardian of child can give the child in adoption with previous permission of court. (3) PERSONS WHO MAY BE ADOPTED Section 10 of Act says no person shall be capable of being taken in adoption unless (i) He or she is Hindu (ii) He or she has not been adopted (iii) He or she has not been married unless, their custom permits married persons being taken in adoption. (iv) He or she has not completed the age of 15 years unless custom or usage allows a person over the age of 15 years being taken in adoption. (4) OTHER CONDITIONS Apart from above said requirements, following conditions as mentioned in Section 11 of Act must be fulfilled for valid adoption :-a) If adoption is of son, the Adoptive Father or mother must not have Hindu son, son's son or son's son's son, whether by legitimate blood relationship or by adoption.
b) If adoption is of daughter, Adoptive father or mother must not have Hindu daughter, son's daughter (whether by legitimate relationship or by adoptive) living at the time of adoption.
c) If a Hindu wants to adopt a child of the opposite sex, he or she must be older to the child by at least 21 years (clause (iii) and (iv) of Section 11)
d) One and same child can not be adopted simultaneously by two or more persons.
e) Child must be given and accepted by parties in form of ceremony and Adoption deed may be registered.
Ans. (a) Under the old Hindu Law only father or mother could give the child in adoption. Before 1956, the father had power to give his son in adoption even if his wife (child's mother) dissented from it. After the father the mother could give the child in adoption, no one else could give the child in adoption. A Guardian of child had no power to give the child in adoption. Now, under Section 9 of Hindu Adoption and Maintenance Act 1956, father, mother and the guardian have the power to give the child in adoption.
FATHER : According to Section 9 of the Act, father of the child, if alive shall alone have right to give the child in adoption. Father, however, cannot now give the child in adoption without the consent of the mother of the child. Consent of the mother of child may be dispensed with in any of following case:
(a) If she has finally and completely renounced the world
(b) If she has ceased to be Hindu
(c) If she has been judicially declared to be of unsound mind.
In no other case, consent of mother of child can not be dispensed with, even when marriage of father and mother of the child has been dissolved and are living separately, child can not lawfully be given in adoption by father without consent of mother. Expression `Father' as used in Section 9 does not include an adoptive father, putative father or step father. MOTHER : Mother of a legitimate child has, during the life time of father of child, no power to give child in adoption, even with the consent of the father. Mother of a legitimate child can give the child in adoption during the life time of child's father only when (i) Father of the child has ceased to Hindu or (ii) If he has finally and completely renounced the world or (c) If he has been judicially declared to be of unsound mind. The mother has power to give her legitimate child in adoption after the death of the father. However, mother of a illegitimate child has power to give the child in adoption and no question arises as to putative father's consent. A mother u/s 9 of the Act does not lose her right of giving child in adoption (if existing) even when she ceases to be Hindu in view of provision of sub-section (4). THE GUARDIAN : Section 9 (4) of the Act says when both father and mother are dead or have completely and finally renounced the world or have abandoned the child or have been judicially declared to be of unsound mind or where parentage of child is not known then, Guardian of child can give child in adoption with previous permission of court. The term `Guardian' includes dejure and defacto guardian. When a guardian exercise the power of giving the child in adoption, prior permission of court is necessary. No court will accord the permission to an adoption proposed by guardian unless it comes to the finding that adoption will be for welfare of the child. If child is capable of expressing his wishes, his wishes will be taken into account, though court may pass an adoption order contrary to wishes of the child as the welfare of child is of paramount consideration. (b) (i) Section 10 of the Hindu Adoptions and Maintenance Act, 1956 by its clause (i) requires that the boy or girl to be adopted must be a Hindu which expression is to be understood in the connotation given to it by Section 2 of the Act. A Parsi is expressly excluded from the definition of the term `Hindu' by the said Section . Therefore, a Parsi child is not capable of being adopted within the ambit of Section 10 of the Act. Any adoption in contravention of Section 10 would be null and void, as provided by Section 6 of the Act. Therefore, a Hindu male cannot validly adopt a Parsi child. (ii) The person adopted must be lawfully capable of being taken in adoption. According to Section 10 of the said Act, the child to be adopted must not have completed the age of fifteen years. However, this condition is subject to any custom or usage applicable to the parties. This means that where such a custom or usage permits, adoption of a child of the age of 15 year or more will be valid, otherwise the adoption of a Hindu boy aged 16 years is void.
Ans. Before Commencement of Hindu Adoption and Maintenance Act, 1956, two cermonies were necessary - (a) "Datta graha" and (ii) "Datta homa". But after the commencement of the present Act, dramatic changes have been brought in this regard. Section 11 of the Act provides regarding various conditions for valid adoptions, which reads as under:-
(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 must not have a Hindu daughter or son's daughter (whether by legitimate blood relationship or by adoption) living at the time of adoption;
(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 adopted is a male, the adoptive mother is at least twentyone 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 concerned or under their authority with intent to transfer the child from the family of its birth (or in the case of an abandoned child or a child whose parentage is not known from place of family where it has been brought up to the family of its adoption).
In Madhu Sudan Das v. Smt. Naryani Devi, AIR 1983 SC 114, it was observed that for a valid adoption, the physical act of giving and taking is an essential requisite ceremony imperative in all adoptions whatever the caste and this requisite is satisfied in its essence only by actual delivery and acceptance of boy, even though there exists an expression of consent or an executed deed of adoption. In some cases, to complete the adoption a "datta homam" has been considered necessary, but in case of the twice-born classes no such cermony is needed if the adopted boy belongs to the same gotra as the adoptive father. In Lakshman Singh Kothari v. Smt. Rup Kanwar, AIR 1961 SC 1378 it was observed that under the Hindu Law, whether among the regenerate caste or among Sudra, there cannot be a valid adoption unless the adoptive boy is transferred from one family to another and that can be done only by the ceremony of giving and taking. It is essential to have a formal ceremony. No particular form is prescribed for the ceremony, but the law requires that the natural parent shall hand over the adoptive boy and the adoptive parent shall receive him. The parents, after exercising their volition to give and take the boy in adoption may both or either of them delegate the physical act of handing over the boy or receiving him, as the case may be, to a third party.
Ans. Section 11 of a Hindu Marriage Act says any marriage in contravention of clauses (i) (iv) and (v) of Section 5 of Act is null and void. A marriage which is null and void is declared by court by decree of nullity shall be presumed to be void ab initio and will not create any relation between parties to such marriage. However it is important to point out here that any child born out of a marriage which is null and void, will not be illegitimate child. Section 16 of Hindu Marriage Act confers legitimacy upon the children born out of such a marriage. It lays down that "notwithstanding that a marriage is null and void under Section 11, any child of such marriage, who would have been legitimate if the marriage had been valid shall be legitimate whether such child is born before or after the commencement of Marriage Law (Amendment) Act 1976 and whether or not a decree of nullity is granted in respect of such marriage..." Sub-Section (3) to Section 16 of the Act says that nothing contained in Sub-Sections (1) and (2) of this Section shall be construed as conferring upon any child of marriage which is null and void, any right in or to property of any person other than the parents of such child.
So, it now clear that a child born out of a null and void marriage, will be a legitimate child at least for succession to property of parents. In Rameshwari Devi v. State of Bihar, AIR 2000 SC 735, Supreme Court has observed that marriage of parties may because of contravention of clause (1) of Section 5 of Hindu Marriage Act was void marriage but under Section 16 of this Act children of void marriage are legitimate for the purpose of succession to property of father.
In case in hand marriage between J and K may be null and void, but son `S' born out of such marriage shall in view of Section 16 of the Hindu Marriage Act be legitimate son for all purposes including succession to property of K (Father). Coming now to question as to adoption of `A' taken by K. Question for determination is whether adoption of `A' by K is valid and consequently gives right to `A' to succeed the property of K with his natural born son `S'. The adoption of `A' by is not legally valid for following two reasons:
Firstly: Section 7 of Hindu Adoption and Maintenance Act says any Male Hindu who is of sound mind and is not minor has capacity to take son or daughter in adoption provided that such male Hindu has to take the consent of his wife. A male Hindu can dispense with taking of consent of wife only when wife (i) has ceased to be Hindu or (ii) has completely and finally renounced the world or (iii) has been judicially declared to be of unsound mind.
Secondly: Section 11 of the said Act says - that if the adoption is of son, the adoptive father or mother by whom adoption is made must not have a Hindu son, son's son or son's son's son (either by legitimate blood relationship or by adoption) living at the time of adoption. Rules contained in section 11 of Act are absolute and non-compliance with any of them will render an adoption invalid. The existence of a son who is to be deemed to be legitimate child of the parents by operation of section 16 of Hindu Marriage Act, 1955 would be a bar to mother or father's right to take a son in adoption. Therefore the adoption of A either by K or J shall be invalid. An invalid adoption as per Section 5 of Hindu Adoption and Maintenance Act provides neither create any right in adoptive family to any person which he or she could not have acquired except by reason of adoption nor destroys the right of any person in family of his or her birth.
Therefore when adoption of `A' is not valid in the eye of law, it does not confer any right to A to succeed the property of K. Therefore only `S' being legitimate natural born son of K will succeed to property of K (Father).
Ans. Under the old Hindu Law, for a valid adoption of child, it was not only necessary that child to be adopted, must be Hindu. It was also necessary under the old Hindu law that adopted son must be of the same caste as of his adoptive father. A member of one religious sect could also not adopt son from another sect. But all these prohibitions are no longer valid now. After the enactment of Hindu Adoption and Maintenance Act 1956, Law on this point has completely changed. Though under Section 10(i) of the above said Act it is provided that no person shall be capable of being taken in adoption unless (i) He or she is a Hindu. But Section 10(i) has its application in the case when it is known or when parties are aware of religion of child to be given in adoption, in that case it is mandatory that child must be Hindu.
Old Hindu Law in case orphan or foundling or abandoned child was that such child could not be adopted, but in Modern Context, this state of law is inapplicable.
Section 9(4) of the Hindu Adoptions and Maintenance Act, 1956 provides: "Where both the father and mother are dead or have completely and finally renounced the world or have abandoned the child or have been declared by a court of competent Jurisdiction to be of unsound mind or where the parentage of the child is not known, the guardian of the child may give the child in adoption with the previous permission of the court to any person including the guardian himself."
The term `guardian' means a person having the care of the person of a child or of both his person and property and includes a guardian appointed by the will of the father or mother of the child, and a guardian appointed or declared by a court. Thus, a de jure or de facto guardian can give an orphan in adoption with the previous permission of the court to any person including the guardian himself.
Requirement under Section 10(1) of the Act that child to be adopted must be `Hindu' can be fulfilled by necessary implication. As Sub- Section (3) to Section 2 of Hindu Adoption and Maintenance Act says. "The expression `Hindu' in any portion of this Act shall be construed as if it included a person who though not a Hindu by religion is nevertheless, a person to whom this Act applies by virtue of provision contained in this Section ."
Section 2(1) (c) enacts that this Act applies to any other person who is not a Muslim, Christian, Parsi, or Jew by religion, unless it is proved that any such person would not have been governed by the Hindu Law or by any custom or usage as part of the law in respect of any of the matters dealt with herein if this Act had not been passed. Thus, a person who is not a Muslim, Christian, Parsi or Jew is a Hindu for the purposes of this Act, Shastri Yognapurshodosji v. Muldas, AIR 1966 SC 1119. Sometimes it may be difficult to prove whether a person is a Hindu, though negatively it may be easier to prove that a person is not Muslim, Christian, Parsi or Jew. If the negative is proved such a person shall be presumed to be Hindu, unless the presumption is rebutted by proving that Hindu Law is not applicable to such a person. Therefore, in the case in hand, the boy is orphan and can be given in adoption by the de facto or de jure guardian with the permission of the court.
(ii) Section 9 of Hindu Adoption and Maintenance Act 1956 deals with question as to who can legally give a child in Adoption. General rule is that `Father' if alive shall alone has power to give his child in adoption, with the consent of mother of child. Consent of mother is necessary. However it can be dispensed to with when mother (i) has ceased to be Hindu or (ii) has completely and finally renounced the world or (iii) has been judicially declared to be of unsound mind.
Section 9(3) of said Act says mother can give child in adoption if the father is dead or has ceased to be Hindu or has completely and finally renounced the world or has been judicially declared to be of unsound mind.
So a mother of a child can give her child in adoption in any eventuality as is mentioned in Section 9(3) only. But it is important to point out that expression `Mother' as used in this Section does not include `Step Mother.' So a step mother of child has no right under the law to give child in adoption. In Dhan Rai v. Suraj, AIR 1973 Raj. 7 it was held that the expression `Mother' as used in Section 9 does not include adoptive mother or step mother, therefore step mother or adoptive mother has no capacity to give the child in adoption.
Therefore, adoption of a child of 3 years of age by step mother in this case, is not valid.
(iii) Under Old Hindu Law, A married Male Hindu could take a child in adoption without consent of his wife. But now Section 7 of Hindu Adoption and Maintenance Act provides :
"Any male Hindu; who is of sound mind and is not a minor has the capacity to take son or daughter in adoption :
Provided that if he has a wife living, he shall not adopt except with the consent of his wife unless the wife has completely and finally renounced the world or has ceased to be Hindu or has been declared by Court of competent jurisdiction to be of unsound mind.
Explanation: If a person has more than one wife living at the time of adoption, the consent of all the wives is necessary, unless the consent of any one of them is unnecessary for any of the reasons specified in the proceeding proviso." So under the Act a married male Hindu cannot make adoption without the consent of his wife. If he has more than one wife, consent of all the wives is necessary. Consent of wife may be expressed or implied. Section 14(2) of the said Act says where an adoption has been made with consent of more than one wife, then, senior-most in marriage among them shall be deemed to be adoptive mother and other to be step mother. So it is clear that when a Hindu male has more than wife, and takes a child in adoption then senior-most wife in marriage shall be adoptive mother of such child and other will be step mother. Section 11(i) of the Act says, if the adoption is of son Adoptive father or mother must not have son or son's son or son's sons son either by legitimate blood relationship or by adoption. Section 11(ii) says if adoption is of daughter, adoptive father and mother must not have Hindu daughter or son's daughter (whether by blood relationship or by adoption) living at the time of adoption. So reading together all the above said provisions it is clear in the case in hand that A having two wives (B & C) adopts son and a daughter with the consent of B and C (Both Wives) therefore adoption is valid under Section 7 of the Act. A is adoptive father and B (Being senior- most wife of A in marriage shall be adoptive mother in view of Section 14) and C will be step mother. Before adoption of a son and daughter both the wives of A were issueless therefore adoption of son and daughter was lawful also in view of Section 11 of the Act. After the death of A, C being issueless widow and nor she is adoptive mother of son and daughter, can lawfully adopt a son.
Ans. Every adoption to or by a Hindu is regulated by the Hindu Adoptions and Maintenance Act, 1956. After stating the Rules relating to capacity of the parties and the requirements of valid adoption, the Act proceeds to lay down the effects and consequence of adoption.
Section 12 of the Act enacts that an adopted child shall be deemed to be the child of his 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 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.
So Section 12 lays down a very important provision. It says that from date of adoption of child an adopted child ceases to be child of natural family and adopted child is deemed to be child of the adopter. From the date of adoption, there shall be complete transplantation of child in adoptive family. Only tie which remains of an adopted child with his or her family of birth that he or she can not marry any person in his or her natural family whom he or she could not have married before adoption. If any property is vested in adopted child, before adoption it shall continue to be so even after the adoption subject to any obligation attached with such ownership including obligation to maintain relatives of family of birth.
Ans. Section 13 of the Hindu Adoptions and Maintenance Act, 1956 provides, "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."
Under the law as previously applied a Hindu adopting a son did not thereby deprive himself of the power he had to dispose of his separate property by gift or will. There was no implied contract on the part of the adoptive father, in consideration of the gift of his son by the natural father or mother, that he would not dispose of his property by gift or will.
The present Section is in accordance with the law as it previously stood and lays down that an adoption of a son or a daughter does not deprive the adoptive father or mother of the power to dispose of his or her (disposable) property by transfer inter vivos or by will. It only lays that the adoption of a son of daughter is not per se to have the effect of depriving the adoptive father or adoptive mother of the right to dispose of his or her property.
The main provision of the Section has no operation where there is an agreement to the effect that the adopter should not alienate the property to the prejudice of the adoptee. Such an agreement cannot be postulated merely from the factum of adoption but has got to be specifically entered into. If the adoptee is a minor, the agreement will be entered into with the guardian of the minor, but if the adoptee is a major as in some of the adoptions permitted by custom, the agreement may be with the adoptee himself. Very often takes the form of adoption deed containing the stipulation that the adopter will not alienate the existing properties and making the adoptee the joint owner thereof with the adopter.
In Chiranji Lal Sri Lal Goenka v. Jasjit Singh and others, AIR 2001 SC 266 Supreme Court has observed that legislature has codified and crystalised the situation prevailing prior to enactment of Hindu Adoption and Maintenance Act 1956 that there was no implied contract on the part of adoptive father and mother in consideration of the gift of his by natural father or mother that he or she would not dispose of property by transfer or by will. However in case of specific agreement to the contrary between the parties, the power to dispose of the property would be that subject to said agreement.
Therefore where in the adoption deed itself, the adoptive parents conferred rights of ownership in respect of the properties upon the adopted child and also agreed that they will not make any alienation of any such property such an agreement is valid and binding upon the adopting parents. In view of the above discussion, suit filed by P must fail.
Ans. Determination of adoptive mother. - Section 14 of the Hindu Adoptions and Maintenance Act of 1956 deals with the determination of adoptive mother in certain cases. The general rules is that :
(1) where a Hindu who has a wife living adopts a child she shall be the adoptive mother.
(2) If the adoption is 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 others to be step-mothers.
(3) If a widower of a bachelor adopts a child, any wife whom he subsequently marries after the adoption shall be deemed to be the step-mother of the adopted child.
(4) If a widow or unmarried woman adopts a child, any husband whom she marries subsequently shall be deemed to be the step-father of the adopted child.
Ans. The rule has clearly been laid down in section 15 of the Hindu Adoptions and Maintenance Act in clear and specific terms as follows :
"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 by the return to the family of his or her birth". The adoption has the permanent effect of severance from the natural family of the boy or girl and permanent relation to the adopted family. It cannot subsequently be cancelled. It is, however, open to the adopted child to give up or modify his or her rights to properties and inheritance in the adoptive family either before or after adoption.
Ans. There is a presumption that the adoption has been made in accordance with the provisions of this Act, 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 persons giving, and taking the child in adoption. But this presumption is rebuttable and remains unless and until it is disproved (Section 16). However, under the old law it was settled rule that even a registered deed of adoption was of no avail unless the religious ceremonies and formalities required to prove adoption had been established. In order that the presumption provided under Section 16 of the Act may be raised, the following conditions are to be complied with -
(1) there must be a document;
(2) it must be registered under the law in force;
(3) it must support to record an adoption which has taken place;
(4) the document must be signed by both the giver and taker of the child in adoption and not by only one of them; and
(5) it must be produced before the court.
In Jai Singh v. Shakuntala, AIR 2002 SC 1428, it was observed that presumption as contemplated u/s 16 of Hindu Adoption and Maintenance Act, regarding registered Adoption Deed is rebuttable, use of words "unless and until it is "disproved" make the definite mandate indicated by use of word "shall", flexible
Ans. The obligation of the husband to maintain his wife does not arise out of any contract but out of the status of marriage, out of jural relationship of husband and wife created by performance of marriage. Under Ancient Hindu Law, Husband was duty bound to maintain his wife, however a wife who did not live with her husband, for any cause, was not entitled to maintenance. But under Modern Hindu Law, wife is entitled to maintenance, even after the dissolution of marriage.
Section 18(1) of Hindu Adoption and Maintenance Act provide "Subject to provisions of this Section a Hindu wife whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her life time." So obligation of husband to maintain his wife is personal. A wife who resides with her husband must be maintained by him. Husband's obligation to maintain her comes to an end only when she leaves him without any good cause or without his consent.
Section 18(2) of Act provides `A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance
(i) If he is guilty of desertion
(ii) If he has treated her with cruelty
(iii) If he is suffering from virulent form of leprosy
(iv) If he has any other wife living.
(v) If he keeps a concubine in the same house in which his wife is living or habitually resides with concubine elsewhere.
(vi) If he ceases to be Hindu by conversion to other religion.
(vii) If there is any other cause justifying her living separately.
In V. Tulasamma v. Sesha Reddy, AIR 1977 SC 1944, Hon'ble Supreme Court held "Right of maintenance of the wife is pre-existing right. When his husband is alive, he is personally liable for wife's maintenance. This is also a legal charge upon his property. This charge being legal incident of her marital co-ownership in all her husband's property. But after his death, his window's right to maintenance becomes limited to his estate, which when it passes to any other heir, is charged with the same." In Panditrao C. Kalure v. Gayabai, AIR 2001 Bom. 445, it was observed that once a wife is divorced, she can not claim maintenance under Hindu Adoption and Maintenance Act, 1956 inasmuch as pre-condition for application under said Act is that marriage must be subsisting and she can claim any remedy under Hindu Marriage Act, 1955.
Ans. Before the enactment of Hindu Adoption and Maintenance Act 1956 the well settled position of law was that An unchaste wife who continues to live with her husband, then husband will give starving maintenance (Bare necessary) to her. A wife living in adultery or leading a unchaste life and living separately was not entitled to maintenance but an unchaste wife who left her husband but subsequently repented and performed expiatory rites and returned to live with her husband, she will be entitled to maintenance.
Sub-Section (3) of Section 18 of the Act of 1956 provides that "A Hindu wife shall not be entitled to separate residence and maintenance from her husband if she is unchaste or ceased to be Hindu by conversion to another religion. However it is important to point here that Sub-Section (3) of Section 18 has to be read with Sub-Section (2) of Section 18 only. Reading Sub- Sections (2) and (3) together makes it clear that when a wife is living separately and also leading an unchaste life then she is not entitled to maintenance. But an unchaste wife who lives with her husband can claim maintenance u/s 18(1) against her husband.
Ans. Pre-Act Law. - If the father-in-law had received some property by survivorship in which his son (husband of the widow) had a vested interest he was under a legal obligation to maintain her son's widow. But where he had no any such property the obligation is only a moral one.
Law under the Present Act - Maintenance of widow daughter-in-law. - According to Section 19 of the Act, 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. But this right is subject to the following rules that she shall get maintenance if she is unable to maintain herself out of her own earning and if her own earnings are to be supplemented for maintenance, she shall get maintenance to the extent of supplementing her own earnings.
A widowed daughter-in-law can claim maintenance under Section 19 from her father-in-law after the death of her husband in the following cases :
(i) if she is unable to maintain herself out of her own earnings or other property;
(ii) if she has no property of her own, she is unable to obtain maintenance from the estate of (i) her husband, or (ii) her father or (iii) her mother; or
(iii) if she is not able to obtain maintenance from her son or daughter, if any, or their estate.
Under Section 19 the father-in-law's obligation to maintain the daughter- in- law is not a primary obligation, it is not even a secondary obligation. It is a remote obligation. The father-in-law's obligation will cease, if :-(i) 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; or
(ii) the widowed daughter-in-law remarries.
Then, even if the obligation of the father-in-law arises it is very limited obligation; he is obliged to maintain the daughter-in-law only from any coparcenary property in his possession out of which daughter-in-law has not obtained any share. After the death of the father-in-law his moral obligation to maintain his daughter-in-law passes as legal obligation to those who inherit the property of such father-in-law.
Ans. According to Section 20 of Hindu Adoption and Maintenance Act 1956, a Hindu is bound during his or her life to maintain his or her legitimate or illegitimate children and his or her aged or infirm parents. But a legitimate or illegitimate child can claim maintenance from his or her father or mother, so long as the child is a minor. This obligation of a person to maintain his or her aged or infirm parents or daughter who is unmarried extends in so far as the parents or unmarried daughter, as the case may be, is unable to maintain himself or herself out of his or her own earnings or other property.
Ans. Section 21 of Hindu Adoption and Maintenance Act enumerates the list of "Dependents". The "Dependents" means the following relatives of deceased :-
(i) his or her father,
(ii) his or her mother,
(iii) his widow, so long as she does not remarry,
(iv) (a) his or her son, or (b) the son of his pre-deceased son, or (c) the son of a pre-deceased son of his pre-deceased son, so long as he is a minor, provided and to the extent that he is unable to obtain maintenance, in the case of a grandson from his father's or mother's estate in the case of a great-grand-son, from the estate of his father or mother or father's father or father's mother,
(v) (a) his or her unmarried daughter, (b) the unmarried daughter of his pre-deceased son, or (c) the unmarried daughter of a pre- deceased son of his pre-deceased son, so long as she remains unmarried, provided and to the extent that she is unable to obtain maintenance, in the case of a grand- daughter from her father's or mother's estate and in the case of a great grand-daughter from the estate of her father or mother or father's or father's mother.
(vi) his widowed daughter, provided and to the extent that she is unable to obtain maintenance :-
(a) from the estate of her husband, or
(b) from her son or daughter, if any, or his estate, or
(c) from her father-in-law or his father or the estate of either of them.
(vii) any widow of his son or of a son of his pre-deceased son so long as she does not remarry; provided and to the extent that she is unable to obtain maintenance from her husband's estate or from her son or daughter, if any, or his or her estate or in the case of a grandson's widow also from her father-in-law's estate,
(viii) his or her minor illegitimate son, so long as he remains a minor,
(ix) his or her illegitimate daughter, so long as she remains unmarried.
Section 22 of the Act provides for the quantum of Maintenance. According to Section 22, three parties are involved regarding maintenance under the Act which are :-(i) the deceased whose estate it is,
(ii) the dependant of the deceased who is claiming maintenance from it, and
(iii) the person who has taken the estate of the deceased and has to maintain the dependent.
Persons entitled to get maintenance from the estate of the deceased Hindu are his or her dependents and must be Hindu. No dependant has such an entitlement if he or she has received any share in the estate of the deceased whose dependant he or she is. This general condition contained in Section 22(2) is applicable to all dependants. Any share referred to above may have been received -(a) as an heir under the law of inheritance, or
(b) as a legatee under a will lawfully made by the deceased.
In either case this share in the estate of the deceased will disentitle the dependent who got it from claiming the benefit of Section 22, but sub-section (2) clarifies it. The liability imposed by sub-sections (1) and (2) of Section 22 on the heirs and legatees of the deceased is not absolute. Each heir is liable under Section 22 in proportion to the share he or she has taken in the estate of the deceased. Each legatees is liable under this section in proportion to the part of the estate he or she has taken under the will of the deceased. Section 22(3) speaks of not the exact share or part of the estate but of the value of such share or part. So where the shares of two heirs and the parts taken by two legatees are mathematically equal but differ in value the latter will be taken into consideration to determine the extent of various heirs' liability under Section 22. Sub-section (4) of Section 22 curtains the liability of certain heirs and legatees under Section 22. According to the provisions only that heir or legatee would be liable who has got more as a share in or part of the estate than what he or she would have got as dependant of the deceased. Where he or she has got in value just as much as he would have been entitled to, by way of maintenance, the liability under Section 22 will not arise. Section 23 of Hindu Adoption and Maintenance Act deals with principles to be taken into consideration by court in determining the amount of maintenance. According to Section 23(1) in determining the amount of maintenance if any to be awarded to(a) wife
(b) children
(c) aged or infirm parents, regard shall be had to -
(i) the position and status of the parties
(ii) reasonable requirements of claimants
(iii) in case of claimant living separately, whether reasons of claimant living separately are justified
(iv) value of claimant's property (if any) and income derived therefrom
(v) claimant's own self earning or earning from other sources.
In Kulbhusan v. Raj Kumari [AIR 1971 SC 234], their Lordships of the Supreme Court were of the opinion that the quantum of maintenance depends upon a gathering together of all the facts of the situation, the amount of free estate, the past life of the married parties and the families, a survey of the conditions and necessities and rights of the members on a reasonable view of change of circumstances possibly required in the future, regard being, of course, had to scale and mode of living and to the age, habits, wants, and class of life of the parties. Section 23(2) of Act deals with determination of amount of maintenance to be awarded to "dependants" as defined under section 21. According to Section 23(2) - In determining the amount of maintenance, if any to be awarded to a dependant under this Act, regard shall be had to :-1. the net value of the estate of the deceased after providing for the payment of debts.
2. the provision, if any, made under a will of the deceased in respect of the dependant,
3. the degree of relationship between the two,
4. the reasonable wants of the dependants,
5. the past relations between the dependants and the deceased,
6. the value of the property of the dependant and any income derived from such property or from his or her earnings or from any other source,
7. the number of dependants entitled to maintenance under this Act.
Ans. The Hindu Minority and Guardianship Act 1956, is the third part of Hindu Bill passed in 1956. Provisions of this Act are in addition to or supplement to provisions of Guardian and Wards Act 1890. After the commencement of Hindu Minority and Guardianship Act 1956 old Hindu law or Customs and usages with respect to any matter for which provision is made in this Act, if are inconsistent shall cease to have any legal effect as Section 5 of the Act gives overriding effect to the present Act.
Hindu Minority and Guardianship Act 1956, has improved the status of the Mother as Natural Guardian under the old Hindu Law, the mother could not act as natural guardian of child if father has appointed any "testamentary guardian" to take care of child after father's death. Now after the commencement of this Act, even if father may have appointed any `testamentary guardian' of child, then upon death of father, if mother is alive, such testamentary guardian shall not act and mother will be the natural guardian of her minor children. Moreover, if she want, she can abrogate the appointment of `testamentory guardian' by father by appointing any other person as guardian of her minor children. Section 6 of Act says "in the case of a boy or unmarried girl the father and after him the mother shall be the natural guardian."
As Section 9 of the Act says :-
(1) A Hindu father entitled to act as the natural guardian of his minor legitimate children, may, by will, appoint a guardian for any of them, in respect of the minor's person or in respect of the minor's property (other than undivided interests as referred to in Section 12) or in respect of both.
(2) An appointment under sub-section (1) shall have no effect if the father predeceases the mother, but shall revive if the mother dies without appointing, by will any person as guardian.
(3) A Hindu widow entitled to act as the natural guardian of her minor legitimate children, and a Hindu mother entitled to act as the natural guardian of her minor legitimate children by reason of the fact that the father has become disentitled to act, as such may, by will, appoint a guardian for any of them in respect of the minor's person or in respect of the minor's property (other than the undivided interest referred to in section 12) or in respect of both.
(4) A Hindu mother entitled to act as the natural guardian of her minor illegitimate children may, by will, appoint a guardian for any of them in respect of the minor's person or in respect of the minor's property or in respect of both.
(5) The guardian so appointed by will has the right to act as the minor's guardian after the death of the minor's father or mother, as the case may be, and to exercise all the rights of the natural guardian under this Act to such an extent and subject to such restrictions, if any, as are specified in the Act and in the will.
(6) The right of the guardian so appointed by will shall, where the minor is a girl, cease on her marriage.
Section 6(a) of the Act further provides that the custody of a child below five years will be with the mother although the father may be the natural guardian.
The old law recognised the powers of a de facto guardian of a minor to intermeddle with his estate which was held to be excessive with that of the natural guardian [Hanuman Prasad v. Smt. Babooyee, 8 M.I.A. 393]. But section 11 of the present Act forbids a de facto guardian from dealing with or disposing of the properties of a Hindu minor. Further, under the old law the father did not lose custody of his child merely because of his change of the religion but under Section 6 of the present Act no person shall be entitled to act as guardian if he or she has ceased to be a Hindu or has reconunced the world by becoming a sanyasi.
Further, power of the natural guardian regarding alienation of the immovable property of the minor cannot be exercised without the prior permission of court [Section 8(b)].
Ans. In Hindu Law only three persons are recognized as natural guardian i.e., father, mother and husband. Section 6 of Hindu Minority and Guardianship Act 1956 says that Natural Guardian of a Hindu Minor in respect of Minor's person as well as in respect of minor's property (excluding his or her undivided interest in joint family) are :
a) In case of boy and unmarried girl: The father and after him the mother however custody of minor less than 5 years of age shall ordinarily be with the mother.
b) In case of illegitimate Boy and illegitimate Unmarried Girl : The mother and after her the father.
c) In case of Married Girl : The husband.
Provided that no person shall be entitled to act as `Natural Guardian' of minora) If he has ceased to be Hindu
b) If he has completely and finally renounced the world.
Section 13 of Hindu Minority and Guardianship Act lays down that welfare of the minor is of paramount consideration and father's right of guardianship is subordinate to the welfare of the child. In Ms. Githa Hariharan v. R.B.I., AIR 1999 (SC) 1149, it was observed by Hon'ble Dr. A.S. Anand, C.J.I. (As he then was), in all situations where the father is not in actual charge of the affairs of the minor either because of his indifference or because of an agreement between him and the mother of the minor (oral or written) and the minor is in the exclusive care and custody of the mother or the father for any other reason is unable to take care of the mental incapacity, the mother can act as natural guardian of the minor and all her actions would be valid even during the life-time of the father, who would be deemed to be absent for the purpose of Section 6(a) of Hindu Minority and Guardianship Act and Section 19(b) of Guardians and Wards Act has to be similarly construed. POWERS OF NATURAL GUARDIAN : Section 8(1) of Hindu Minority and Guardianship Act lays down the general powers of natural guardian. A guardian may do all acts which are necessary or reasonable and proper for the benefit of the Minor and for realization, protection or benefit of Minor's estate. There are fairly wide powers and constitute and charter of guardian's power, whereby the guardian is empowered to act safely in the welfare of the minor and the third parties can also deal safely with the guardian within the ambit of their powers. Under the old Hindu law the natural guardian's power of alienation and of dealing with Minor's property were fairly wide and were considered practically co-extensive with the "Karta's" power. The law has now been modified by Section 8 of Hindu Minority and Guardianship Act. Sub-section (2) to Section 8 provides that Natural guardian cannot without the previous permission of the court, mortgage, or charge or transfer by sale, gift or exchange or otherwise any part of immoveable property or lease out 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 minor would attain majority. Sub- section (4) lays down that the court shall not grant permission to do any act as mentioned in sub-section (2) except in case of necessity for evident advantage of the minor. The procedure for obtaining the permission of court is regulated by "the Guardians and Wards Act, 1890." In Manik Chand v. Ram Chander, AIR 1981 SC 519, it was observed that in respect of alienation of Minor's property the touch stone of guardian's power continues to be necessity or benefit. Though expressions `Necessity' and `Evident advantage' used in Section 8(4) of the Act are wider than expression `legal necessity' and benefit of estate as used before commencement of Act of 1956. In Vishwambhar and others v. Laxami Narayan by L.Rs., AIR 2001 SC 2607, it was observed that in Section 8(2) of Hindu Minority & Guardianship Act, 1956 it is laid down inter-alia that natural guardian shall not without permission of court, transfer by sale any part of immovebale property of Minor. Section 8(3) specifically provides that disposal of immoveable property by natural guardian in contravention of sub-section (2) is voidable at the instance of Minor or any person for him.
Ans. Section 9 of Hindu Minority and Guardianship Act 1956 says:
(1) A Hindu father entitled to Act as natural guardian of his minor legitimate children may by will appoint a guardian for any of them in respect of the minor's person or in respect of minor's property (other than the undivided interest in Joint Family property) or in respect of both.
(2) An appointment made under Sub-Section (1) shall have no effect if the father predeceases the mother, but shall revive if the mother dies without appointing by will any person as guardian.
(3) A Hindu widow who is entitled to act as the natural guardian of her legitimate children and a Hindu mother entitled to act as natural guardian of her minor legitimate children by reason of the fact that the father has become disentitled to act as such may by will appoint a guardian for any of them in respect of the minor's person or in respect of minor's property (other than the undivided interest in joint family property) or in respect of both.
(4) A Hindu mother entitled to act as the natural guardian of her minor illegitimate children may by will appoint a guardian for any of them in respect of minor's person or in respect of minor's property or in respect of both.
(5) The Guardian so appointed by will has the right to act as minor's guardian after the death of the minor's father or mother as the case may be and to exercise all the rights of a natural guardian under this Act to such extent and subject to such restrictions if any as are specified in this Act and in the Will.
(6) The right of the guardian so appointed by will shall where the minor is a girl, cease on her marriage.
Before enactment of Hindu Minority and Guardianship Act 1956, Testamentary power to appoint guardian was confined with father only who by appointing Testamentary guardian could even excuse the mother from her natural guardianship of children after the death of father. But the Act of 1956 has given to both the parents power to appoint testamentary guardian. However, a father cannot appoint a testamentary guardian for his illegitimate minor child even when he is entitled to act as natural guardian. In respect of illegitimate minor child only mother has power to appoint guardian by will under Section 9(4) of above said Act.
Ans. In Hanooman Prasad Pandey's Case 6 MIA 393 the Privy Council ruled that a defacto guardian has the same power of alienating the property of his ward as a natural guardian.
"Defacto" Guardian means a self appointed guardian. A defacto guardian is a person who takes continuous interest in the welfare of minor's person or in the management of his property without any authority of law. Term `Defacto guardian', though is no where mentioned in any text but his existence has never been denied in Hindu Law. Mulla in his `Principles of Hindu Law' at page 694 (12th Edition) said "A person who is not an adhoc guardian and does not pose as a guardian for particular purpose but manages the affairs of an infant in the same way as a de jure guardian, thus could be described as de facto guardian although he is not a natural guardian or a guardian appointed by the Court."
Privy Council in Hanooman Parsad Pandey's case had ruled that `Defacto' guardian has same power as that of de jure guardian to alienate minor's property for (a) Legal necessity and (b) benefit of estate.
The Hindu Minority and Guardianship Act, 1956 has brought radical change on the above subject. Section 11 of the Act provides:
"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".
Thus, any alienation of the property of a Hindu minor by a de facto guardian would be void ab initio, if made after the commencement of the said Act, nor can the minor validate any such sale by ratification.
However, in Jijabai v. Pathankan, AIR 1971 SC 315, the Supreme Court said that if the father refuses to act as a guardian and the mother has been in the management of the minor's property for several years she has powers to bind the minor by granting lease of minor's land in the course of management of the property. It was observed that in such circumstances mother could be considered as the natural guardian. (A natural guardian can grant lease of minor's property for a period not exceeding five years, or for not more than one year beyond the date on which the minor will attain majority, without the permission of the Court).
In Madhegowda by L.Rs. v. Ankegowda by L.Rs., AIR 2002 SC 215, it was observed that as per section 4(b) of Hindu Minority and Guardianship Act 1956 "Guardian" means person having the care of person of a minor or of his property or both and includes - (A) natural guardian (B) guardian appointed by will of Minor's father or mother (C) guardian appointed or declared by Court (D) a person empowered to act as such by or under any enactment relating to any Court of wards. After going through provisions of Act it is clear that the statute recognize Natural or Testamentary guardian or guardian appointed by Court. In law a person who is not guardian as aforementioned and who takes interest upon himself, the general management of estate of Hindu Minor can be more appropriately described as "defacto manager" and before the Act of 1956 and ruling of Hanooman Prasad Pandey and case was applicable but after commencement of Act Section 11 will be applicable and consequently disposal of property of minor by defacto manager is void.
Ans. Section 12 of Hindu Minority and Guardian ship Act 1956 provides:-
"Where a minor has an undivided interest in joint family property and the property is under the management of an adult member of the family, no guardian shall be appointed for the minor in respect of such undivided interest :
Provided that nothing in this Section shall be deemed to affect the jurisdiction of a High Court to appoint a guardian in respect of such interest."
In Sri Narayan Bal v. Sridhar Sutar, AIR 1996 SC 2371 it was observed that - Under Section 8 a natural guardian of the property of the Hindu minor, before he disposes of any immovable property of the minor, must seek permission of the Court. But since there need to be natural guardian for the minor's undivided interest in the joint family property, as provided under Sections 6 and 12 of the Act, the previous permission of the Court under Section 8 for disposing of the undivided interest of the minor in the joint family property is not required. The joint Hindu family by itself is a legal entity capable of acting through its Karta and other adult members of the family in management of the joint Hindu family property. Thus Section 8 in view of the express terms of Sections 6 and 12, would not be applicable where a joint Hindu family property is sold/disposed of by the Karta involving an undivided interest of the minor in the said joint Hindu family property.
Ans. Where the court is satisfied that it is for the welfare of a minor that an order should be made appointing a guardian of his person or property or both, the court may make an order under the Guardians and Wards Act, 1890, appointing a guardian. In appointing or declaring a person as the guardian of a minor the welfare of the minor shall be the paramount consideration. Section 13 of the Hindu Minority and Guardianship Act, 1956 says:
(1) 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.
(2) No person shall be entitled to the guardianship by virtue of the provisions of this Act or of any law, relating to guardianship in marriage among Hindus, if the court is of the opinion that his or her guardianship will not be for the welfare of the minor.
In considering as to what will be for the welfare of the minor, the court shall have regard to the age and sex of the minor; the character and capacity of the proposed guardian and his nearness of kins to the minor ; the wishes, if any, of a deceased parent; and any existing or previous relations of the proposed guardian with the minor or his property. If the minor be old enough to form an intelligent preference, the court may consider that preference. In case of S.L. Mohini v. Virendra Kumar (AIR 1977 S.C. 1389), the Supreme Court held that the welfare of the minor is the supreme consideration for the court. Where the decree of divorce has been passed between husband and wife the interest and welfare of the child is of utmost importance of the court. The question of appointment by the court, of a guardian can be considered on the application of :-(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; or
(b) the minor holds property; or
(4) if the minor belongs to a class, the Collector who has authority with respect to that class.